In an earlier blog post, we discussed a setback for the consideration of climate change impacts in “Reverse Environmental Impact Statements” as a result of a California Court of Appeal invalidating guidelines to the California Environmental Quality Act (“CEQA”). The California guidelines required that a developer’s EIR analyze any significant potential climate change impacts to a proposed mixed use real estate development project in Marina Del Rey in Los Angeles County. In striking down the guidance, the court found held that the purpose of the EIR was to identify significant effects of a project on the environment, not significant effects of the environment on the project. At the time, we were awaiting the California Supreme Court's decision on appeal.
In March 2012, the California Supreme Court decided not to hear the appeal of the Court of Appeal decision. Thus, at least for the time being, developers in California will not be required to discuss potential climate change impacts on proposed projects in environmental impact statements. Consequently, the Agency will no longer be able to examine the significance of certain impacts, such as potential flooding and earthquake risks, on such projects. The ruling will almost certainly narrow the scope of issues the Agency will consider for an EIR review, which may significantly reduce the time and costs involved.
As I recently discussed with Environmental Law 360, it is now up to the California legislature to decide whether to amend CEQA to permit regulatory consideration of climate change impacts on proposed projects. Developers may factor climate change into their planning regardless because it is likely that prospective long-term commercial tenants will want to know how climate change could impact the property. As California is often a bellwether on environmental issues, it will be interesting to see how other state agencies, with regulatory guidelines similar to California’s, will proceed.