Cities wait for global warming guidelines
Some are setting interim standards
Under California Senate Bill 97, the state must adopt guidelines for assessing pollutants that increase global warming. Assessments must be included in a project's environmental impact report, a study sometimes as thick as a phone book that outlines how to reduce or eliminate environmental damage.
But the guidelines won't be adopted until 2010. Although the laws do not direct local governments to take action now, several cities are scrambling to create interim standards, apparently worried about legal challenges.
"This is always a threat because time is money," said Oxnard City Attorney Gary Gillig, whose office sent several development proposals to an outside law firm for analysis. "You don't want to be tied up in court."
Environmentalists counter that the law gives planners another tool to promote pedestrian-friendly communities and sustainable "green" building concepts that reduce energy consumption.
Litigation is an inevitable byproduct of any new law, said Dan Kalb, state policy coordinator for the Union of Concerned Scientists.
"Sometimes laws are not as clear as they could be or can be, and it takes courts to go through a process to answer questions that people have," Kalb said. "As they answer questions, the guidelines will be revised."
The pending guidelines will impose standards for measuring greenhouse gases and, if necessary, how to reduce them. Until then, most planning officials admit that they're confused.
"In the absence of that, everybody's struggling on their own," said Matthew Winegar, Oxnard's director of community development.
SB97 offers no direction on what local governments should do before 2010.
State Sen. Robert Dutton, R-Rancho Cucamonga, author of the bill, could not be reached for this story.
When he signed the bill, Gov. Arnold Schwarzenegger said SB97 was necessary to stem increased litigation following the passage of the Global Warming Solutions Act of 2006, better known as Assembly Bill 32, which mandated reducing greenhouse gases to 1990 levels by 2020.
Last month, a judge ruled that the city of Banning filed a flawed environmental impact report for a 1,500-home development. The judge sided with environmentalists who sued the city, claiming that there were inadequate assessments of water supplies and greenhouse gases in the EIR. The judge dismissed the greenhouse gas charge, but agreed that there needs to be a new EIR with more information about water supplies.
The ruling blocked the project from proceeding and negated the approval by the Banning City Council.
In August, Attorney General Jerry Brown reached a settlement with San Bernardino County over its failure to address greenhouse gases in a general plan, a long-term blueprint for growth.
Brown has filed comments in more than 20 other proposals, including general plans, several massive housing developments and oil refinery expansions.
"We're concerned with large projects that have the ability to emit massive amounts of carbon dioxide," said Gareth Lacy, Brown's spokesman.
Even small development proposals don't seem immune from legal challenges. In January, Ventura's Planning Commission approved a 10-home development north of Foothill Road, even after neighbors criticized the city for not considering greenhouse gases.
'Issue's going to be raised'
Mark Sellers, a Westlake Village attorney representing the residents, said he expects there will be more legal challenges that cite AB32.
The proposed development still requires approval by the City Council. Sellers said his clients will raise the issue again, but he couldn't say whether they would sue if it's approved.
"It's definitely a serious problem," Sellers said. "The issue's going to be raised, and every city better have a good plan on how to respond to it."
Ventura's response mirrors that of other cities. According to the project's staff report, the California Air Resources Board has not adopted any emission levels or goals for greenhouse gases. Forging local rules now would be speculative, especially if they conflict later with state laws, according to the report.
Also, Ventura has adopted policies that reduce car trips, promote smart growth ? pedestrian-friendly developments near transportation hubs ? and energy efficiency, "which meets the intent of AB32," the report said.
Ventura's recently updated general plan discourages suburban sprawl and encourages so-called infill development of isolated parcels, said Jim Neuerburg, Ventura's assistant city attorney.
"That's the kind of development that has the long-range cumulative effect of reducing global warming impacts," he said.
Thousand Oaks also noted the absence of state rules regulating greenhouse gases in an environmental impact report for a proposed Home Depot on Hampshire Road. Still, the report estimated how much carbon dioxide the project would generate and found it "insignificant" when compared with total emissions statewide.
In Oxnard, nearly half a dozen projects have been delayed, including redevelopment of the dilapidated Wagon Wheel complex, so environmental impact reports could address water supplies and greenhouse gases, Winegar said.
"We're looking at each (environmental impact report) on its own merits and making an appropriate determination," said Peter Brown, an attorney with the Santa Barbara firm of Brownstein, Hyatt, Farber, Schreck, which is appraising each proposal.
Brown said it was premature to discuss emission levels, impacts and recommendations.
Last year, Oxnard released an environmental impact report for a proposed 1,300-home development at Ormond Beach. However, the public will get a new chance to comment on a revised EIR that addresses greenhouse gases in a few months, Winegar said.
More analysis means increased costs for developers, who pay for the reports, said Ed Mountford, senior vice president of Irvine-based Hearthside Homes Inc., developer of the Ormond Beach project.
"It does have a substantial impact on us," Mountford said, adding that homebuyers will absorb the extra cost.
In the current down housing market, additional costs will chill interest in building at a time when the state needs more homes, said Holly Schroeder, executive director of the Building Industry Association, Greater Los Angeles/Ventura Chapter.
Schroeder doesn't argue about addressing greenhouse gases. But she questions whether AB32 was meant to find its way into local planning decisions.
"I'm not an expert, but just by the name, it's a global issue," Schroeder said of global warming. "It strikes me that global issues need global solutions."
'Not all about litigation'
Lacy, of the Attorney General's Office, countered that local governments are smart to take action even before new rules take effect.
"Everybody in California should be trying to cut back" on greenhouse gases, Lacy said. "It's not all about litigation. It's about moving in the right direction."
Kalb, from the Union of Concerned Scientists, dismissed the hand-wringing and called the move toward regulating greenhouse gases inevitable.
"Most local jurisdictions knew this was going to come around," Kalb said. "Most planners weren't born yesterday."
While many cities and counties have adopted policies to promote smart growth, green building and energy efficiency, SB97 could be a tipping point that pushes all development in that direction, Kalb said.
Along with increased public awareness of greenhouse gases, "I think you're going to see fewer and fewer bad planning decisions around the country," Kalb said.
Sellers noted that there are numerous strategies that will satisfy the new laws. The Attorney General's Office lists suggestions for local governments on its Web site. In the wake of AB32, the Association of Environmental Professionals also distributed an extensive list of similar ideas for cities and counties to consider.
'Too many moving parts'
Ventura Councilman Carl Morehouse, a former county planner, remains skeptical.
"The road to hell is paved with good intentions," said Morehouse, who sees SB97 as handing development opponents a way to shut down all housing proposals ? good or bad ? through endless litigation.
He said it will be impossible to prove that a development does not worsen greenhouse gases.
"There's too many moving parts," Morehouse added. "This is a global economy and a global world now. China is developing like crazy, and there's no big fence around California (to stop pollution from reaching U.S. shores). The current (White House) administration is still friendly to autos and trucks, and we all have a quality of lifestyle that we've become accustomed to."
Brown, from the Santa Barbara law firm, disagreed. Most environmental litigation relies on previous court rulings. But few, if any, exist that talk about greenhouse gases, he said.
"Once we have that, it will tell us more of what to do," Brown said. "A city should be able to create documents that meet legal standards and are acceptable. But everybody would be happier if we had standards that told us what to do."