LOS ANGELES � California’s new greenhouse gas emissions law and a settlement reached last month in a case brought by the state’s attorney general have encouraged environmental groups to file or amend lawsuits alleging that municipalities and big developers failed to take into account the impact of global warming in their planning procedures.
But lawyers for several cities say they are confused about how to advise their clients given that the law, which was passed last year, lacks specific standards on how much and what type of emissions are allowed.
Last month, state Attorney General Jerry Brown settled a case in which the County of San Bernardino agreed to reduce greenhouse gas emissions caused by its general growth plan. People v. County of San Bernardino, No. CIVSS700329.
Several other environmental groups have suits pending against California cities that approved real estate or other projects without considering their impact on global warming. Those cities are: Lathrop, American Canyon, Santa Clarita, Perris and Banning.
Both parties reached the San Bernardino agreement the same day that several state Republican legislators relinquished a provision in the state’s annual budget that would have banned certain lawsuits under the state’s global warming law. Instead, they agreed to a more limited ban that applies to projects funded with state bonds.
Larger projects targeted
Meanwhile, regulators are deliberating about the specific guidelines to be included in the state’s global warming law, which was passed last year.
“We’ll continue to see more of these lawsuits where they’re challenging especially larger projects � general plans and specific plans � until such time as regulations and mitigation measures are adopted or carried out,” said Eric Dunn, a lawyer at Irvine, Calif.-based Aleshire & Wynder, which represents 10 Southern California cities in environmental cases. “Right now, cities don’t really know what to do in order to comply.”
That’s not stopping environmental groups or Brown from pursuing global warming claims.
“We will litigate if we have to, but we prefer to see everyone get on board with solving the problem of global warming,” said Gareth Lacy, a spokesman for Brown’s office, which has made public comments during the environmental review of about a dozen projects statewide.
The greenhouse gas emissions law falls under the California Environmental Quality Act, which requires state and local agencies to assess the environmental impact of their development plans and projects. The kinds of environmental impact subject to the California act include everything from traffic congestion to disturbing natural habitats.
The greenhouse gas emissions law adds mandatory cuts in emissions, said Matt Vespa, staff attorney for the Center for Biological Diversity, which has brought several global warming cases against municipalities. Specifically, the law seeks to reduce emissions to 1990 levels by 2020.
But the law doesn’t address lawsuits. The failure of legislators in last month’s budget approval to obtain an outright ban on global warming suits filed under the California act “legitimizes and makes clear” that environmental groups are allowed to sue for global warming under the California act, Vespa said.
The San Bernardino agreement doesn’t identify specific measures the county should take to reduce emissions. Instead, the county simply agreed to look at the issue within a designated period of time.
“What was important from the county’s perspective was to preserve its discretion on how to study the issue and what to put into its own local greenhouse plan,” Vespa said. “But the settlement agreement doesn’t commit the county to do any particular type of mitigation.”
Michael Zischke, a partner in the San Francisco office of Los Angeles-based Cox, Castle & Nicholson, who represents San Bernardino County, said the settlement would have minimal impact on other global warming cases.
The settlement also isn’t binding like a court order, said Geralyn Skapik, a partner in the Riverside, Calif., office of Los Angeles-based Burke, Williams & Sorensen, which represents the city of Banning, Calif., in a global warming case involving a large residential project. A hearing on the Banning case is set for Nov. 30.
While no appellate court has addressed global warming in environmental projects, at least three California judges have issued rulings in recent months. In all those cases, the judges acknowledged the changing science of global warming but rejected claims by environmental groups that a specific link existed between climate change and the project at issue.
That leaves no precedent to follow, said Dunn, who represents the city of Perris in a global warming suit brought last month by the Center for Biological Diversity involving a retail development.
“The Center for Biological Diversity and other clients and the attorney general in the San Bernardino case are asking cities and counties to adopt mitigation measures when we don’t have anything to measure them against,” he said.