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Appendix
F itself offers a fairly straightforward approach to analyzing
energy use impacts. Section (II) (A)-(I), for example, offers
a format responsive to the following EIR elements: project
description; environmental setting; environmental impacts;
mitigation; alternatives; unavoidable adverse effects; irreversible
commitment of resources; short-term and long-term impacts;
and growth inducing effects. The thorniest issue in conducting
an energy use analysis, however, is likely defining appropriate
"significance standards" for identified project impacts.
Appendix F gives no guidance on this issue; and this area
is largely unprecedented. It is therefore necessary to interpret
the express terms of Appendix F itself and, to the extent
possible, apply analogous Guideline provisions relevant
to significance issues.
Appendix
F itself can be read as creating three broad assessment
categories: (1) energy conservation; (2) energy supply;
and (3) energy availability.
"Energy
conservation" emerges largely from the stated goal of Appendix
F, which is to conserve energy, and its emphasis on "avoiding
or reducing inefficient, wasteful and unnecessary consumption
of energy." (App. F (I).)
"Energy
supply" emerges from section (II)(C)'s "environmental impact"
provisions, which specifically call for assessing project
effects on local and regional energy supplies, as well as
peak and base period energy demands. (App. F (II)(C)(2)-(3).)
"Energy
availability" also emerges from section (II)(C), and calls
for lead agency assessment of whether energy supplies are
not just sufficient, but also available. Thus, under
an "energy availability" analysis, it is possible to respond
to a theoretical project setting where energy demands exceed
local or regional supply or transmission capabilities (as
in an "energy crisis" scenario) and any additional
demand on depleted energy reserve levels may trigger a "significance"
finding by the lead agency.
In the
context of these suggested categories, workable frameworks
for determining "significance" issues emerge.
a.
Energy Conservation.
The
emphasis of Appendix F on determining whether a project
avoids or reduces the "inefficient, wasteful and unnecessary
consumption of energy" [App.F (I), (II)] suggests a project
may be found to have a "potentially significant energy implication"
if it results in the "inefficient, wasteful and unnecessary
consumption of energy." (Pub. Resource Code § 21100(b)(3);
Guidelines § 15126.4(a); Appendix F (I).)
The
"unnecessary consumption" language of section (I) is echoed
throughout Appendix F. Section (II)(D), for example, emphasizes
mitigation measures designed to reduce a project's "wasteful,
inefficient and unnecessary consumption of energy. . . ."
(App. F (II)(D)(1-5).) Section (II)(E) states that "alternatives"
should be "compared in terms of reducing wasteful, inefficient
and unnecessary consumption of energy;" and Section (II)(F)
states that "unavoidable adverse effects" may include "wasteful,
inefficient and unnecessary consumption of energy. . . ."
From
this language, it is possible to derive an "unnecessary
consumption" test where project impacts become "significant"
when the data shows it will result in the "wasteful, inefficient
and unnecessary consumption of energy." This standard is
consistent with Guidelines section 15064(b), as it allows
for expert analysis and lead agency discretion in evaluating
project compliance with applicable conservation standards,
such as Title 24 building energy efficiency standards.
The
suggested "unnecessary consumption" test is also consistent
with the Court of Appeal decision in San Franciscans
for Reasonable Growth v. City and County of San Francisco
(1989) 209 Cal.App.3d. 1502, 1518-1520 ("San Franciscans
for Reasonable Growth"). This case involved an 18-story
office tower consisting of 256,800 gross square feet of
office space and 5,200 square feet of ground level retail
space. On remand from the trial court, the lead agency conducted
a cumulative impact energy analysis for the project, assessing
its energy needs against the projected needs of anticipated
future development under an adopted growth management plan
for downtown San Francisco. The lead agency determined the
project would not result in significant impacts because
its expected energy use was not "disproportionately high"
compared to the projected energy uses of future downtown
projects. Id. at 1519. The lead agency also determined
that the project's anticipated electrical demands would
be between 1.1-2% of the total demands of future downtown
development; and its natural gas demands would be between
.1-1.1% of the total future demand. Id. The project
EIR also called for compliance with California building
energy conservation standards; and required an energy audit
and implementation of additional conservation measures if
the project's actual consumption was found to exceed
the EIR's energy use projections. Id.
Although
the Court in San Franciscans for Reasonable Growth
did not articulate an Appendix F significance standard,
the Court nonetheless upheld the adequacy of the EIR's energy
assessment because:
the
project has contributed its fair share to mitigating the
cumulative effects of downtown growth on energy demand by:
(1) complying with current energy standards and (2) subjecting
the project to possible future revision to maintain a permissible
level of energy performance. (Id.)
Thus,
the Court's emphasis in San Franciscans for Reasonable
Growth on a "fair share" mitigation approach, project
compliance with energy efficiency standards, and commitment
to maintaining energy performance levels supports the application
of similar conservation analyses under Appendix F.
b.
Energy Supply.
Section
II(C) of Appendix F also directs lead agencies to evaluate
project impacts on local and regional energy supplies. (See,
App.F, sections (II)(C)(2) (assessment of project effects
on local and regional energy supply); (II)(C)(3) (analysis
of project effects on peak and base period demands).) These
provisions, however, do not discuss what levels of impacts
constitute "significant energy implications" and must therefore
be interpreted in the context of analogous "significance"
Guidelines.
