Legislative Response to Brown A Win for Attorney General, Thelen Lawyer Writes

A California lawyer who has closely followed California's energy regulation, and once was part of it, has concluded that state lawmakers handed Attorney General Jerry Brown a victory last year when they passed a new law in reaction to his controversial greenhouse gas litigation.

The statute  was passed as SB 97 (see full text here). The legislation codifies Brown's argument that that increased emissions of the gases and their effects constitute an environmental impact that must be considered by agencies issuing permits that are subject to review under the California Environmental Quality Act. That's according to Thelen Reid Brown Raysman & Steiner attorney Peter V. Allen (pictured) in an article originally published in  Ecology Law Currents, vol. 35 (2008). The publication is produced at the University of California-Berkeley's law school Boalt Hall (see full article here).

The law was approved last year after Brown sparked controversy in the Legislature by weighing in on county land use and transportation plans and other proposals that warranted scrutiny under the state environmental law. Brown ultimately sued San Bernardino County and reached a settlement requiring the county to take account of greenhouse gases and come up with a plan to reduce them (see text of lawsuit here; text of settlement here; press statement here).

Republicans in the Legislature had held up the state budget and attempted to pass a law limiting Brown's power to bring such lawsuits in the future, a clash that ultimately produced SB 97. Critics viewed Brown's work as a premature effort to enforce the state's law limiting greenhouse emissions, AB 32. Brown, who has maintained the state needs to move forward quickly with efforts to reduce heat-trapping gases, argued that San Bernardino had not adequately analyzed the effects of development on global warming.  

In addition to constituting "a win for the attorney general's position," the bill also will make many CEQA reviews more complex and will require more costly mitigation measures for many projects, Allen wrote. But he noted it should also provide some potential opportunities, especially for renewable energy providers. 

California On A Carbon Diet: Denser Cities, Less Windshield Time

Top California officials Thursday laid out a vision of a reduced-carbon future that included some very un-California-sounding notions, such as denser cities and cars driven fewer miles.

“I’m not even sure this is politically helpful to you,” California Attorney General Jerry Brown told about 200 local government officials and planning experts at a gathering in Oakland. “It may actually be harmful.”

But Brown and Mary Nichols, chairwoman of the California Air Resources Board, outlined similar notions of the challenge facing the state as it grapples with reducing greenhouse gases such as carbon dioxide and the 2006 emissions-cutting law AB 32. The simple message: Patterns of development and urban and suburban living likely will have to change, possibly dramatically.

Both Brown and Nichols have been deeply involved in the effort for some time, although they have not always seen eye-to-eye. Brown, under the auspices of the California Environmental Quality Act, has been pressuring local governments and industry to come to grips with greenhouse emissions and the mandates of AB 32 in planning efforts and when contemplating new facilities. The board Nichols chairs has been given primary responsibility for carrying out the greenhouse gas law, and by this June is expected to unveil a proposed blueprint for achieving the statute’s requirement that emissions be reduced to 1990 levels by 2020. Thursday’s session was the first of five workshops on the issue planned for local government officials this spring.

Although Brown, among other actions, has already sued and settled with one California county (see also press statement), and struck a separate legal deal with a major petroleum company (settlement and press release), he received a generally warm welcome from the officials. He even drew laughter when he told them his office would “help” them move forward by suing their city councils.

Brown advocated what he called “elegant density” in urban areas as a primary means of achieving lower emissions by reducing the time people spend commuting in their cars. According to California Energy Commission estimates, nearly 41 percent of the state’s greenhouse gas pollutants come from transportation.

“It’s up to you. You’re the custodians of land use and land use is connected to vehicle miles traveled,” Brown said in outlining his anti-sprawl agenda.

“The biggest thing of all is to shift the outward pressure and make it turn inward to a more elegant dense vibrant urban experience. That’s what local government has to do,” he said. “Now we have to get people from the suburbs to start coming back.”

Brown noted with some bemusement that when he was mayor of Oakland he advocated attracting 10,000 more residents into the central urban area but was met by opponents wielding CEQA challenges. He also noted that the slumping housing and construction market could actually give local officials some breathing room to “align land use with the need for a lower-carbon future.” Local officials, he said, need to include the new concepts in the design of general plans and city zoning, rather than waiting until they are presented with specific development projects.

