California Fourth District’s Split Decision Further Complicates CEQA Requirements Surrounding GHG Impact Analysis and Mitigation Measures – Dissent Warns Majority Opinion Will Weaken and Confuse the Law
Cleveland National Forest Foundation v. San Diego Association of Governments (11/24/14, D063288)
In a split decision on November 24, 2014, the Fourth District California Court of Appeal invalidated the program EIR for San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (Regional Transportation Plan). The court found the EIR in violation of CEQA for failing to adequately analyze and mitigate GHG emissions in light of the standards set forth in Executive Order S-03-05. Despite the EIR’s analysis of the Regional Transportation Plan’s GHG emissions against specific regional reduction targets for 2020 and 2035, the majority determined the EIR did not amount to a reasonable, good faith effort to disclose and evaluate GHG emissions due to its lack of analysis surrounding the plan’s potential conflict with the Executive Order.
Executive Order S-03-05, issued in 2005 by then Governor Schwarzenegger, established GHG reduction targets for California and specifically called for a reduction of GHG emissions to 80 percent below 1990 levels by 2050. The Legislature subsequently enacted Assembly Bill No. 32 in 2006, which tasked the California Air Resourced Board (CARB) with setting goals for statewide emissions levels. With the enactment of Senate Bill 375 in 2008, the Legislature further tasked CARB with developing regional GHG emission reduction targets for automobiles and light trucks by 2020 and 2035. As part of SB 375, regional transportation plans are now required to include a sustainable communities strategy subject to approval by CARB. Pursuant to CEQA Guidelines, once the sustainable communities strategy is approved, some transit priority projects consistent with the strategy will be exempt from CEQA requirements, and other such as residential and mixed-use projects consistent with the strategy will be subject to streamlined CEQA requirements.
SANDAG’s 2050 Regional Transportation Plan was the first to include the SB 375 required sustainable communities strategy and its EIR analyzed the plan’s GHG emissions impacts against three significance thresholds for each of the planning years 2020, 2035, and 2050. While the EIR acknowledged that the Regional Transportation Plan, which invests heavily in freeways at the expense of public transit, would lead to an overall long-term increase in GHG emissions, it failed to analyze whether this consequence conflicted with Executive Order S-03-05. Presiding Justice McConnell’s majority opinion weighed this fact heavily, finding the EIR “impermissibly dismissive” of the long-term standard for assessing GHG impacts established by the Executive Order which the majority held to be “state climate policy” effectively endorsed by the Legislature through AB 32. The majority clarifies in a footnote that it is not suggesting the Regional Transportation Plan must achieve the 2050 goals of the Executive Order, but that it must acknowledge and analyze the conflict between the increase in GHG emissions under the plan and the decrease required by the Executive Order.
The majority went on to hold the EIR further violated CEQA by failing to discuss mitigation alternatives that could both substantially lessen GHG impacts and feasibly be implemented. The court criticized the three feasible mitigation measures identified in SANDAG’s EIR as “assuring little to no concrete steps toward emissions reduction.” Specifically, the court noted the absence of mitigation measures supporting the development of “smart growth areas” through transportation investments, incentives for transit-oriented developments, coordination of funding for low carbon transportation, and encouragement of parking management measures that promote walking and transit use.
Addressing cross appeals the trial court declined to consider, the court held the EIR did not adequately consider a reasonable range of project alternatives. Despite the EIR’s discussion of seven alternatives, the court criticized the EIR for failing to include alternatives aimed at reducing total vehicle miles traveled and instead emphasizing traffic congestion relief. The court also held the EIR’s air quality analysis inadequate because SANDAG lacked sufficient evidence to show it was not feasible to provide more definitive information at the current program level. Finally, the court found the EIR’s agricultural impacts analysis inadequate for its use of outdated and incomplete data.
Justice Benke’s dissent strongly opposed the majority’s apparent elevation of Executive Order S-03-05 to the status of a “threshold of significance” against which SANDAG was required to measure the significant impacts of its Regional Transportation Plan. The dissent concluded the Executive Order is “merely a broad policy statement of goals” that “does not have an identifiable foundation in the constitutional power of the Governor or in statutory law.” Further, Justice Benke agreed with SANDAG’s contention that an agency has broad discretion to select the criteria it uses to determine the significance of a plan’s impacts, stating that the majority opinion “strips lead agencies of the discretion vested in them by the Legislature and reposes that direction in the courts.”
Coupled with the decision in Sierra Club v. County of San Diego (10/29/14, D064243) (see companion post), the courts have raised some significant new obstacles to drafting CEQA‑compliant Climate Action Plans.