STATE ENVIRONMENTAL POLICY ACT SEPA AND CLIMATE CHANGE

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STATE ENVIRONMENTAL POLICY ACT (SEPA) AND CLIMATE
CHANGE

• Washington States Efforts and
• Implications for Ports
• Ann K. Farr T.C. Richmond
• WPPA Consultant GordonDerr LLP

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Court cases

• Legal challenges to failure to consider GHG
  emissions--EIS as driver
• Decisions in other states
• Similar challenges in WA

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California et al. v. NHTSA, 508 F.3d 508 (9th
Circuit 2007)

• Does NEPA require consideration of climate change
  impacts? YES
• Involved challenged to CAFÉ standards for light
  trucks, minivans, and pickups
• NHTSA determined no EIS needed--court disagreed

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California et al. v. NHTSA NTHSA required to
consider greenhouse gas emissions

• CAFÉ standards impact climate change by impacting
  GHG emissions
• U.S. transportation sector is 6 of worlds
  emissions, and light trucks are significant
  portion of that

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Other Flaws in NHTSAs Environmental Review

• Cumulative impacts analysis insufficient failure
  to look at past, present, and future actions
• Standards decreased growth of emissions, but
  still resulted in overall increase of emissions
• End result NHTSA needed to prepare EIS to
  consider climate change impacts

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California v. San Bernardino County

• Challenge to Countys general plan which governs
  growth and development for next 25 years

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County settled case in 2007

• Update general plan to include GHG reduction plan
• Inventory existing GHG sources and determine
  baseline emissions from those sources
• Project 2020 emissions and set an emission
  reduction target
• Conduct environmental review of general plan
  update and GHG reduction plan

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MOU between CA, LA , and Port - 2007

• State of CA, City of LA, and Port of LA establish
  partnership for GHG reductions
• GHG Inventories
• Solar Power project
• Environmental Impact Reports
• Evaluate and adopt all project-level mitigation
  measures it determines feasible

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GHG laws passed in WA in 2008

•  
• SSB 6309 DISCLOSURE--NEW VEHICLES
• The Department of Ecology (Ecology) must develop
  and implement a GHG disclosure labeling program
  for new passenger cars, light duty trucks, and
  medium duty passenger vehicles offered for sale
  beginning with the 2010 model year.
• E2SHB 2815 GHG Limits and Other studies and
  Actions

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E2SHB 2815

•  Sets limits on GHG emission to achieve
  state-wide reductions
• to 1990 levels by 2020
• to 25 percent below 1990 levels by 2035
• to 50 percent below 1990 levels by 2050, or 70
  percent below the state's expected GHG emissions
  that year.

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E2SHB 2815 (continued)

• December 1, 2008
• GHG Reduction Plan to the Legislature
• Regional multisector market-based system to limit
  reduce GHG emissions
• Final recommendations of the Governor's Climate
  Advisory Team (CAT)
• Recommendations to assist state, regional,
  local entities in achieving VMTs
• In 2010, that the State must report total GHG
  emissions for the preceding two years, and totals
  in each major source sector.
•   By 2020, the state will increase the number of
  clean energy jobs to 25,000.

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CLIMATE ADVISORY TEAM (CAT)

• Climate Advisory Team formed in 2007 under
  executive order
• Consisted of more than 200 stakeholders, chaired
  by CTED and Ecology
• Interim Report 12 recommendations to reduce
  greenhouse gas emissions. Report at
  http//www.ecy.wa.gov/climatechange/2008CAT_overvi
  ew.htm

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CLIMATE ACTION TEAM (CAT 2)

• Implementation workgroups (IWGs)
• SEPA
• Energy Efficiency and Green Building
• Transportation
• Beyond Waste
• Forest Sector
• Agricultural Sector
• Plus, a GMA advisory committee

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OVERVIEW OF SEPA IWG (Implementation Working
Group)
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CAT-2 CREATED SEPA IWG

• Fundamental Assumption SEPA already requires
  review of climate change impacts for nonexempt
  project and non-project proposals.
• Letter from Ecology Director
• Membership Cities, Counties, WSDOT, Business,
  Academics, Environmental groups, and Legal
  Technical and Architect Consultant

