Implications of the Newhall Ranch Decision for Climate Change Analyses

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Presentation transcript:

Implications of the Newhall Ranch Decision for Climate Change Analyses An aerial view of the Santa Clara River, which is the last major free-flowing river in Southern California. A six-mile stretch of the river is included in plans for the Newhall Ranch development. (KPCC, http://www.scpr.org/news/2015/11/30/55957/ca-high-court-deals-blow-to-newhall-ranch-developm/) Implications of the Newhall Ranch Decision for Climate Change Analyses

Newhall Ranch 12,000 acres 20,885 dwelling units 7 schools 5 million sq. ft. of Industrial Business Park 3 Fire Stations Regional Park Golf Course Water Reclamation Plant 6,000 Acres of permanent open space ~58,000 residents

Entitlement and EIR History March 1999 – Newhall Ranch Specific Plan Program EIR certified by L.A. County The County's approvals were subsequently challenged and the Court set aside a portion of the approvals and required additional analyses May 2003 – Revised Additional Analyses (and previous EIR) were certified October 2003 – Trial Court discharged the writ of mandate December 2003 – Appeal, settlement reached in 2004, appeal dismissed June 2010 - Newhall Ranch Resource Management and Development Plan (RMDP) and the Spineflower Conservation Plan (SCP) Final EIS/EIR certified by CDFW (https://nrm.dfg.ca.gov/documents/ContextDocs.aspx?cat=NewhallRanchFinal) October 2012 – EIS/EIR certification overturned by L.A. County Superior Court March 2014 – Reinstated by 2nd District Court of Appeal November 2015 – Supreme Court Rejected EIS/EIR (http://www.courts.ca.gov/opinions/documents/S217763.PDF) The EIR reviewed by the Supreme Court followed earlier EIRs certified by Los Angeles County in 1999 and 2003 in connection with the County’s primary project approvals.  The new EIR was a joint EIR/EIS prepared by the California Department of Fish and Wildlife and the U.S. Army Corps of Engineers to evaluate the impacts of several additional project approvals, including a resource management plan, a conservation plan for the endangered spineflower plant, a streambed alteration agreement, and two permits for the incidental take of protected species. Link to Newhall Ranch Specific Plan Program EIS/EIR: https://nrm.dfg.ca.gov/documents/ContextDocs.aspx?cat=NewhallRanchFinal Link to GHG section: http://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=21423 Supreme Court Decision: http://www.courts.ca.gov/opinions/documents/S217763.PDF

Main Issues of the Case Whether the EIR appropriately determined that the project would not significantly impact the environment through greenhouse gas (GHG) emissions; Whether a mitigation measure that authorized the take of a protected species was appropriate under the Endangered Species Act and California Environmental Quality Act (CEQA); and Whether comments made during the National Environmental Policy Act (NEPA) comment period were sufficient to exhaust administrative remedies under CEQA.

GHGs trap heat in the atmosphere Common GHGs for land use projects are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O) Other GHGs associated with refrigerants and industrial processes Primary GHG Sources: Vehicles Energy and Water consumption Solid waste decomposition CO2 Equivalents (Co2eq): used to compare emissions from various GHGs based upon global warming potential

GHG Legislation Executive Order S-3-05 (2005) By 2010, reduce GHG emissions to 2000 levels By 2020, reduce GHG emissions to 1990 levels By 2050, reduce GHG emissions to 80% below 1990 levels Assembly Bill 32 (AB 32) (2006) By 2020, California is required to reduce GHG emissions to 1990 levels Executive Order B-30-15 (2015) Added intermediate goal: By 2030, reduce GHG emissions to 40% below 1990 levels

CARB Scoping Plan Plan to achieve “maximum technologically feasible and cost-effective reductions in GHG emissions by 2020” Reducing greenhouse gas emissions to 1990 levels means cutting approximately 30% from business-as-usual emission levels projected for 2020, or about 15% from today‘s levels Provides approaches and goals to meet reduction goals Energy efficiency, statewide renewable energy, cap-and-trade program, policies for clean transportation programs, etc.

“Business-As-Usual” Represents the emissions that would otherwise be expected to occur in the absence of any GHG actions No conservation or regulatory efforts beyond what was in place at time of forecast No change in vehicle emissions/fleet mix over time No change in energy generation

GHG Thresholds No industry-wide GHG threshold – Thresholds are ultimately determined by the lead agency CEQA allows qualitative or quantitative analysis CEQA Guidelines Section 15064.4 and 15064.4(c) requires analysis and mitigation of significant GHG emissions Section 15183.5 provides criteria for qualified GHG reduction plans (CAPs) Allows tiering and streamlining of future development projects

CEQA Guidelines Section 15183.5 – Criteria for qualified GHG reduction plans Quantify existing and future GHG emissions in a defined area Establish a level where contribution of GHG emissions is not cumulatively considerable Analyze GHG emissions from specific actions within the area Identify measures that could be implemented by projects within the area which could reach the specified emission level Monitor the effectiveness of the plan Be adopted in a public process after environmental review

Air District Thresholds SCAQMD proposed thresholds: 3,000 MTCO2eq, 4.1 MTCO2eq/service population (residents and employees) (note: adopted only for projects where the SCAQMD is lead agency) BAAQMD: 1,100 MTCO2eq, 4.6 MTCO2eq/service population (challenged and reinstated) SJVAPCD: Reduce emissions by 29%, use Best Performance Standards to reduce GHG emissions, or comply with an approved GHG plan (statewide, regional, or local) or mitigation program SLOAPCD: 1,150 MTCO2eq San Diego County: 2,500 MTCO2eq

Newhall Ranch EIR Projected GHG emissions at full build-out: 269,053 MTCO2eq. 31% below business-as-usual estimate (390,046 MTCO2eq) Conservatively, did not include a net reduction from existing oil well emissions GHG Analysis Conclusions: Project emissions (269,053 MTCO2eq) not significant due to the absence of scientific and factual information regarding when particular quantities of GHG emissions become significant GHG emissions likely would not impede AB 32’s goals, less than significant for CEQA purposes No agency adopted applicable threshold

Supreme Court EIR’s use of AB 32 reduction goals as threshold of significance was consistent with the broad guidance provided by section 15064.4 of CEQA Guidelines EIR’s less than significant finding was not supported by substantial evidence "Nothing DFW or Newhall have cited in the administrative record indicates the required percentage reduction from business as usual is the same for an individual project as for the entire state population and economy.“

Supreme Court EIR does not explain how project level reductions correlate with statewide reductions Court: difficult to justify 269,053 MTCO2eq could be less than significant

Dissenting Opinions Not upholding the EIR is contrary to the deferential standard of review (burden is on the plaintiffs) Majority’s conclusion conflicts with approval of using AB 32 reduction as a threshold Approval of the methodology should require the court to defer to the lead agency’s conclusion No assurance it is even possible to calculate how a statewide goal corresponds to specific quantitative efficiency measures for individual projects Agencies could have used an even lower goal: Bay Area Air Quality Management District (BAAQMD) analysis of the Scoping Plan indicates that land use driven sectors only expected to demonstrate 26.2% GHG emission reduction EIR is a disclosure document, identified impacts and mitigation, informed decision makers Project was approved by 8 agencies (DFW, Army Corps of Engineers, USFWS, LARWQCB, LAFCO, LA County Regional Planning Commission, and the LA County Board of Supervisors)

Implications Evidence based compliance – show your work Other Thresholds (bright line, service population) Compliance with performance based standards and BMPs EIRs may need to consider longer term targets (Executive Orders S-3-05, B- 30-15) Projects should incorporate good planning practices – pedestrian linkages, mix of uses, other methods to minimize vehicle trips and trip lengths Geographically Specific GHG Reduction Plans (CAP)

Climate Action Plans Complementary to General Plans GP and CAP horizon years and growth projections should be consistent

Environmental Sciences Manager 949.855.3612 egtorres@mbakerintl.com Thank You Eddie Torres, INCE Environmental Sciences Manager 949.855.3612 egtorres@mbakerintl.com Achilles Malisos Manager of Air and Noise Studies 949.330.4104 amalisos@mbakerintl.com