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Good News in the Legal Department
by Brian Schmidt
Global warming enforcement settlement
California Attorney General Jerry Brown settled a lawsuit against San Bernardino County, filed for its failure to consider global warming impacts of projects analyzed under the California Environmental Quality Act (CEQA). California law requires governments to consider the impacts of their actions, and the Attorney General argued that San Bernardino ignored the climate change impacts.
And how does this affect us in the San Francisco Bay Area? The City of San Jose used reasoning identical to San Bernardino’s in order to avoid reaching a conclusion about whether developing Coyote Valley contributes in any significant way to global warming. However, the law requires analyzing whether a project is a small part of a cumulatively significant contribution to an environmental effect like climate change.
Here is San Bernardino’s initial position, from the settlement document:
It is the County’s position that the General Plan EIR, after providing substantial disclosure and analysis of greenhouse gas emission and climate change issues, and including a factual and reasoned determination, appropriately concluded that there is no available methodology for determining whether greenhouse gas emissions attributable to the General Plan Update are significant. Accordingly, it is the County’s position that the County correctly determined, based on substantial evidence, that further discussion in the General Plan EIR of greenhouse gas emissions and climate change would be speculative.
San Jose’s position has been the same.
In the settlement San Bernardino shifts significantly from where it was. The heart of the settlement is here:
[The County will determine a] target for the reduction of those sources of emissions reasonably attributable to the County's discretionary land use decisions and the County's internal government operations, and feasible Greenhouse Gas emission reduction measures whose purpose shall be to meet this reduction target by regulating those sources of Greenhouse Gases emissions reasonably attributable to the County's discretionary land use decisions and the County's internal government operations.
Basically, the settlement ducks the issue of whether the emissions are significant (what the county wanted to avoid concluding) in return for promising “feasible” reductions (what the California Attorney General wanted). A lawsuit by environmental groups is still in place, though, so this may not be the final word. And we’ll see what San Jose produces when it revises its EIR.
Clean air decision favors clean air vehicles, opens the door for “buy local food”
A federal appellate court case rules that Air Management Districts can order local governments and their contractors to purchase clean fuel vehicles. Besides helping fight climate change and air pollution, this removes a legal hurdle for a “buy local food” idea we’ve discussed at CGF — that local governments should preferentially buy locally-grown food. The same, rather arcane “preemption” arguments that the oil industry was using against the clean fuel vehicle policy could have been used against a “buy local” policy, but this decision seems to remove that barrier entirely.
(Standard disclosure: Brian worked on an Air District case defending the district in a previous job, over six years ago.)
Published Fall 2007 in Green Footnotes.
Page last updated December 15, 2007.
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