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SEPA IWG
The goal of the SEPA IWG to provide guidance
to state agencies, local governments, and the
private sector on how to analyze, disclose, and
mitigate climate change impacts under SEPA.
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Assignment of SEPA IWG

• Avoid policy by litigation
• Clarify SEPA requirements for review and
  mitigation of, and adaptation to climate change
  impacts.
• Identify methods of measuring, mitigating, and
  adapting
• Provide clear guidance to lead agencies that
  applies to a wide range of SEPA actions, both
  project and non-project, EIS/MDNS/DNS
• 2. Develop recommendations to CAT by end of
  September

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TWO KINDS OF CLIMATE CHANGE IMPACTS

• Greenhouse Gas (GHG) Emissions Impacts
• Emissions
• Sinks
• Impacts
• Combined Impacts of Proposals and Changing
  Environmental Conditions Resulting from Climate
  Change
• Vulnerability Impacts
• E.g., proposed road that will be submerged by
  rising sea level

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Impacts on Atmospheric Greenhouse Gas
Concentrations from Project/Plan
Net Emissions
Project/Plan (e.g., construction of airport,
adoption of city plan)
Climate Change
Impacts on Natural and Built Environment Related
to Project/Plan (e.g., impact of submerged
roadway on traffic or water quality
Project/Plan Outcomes (e.g., houses,
transportation, infrastructure, etc.)
Changes in Natural Environment from Climate
Change (e.g., sea level rise, reduced snowpack)
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• Actions subject to SEPA Climate Change Analysis
• Project Actions
• Public and private
• Projects Housing, Retail, Marine facilities,
  Airport improvements, Roads
• Non-Project Actions
• State agency regulations or program
• Regional Transportation Plan
• Comprehensive plan (Port, local govt.)
• Local subarea plan
• Local development regulations

Non-Project SEPA Review Project SEPA Review
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POTENTIAL AREAS OF CLARIFICATION

• Exemptions
• SEPA Checklist
• Threshold Determinations
• Specific Standard of Significance
• EIS Analysis of Climate Change Impacts
• Mitigation
• Planned Actions
• RCW 43.21C.240 Functional Equivalence

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ANTICIPATED SEPA RESOURCES RECOMMENDATIONS

• Guidance and tools for measuring and disclosing
  GHG impacts for project and non-project actions
  under SEPA, including a revised checklist and
  clear direction on methodologies for measuring
  emissions and making SEPA threshold
  determinations
• Guidance or recommendations regarding possible
  approaches to mitigating GHG impacts for state
  agencies and local governments (project and
  non-project actions)

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ANTICIPATED SEPA RESOURCES RECOMMENDATIONS
(cont.)

• Recommendations for using incentives and
  disincentives related to SEPA to promote climate
  friendly non-project and project actions and
• Recommendations on adaptive approaches -related
  to the changing environmental conditions
  predicted to occur over time as a result of
  climate change.

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FOCUS / PRIORITY AREA(S)(From SEPA IWG Status
Report)

• The SEPA IWG has identified and will focus on
  three interrelated areas of SEPA compliance and
  implementation
• Work area Bucket 1 Procedural measurement
  and disclosure of climate change impacts,
• Work area Bucket 2 Substantive mitigation
  of, and adaptation to, climate change impacts,
  and
• Work area Bucket 3 Leveraging SEPA to
  encourage climate friendly development

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BUCKET 1 MEASUREMENT DISCLOSURE

• GHG Emissions
• What Nonexempt Project and Non-Project Actions
• Scope Direct, Indirect, Lifecycle
• Causation / Accountability
• Double Counting Problem
• Gross or Net Emissions?
• Measurement Tools
• Applicable to wide range of SEPA actions

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BUCKET 1 MEASUREMENT DISCLOSURELEVELS OF
SEPA REVIEW

• THRESHOLD DETERMINATION

MDNS
DS
DNS
EIS
MITIGATION
Specific GHG Standard of Significance?
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Sources of Emissions Being Considered

• Direct Emissions
• Direct Construction
• On-Site Mobile Sources and Company Owned VMT.
• Stationary Sources and Direct Facility Emissions
• Fugitive Emissions
• Direct Agricultural Emissions
• Forestry Conversion and other land or Aquatic
  Vegetation Disturbance
• Direct emissions from maintenance activities

• Indirect Emissions
• Off-Site Extraction of Purchased Materials
• Off-site Processing of Purchased Materials
• Transportation of purchased materials by Non
  Company Owned Transport
• Employee Commute VMT
• Other Indirect VMT
• Purchased electricity
• Water Use and Off-Site Wastewater Disposal.
• Off-Site Solid Waste
• Off-Site End-use emissions from use of
  proponents products sold to others

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BUCKET 1 Use of Measurement Threshold
Determination Standard?

