California Reaches Landmark GHG Emissions Settlement
After just four months of litigation, the State of California and the County of San Bernardino settled on August 21, 2007 the state's lawsuit that alleged the county's General Plan failed to adequately take into account greenhouse gas (GHG) emissions, climate change and diesel engine emissions.
The state contended that the county's General Plan Environmental Impact Report (EIR), which was certified on March 13, 2007, failed to adequately analyze the effects of its updated general plan on air quality and climate change. The county asserted that the General Plan EIR appropriately concluded that discussion of climate change would be speculative because of the lack of a methodology for assessing the impact of the general plan on GHG emissions.
As part of the settlement, the county agreed to prepare an amendment to its General Plan, a GHG emissions reduction plan and an environmental review of both under the California Environmental Quality Act. The amendment to its General Plan must describe the county's goal of reducing GHG emissions attributable to its discretionary land use decisions and the county government's own operations. The county's GHG emissions reduction plan must include four inventories:
inventory of all known or reasonably discoverable sources of GHGs in the county
baseline inventory of the GHGs emitted from the source categories in the inventory prepared pursuant to the plan
inventory of the GHGs emitted in the county in 1990 from the same categories of sources
projected inventory of GHG emissions in 2020 due to the county's discretionary land use decisions and internal operations.
The GHG emissions reduction plan must also include a target for the reduction of the sources of emissions "reasonably attributable" to the county's discretionary land use decisions and internal government operations. The target is not specified.
The county agreed to use its "best efforts" to prepare a plan within 30 months of the date of the agreement.
Interestingly, the attorney general (AG) agreed to support the county's efforts as it faces the "novel challenges" posed by being one of the first local governments to address GHG emissions in its general plan documents. The AG agreed to consider submitting letters on the county's behalf, and judicial intervention.
Some California legislators are opposed to the AG's attempts to compel local governments to reduce GHG emissions. On the same day the agreement was reached, the Legislature adopted legislation that bans until 2010 global warming lawsuits — brought by the AG or anyone else — against transportation or flood protection projects funded by $25 billion in bonds approved by voters last year. The bill is narrowly tailored and will apparently not prevent the type of land use-related suit the AG brought against San Bernardino County.
The San Bernardino agreement may be viewed as a watershed in GHG emissions controls at the local level. The AG's office has indicated that some options for reducing GHG reductions by way of a county general plan include encouraging or creating high-density developments, parking spaces for high-occupancy vehicles, electric vehicle charging facilities, transportation impact fees, regional transportation centers, energy efficient designs for building, solar power, water reuse, renewable energy, methane recovery and carbon emissions credit purchases. Local governments, the business sector and nonprofit "green" organizations will provide additional options and ideas. The expectation is that similar plans will be implemented in other California counties and in other states as governments become increasingly active in the implementation and enforcement of climate change initiatives.