What California’s 2022 Carbon Neutrality Scoping Plan Means for CEQA and Housing

Nossaman eAlert

While the 2022 Scoping Plan for Achieving Carbon Neutrality (2022 Scoping Plan) recently adopted by the California Air Resources Board (CARB) may benefit infill housing projects, it will likely create additional barriers to housing projects outside of urban centers. The 2022 Scoping Plan includes CEQA screening criteria that may be used to identify projects that are “clearly” consistent with state GHG emissions reductions goals and housing policies. Many residential and mixed-use projects proposed outside of an infill area, however, may fail the screening criteria and be required to develop project-specific GHG emissions impacts analyses and mitigation packages. This approach is both costly and can lead to arbitrary and ineffective mitigation requirements that are subject to legal challenges.

The 2022 Scoping Plan implements California’s recently adopted legislative goals of achieving statewide carbon neutrality and a GHG emissions reduction target of 85% below 1990 levels by 2045. (Pub. Resources Code, § 38562.2.) While prior Scoping Plans have focused on energy and transportation sectors, the 2022 Scoping Plan identifies a roadmap for decarbonizing the housing sector, including state standards promoting energy efficiency, all-electric new construction, electrical vehicle infrastructure and retrofit programs for existing low-income housing stock.

The 2022 Scoping Plan encourages local jurisdictions to adopt plans and requirements that are consistent with state policies. Once adopted, these local requirements would be imposed on housing projects through conditions of approvals on land use entitlements. The 2022 Scoping Plan, however, has immediate implications for housing projects that are subject to CEQA review.

Under the California Supreme Court’s 2017 decision in Cleveland National Forest Foundation v. San Diego Association of Governments (S223603), GHG emissions analysis prepared in the course of project CEQA reviews must “stay in step with evolving scientific knowledge and state regulatory schemes.” This requirement also appears in the State CEQA Guidelines.

With CARB’s adoption of the 2022 Scoping Plan, CEQA analyses should now reflect the more stringent GHG emissions reductions goals mandated by state law. This requirement creates new challenges for an area of CEQA compliance that has been plagued by regulatory uncertainty and associated litigation risk. The 2022 Scoping Plan notes that approximately two-thirds of CEQA challenges to fully entitled housing projects included claims that the project GHG and related transportation impacts analyses were deficient.

The 2022 Scoping Plan also makes clear that while consistency with a locally adopted plan is the preferred approach for analyzing the significance of a project’s GHG emissions, in order to be used for CEQA compliance the plan must be updated to reflect current law, including but not limited to 2045 GHG emissions reduction targets. In the absence of an adequate local plan, lead agencies may rely on GHG emissions thresholds recommended by local air districts and regional agencies, but only if the thresholds are based on the region’s share of statewide GHG emissions reductions.

By declining to set clear and consistent regulatory standards for housing projects, as prior Scoping Plans have done for the goods movement sector and projects subject to the Cap-and-Trade Program, the 2022 Scoping Plan places the substantial costs of implementing state climate change objectives on local jurisdictions and project proponents.

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