• A state GHG standard for significance?
• Use of a safe harbor for statewide
  consistency
• Guidance or standard?
• Ease of measurement?
• Percentage vs volume standards advantages
  disadvantages
• Direct linkage to statewide reduction standards?
• Definition and relationship to BAU

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What is significant?

• WAC 197-11-794 definition a reasonable
  likelihood of more than a moderate adverse impact
  on environmental quality
• Key considerations include severity or intensity
  of impact, context (affected environment) and
  likelihood of occurrence
• Direct, indirect and cumulative impacts must be
  considered

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BUCKET 2MITIGATION UNDER SEPA

• RCW 43.21C.060 lead agency can condition or deny
  an action under a substantive SEPA policy
• Any conditions/mitigation required by a lead
  agency must be to mitigate for impacts identified
  in environmental documents
• See also WAC 197-11-660 for substantive SEPA
  requirements

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BUCKET 2 TWO KEY QUESTIONS

• HOW MUCH MITIGATION SHOULD BE REQUIRED?
• WHAT KINDS OF MITIGATION SHOULD BE REQUIRED?

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BUCKET 2 Sequencing Mitigation Projects

• Avoid impacts
• Minimize impacts (reduce GHG emissions)
• Compensate for impacts (purchase of offsets)

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Example Mitigation Strategies

• Conserve green space
• Low impact high density development
• Minimize impervious areas
• Recycled building materials
• Construction Demolition waste recycling

• Energy efficient design and operations
• Use alternative fuels
• Reduce employee/tenant trips
• Efficient heating and lighting design
• Expand sinks wetlands, aquatic, vegetated
  areas
• Port GHG Reduction Plan or Strategy

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Bucket 3 Leveraging SEPA

• Expanded exemptions for climate friendly
  development
• Upfront SEPA i.e. analysis done at planning
  level for a region or subarea
• Mitigation incentives e.g. green construction
  disincentives
• Should some exemptions be redefined?

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Update on SEPA IWG

• Final Meeting September 30th
• Recommendations to CAT on issues from the 3
  buckets.
• Possible product formats
• Statutory Amendments
• WAC Amendments
• Guidance
• Policy Expanded exemptions for climate friendly
  development

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Update on SEPA IWG (contd)

• Possible recommended products
• List of emissions sources
• Criteria for making decisions about what to
  measures
• Measurement tools
• Mitigation Options
• Measurement Case Studies/Examples
• Analysis of Threshold Determination Options
• Analysis Matrix (of all of above)
• Incentives for Climate Friendly Development

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Practical Issues and Strategies

• Disclose GHG impacts in SEPA analysis
• Regulatory agency permit conditioning likely
  under SEPA substantive authority
• Track and participate in regional planning
  strategies for GHG reduction
• Develop port-based strategies
• Fuel efficiency, alternative energy sources
• Green building standards
• Offset Mitigation planning expansion of green
  spaces, wetlands, aquatic areas

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Legal strategies

• Contact jurisdiction
• Use King County and City of Seattle checklists
  and mitigations as guide even if proposal in a
  different jurisdiction
• http//www.metrokc.gov/permits/info/site/ClimateCh
  ange.aspxSEPA
• http//www.seattle.gov/dpd/Planning/GreenhouseGas/
  Overview/
• Track CAT Legislation and WAC amendment
• Ecology Climate Change website
  http//www.ecy.wa.gov/climatechange/index.htm

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STATE ENVIRONMENTAL POLICY ACT (SEPA) AND CLIMATE
CHANGE

• Washington States Efforts and
• Implications for Ports
• Ann K. Farr T.C. Richmond
• WPPA Consultant GordonDerr LLP