BILL ANALYSIS
AB 2313
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Date of Hearing: April 19, 2010
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2313 (Buchanan) - As Amended: April 5, 2010
SUBJECT : Greenhouse gas emissions: significant effects
SUMMARY : Provides that a project's greenhouse gas (GHG)
emissions are not subject to review under the California
Environmental Quality Act (CEQA) if the project meets specified
criteria.
EXISTING LAW :
1)Pursuant to the California Global Warming Solutions Act (AB
32), requires ARB to adopt a statewide GHG emissions limit
equivalent to 1990 levels by 2020 and to adopt rules and
regulations to achieve maximum technologically feasible and
cost-effective GHG emission reductions.
2)Pursuant to CEQA, requires a lead agency with the principal
responsibility for carrying out or approving a proposed
discretionary project to evaluate the environmental effects of
its action and prepare a negative declaration, mitigated
negative declaration, or environmental impact report (EIR).
If an initial study shows that the project may have a
significant effect on the environment, the lead agency must
prepare an EIR. A lead agency must base its determination of
significant effects on substantial evidence.
3)Requires the Office of Planning and Research and the Natural
Resources Agency to prepare, adopt and periodically update
guidelines for the mitigation of GHG emissions as required by
CEQA.
4)Requires metropolitan planning organizations (MPOs) to include
sustainable communities strategies (SCS), as defined, in their
regional transportation plans (RTPs) for the purpose of
reducing GHG emissions, aligns planning for transportation and
housing, and creates specified incentives for the
implementation of the strategies (SB 375 (Steinberg), Chapter
728, Statutes of 2008). Specifically, SB 375:
a) Requires ARB to appoint a Regional Targets Advisory
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Committee (RTAC) to recommend factors to be considered and
methodologies to be used for setting GHG emission reduction
targets for the affected regions.
b) Requires the RTP for specified regions to include an
SCS, as specified, designed to achieve certain goals for
the reduction of GHG emissions from automobiles and light
trucks in a region.
c) Requires that, if an SCS is unable to reach the ARB
target, the MPO must prepare an alternative planning
strategy (APS) to the SCS, as a separate document from the
RTP, showing how those GHG emission targets would be
achieved through alternative development patterns,
infrastructure, or additional transportation measures or
policies, as specified.
d) Requires that, after adoption, an MPO submit an SCS or
an APS, if one has been adopted, to ARB to accept or reject
the MPO's determination that the strategy submitted would,
if implemented, achieve the GHG emission reduction targets,
and requires ARB to complete its review within 60 days.
e) Requires certain transportation planning and programming
activities to be consistent with the SCS in order to obtain
funding, but states that transportation projects funded by
specified measures are not required to be consistent with
the SCS.
f) Specifies that, if a residential or mixed-use
residential project is consistent with the use designation,
density, building intensity, and applicable policies
specified for the project area in either an approved SCS or
APS, and if the project incorporates the mitigation
measures required by an applicable prior environmental
document, any findings or other determinations for an
exemption, a negative declaration, a mitigated negative
declaration, an EIR, or addenda prepared or adopted for the
project pursuant to CEQA shall not be required to
reference, describe, or discuss growth inducing impacts or
any project specific or cumulative impacts from cars and
light-duty truck trips generated by the project on global
warming or the regional transportation network.
THIS BILL:
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1)Provides that a project's GHG emissions shall not be subject
to CEQA review, if the project meets one of the following
criteria:
a) The project complies with applicable provisions of a
local, regional, or statewide GHG emissions reduction plan.
b) The project adopts best performance standards for GHG
reductions, if those best performance standards have been
adopted by a public agency. For purposes of this section,
"best performance standards" are feasible means that are
achieved in practice for reducing or limiting GHG
emissions.
c) The project reduces project-specific GHG emissions by 30
percent from business-as-usual.
2)Provides that the bill does not limit the application to
proposed projects of any other applicable laws, rules, or
regulations relating to GHG emissions or emissions reductions
or the authority of a local, state, or federal agency to
directly regulate GHG emissions under other statutory
authority.
FISCAL EFFECT : Unknown
COMMENTS :
CEQA provides a process for evaluating the environmental effects
of applicable projects undertaken or approved by public
agencies. If a project is not exempt from CEQA, an initial
study is prepared to determine whether the project may have a
significant effect on the environment. If the initial study
shows that there would not be a significant effect on the
environment, the lead agency must prepare a negative
declaration. If the initial study shows that the project may
have a significant effect on the environment, the lead agency
must prepare an EIR. A lead agency must base its determination
of significant effects on substantial evidence.
