Communities for a Better Environment v. City of Richmond: climate change mitigation measures do not stand muster under CEQA
Alston & Bird LLP
Rebecca Harrington
USA
June 15 2010
In Communities for a Better Environment v. City of Richmond, the California Court of Appeals overturned an Environmental Impact Report (EIR) for the retrofitting and expansion of an oil refinery. (Case No. A125618, Filed April 26, 2010). The court found the EIR inadequate, in part, because it included deferred climate change mitigation measures. The EIR was also deficient because it did not adequately address whether the project included equipment changes that would facilitate the future processing of heavier crude oils and included an inadequate baseline.
The original EIR characterized climate change impacts from the project as speculative. After public outcry and comments received by the Attorney General, the final EIR quantified the project’s green house gas (GHG) emissions as 898,000 metric tons per year (an equivalent of GHG emissions from 160,000 cars) and concluded that these emissions “prior to mitigation would most likely [] [have] a significant effect on the environment.” Among the few climate change mitigation measures included in the EIR was a measure that required “[n]o later than one (1) year after approval of this Conditional Use Permit, [] [the refinery] shall submit to the City, for approval by the City Council, a plan for achieving complete reduction of GHG emissions up to the maximum estimated Renewal Project GHG emissions increase over the baseline (898,000 metric tons per year . . . ).” The court found that the EIR failed to identify specific mitigation measures to address climate change impacts and that the included mitigation measures were deferred mitigation.
The court also identified the California Air Pollution Control Officers Association’s January 2008 white paper as a source to determine whether a project’s GHG impacts were significant under CEQA, as well as EPA’s GHG Endangerment Finding.
The full court opinion may be found at: http://caselaw.lp.findlaw.com/data2/californiastatecases/a125618.pdf
