Transcript Slide 1

Voluntary Initiatives and Early
Reductions under AB 32
Jonathan Evans
Staff Attorney, Center for Biological Diversity
 Global Warming Impacts and Need for Rapid
Reductions
 AB 32 Voluntary Early Reductions
 AB 32 Discrete Early Actions and Expanded Early
Actions
 California Environmental Quality Act
– Requirement for GHG analysis
– Framework for Climate Change Analysis
Climate Change and Wildlife
 Species committed to extinction by 2050 due
to business as usual climate projections:
 Minimum warming scenario: 18%
 Mid-range warming scenario: 24%
 Maximum warming scenario: 35%
Thomas et al. 2004. Extinction risk from climate change. Nature
427:145-148.
 During warm “greenhouse” phases global
biodiversity been relatively low while
extinction rates have been relatively high.
Mayhew et al. 2007. A long term association between global
temperature and biodiversity, origination and extinction in the fossil
record. Proc. R. Soc. B (doi:10.1098/rspb.2007.1302)
NASA/Goddard Space Flight Center
Scientific Visualization Studio
Future reduction of sea ice in the Arctic
could result in a loss of 2/3 of the
world's polar bear population within
50 years.
U.S. Fish and Wildlife Service photo
© Michael Mengak, University of Georgia
Desert tortoise
American
Pika
© Richard A. Arnold
Bay checkerspot
Butterfly
© Shaye Wolf
Cassin’s auklet
California Climate Change Center. Luers et al. 2006.
% CHANGE IN EXPECTED MINIMUM
NUMBER OF LARGE FIRES PER YEAR
Increase in Wildfires
60
LOWER WARMING RANGE
MEDIUM WARMING RANGE
30
0
2035-2064
2070-2099
Source of data : Westerling and Bryant, “Climate change and wildfire in and around
California: Fire modeling and loss modeling” (2006), www.climatechange.ca.gov
AB 32 Voluntary Early Reductions
 ARB is to ensure that entities that have voluntarily
reduced their GHG emissions prior to 2012
receive appropriate credit for early voluntary
reductions
– H&S Code §38562(b)(3)
 ARB is to adopt methodologies for the
quantification of voluntary greenhouse gas
emission reductions
– H&S Code §38571
ARB avenues for addressing
voluntary early actions
 Policy statement on treatment of early
voluntary reductions
 Solicitation of voluntary reduction protocols
and projects
Voluntary Early Reductions Policy
 Work with the California Climate Action Registry to develop
a process for recording voluntary emission reductions
 Review proposed quantification methodologies for
voluntary GHG emission reductions
 Work with the South Coast Air Quality Management District
and other local air districts to promote development of
quantification methodologies and protocols
Encouraging voluntary early action
 AB 32 directs ARB to design regulations in a
manner that encourages early action to
reduce GHG emissions
– H&S Code §38562(b)(1)
AB32 Voluntary
Early Reductions -A Closer Look
Jocelyn Thompson
April 14, 2008
Weston Benshoof Rochefort Rubalcava MacCuish LLP
Voluntary Early Reductions
Why do they matter?
– CO2 is cumulative in the atmosphere
– Lag time before mandatory reduction measures in
place
 Early action reduction regulations to be adopted by Jan 1,
2010
 Emission limits and reduction measures regulations to be
adopted by Jan. 1, 2011
 Regulations to become operative by Jan. 1, 2012
– Want to encourage investments in reductions
The Policy Statement
To the extent feasible, Scoping Plan and
implementing regulations will:
– Encourage and reward VER.
– Ensure recognition of actions undertaken
post-enactment of AB32.
– Ensure that any credits provided for VER are
based on reductions that are real,
permanent, additional, quantifiable,
verifiable, enforceable.
The Policy Statement
To promote the policy, ARB will:
– Work with California Climate Action Registry to
establish a process to document reductions
 ARB to determine later the “appropriate” credit
 ARB to determine later the conditions under which voluntary
reductions may be used
– Review quantification methodologies for proposed
reduction projects
– Work with air districts to promote expedited
quantification methodologies & protocols
Limitations of the Policy Statement
 No guarantees.