Generally, an EIR must accurately describe the proposed project,
identify and analyze each significant environmental impact
expected to result from the proposed project, identify
mitigation measures to reduce those impacts to the extent
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feasible, and evaluate a range of reasonable alternatives to the
proposed project. Prior to approving any project that has
received environmental review, an agency must make certain
findings. If mitigation measures are required or incorporated
into a project, the agency must adopt a reporting or monitoring
program to ensure compliance with those measures.
As directed by SB 97 (Dutton), Chapter 185, Statutes of 2007,
the Natural Resources Agency adopted amendments to the CEQA
Guidelines for greenhouse gas emissions on December 30, 2009.
The CEQA Guidelines (Section 15064.4) now provide guidance to
lead agencies for determining significant effects of GHG
emissions, but stop short of articulating a clear quantitative
standard. As is common with CEQA, lead agencies have
discretion, bounded by the basic requirement that a lead agency
must base its determination of significant effects on
substantial evidence relevant to the project in question.
While the author's intent to establish certainty and uniformity
for CEQA analysis of GHG emissions is a laudable goal, the three
alternative standards proposed in this bill are not certain, are
unlikely to be uniformly applied and appear to have practical
implementation problems:
1)The project complies with applicable provisions of a local,
regional, or statewide GHG emissions reduction plan - There
are no definitions or prevailing standards for such plans.
While ARB may articulate a statewide plan pursuant to ARB and
some regions may adopt a plan pursuant to SB 375, these may
not be relevant to every project subject to CEQA.
Furthermore, the standards and measures that might be included
in a local climate plan are completely unpredictable and may
not be relevant to the project in question in any event.
2)The project adopts best performance standards for GHG
reductions that have been adopted by a public agency -
Similarly, there are no definitions, prevailing standards, or
requirements for public agencies to adopt "best performance
standards."
3)The project reduces project-specific GHG emissions by 30
percent from business-as-usual - This standard, drawn from the
estimated statewide GHG emissions reduction necessary to meet
AB 32's 2020 limit, is impractical in that, for many typical
land use projects, there is no accepted method to measure GHG
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emissions at the project level with enough specificity to
determine business as usual minus 30 percent. Assuming a
legitimate calculation could be made for a project, this
threshold may be too low for the long term considering the 30
percent reduction is a statewide cap for AB 32 purposes, and
is merely an interim target for 2020, while this bill proposes
to apply the standard to projects which will produce GHG
emissions well beyond 2020.
In addition, there is no clear evidence that any of these
standards, if met by a project, would in fact reduce the effects
of GHG emissions to a level of insignificance. In practice, the
standards are likely to be a new source of litigation and
uncertainty. Thresholds of significance are not usually set in
statute. The issue of GHG thresholds may be better addressed
through the public process of adopting revisions to the CEQA
guidelines, unless a more workable and less controversial
approach can be adopted by the Legislature. If the committee
desires to approve this bill as a vehicle for negotiating such
an approach, it may wish to consider striking the current
provisions of the bill and replacing with the following:
SECTION 1. It is the intent of the Legislature to
enact legislation regarding the determination of
significant effects resulting from greenhouse gas
emissions.
SEC. 2. Section 21083.03 is added to the Public
Resources Code, to read:
21083.03. (a) On or after January 1, 2011, at the time
of the next review of the guidelines prepared and developed
to implement this division pursuant to subdivision (f) of
Section 21083, the Office of Planning and Research shall
prepare, develop, and transmit to the Secretary of the
Natural Resources Agency recommended proposed changes or
amendments to the guidelines implementing this division
regarding standards for determining significant effects
resulting from greenhouse gas emissions.
(b) Upon receipt and review, the Secretary of the
Natural Resources Agency shall certify and adopt the
recommended proposed changes or amendments prepared and
developed by the Office of Planning and Research pursuant
to subdivision (a).
REGISTERED SUPPORT / OPPOSITION :
AB 2313
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Support
American Council of Engineering Companies
Building Owners & Managers Association of California
California Alliance for Jobs
California Building Industry Association
California Business Properties
California Chamber of Commerce
California Farm Bureau
California Forestry Association
California Major Builders Council
California Retailers Association
Commercial Real Estate Development Association
Industrial Environmental Association
Lumber Association of California & Nevada
NAIOP of California
Western States Petroleum Association
Opposition
American Lung Association
Bay Area Air Quality Management District
Breathe California
California League of Conservation Voters
California Native Plant Society
Center for Biological Diversity
Coalition for Clean Air
Communities for a Better Environment
Defenders of Wildlife
Environmental Defense Center
Friends of the Earth
Pacific Forest Trust
Planning and Conservation League
Sacramento Audubon Society
Sierra Club California
Union of Concerned Scientists
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092