Guidelines
section 15064(c)-(d) and Appendix G provide a framework
for defining appropriate "significance" standards to use
in section (II)(C). Guidelines section 15064(c)-(d), for
example, requires lead agencies to determine whether an
impact is both "adverse" and "significant." (See also
Guidelines section 15382 (defining "significant effect
on the environment" as "substantial, or potentially substantial,
adverse change in any of the physical conditions within
the area affected by the project").) Similar significance
language appears in Appendix G's initial study checklist,
where project impacts are reviewed in terms of "substantial
adverse effects" on the resource [see e.g., App.
G, sections (I)(a) ("substantial adverse effect" on aesthetics);
(IV)(a)-(c) ("substantial adverse effect" on biological
resources); and (XIII)(a) ("substantial adverse change"
on governmental facilities)] or another similar inquiry
[see e.g., App. G, sections (VIII) ("substantially
deplete" and "interfere substantially" with water quality);
(IV)(d) ("interfere substantially" with biological resources);
and (V)(a)-(b) ("substantial adverse change" on historical
or archaeological resources)].
The
"substantial adverse effect" language of Appendix G can
be extended to Appendix F energy supply issues to yield
the following questions:
- Will
the project have a "substantial adverse effect" on local
and regional energy supplies? [App. F (II) (C)(2)]; and
- Will
the project have a "substantial adverse effect" on peak
and base period demands for electricity and other forms
of energy? [App. F (II)(C)(3)].
These
inquiries enable lead agencies to consider project-specific
technical data - such as comparing the project's estimated
electricity demands with local and regional supply data
- to render determinations and make findings as to the "significance"
of projected impacts. While these questions do not create
unambiguous thresholds; neither do the checklist questions
of Appendix G. The analysis, however, is consistent with
prevailing CEQA methodology, and allows for expert and lead
agency assessment of relevant qualitative and quantitative
data.
c.
Energy Availability.
In addition
to supply issues, Appendix F also prompts lead agencies
to inquire into energy availability issues. Rather than
simply calculate whether energy supply can meet project
demands, an energy availability study asks whether the supply
is available to the project, and whether the project adversely
impacts "requirements for additional capacity" or local
and regional "energy resources." (App. F (II)(C)(2), (5).)
Thus, in an environmental setting where demand exceeds supply,
this assessment category can respond to a theoretical setting
where any additional demand on depleted energy reserves
may compel a finding of "significance" requiring either
mitigation or a statement of overriding considerations.
The
energy availability category is consistent with existing
legislation, proposed legislation, and case law pertaining
to water availability issues. See Senate Bill 901
(Costa, 1995), Senate Bill 221 (Keuhl), and Stanislaus
Natural Heritage Project v. County of Stanislaus (1996)
48 Cal.App.4th 182 ("Stanislaus Natural Heritage").
Senate
Bill 901 (1995), for example, requires a city or county
to consider "whether the total projected water supplies
available . . . in the 20-year projection contained in the
urban water management plan will meet the projected water
demand associated with the proposed project, in addition
to the public water system's existing and planned future
uses." (Wat. Code § 10910(d) (emphasis added); CEQA Guidelines
§ 15083.5(b).)
Senate
Bill 221 (Kuehl) - which was approved 6-4 on July 11, 2001
by the Assembly Local Government Committee, and is now headed
to the Assembly Appropriations Committee - also adopts an
availability standard by prohibiting tentative map approvals
for projects exceeding 200 residential units unless
the developer obtains written verification from a water
service provider demonstrating that "sufficient water supply
is available . . . or will be available prior to completion
of the project." The Kuehl bill also includes extensive
definitions of "sufficient water supply" that are dependent
on project setting and other relevant factors.
Last,
Stanislaus Natural Heritage emphasizes water availability
as well as the environmental impacts of supplying water
to a project where an EIR identifies potential long-term
water supply shortfalls as both "significant" and "unavoidable."
(Stanislaus Natural Heritage, supra, 48 Cal.App.4th
at 205-206.)
Thus,
the touchstone of SB 901, SB 221 (proposed) and Stanislaus
Natural Heritage is an emphasis on resource availability,
and both short-term and long-term project effects. Under
the "availability" theory, even a very small project may
raise "potentially significant energy implications" - especially
under a cumulative impact assessment - in "crisis" settings
where demand outstrips supply. In the energy arena, project
impacts may be measured against transmission capacities
or calculated reserve levels averaged over a defined period
of time. If energy "availability" is defined as "zero,"
then any project placing additional stress on depleted energy
reserves may be found both "adverse" and "significant."
Because Appendix F raises these complex issues, but again
fails to suggest an applicable significance standard, reliance
on analogous Guideline provisions is again appropriate.
If the "substantial adverse effect" standard is applied
to energy availability, for example, the following questions
result:
-
Does the project have a "substantial adverse effect" on
requirements for additional resource capacity? [App. F
(II)(C)(2)]; and
- Does
the project "interfere with" or have a "substantial adverse
effect" on local or regional energy resources? [App. F
(II)(C)(5)].
Thus,
even in energy crisis settings where any added impact on
depleted energy supplies may be "adverse," these questions
nevertheless allow for expert assessment and lead agency
discretion in determining whether the impact is also "substantial."
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