 Reassures re: CARB intent and direction.
 Applies prospectively only.
– Pre-AB32 reductions to be considered in development
of Scoping Plan & trading program.
– Same for reductions post-AB32 adoption but prior to
adoption of Policy Statement.
 No new insights into statutory criteria to
qualify reductions.
 Sets up case-by-case review of reductions
Qualifying Criteria
 Emission reductions must be:
– Real
– Permanent
– Additional
– Quantifiable
– Verifiable
– Enforceable
 Terms adapted from criteria pollutant ERC
regime . . . . What do they mean here?
Qualifying Criteria
As applied to criteria pollutant ERCs, these
criteria result in restrictive accounting, e.g.:
–
–
–
–
–
Use of recent historical average emissions (not peak).
Rarely granted credit for mobile source reductions.
No credit if emissions overlooked in SIP inventory.
Reductions discounted to reflect BACT.
No credit if reductions achieved as result of project
undertaken for other regulatory purpose.
 What will these terms will mean under AB32?
– ARB will tell you in 2011.
Sources of GHG Emissions
Case-By-Case Approval
 Process for Obtaining Approval
– Propose project to ARB with quantification
methodology.
– ARB will prioritize proposals; review.
– If ARB agrees with quantification methodology,
will adopt Executive Order.
 Executive Order only confirms quantification
– does not approve credit.
Uncertain Prospects For Credit
“You could have a credit. It just might not be
worth anything. You could have quantified
it. You could have registered it. You could
be meeting all these tests. But the question
is, what are you going to do with it at the
end of the day? . . .
That’s what we really
don’t know at this point.”
Mary Nichols 2-28-08
Jocelyn’s Suggestions
 Take actions that make sense for other
reasons, without banking on VER credit.
 Stationary source reductions preferred over
mobile or area source reductions.
 Reductions inside facility/plant boundaries
preferred over external or 3rd party reductions.
 Avoid trading in credits before California
system established.
 If interested, make proposal to ARB quickly.
AB 32:
Early Actions
AB 32 Discrete Early Actions:
Transportation & Shipping Sector
 Low Carbon Fuel Standard
 Green Ports
 Smartway Truck Efficiency
 Tire Inflation
AB 32 Discrete Early Actions:
Commercial & Industry Sector
 Reduction in high Global Warming Potential
(GWP) Greenhouse Gases (GHGs) in consumer
products
 Perfluorocarbon (PFC) reduction in semiconductor
industry
 Restrictions on High GWP refrigerants
 Sulfur hexafluoride (SF6) reductions in the nonelectricity sector
AB 32 Discrete Early Action:
Land Use
 Landfill methane capture
AB 32 Early Actions: Land Use
 Local Government GHG reduction guidance
and protocols
 Business GHG reduction guidance and
protocols
AB 32 Scoping Plan
 Land Use Subgroup of the Climate Action
Team (LUSCAT)
– Working to include GHG considerations in State
and Local decision making
– Defining goals and measuring reductions
AB 32 Follow-On Legislation
 AB 2093
– Would require general plan elements to consider
policies that reduce effects of land use on GHG
emissions.
– Deadline: next general plan update, or next housing
element update after July 2009
 AB 2596
– Would require ARB to prepare GHG inventories for
cities and counties.
– Cities & counties would be allowed to trade emission
reductions achieved through planning process.
California Environmental Quality Act
 Inform government and public about potential significant
environmental impacts of proposed activities
 Identify ways to avoid or reduce environmental impacts
 Prevent significant environmental damage by requiring
changes in the project (alternatives and mitigation)
 Environmental review must consider:
– All phases of the project
– Direct & reasonably foreseeable indirect effects
– Short term and long term effects.
Types of Environmental Review
Documents
 Negative Declaration
 Mitigated Negative Declaration
 Environmental Impact Report
Which one depends on whether
impacts are potentially significant.
What Is A “Significant” Impact?
 A potentially substantial, adverse
change in any physical condition within
the area affected by the project
 Significance may vary with the setting
 Agencies encouraged to publish
thresholds
 Substantial evidence must support
determination
Cumulative Impacts
 A succession of minor projects may
cause cumulatively significant impacts
 Is the project’s contribution
“cumulatively considerable”?
