Land Use Permits in the United States
Land Use Permits and the Climate Change Legislation
Land use is one of the legal specialties most affected by climate change legislation and aggressive regulatory standards.
Land Use and the California Environmental Quality Act
Global warming laws reveal profound flaws in the California Environmental Quality Act (CEQA) and may affect whether land use will continue being governed at the local level.
The global warming legislation exposes the shortcomings of CEQA. The environmental legislation treats environmental issues as if they were separate; it treats water separate from air, which is separate from transportation. Global warming legislation has brought to the foreground that everything is interactive. It reveals that CEQA is outdated.
AB 32 establishes a timetable for the adoption of regulations by the California Air Resources Board to reduce GHG emissions. The initial proposals for regulation don’t target land development per se but in time there will be regulations that address GHG emission impacts from site planning, geographic location, energy efficiency, and a variety of other things related to land development. At the same time, as a result of AB 97, the Office of Planning and Research will be developing CEQA Guidelines relating to the effects and mitigation of GHG emissions.
How does it affect development? In the short term it will affect the level of analysis required in an EIR. Since there is no clear path to mitigation because there’s no clear analytical approach, CEQA documents will be more vulnerable to legal challenge, which will increase development costs and add delays to ultimate development. CEQA has historically dealt with local impact and now we’ve got a global warming issue, which is worldwide. Because there is no statewide program, local jurisdictions are going to take varying approaches to mitigation, and in the long term, it’s going to affect economics and development. In the long term there will be regulations and mitigation requirements that will add to the cost of development.
Brownfield Redevelopment Process
It has become easier, but there is still nothing transparent about the brownfield redevelopment process. In California, the Department of Toxic Substance Control is now trying to take a more programmatic approach toward brownfield clean up and is committed to expediting its process, both of which are critical DTSC reforms. The fact that it remains this opaque—unpredictable and costly—is a particular problem for the environmental justice community because these sites are disproportionately located in poor areas. The sites in richer areas have gone through the process because the underlying land value is there; the sites that are in poorer areas can’t afford the transaction costs to stumble through these unwritten rules. It would be a benefit to the poorer Californians for brownfield remedies to become more standardized and easily accessible for quicker approvals.
Resources
Further Reading
- Information about Land Use Permits in the Gale Encyclopedia of American Law.