United States: Landmark CEQA/Climate Change Settlement

Last Updated: August 24 2007

On August 21, 2007, California’s Attorney General Jerry Brown announced a settlement of the recent controversial CEQA lawsuit his office brought against San Bernardino County, involving the extent to which the County’s EIR for its General Plan update should address impacts on climate change. The settlement is important because it requires a California agency for the first time to inventory historical (as of 1990), current, and projected greenhouse gas ("GHG") emissions, to set a target for reducing GHG emissions, and to develop measures to reduce such emissions.

This contentious case has been closely watched by environmental groups and project proponents alike, for guidance as to how climate change should be addressed in CEQA documents. This issue has become the hottest topic in CEQA. Particularly since the passage of AB 32, environmental groups have aggressively asserted that CEQA requires both an analysis of a project’s impacts on climate change and the incorporation of mitigation measures to reduce such impacts. Project proponents have argued that such analysis cannot be done until thresholds of significance are established, that the issue should wait for regulations to be promulgated by the California Air Resources Board under AB 32, and that requiring climate change analysis now could significantly stall greatly needed housing and infrastructure projects around the state. Attorney General Brown’s case has been so controversial that Republican state senators refused to pass the state budget without legislation protecting certain transportation and levee infrastructure projects from similar lawsuits.

While the settlement does not provide answers to how an EIR should address climate change, the mitigation measures agreed to in the settlement may foretell a trend of local agencies’ mitigating the impacts of discretionary approvals on climate change. It likely also will embolden the AG to continue his campaign to make CEQA the primary vehicle by which California agencies address climate change.

The Lawsuit

San Bernardino County is one of the fastest-growing counties in California, anticipating a growth by over 500,000 people by 2030. The county approved an updated General Plan in March 2007 that set forth goals and policies that would direct the future of land use, growth, and transportation for the county through 2030. As a part of the Draft EIR, the county analyzed the increase in air pollution expected under the updated General Plan; however, it contained no analysis on the impact of the Plan on climate change and did not require mitigation measures to reduce greenhouse gas emissions.

The AG submitted comments on the Draft EIR, almost exclusively focusing on the climate change issue. The AG’s comment letter stated:

  • The General Plan envisioned significant population growth and a significant increase in GHG emissions, primarily from transportation sources;
  • The California Legislature, by passing AB 32, has recognized California’s vulnerability to climate change and that action must be taken to reduce GHG emissions;
  • CEQA’s obligation to identify significant impacts of a project on the environment, and to require feasible mitigation of such impacts, requires an examination of a project’s impact on climate change and the adoption of all feasible mitigation measures to reduce such impacts; and
  • Such analysis can – and must – be done today even absent established thresholds of significance or regulations under AB 32.

The Final EIR responded to some of these concerns, but it did not estimate the increase in GHG emissions or propose mitigation measures to reduce such emissions. The Attorney General filed suit on April 13, 2007, claiming that the county’s EIR violated CEQA because it did not adequately analyze the impacts of GHG emissions on climate change and did not propose mitigations for such impacts.

The AG’s lawsuit is significant as the first challenge to a CEQA environmental review document based on global warming claims. In addition, the lawsuit seeks to expand the debate about addressing climate change beyond reducing emissions from power plants, factories, automobiles and other such sources, to addressing how land use and transportation planning decisions have climate change impacts. As one commenter put it, Brown is seeking to shift the focus from cars to the roads underneath them.

The Settlement

The settlement requires the county to take the following steps:

  • Prepare an inventory of all known or "reasonably discoverable" sources of greenhouse gases currently existing in the county;
  • Prepare an inventory of greenhouse gas emissions in 1990 and 2007 and those projected for 2020; and
  • Prepare a "Greenhouse Gas Emissions Reductions Plan" ("GHG Reduction Plan") that includes (1) a reduction target for emissions attributable to the county’s discretionary land use decisions and its own internal government operations, and (2) feasible GHG emission reduction measures.

The settlement allows the updated General Plan to remain valid for the time being, but the county must take reasonable efforts to update the Plan and adopt the GHG Reduction Plan within 2-1/2 years. Significantly, the settlement does not set an emissions reduction target, identify what reduction measures are "feasible," or provide guidance on those key issues. Such issues will be addressed as the county develops its GHG Reduction Plan, surely under the AG’s watchful eye. Although the settlement did not set forth what measures should be taken, a press release from Brown cited a host of possible emission reduction measures, including more high-density housing, electric vehicle charging stations, development impact fees to fund mass transit projects, and energy-efficient building requirements.

The county has its work cut out for itself over the next few years. Just the process of creating inventories of GHG emissions will be an arduous task, let alone creating and adopting policies to reduce emissions. The settlement may also present jurisdictional issues, as, according to the only County Supervisor who voted against the agreement, the county only has authority over 15 percent of the land within its borders, the rest being under the control of incorporated cities and the federal government. As with the lawsuit, the steps San Bernardino takes to meet its demands will be carefully watched.

The Way of the Future?

Like it or not, the San Bernardino settlement likely solidifies climate change as an impact to be addressed in CEQA environmental review documents. Although it does not create a legal requirement to do so, the settlement likely will embolden the AG and environmental groups to push for more climate change analysis in CEQA documents.

If the filing of the San Bernardino lawsuit put project proponents and agencies on notice that they may be sued by the state for failing to address and mitigate climate change impacts, the settlement may be used as a guide by agencies wishing to avoid the AG’s close scrutiny and legal action. Attorney General Brown wants to see a detailed examination of existing emissions, the projected increase in emissions as a result of the project, and feasible, enforceable mitigation measures to reduce emissions. The settlement may also portend local agencies’ adopting GHG emissions reduction plans similar to that required in the settlement in an effort to forestall similar litigation in their jurisdiction.

However, the settlement fails to address one of the thorniest issues: at what point do a project’s GHG emissions rise to a level of having a significant impact on the environment, such that the impacts must be analyzed and feasible mitigation measures adopted? The AG picked an easy test case involving long term planning decisions in a large county that will see a 500,000 person population increase. But the significance question becomes much more difficult on smaller projects with far fewer related emissions, such as a single housing development or mixed-use project. Is any increase in emissions significant? If so, will mitigated negative declarations become uncommon? How much mitigation is required before GHG emissions are reduced to a less than significant level? The settlement does not address any of these issues, so practitioners will continue to work in an uncertain realm and continue to face legal risks when addressing climate change in CEQA documents.

Attorney General Brown clearly views the settlement as a victory and has been encouraged by the result. CEQA practitioners, particularly those working on large programmatic level projects, such as general plans, specific plans, and transportation plans, should carefully consider how to address climate change in CEQA documents and should pay extra attention to comments received from the AG’s office. While AB 32 may have been the landmark climate change legislation, the AG’s legal maneuvers and this settlement may be a better indicator of how climate change will be addressed in California, at least in the near term while AB 32 regulations wind their way through the rulemaking process.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions