Going Green Can Be a Sound Legal Investment By Brett Jolley As published in Delta Breeze,
June 2008
Going Green Can Be a Sound Legal Investment By Brett Jolley As published in Delta Breeze, A Monthly Building Industry Resource, June 2008*
It’s not easy being green. At least that’s what Kermit the Frog tells us. Easy or not, however, incorporating green building elements into development projects can make good marketing sense for builders (see, for example, the July/August 2007 CBIA California Builder cover story entitled “Finding Gold in Green”). But, aside from quicker sales of finished homes, why should developers undertake the extra tasks and costs associated with going green – especially in a down market? Simply stated, green is “in.” Thanks to the perfect storm of Al Gore’s foray into filmmaking, widespread media hype, and a politically ambitious State Attorney General, California has green fever.
Surprisingly, the building industry’s cure for this fever may actually be “more cowbell”, as Christopher Walken once suggested on Saturday Night Live. Or, at least, more bell ringing. To put a finer point on it, developers must both incorporate and tout the green aspects of their projects. If done correctly, this should pay legal and political dividends.
Going Green Can Give Your Project a Leg-Up in the Approval Process Beauty Contest
Face it, getting a major project approved is a political ballet (and sometimes even a fistfight). The greener the project, the more reasons decision makers have to say “yes.” Although neither San Joaquin County nor any of its incorporated cities has yet adopted a “green building ordinance”, that doesn’t mean council members and planning commissioners don’t expect to see increased sustainability features in the projects that come before them for approval. Indeed, the 2035 Stockton General Plan Update includes a policy entitled “Energy Conservation for New Development” that requires new construction to “incorporate energy conservation and green building practices” and endorses the concept of a future green building ordinance.
By proactively incorporating sustainability features into projects, builders can increase the political attractiveness of their undertakings – and, in Stockton, affirmatively demonstrate compliance with the new General Plan. The key is making much ado of the environmentally friendly aspects of your project. Whether you are installing Energy Star appliances, higher R-value insulation, or replacing incandescent bulbs with CFLs – play up these features. Play them up in your EIR. Play them up in your discussions with staff. Play them up in your presentation to the city council. Let the world know your project is on the green forefront.
Moreover, consider enrolling your project in a voluntary green-building certification program such as California Green Builder (www.cagreenbuilder.com) or Build it Green (www.builditgreen.org) – by which third party professionals certify development projects as “green.” At the end of the day, rather than sending your project back to staff for design clarification (or some other euphemism for “we don’t like what you have proposed”), show the decision makers your project is a new, sustainable community treasure that they can proudly endorse.
Using Sustainable Design Features Can Effectively Offset Project Impacts in Your EIR
The California Environmental Quality Act (CEQA) does not directly regulate land use, but instead establishes environmental review hoops through which public agencies and developers must jump prior to project approval. CEQA generally does not identify which environmental impacts an EIR must evaluate – that is left to the public agency to determine based on the particular facts of each project. If substantial evidence shows an environmental impact may be significant, that impact must be discussed in an EIR and mitigation measures must be proposed. If the project’s impacts will be less-than-significant, a negative declaration may be adopted.
The inclusion of sustainability features in a project’s design can offset impacts and reduce the intensity of both environmental review and mitigation measures. Consider this: Including integrated pedestrian trails and mixed-use construction may be sufficient to reduce vehicular traffic and air quality impacts to less-than-significant levels, allowing adoption of a negative declaration in lieu of an EIR. Likewise, where water supply is an issue, requiring low water use landscaping and water efficient plumbing may be added as mitigation to reduce water supply impacts to less-than-significant levels.
Green building amenities will also help satisfy an EIR’s energy requirements. According to Appendix F of the CEQA Guidelines, “[t]he California Environmental Quality Act requires that EIRs include a discussion of the potential energy impacts of proposed projects, with particular emphasis on avoiding or reducing inefficient, wasteful and unnecessary consumption of energy.”
To this end, Section 21100(b)(3) of the Public Resources Code requires each EIR to include “a detailed statement” of “mitigation measures proposed to minimize the significant effects on the environment, including, but not limited to, measures to reduce the wasteful, inefficient, and unnecessary consumption of energy.” Likewise, Section 15126.4(a)(1)(C) of the CEQA Guidelines explains, “energy conservation measures” should be discussed “when relevant.” Examples of energy conservation measures are provided in Appendix F. Interestingly, energy is the only impact expressly identified for mitigation - thus this impact, whether ultimately significant or not, should be addressed to some extent in any project EIR.
