In a split decision in Cleveland National Forest Foundation v. San Diego Association of Governments, 2014 Cal. App. LEXIS 1070, a majority of the three-judge panel of the California Court of Appeal for the Fourth District affirmed a writ of mandate challenging the San Diego Association of Governments’ (SANDAG) environmental review of its 2050 Regional Transportation/Sustainable Communities Strategy (transportation plan).
The court’s decision turned on the significance of the 2005 executive order by Governor Arnold Schwarzenegger requiring statewide reduction of greenhouse gas emissions (GHG) to 2000 levels by 2010, to 1990 levels by 2020, and to 80 percent below 1990 by 2050. The legislature passed SB 375 in 2008, which directed California Air Resources Board (CARB) to develop regional GHG targets for automobiles and light trucks for 2020 and 2035. SB 375 also required each of California’s eighteen metropolitan planning agencies such as SANDAG to develop a sustainable communities strategy that provides a coordinated, long-term land use and transportation plan to meet the state’s emissions goals.
The programmatic environmental impact report (EIR) for SANDAG’s transportation plan analyzed the GHG impacts against three significance thresholds and considered the plan’s potential GHG impacts in 2020, 2035, and 2050. However, the court held SANDAG was required to analyze the transportation plan’s consistency with the 2005 executive order. The EIR did not reflect SANDAG’s reasonable good faith effort at full disclosure because it ignored the executive order’s role in shaping state climate policy.
The court rejected SANDAG’s argument that it was not required to analyze the executive order because there was no statute or regulation translating the order into scientifically-based emissions targets. Although SANDAG may not have known the specific targets and SANDAG had broad discretion to set select the criteria for determining the significance of the environmental impact, SANDAG knew the transportation plan would lead to an overall increase in GHG emission levels after 2020. Accordingly, SANDAG abused its discretion in not considering consistency with the governor’s executive order.
As to the adequacy of mitigation measures for GHG impacts, the court held that the EIR did not adequately mitigate the significant environmental impacts of the transportation plan. The court found that three feasible mitigation measures included in the EIR did not take concrete steps to reduce emissions and were already incorporated into the plan, which nullified any possible mitigating effect.
The court next considered the respondent’s cross appeals that the trial court declined to consider. The court held the EIR did not adequately consider a reasonable range of project alternatives. While the EIR included seven project alternatives, the alternatives all focused on congestion relief, which only provided a short-term reduction in GHG emissions. Instead, the court stated SANDAG should have considered alternatives for reducing total vehicle miles traveled.
The court also held the air quality analysis in the EIR was inadequate. Although SANDAG argued the air quality analysis was sufficient for a program level EIR, the court reasoned SANDAG could not provide any evidence demonstrating that further analysis of air quality impacts at this stage was infeasible.
Lastly, the court held the EIR did not adequately analyze the impact of the transportation plan on agriculture lands because the methodology in the EIR left too many gaps in the data and produced an unreliable estimate of the amount of existing farmland.
In a strongly-worded dissent, Justice Benke criticized the majority for interfering with the CEQA process by telling a lead agency what it must use as a threshold of significance. According to Justice Benke, the executive order does not unilaterally qualify as a threshold of significance. Justice Benke stated that the majority should have deferred to SANDAG in determining the significance thresholds and explained that “[t]here is no legal support for [the majority’s] action, which strips lead agencies of the discretion vested in them by the Legislature and reposes that discretion in the courts.” Justice Benke was also critical of the majority’s conclusion that the alternatives analysis was inadequate because he believed the majority was “sub rosa directing SANDAG to shift the emphasis in its plan to mass transportation.”
Although the majority did not expressly hold that the GHG emissions targets in the governor’s 2005 executive order established thresholds of significance, the majority clearly stated the executive order formed the state’s “climate change policy.” Accordingly, lead agencies must be mindful to consider the 2005 executive order and its targets in both program- and project- level environmental impact reports.