Two Lawsuits Seek to Block Project Approvals Based on Failure to Mitigate Climate Change Impacts
In two separate lawsuits, the Center for Biological Diversity (CBD) and the Utility Consumers Action Network (UCAN), a utility rate-payer group, have sought to block implementation of both a timber harvesting project and a power line project based on the failure to mitigate for climate change impacts.
In the first case, filed on August 12, CBD sought an injunction to prevent the California Department of Forestry and Fire Protection from allowing logging of more than 400 acres of forest in Butte and Tehama counties in the Sierra Nevada. A copy of CBD’s Petition for Writ of Mandate can be viewed at this link. In the second case, CBD and the UCAN filed a petition for review in the California Supreme Court, seeking review of the California Public Utilities Commission’s approval of San Diego Gas & Electric’s proposal to construct a 123-mile long transmission line, contending that the PUC’s failure to condition approval of the line on a requirement that it transmit a certain percentage of power produced from renewable sources violated the California Environmental Quality Act (CEQA).
Opposition to Logging Based on Failure to Consider Project-Specific GHG Impacts
CBD’s lawsuit seeking to prevent approval of the logging plan is the first legal challenge to a forestry project based on alleged climate change impacts. The logging proposal was made by Sierra Pacific Industries, which is seeking approval to harvest 431 acres in Butte and Tehama counties pursuant to a Timber Harvest Plan filed with the California Department of Forestry and Fire Protection (California Forestry).
The plan was approved by California Forestry based on the conclusion that “aggressive reforestation, enhancement of conifer site occupancy, genetic improvement, thinning, etc., can and will improve productivity on managed lands, balancing other resource values and providing positive benefit from a climate perspective.” California Forestry concluded that, over a 100-year time frame, because new trees would replace those that had been harvested, “the Department does not anticipate a significant impact on carbon sequestration attributable to forest management.”
CBD challenged the Department’s approval on the grounds that it violated CEQA by failing to examine greenhouse gas (GHG) emissions on a project-specific basis. CBD also asserted a claim under California’s Forest Practice Act. In a press release issued in conjunction with the filing of the case, CBD’s counsel, Jan Chatten-Brown, stated: “The law is clear that agencies must look at greenhouse emissions of the specific project they approve. The Department of Forestry cannot escape this mandate by simply claiming the project’s impacts will be offset elsewhere, which is in any case, a dubious claim.”
In addition to attacking the THP for its failure to undertake project-specific climate change analysis, CBD relied heavily on the State of California’s statutory requirements to reduce GHG emissions state-wide, citing the California Legislature’s adoption of Senate Bill 97 in 2007, which requires the state Office of Planning Research to prepare guidelines “for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions as required by [CEQA],” and the California Global Warming Solutions Act of 2006 (AB 32), which requires reduction of emissions of greenhouse gas to 1990 levels by 2020. In addition to those two statutes, on March 6, 2009, the California Attorney General’s Office issued guidance that “[State agencies] should evaluate at least one alternative that would ensure that the [agency] contributes to a lower-carbon future.” See Petition for Writ of Mandate at 4-7.
In its THP, Sierra Pacific relied on analysis of the company’s greenhouse gas emissions over all lands owned by the company, as opposed to the specific project for which the THP was prepared.
Opposition to Transmission Line Based on Failure to Impose Conditions Requiring that Power Transmitted by Line Come From Renewable Sources
CBD’s second challenge was directed at the “Sunrise Powerlink Transmission Project,” which was proposed by San Diego Gas & Electric Company in 2005 and approved by the California Public Utilities Commission (PUC) in December 2008. Here again, CBD based its opposition to the project on an alleged failure to comply with CEQA and asserted that the PUC’s decision document did not account for the impact that construction of the transmission line will have on global warming. The petition was filed in the California Supreme Court because the Supreme Court has original jurisdiction of appeals seeking review or reversal of PUC decisions. Cal. Public Resources Code § 21168.6.