From a CEQA perspective, identifying a project’s sustainability features is just as important as actually implementing those attributes. EIR preparation is somewhat akin to fourth grade math – even if you reach the correct conclusion, you don’t get any points unless you show your work. Thus, although a project may entail innovative green building practices, if the EIR ignores these environmental amenities and simply concludes impacts will be less-than-significant without explanation, the project approvals may be unnecessarily placed at-risk. Instead, the EIR should discuss green building standards as a springboard to CEQA compliance. From an EIR’s project description section, to listing mitigation measures, incorporating green building features such as “low-E” windows, rooftop solar systems, and even pedestrian-oriented designs will ultimately make for a stronger, more informative EIR; and an EIR that is better suited to withstand legal scrutiny.
Green Building Practices May Fend Off Would-Be Challengers
Incorporating environmentally sensitive project features can have an added benefit – preventing litigation after project approval.
In 2006, the State Legislature added the Global Warming Solutions Act – otherwise know as “AB 32” – to the Health and Safety Code. AB 32 establishes criteria and deadlines for reducing statewide greenhouse gas emissions. While many Californians assume AB 32 creates new EIR requirements under CEQA, this is not the case. Rather, AB 32 requires the California Air Resources Board, the state agency charged with regulating statewide air quality, to quantify, develop, and implement air pollution reduction measures that will ultimately bring greenhouse gas (GHG) emissions back to 1990 levels. That is, AB 32 places mandates on the Air Resources Board regarding GHG emission reductions but does not place mandates on local agencies or developers.
Nevertheless, project opponents have recently seized the opportunity to challenge EIRs based on GHG emissions and resulting “global warming” or “climate change” impacts – often using AB 32 as a starting point. Although as of early May 2008 no reported court decision has voided an EIR on these grounds, project opponents continue to press the issue and may find success as they refine their arguments. For example, in Natural Resources Defense Council v. State Reclamation Board (Sacramento County Superior Court), NRDC challenged the Board’s approval of levee encroachment permits for the River Islands project in Lathrop claiming the Board failed to consider effects of global warming on the Delta and the possibility of resulting levee failure. The court rejected this claim, noting that an EIR had already been certified for the project and NRDC failed to meet its burden to require a subsequent EIR based on these new claims. In Center for Biological Diversity v. City of Banning (Riverside County Superior Court), several environmental groups challenged Banning’s approval of the Black Bench project. Although the court set aside the project approvals based on various CEQA defects, it rejected the petitioners’ “global warming” challenges to the EIR, noting “no law required the Banning City Council to consider global warming at the time it approved this project.” Notwithstanding the collapse of the global warming arguments in these cases, as project opponents refine these arguments, they will likely ultimately be successful unless the building industry proactively addresses these claims.
Moreover, the source of global warming challenges is not limited to environmental groups and NIMBYs. Recently, the Office of the Attorney General has placed itself on the global warming frontlines. According to his official website (www.ag.ca.gov/globalwarming), Attorney General Jerry Brown proclaims, “As the chief law enforcement officer of this State…I am committed to doing everything in my power to ensure that California meets its greenhouse gas reduction targets.” The Attorney General has begun implementing this policy by commenting on large planning projects. Indeed, the Office of the Attorney General has now submitted GHG-related CEQA comment letters on 33 projects (www.ag.ca.gov/globalwarming/ceqa/comments.php.). While these comments were intially reserved for broad planning documents such as the City of San Diego General Plan, the Tulare County General Plan, and the San Joaquin County Regional Transporation Plan the Attorney General recently submitted similar comments on parcel specific development projects – including projects in Stockton. Most of these comments focus on the absence of any global warming discussion in the respective project’s EIR. Thus, individual projects are not immune from such comments and to the extent a project includes sustainability features, the EIR should explain how these designs will reduce GHGs.
But the Attorney’s General treatment of this issue is not limited to mere CEQA comments. He also files litigation challenging the omission of GHG information in EIRs. In People v. County of San Bernardino (San Bernardino Superior Court) the Attorney General challenged the County’s general plan update because, according to the Attorney General, “despite the enactment of AB 32, the FEIR on the General Plan update . . . makes no attempt to analyze the effects of those [greenhouse gas emission] increases on global warming or the greenhouse gas emissions reductions required by AB 32 . . .” As a result of this litigation, San Bernardino entered into a settlement agreement requiring, among other things, amending the general plan, quantifying GHG emissions, and preparing a GHG reduction plan.
What does this mean? An EIR that wholly ignores global warming impacts may be a sitting duck for litigation from no-growth opponents or even an Attorney General with a political agenda. Incorporating sustainability amenities will almost certainly reduce a project’s GHG impacts and setting forth this information in a transparent and informative manner may encourage would-be challengers to seek vindication from other, less-cooperative and ill-prepared sources. Think of green building as an added security system for project approvals.
In short, all is not doom and gloom on the environmental front, but developers can no longer operate in a “business as usual” manner when it comes to preparing EIRs. Green-centric adaptation is necessary to address emergent arguments in CEQA litigation. Remember, CEQA’s ultimate mission entails public disclosure of environmental effects of development, and builders will benefit from incorporating green designs and concurrently addressing the environmental benefits of these amenities in EIRs.