As anyone who reads Sports Illustrated or watches the Oscars—let alone follows trends in environmental science, policy, or law—knows, anthropogenic global climate change is a very big problem. Scientists predict that in California, the state on which this article focuses, unchecked climate change would decimate water supplies, intensify heat waves, accelerate coastal erosion, degrade air quality, increase wildfires, and reduce wildlife habitat, among other impacts. Similar consequences are likely worldwide. These impacts threaten to create major social and economic costs, and although climate change will probably affect almost everyone, the burdens for low-income or otherwise vulnerable communities are likely to be particularly heavy.
Those threats have led to widespread academic and, increasingly, political interest in developing new legal mechanisms for addressing climate change. Many states now are acting; Congress has begun considering proposed legislation; international discussions continue; and academic and popular commentary increasingly focus on potential new responses at all levels of government. Nothing in this article questions the importance of such innovations or the need for new national and international approaches. The central thesis of this article, however, is that existing provisions of some old, familiar laws also can help.
Specifically, this article discusses one such law. After providing background discussion of the causes and effects of climate change and of existing regulatory efforts, it explains how the California Environmental Quality Act (“CEQA”), a somewhat typical environmental assessment statute, can limit the emissions that drive climate change. CEQA requires that California’s state and local agencies identify and, if feasible, mitigate or avoid the significant adverse environmental impacts of projects they propose or approve. Climate change is a classic example of a “cumulative” environmental impact, and CEQA requires identification of projects’ contributions to such significant cumulative impacts. Mitigation of those contributions almost always will be feasible; between on-site changes and off-site measures, like purchases from emissions markets, agencies should be able to avoid or fully offset projects’ emissions of pollutants that cause climate change. Therefore, CEQA effectively requires that the projects it regulates make climate change no worse. Whether this requirement will translate into actual results is still uncertain, for actual results will likely depend upon the nature of implementation and judicial enforcement. The idea that CEQA constrains greenhouse gas emissions is sufficiently new that no published judicial decisions have addressed this issue, and many agencies are professing confusion about how they should comply. But on paper, at least, the law imposes constraints that could create significant shifts in actual practice.
The article then addresses a related normative question, which has received little academic attention: can environmental assessment laws like CEQA provide effective mechanisms for responding to climate change? That question is highly relevant and politically divisive within California. California’s contributions to climate change are not small, and CEQA, which applies to thousands of projects every year, could make a significant dent in those emissions. But implementing agencies and the judiciary are only just beginning to consider the statute’s applicability, and have not yet resolved whether its mandate will be embraced or circumscribed.
The question also has broad relevance outside California. In responding to climate change, as in many other areas of environmental regulation, California has been a pioneer, and its approach to climate change and environmental assessment law may be imitated elsewhere. Mechanisms for such imitation are widespread; legal systems in the United States and throughout the world include laws like CEQA. Attorneys have begun testing the ability of some of those laws to constrain greenhouse gas emissions. This article’s analysis therefore applies, albeit with some modification, to compliance with the National Environmental Policy Act (“NEPA”)—CEQA’s federal-law counterpart — several existing state laws, laws in many other countries, and even the operational rules of institutions like the World Bank. It also can provide guidance for jurisdictions considering enactment or modification of environmental assessment laws.
The question is not rhetorical. The prevalence and staying power of environmental assessment laws attest to their electoral support, but their value has been vigorously contested, sometimes in academic and often in political circles, since they first emerged in the early 1970s. Disagreements about the wisdom of decentralized environmental enforcement mechanisms —mechanisms upon which laws like CEQA largely rely—also can be intense, particularly if those laws would address geographically extensive problems. CEQA thus exemplifies a potentially widespread but probably controversial method for addressing climate change, and one might reasonably ask whether the potential environmental gains are worth the associated expenses and disputes.
The article concludes that the potential gains are worthwhile, and that CEQA’s model, although not perfect, is very good and well worth utilizing. As decentralized, adaptable legal mechanisms, environmental assessment laws can influence and improve many individual projects, creating environmental benefits that would escape other regulatory approaches. And by allowing flexible—even market-friendly—compliance techniques, laws like CEQA can achieve those benefits efficiently. Because environmental assessment laws are not comprehensive or cost-free solutions and are usually implemented unevenly, their presence does not obviate the need for complementary regulatory approaches. But those complementary regulatory approaches also have flaws, and because no single legal device is likely to provide an adequate response, portfolios of regulatory approaches probably will prove necessary. Environmental assessment laws can contribute substantially to such portfolios.
