Land Use and Greenhouse Gas Emissions Intersect in the Courtroom

By Tilde Herrera
Published August 7, 2008

The 28-acre swath of undeveloped land sits on the outskirts of the town of Yucca Valley, near the fabled Joshua Tree National Park in Southern California. The spot is slated to become home to a 184,000 square foot Wal-Mart Supercenter with more than 900 parking spaces, fast food restaurant and 12-pump gas station.

Yucca Valley's town council approved the project in late June. But the climate may not be right for giving it the green light: Last week, an environmental group sued the town and council, claiming Wal-Mart didn't adequately measure and mitigate the greenhouse gases (GHG) the store will produce. Other air quality issues are also a concern.

For the time being, the Yucca Valley Wal-Mart project will be tied up in court. "We hope not for too long. It's hard to say because it's at the preliminary stage," said Wal-Mart Spokeswoman Daphne Davis Moore.

Climate change laws are triggering a small but growing wave of lawsuits and legal threats to force California counties, developers and companies to count and lessen greenhouse gases as part of their plans for large projects. Similar legal challenges may be on the horizon in the handful of other states with similar climate change goals and laws.

"I think we're going to see this in other parts of the country because we have a lack of leadership at the federal level," said Jonathan Evans, staff attorney for the Center for Biological Diversity (CBD), which filed a lawsuit against the Yucca Valley Wal-Mart project. "Until then, it will be up to the states to find innovative ways to address the climate issue."

In the meantime, there are many steps project planners can take to avoid a legal morass, Evans said, adding that the CBD doesn't want to derail the projects; its goal is to improve them and the impact they will have on the environment.

"There are ways to reduce the carbon footprint and move projects forward," Evans said. "The positive impact from creating a better project for the community and business can be readily achieved."

CBD, a nonprofit pursuing legal, scientific and policy remedies to address climate change, has unleashed several lawsuits against cities and counties in California's fast-growing Inland Empire region.

The CBD isn't alone. California Attorney General Jerry Brown sent a letter (pdf) last week to the Siskiyou County Planning Department with a warning. Greenhouse gases must be studied in the Environmental Impact Report (EIR) of a water bottling plant Nestle wants to build near Mt. Shasta, the letter said.

The letter joins three-dozen or so others sent to counties and private interests around the state since 2006 calling for GHG analyses for large projects or growth plans. CBD has challenged five projects for not considering GHG impacts. Four cases are pending on appeal or at the lower court level, and another overturned an EIR, but not on the GHG issue.

The 'Baby NEPAs'

In the lawsuits and comment letters, CBD and California Attorney General Brown demand GHG analyses under the California Environmental Quality Act (CEQA).

Under CEQA, public agencies must prepare EIRs for projects that will probably have negative impacts because of the size or the way they are sited. Alternatives and mitigation must be explored if a project will hurt the environment.

Land Use and Greenhouse Gas Emissions Intersect in the Courtroom

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