CEQA Project Approval
 Lead Agency may approve a project
with residual significant environmental
impacts if:
– Statement of Overriding Considerations states
that project benefits outweigh harm to the
environment
– Record includes evidence supporting
conclusions about project benefits
Legislative Actions
 SB 97 CEQA Amendment
– CA Public Resources Code § 21083.05
 Acknowledges that climate change analysis
should be addressed in the CEQA process.
 Jan 1, 2010: the CA Resources agency must
adopt CEQA Guidelines for addressing GHGs
developed by the Office of Planning and
Research.
Legislative Actions
 SB 97 CEQA Amendment
– CA Public Resources Code § 21097
 Allows projects financed by transportation
bonds to move forward with limitations on
CEQA challenges.
 Does not protect all public agencies from
CEQA challenges.
SB 97 Legislative Analysis
 Senate Floor Analysis– “The analysis of GHG impacts under laws like
CEQA, and its federal counterpart NEPA, is not
new, nor did it commence with the passage of
the California Global Warming Solutions Act of
2006.”
– “confirming that GHG emissions are a
significant adverse effect under the [CEQA]”
SB 97 -- Limitations
 Leaves most projects vulnerable to
challenge when standards uncertain.
 Guidelines required only address mitigation.
– Why mitigation?
– Why not the significance threshold?
 Don’t get carried away with excerpt from
Senate Floor Analysis.
– Generic statements.
– Doesn’t mean every project is significant.
Settled Cases
 San Bernardino County General Plan cases
– People of the State of California ex rel. Attorney General Edmund
G. Brown v. County of San Bernardino, Case No. CUVSS 700329
(San Bernardino Superior Court) (filed April 12, 2007);
– Center for Biological Diversity v. County of San Bernardino, Case
No. CIVSS 0700293 (San Bernardino County Superior Court) (filed
April 11, 2007).
 Administrative appeal of Conoco Phillips Clean Fuels
Expansion Project to the Contra Costa Board of
Supervisors by the People of the State of California ex rel.
Attorney General Edmund G. Brown (filed May 18, 2007).
Global Warming Analysis Required
People of the State of California v.
County of San Bernardino
 General Plan Amendment to adopt a goal of reducing greenhouse
gases
 Greenhouse Gas Emissions Reduction Plan
– Inventory of greenhouse gas emissions:
 inventory sources,
 past emissions for 1990 levels,
 a current baseline, and
 projected emissions for 2020 levels
– Target for reductions
– “Feasible” mitigation to reduce greenhouse gas emissions
– Greenhouse Gas Reduction Plan will undergo CEQA review
Appeal of ConocoPhillips Clean Fuels
Expansion by the People of the State of
California
 Greenhouse Gas Emissions Audits
– Auditing all ConocoPhillips California refineries to identify greenhouse
gas emission sources and reduction opportunities.
 Offsetting Emissions
– 70,000 tons of greenhouse gas emissions would be eliminated from a
ConocoPhillips facility in Santa Maria (Santa Barbara County),
– $7 million offset program for the Bay Area Air Quality Management
District,
– $2.8 million for reforestation efforts in California, to sequester of 1.5
million metric tons of greenhouse gases.
– $200,000 for restoration of the San Pablo wetlands.
Climate Change Analysis
1.
2.
3.
4.
5.
Reference the Scientific and Regulatory Background on
Climate Change
Assess the Project’s Greenhouse Gas Emissions
Assess the Impact of Climate Change on the Project and
the Project’s Impacts
Make a Significance Determination
Analyze and Adopt Alternatives and Mitigation Measures
to Reduce Impacts
1. Scientific and Regulatory
Background on Climate Change
 Summary of recognized impacts to CA such as
impacts to:
–
–
–
–
Wildlife and habitat
Water supply
Sea level
Wildfire
 Mandatory reductions required under AB 32
 Governor’s Executive Order S-3-05
– 80% below 1990 levels by 2050
2. Assess the Project’s
Greenhouse Gas Emissions
Conduct an Inventory
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Electricity and natural gas usage in buildings;
Vehicle trips generated by the project;
Water supply and transportation to the project;
Operation of construction vehicles and machinery;
Manufacture and transport of building materials;
Waste disposal, including transport of solid waste and methane
emissions from organics decomposition;
 Process emissions, such as from the production of cement or the
refining of gasoline;
 “End use” emissions, such as the burning of the fossil fuels extracted
by a production project.