The approved route for the Sunrise Powerlink line is 123 miles long; it was one of nine different alternatives considered in an Environmental Impact Report (EIR) prepared for the project pursuant to CEQA, including several alternatives that did not involve construction of a new transmission line at all. Verified Petition for Writ of Mandate at 2-3. The project was first reviewed by an administrative law judge, who found that “the significant environmental impacts of [the transmission line] Alternatives strongly militate against authorizing construction of any of them.” Id. at ¶ 10, p. 3. Based on these impacts, the ALJ concluded “that the potentially significant construction-related GHG impacts from Sunrise can only be justified if there is an assurance that the line will deliver significant amounts of renewables, rather than fossil fired resources.” Id.
The Assigned Commissioner to the proceeding wrote an alternative decision, concluding that one of the proposed routes could be approved with conditions, including enforceable measures that would assure that the line would deliver significant amounts of renewable energy as a means of reducing GHG emissions. Id. at ¶ 11, p. 3. A third proposed decision was also prepared by one of the other PUC Commissioners. This decision departed from both the ALJ’s proposed decision and the Assigned Commissioner’s proposed decision by removing any mitigation for GHG impacts. It was this decision which was ultimately adopted by the PUC, over the objection of CBD. Id. at ¶¶ 12, 13, p. 4. According to CBD, it was only after the EIR was certified that the PUC attempted to argue that regulatory constraints made the renewable energy requirement infeasible. CBD’s Supporting Memorandum of Points and Authorities, filed as part of its Petition, at 16.
CBD Argued that Requiring the Line to Carry Some Percentage of Renewable Energy was a Feasible Mitigation Measure Required by CEQA
In its petition, CBD argued that “one of the primary objectives of the Sunrise Line was to facilitate the development of renewable energy and that requiring the line to carry some amount of renewable energy was a feasible mitigation measure.” As a result, according to CBD, the PUC violated CEQA when it certified the EIR for the project without analyzing whether conditioning approval on the line carrying some amount of renewable energy would mitigate the GHG impacts from the project. Id. at ¶¶ 36–38, pp. 7–8.
CBD argued that “to the extent a renewable energy requirement was analyzed in the EIR at all, it was narrowly framed as an all or nothing proposition . . . [and rejected because] SDG&E [could] not guarantee that the line will carry only renewable power.” Memorandum of Points and Authorities at 20 (quoting General Response to public comments from the EIR). This was not, however, the approach taken by the assigned commissioner in her decision—she proposed conditioning approval for the project on “SDG&E [procuring] a minimum cumulative total of 3,500 GWh/year of Imperial Valley renewables to be delivered over the Powerline upon energization or soon thereafter, but no later than 2015.” Id. at 25 (quoting proposed decision by Commissioner Grueneich).
Rather than adopting a renewable power condition, the PUC relied on SDG&E’s voluntary commitment to develop solar and geothermal resources in the Imperial Valley. CBD argued that this commitment fell short of the requirements of CEQA, since it was not enforceable. However, California has adopted renewable portfolio standards which are binding on SDG&E and which require the utility to increase its use of renewable power by at least one percent of its retail sales annually, until its reaches 20 percent by 2010, though the RPS does not identify specifically where that power is to come from, or how it is to be transmitted. According to the PUC’s website on the RPS, SDG&E currently obtains 6.1 percent of its power from renewable sources.
In statements issued simultaneously with the filing of the petition, CBD’s counsel argued that the Powerlink project would lead to construction of new fossil-fuel generation plants, which would result in more GHG emissions requiring mitigation under CEQA.
Lawsuits challenging public infrastructure projects or permit approvals solely on GHG grounds have been anticipated for some time, and it is almost assured that this type of litigation is bound to continue, particularly in states like California which have substantive mitigation requirements in their environmental review statutes. Unlike NEPA, which only requires a “hard look” at identified impacts, statutes like California’s CEQA and Washington’s SEPA require mitigation for known impacts. It is this substantive environmental review authority which provides the basis for CBD’s claims, and it is likely that this sort of litigation will increase as environmental groups and other project opponents look to these statutes as their weapon of choice.Steven Jones practices environmental law at the Seattle firm Marten Law Group, PLLC, 1191 Second Avenue, Suite 2200, Seattle, Washington 98101. He can be reached at 206-292-2629, his email is firstname.lastname@example.org, and his firm website is http://www.martenlaw.com
© Copyright 2009, American Bar Association.