Fourth District Court of Appeal Rejects Finding of Mootness in Remand Proceedings for SANDAG’s 2050 RTP/SCS, Reverses in Part and Remands to the Superior Court

February 8th, 2018

By: Chris Butcher

Following Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497 (“Cleveland II”), in which the Supreme Court reversed the Fourth District Court of Appeal’s decision (“Cleveland I”) (for an in-depth discussion of that decision, see our previous coverage of the case) and held that the EIR prepared for the San Diego Association of Governments’ (“SANDAG”) 2050 Regional Transportation Plan/Sustainable Communities Strategy (“Plan”) did not need to include an analysis of the Plan’s consistency with greenhouse gas (“GHG”) emission reduction goals of 80 percent below 1990 levels by 2050 (established by Executive Order (“EO”) No. S-3-05) to comply with CEQA, with respect to the other alleged deficiencies in the EIR, the Supreme Court “express[ed] no view on how, if at all, [its] opinion affect[ed] their disposition.”

The matter returned on remand to the Fourth Appellate District in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App 5th 413 (“Cleveland III”). There, the Court rejected SANDAG’s argument that this case was moot because the Plan and the EIR had been superseded by SANDAG’s 2015 Plan and a 2015 EIR prepared for the 2015 Plan, respectively. The court explained that because the EIR might still be relied upon by project applicants the EIR was not superseded by the subsequent 2015 Plan EIR. Accordingly, the Court of Appeal reissued its opinion addressing the issues not reviewed by the Supreme Court. The court also republished its opinion, noting that automatic depublication upon grant of review is no longer required by the California Rules of Court (as it was when the Supreme Court originally took this case).

Because the matter was not moot, the court held that the EIR failed to address mitigation for the Plan’s GHG impacts. Finding that the EIR considered three measures that would result in little to no concrete steps toward emissions reduction and three onerous or unrealistic measures, the court concluded that it lacked the information required under CEQA – a discussion of mitigation measures that could both substantially lessen the Plan’s significant GHG impacts and be implemented in a feasible manner.

Lastly, the court exercised its discretion to consider other challenges to the EIR raised through the plaintiff’s cross-appeals. SANDAG argued that the plaintiffs forfeited these challenges by failing to obtain rulings on them from the trial court. The court explained that the forfeiture rule is not automatic and the court may exercise its discretion to excuse any forfeiture when it finds the issues sufficiently important.

Turning to these challenges to the EIR, the court held that: (1) the EIR failed to adequately discuss project alternatives because none of the project alternatives focused on significantly reducing vehicle miles traveled (“VMT”), finding that SANDAG’s own Climate Action Strategy stated that achieving the state’s GHG reduction goals would require significant reductions in VMT; (2) the EIR failed to provide adequate baseline information about exposures to toxic air contaminants and the location of sensitive receptors; (3) the EIR failed to correlate the Plan-related emissions to resulting adverse health impacts; (4) the EIR impermissibly deferred the analysis of air quality mitigation measures; (5) the EIR impermissibly understated the Plan’s growth-induced impacts on agricultural lands by failing to account for impacts to farmland of less than 10 acres put into production within the last 20 years; and (6) the plaintiffs failed to exhaust their administrative remedies as to their concerns about the Plan’s impacts to small firms and lands redesignated rural residential.

In dissent, Justice Benke argued that the majority erred in reissuing Cleveland I as modified (i.e., Cleveland III) because the case should have been remanded to the trial court for it to determine whether the case was moot as a result of SANDAG’s certification of the 2015 EIR for the 2015 Plan.

Key Point:

Liability may be imposed upon agencies for environmentally deficient programmatic EIRs, regardless of subsequent EIRs covering the same geographic area. When an EIR might still be relied upon by project applicants, it cannot be superseded by subsequent Plan EIRs, and challenges brought against the relied-upon EIR are not moot.