Brown, a former California governor, noted he has long been talking about limits on growth and consumption, sometimes to little effect.

"Turns out that California never grew so fast as when I declared we were into an era of limits," he joked.

Nichols, who in the past has criticized Brown’s legal tactics in his push to force consideration of global warming in long term development, transportation and industrial plans, nevertheless echoed much of his theme in her remarks. She said that unlike previous attempts to control other forms of air pollution, “we can’t get there from here with technology alone.” Part of the reason for that, she said, is the length of time it takes to replace the existing fleet of vehicles on the road.

“For the first time under AB 32 we are going to have to take action that limits the growth and amount of use of [vehicle miles traveled],” Nichols said. “That’s the little hidden fact that’s not being talked about as much when people talk about the global warming problem.”

She noted that the state has in the past not had a lot of success in promoting so-called smart growth, and she recalled that some “brute force” attempts to limit vehicles, such as through fees and bans on parking, have been rejected “pretty roundly.” But she suggested much of that might have to change.

“We’re going to have to find some ways to create new incentives as well as, I think, potentially new directions that we’re going to be developing in this area,” she said.

Local government representatives in the coming weeks and months will be getting a big dose of global warming. On Friday, they were invited to attend another meeting in Oakland with officials putting together the air board’s AB 32 blueprint, or “scoping plan.” In addition, four more workshops in the series kicked off Thursday were scheduled for April 3 in Sacramento, April 24 in Visalia, May 15 in Los Angeles and May 23 in Monterey. More information is available from the Local Government Commission.

(Photo of Jerry Brown via Wikipedia)

CA Attorney General Brown Urges Local Officials to Meet on Global Warming

California Attorney General Jerry Brown Tuesday (Feb. 19) sent a letter urging hundreds of local officials to attend a series of regional meetings to help them figure out how to comply with the state's global warming law, AB 32, and its basic environmental statute, the California Environmental Quality Act. The letter further puts officials on notice that business as usual in development and building patterns will likely not continue.

 "California must adopt the necessary changes that will encourage economic growth while reducing greenhouse gases," Brown said in a written statement. "This difficult transition from our current escalating dependence on fossil fuel, demands that cities and counties encourage maximum building efficiency and innovative land-use."

Brown (pictured; California Attorney General's Office photo) sent the letter to 534 public officials in all of the state's 58 counties and nearly 200 cities. In it, the attorney general reiterated his efforts to link CEQA's demand for formal review of development and other projects that pose significant impacts on the environment with the global warming law, which demands significant cuts in the state's greenhouse gas emissions by 2020, and a 2005 governor's executive order anticipating even deeper reductions. He cited the Legislature's passage last year of SB 97, which among other things requires state officials to prepare guidelines for how to deal with greenhouse emissions under CEQA:

In California, we have recognized the urgent need to curb greenhouse gas emissions by committing to reduce emissions to 1990 levels by 2020, and to 80 percent below 1990 levels by 2050. However, even under the aggressive timetable that the Governor and Legislature have set, most of the rules being developed to reach these targets will not take effect until 2012. A tremendous amount of local and regional planning will occur between now and then. We will experience the effects of the decisions made today well into the future. Our challenge is to ensure that the planning occurring now allows us to meet the goals we have set for ourselves.

 Fortunately, local agencies have at their disposal an extremely powerful tool. CEQA requires public agencies to mitigate or avoid “significant effects on the environment” when it is feasible to do so. As the Legislature recognized last year when it enacted Senate Bill No. 97, greenhouse gas emissions are the type of environmental effect that agencies must address under CEQA. Throughout California, cities, counties, and regional planning entities have begun to address global warming as an integral part of their planning efforts, as CEQA requires, even in the absence of regulatory thresholds of significance.

In his statement, Brown noted that he had been prodding local officials to analyze their global warming footprints under CEQA, noting he has sent formal comments under the law to 23 jusrisdictions. Those efforts, which have included litigation or threats to take court action, produced noteworthy agreements with San Bernardino County and ConocoPhillips on strategies to address the issue.

The workshops are intended to address a number of questions, including how cities and counties can analyze the global warming impacts of development and what measures can be taken to reduce them. The gatherings are planned for March 20 in Oakland; April 3 in Sacramento; April 24 in Visalia; May 15 in Los Angeles and May 23 in Monterey.