WALNUT CREEK, CA-GlobeSt.com chats with Christopher Calfee of counsel in the environmental and natural resources practice group of Best Best & Krieger LLP’s Walnut Creek and Sacramento offices about planning for development certainty in a quickly changing climate and about making the most out of recent changes in the State CEQA Guidelines.
 

Calfee: The Global Warming Solutions Act of 2006, commonly known as AB32, does not directly regulate real estate development. Shortly after its passage, however, the development landscape quickly changed as new projects were challenged in court for not incorporating climate change considerations into the environmental review process. Project proponents soon rushed to highlight the green credentials of their projects, but a lack of statewide standards and inconsistent local responses to climate change policies injected unwelcome uncertainty into the development process. The Sustainable Communities and Climate Protection Act of 2008 (SB375) offers some relief by exempting certain types of mixed use projects that would be consistent with a regional “Sustainable Communities Strategy” from some of the more onerous environmental review requirements. It will still be several years though before such strategies are adopted in some of our most populous regions. Even then, the promised exemptions may apply to only a narrow category of projects.

Beyond the AB32 and SB375 hype, a separate set of climate change regulations were enacted just this year that could provide just the certainty necessary to facilitate future development.  Major amendments to guidelines implementing the California Environmental Quality Act, widely known as CEQA, went into effect in March requiring public agencies to analyze and mitigate the effects of their projects’ greenhouse gas emissions. In a nutshell, before any public agency can adopt almost any type of project, the environmental review for that project must study the magnitude of the project’s direct and indirect greenhouse gas emissions, decide whether and how those emissions may harm the environment, and implement measures to mitigate those emissions. While analyzing a project’s greenhouse gas emissions is a complicated task, those regulations also provide a streamlining tool for communities that have adopted a climate action plan or similar policy for reducing community-wide greenhouse gas emissions.  Under the new CEQA Guidelines, projects that are consistent with a community greenhouse gas reduction plan can skip the complicated analysis.  In other words, the agency will not have to reinvent the wheel for each new project that is proposed.

Calfee: One of the major plan elements is a reduction target. Unlike the SB375 targets, which are mandated by the State Air Resources Board, emissions reduction targets in a local climate plan are set by the local community, based on local conditions. Once potential future emissions are calculated, the next piece of the plan is to identify ways to reach the reduction target. This is the part that will interest developers. A well-designed plan will spell out exactly how emissions reductions will be achieved (i.e., through energy efficiency standards, solar requirements, urban forestry projects, programs for efficiency upgrades, etc.). This benefits potential developers in at least two ways.