2. Assess the Project’s GHG
Emissions -- Counterpoint
 Avoid methodologies that result in doublecounting
– Water supply & transportation
– Manufacture of building materials
– “End use” emissions
 Some projects reallocate or move emissions
rather than produce new emissions
– Retail closer to residential reduces VMT
GHG Emissions Analysis is
NOT SPECULATIVE
 California Attorney General
– Global Warming & CEQA: Chart of Modeling Tools
 http://ag.ca.gov/globalwarming/ceqa/modeling_tools.php
 California Air Pollution Control Officer’s Association
(CAPCOA)
– CEQA & Climate Change: Evaluating and Addressing Greenhouse
Gas Emissions from Projects Subject to CEQA, (Jan. 2008)
 http://www.capcoa.org/
 California Climate Action Registry
– General Reporting Protocols
 http://www.climateregistry.org/tools/protocols/general-reportingprotocol.html
 Center for Biological Diversity
– CEQA: On the Front Lines of California’s Fight Against Global
Warming (Sept 2007)
 http://www.biologicaldiversity.org/campaigns/ceqa/index.html
Is It Speculative? Counterpoint
 CEQA § 15145:
Where the impact is too speculative for
evaluation, note conclusion and terminate
discussion.
 Per AB 32, global climate change is not
speculative.
 Impacts of a particular project may
nonetheless be speculative.
3. Assess the Impact of Climate
Change on the Project
“[A]nalyze any significant environmental
effects the project might cause by bringing
development and people into the area
affected.”
– CEQA Guidelines 15126.2(a)
 Increased threat of wildfire, flooding, or
water scarcity
4. Make a Significance Determination
 Direct Impact?
• GHGs must be considered a
cumulatively significant impact
Greenhouse Gases are
Cumulatively Significant
 “[t]he impact of greenhouse gases on
climate change is precisely the kind of
cumulative impacts analysis that NEPA
requires agencies to conduct.”
– Center for Biological Diversity v. National Highway Traffic Safety
Administration, 508 F.3d 508 (9th Cir. 2007)
 “[T]he greater the existing environmental problems are, the
lower the threshold should be for treating a project's
contribution to cumulative impacts as significant”
– Communities for a Better Environment [2002] 103 Cal.App.4th 120.
Significance Thresholds Needed
 Administrative overload if every project
considered significant.
 No other issue area uses “zero increase”.
 Threshold should be consistent statewide.
– Impacts are not tied to specific locale.
– Poor policy to encourage development to
gravitate to area with most liberal thresholds
 Threshold should be set by state agency
with expertise, not cities & counties.
Potential Significance Thresholds
 Flat amount of CO2e tons per year
 Comparison to facility’s 1990 emissions
 Comparison to AB32 reductions
– % reduction required overall
– % reduction by sector
 Performance standards
– Benchmark emissions per unit output
– Green building standards
 Hybrid
5. Analyze and Adopt Alternatives
and Mitigation Measures
 Local or regional plan
– General Plan, Regional Transportation Plan
 Individual project
Mitigation framework
 Reducing emissions from the project
– Reducing energy required by the project including
alternatives to the project
 Generate energy from renewable sources
 Measures to offset emissions
– Local offsets must be analyzed and incorporated
Feasible Mitigation:
“Win-Win” Greenhouse Gas reductions
 LEED certification
– Costs and marketability
 Solar retrofitting
– Southern California Edison
– SunEdison
 Density Bonuses for Transportation Oriented
Design
Mitigation Measures –
Further Thoughts
 Compare cost effectiveness
– “Popular” measures not necessarily produce the
greatest reductions.
 Local measures may provide attractive cobenefits.
 Purchase of credits likely to result in
offsetting twice as AB32 is implemented.
 Will CEQA mitigations be creditable
“voluntary early reductions under AB 32?