Marten Law: California Court of Appeal Rejects Refinery Plan for Failure to Quantify GHG Impacts and Specify Mitigation

   Steven Jones, Partner, Marten Law PLLC

In this Emerging Issues Analysis, Steve Jones of Marten Law PLLC discusses Communities for a Better Environment v. City of Richmond, 184 Cal. App. 4th 70 (Cal. App. 1st Dist. 2010), a decision by the California Court of Appeal rejecting an Environmental Impact Report (EIR) evaluating the potential expansion of an oil refinery on the grounds that the EIR failed to quantify the greenhouse gas emissions created by the refinery's expansion and identify specific mitigation for those impacts.

“We began reporting about efforts to use state and local environmental statutes to require analysis of project's GHG impacts in 2007,” writes Steve Jones, a partner at Marten PLLC. “See, e.g., Dustin Till, Massachusetts Becomes First State to Require Developers to Quantify and Mitigate Greenhouse Gas Emissions, Marten Law Environmental News (May 9, 2007), available at http://www.martenlaw.com/newsletter/20070509-mass-ghg-emissions; Steve Jones, King County (WA) First in the Nation To Require Climate Change Impacts To Be Considered During Environmental Review of New Projects, 2008 Emerging Issues 3000 (Sept. 2007); Steve Jones & Brad Marten, States Move Forward With Implementation of Greenhouse Gas Reduction Initiatives, Marten Law Environmental News (Aug. 22, 2007), available at http://www.martenlaw.com/newsletter/20070822-ghg-reduction-inits; Linda Larson, Local Governments Use Both Carrots and Sticks to Encourage Green Buildings, Marten Law Environmental News (Dec. 5, 2007), available at http://www.martenlaw.com/newsletter/20071205-green-bldgs-encouraged.”

“In a unanimous opinion, the California Court of Appeal recently rejected an Environmental Impact Report (EIR) evaluating the potential expansion of an oil refinery on the grounds that the EIR failed to quantify the greenhouse gas (GHG) emissions created by the refinery's expansion and identify specific mitigation for those impacts,” explains Jones, who is chair of Marten’s litigation department. “The opinion was issued in the case of Communities for a Better Environment v. City of Richmond.  The decision follows a trend that began three years ago of using state and local environmental review statutes to force climate change analysis of proposed projects.  By one count, 34 such cases have been filed or decided since 2007, and in many of them, additional analysis of GHG impacts has been required.”

“In the last three to four years, these types of challenges are becoming more commonplace, particularly those being brought under state statutes such as CEQA. Columbia Law School's Center for Climate Change has developed a Climate Change Litigation Chart,” points out the author, “which shows 34 cases raising challenges similar to those brought against the Chevron plant under state NEPAs. This chart is available at http://www.law.columbia.edu/centers/climatechange.”

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Steven Jones, a partner with Marten Law PLLC, is the chair of the firm's litigation department. He has handled complex environmental and land use litigation for both public and private clients for 15 years. Steve has particular expertise in litigation arising under CERCLA, the Clean Water Act, the Federal Torts Claim Act and representing clients in litigation involving climate change, solid waste and nuisance issues. He also has extensive experience litigating land use issues under both SEPA and Washington's Growth Management Act. Steve has handled cases before all levels of the state and federal courts, along with administrative litigation before Washington's Pollution Control Hearings Board, the Growth Management Hearings Boards and Washington's Utilities and Transportation Commission. Steve also writes and speaks frequently on environmental and land use issues and has contributed chapters to both the AWB Environmental Compliance Handbook and WSBA Real Property Deskbook. He is the editor of the ABA's Superfund and NRD Litigation Committee Newsletter.

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