Don’t Forget the Energy Implications of New Projects – CEQA Guidelines Appendix F

Photo credit: Kevin Dooley, Flickr, CC BY 2.0

Agencies have long relied on existing energy-reduction requirements in building codes, and on the beneficial side effects of reducing greenhouse gases, to demonstrate that a project’s energy use will not be wasteful or inefficient. That approach is no longer sufficient under CEQA, however, without an express assessment of the “before” and “after” energy requirements of proposed projects. This will have important implications for how lead agencies prepare EIRs.

In Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, the court confirmed that EIRs must quantify the energy impacts of proposed projects. The Court of Appeal held that a city’s EIR for a proposed Costco retail store and gas station did not comply with CEQA, because the EIR failed to properly identify and analyze the potentially significant energy impacts of the project. This decision concerns often-overlooked requirements in CEQA to analyze and mitigate energy impacts found in Public Resources Code section 21100(b)(3), and in CEQA Guidelines, Appendix F and sections 15126.4(a)(1)(C) and (c). As stated in Appendix F, “[i]n order to ensure that energy implications are considered in project decisions,” an EIR must discuss “the potential energy impacts of proposed projects, with particular emphasis on avoiding or reducing inefficient, wasteful and unnecessary consumption of energy.” Appendix F, § I. “Potentially significant energy implications of a project shall be considered in an EIR to the extent relevant and applicable to the project.” Appendix F, § II.

Ukiah Citizens relies heavily on California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC). In Ukiah Citizens, as in CCEC, the city’s EIR concluded that the proposed project would generate thousands of new vehicle trips but failed to calculate the energy impacts of those trips. In CCEC, the court rejected Woodland’s argument that mitigation measures designed to reduce vehicle trips would also reduce transportation-related energy impacts, because the EIR did not quantify the energy impacts of new vehicle trips. An EIR cannot satisfy the requirements of CEQA to analyze transportation energy impacts simply “by saying an environmental impact is something less than some previously unknown amount.”

Also, as in CCEC, the EIR in Ukiah Citizens relied on compliance with the State Building Code (Title 24) to mitigate operational and construction impacts without addressing the criteria in Appendix F. With regard to operational and construction impacts, the court in CCEC held that “a requirement that [the project] comply with the Building Code does not, by itself, constitute an adequate assessment of mitigation measures that can be taken to address the energy impacts during construction and operation of the project.” That is because Title 24 “does not extend beyond the buildings themselves” and “does not address many of the considerations required under appendix F of the CEQA Guidelines.”

Finally, as in CCEC, it was insufficient for the EIR in Ukiah Citizens to assume that greenhouse gas mitigation “would likely have the collateral effect of substantial energy-saving effects.” The EIR in CCEC also failed to investigate any renewable energy options for the project, but this issue was not raised in Ukiah Citizens.

In a case decided around the same time as Ukiah Citizens, the court determined that an EIR could not demonstrate greenhouse gas reductions from increasing Title 24 energy efficiency by 15% if it could not show that the project “will, in fact, exceed Title 24 standards by 15 percent.” Spring Valley Lake Association v. City of Victorville (2016) 248 Cal.App.4th 91, 103. While Spring Valley involves claimed greenhouse gas reductions, and not energy reductions, the result is applicable to the type of analysis required in the energy context as well – the EIR must show the factual basis of its assumptions that both energy use and greenhouse gas emissions will be reduced.

To avoid facing similar legal challenges, agencies tasked with preparing EIRs should understand CEQA’s requirements to disclose and mitigate energy impacts, and will need to ensure that they can successfully comply with them. Preparing an energy analysis could involve covering the elements the courts identified in Ukiah Citizens and CCEC. These cases do not provide a complete picture for all types of projects, however, and environmental documents will need to assess the energy implications of each project based on the circumstances presented. Moreover, understanding energy-related obligations that projects face due to other laws and policies, in addition to CEQA, as well as the programs and incentives available to project applicants to help avoid or mitigate energy impacts, can aid in the development of a successful EIR. Although CEQA’s requirements to assess energy impacts may have been overlooked in the past, it is becoming clear that courts are starting to pay more attention to them, in line with the increasing attention that energy is getting across the board in California.