Petition for Review Granted

March 11, 2015

Current Status

Opening brief on the merits filed on May 8, 2015.

Answer brief on the merits is due on July 10, 2015.

Court’s Statement of Issues Presented

Must the environmental impact report (EIR) for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)?

Summary of the Parties’ Arguments

In their Petition for Review, the San Diego Association of Governments (SANDAG) argues that the EIR fully and adequately analyzed the project’s greenhouse gas impacts.  The EIR contains a 39-page analysis of the existing greenhouse gas emission levels and impacts expected to occur from both transportation and non-transportation sources under the project.   SANDAG further argues the analysis complies with CEQA Guidelines, section 15064.4, and SANDAG did not abuse its discretion by relying on that section for the significance criteria used in the EIR’s analysis of greenhouse gas impacts.  SANDAG asserts that the EIR does not omit critical factual information on greenhouse gas emissions and it was not required to include an analysis of the project’s consistency with Executive Order S-03-05 because there is no legal authority requiring such an analysis in the EIR.

In their Answer to Petition for Review, plaintiffs Cleveland National Forest Foundation, et al. (CNFF) argue the Court of Appeal’s decision requiring consideration of Executive Order S-3-05 is firmly grounded in settled CEQA principles.  CNFF assert that SANDAG violated CEQA by failing to analyze its regional transportation plan’s inconsistency with the long-range emissions reduction goals expressed in Executive Order S-3-05.  CNFF argues the EIR’s purpose is to serve as an informational document, and SANDAG’s failure to include such an analysis in the EIR deprived the public and decisionmakers of relevant information.  CNFF also argues the Court of Appeal’s opinion does not create confusion or conflicts of law.  According to CNFF, the case simply involves an agency failing to disclose and analyze a project’s long-term impacts, as required by CEQA.  CNFF further argues the Court of Appeal’s opinion does not undercut agency discretion to determine significance thresholds; it only requires agencies to exercise their discretion in light of CEQA’s fundamental informational purpose.

Parties/Counsel

Plaintiffs and Respondents:

• Cleveland National Forest Foundation, Represented by Shute, Mihaly & Weinberger and Daniel P. Selmi
• Sierra Club, Represented by Shute, Mihaly & Weinberger and Daniel P. Selmi
• Center for Biological Diversity, Represented by Center for Biological Diversity
• Creed-21, Represented by Briggs Law Corp
• Affordable Housing Coalition of San Diego County, Represented by Briggs Law Corp

Defendants and Appellants:

• San Diego Association of Governments, Represented by Sohagi Law Group, LLP
• San Diego Association of Governments Board of Directors, Represented by Sohagi Law Group, LLP

Intervener and Appellant:

• The People of the State of California, Represented by The Attorney General

Procedural History

SANDAG certified an EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (the transportation plan) in October, 2011.  CNFF, et al. filed petitions for writ of mandate, challenging the EIR as insufficient under CEQA.  The Attorney General thereafter moved to intervene on behalf of the People of the State of California.

The Superior Court of San Diego County consolidated the cases and granted the petitions in part, finding the EIR violated CEQA because it failed to: (1) analyze the inconsistency between the transportation plan’s greenhouse gas emissions impacts after 2020 and the state’s policy goals presented in Executive Order S-3-05; and (2) adequately address mitigation measures for the transportation plan’s greenhouse gas emissions impacts.  After making those two findings, the trial court declined to address plaintiff’s other challenges.

On appeal, SANDAG argued the EIR complied with CEQA in both respects above.  CNFF cross-appealed arguing the EIR further violated CEQA by failing to: (1) analyze a reasonable range of alternatives; (2) adequately analyze and mitigate the transportation plan’s air quality impacts; and (3) adequately disclose the transportation plan’s impacts on agriculture.  The People cross-appealed, also arguing the EIR violated CEQA because it did not analyze or mitigate the transportation plan’s impacts from particulate matter pollution.

The Fourth District Court of Appeal agreed with CNFF’s and the People’s arguments, holding the EIR violated CEQA for all of the identified reasons above.  Focusing specifically on the EIR’s analysis of the transportation plan’s greenhouse gas impacts, the court held SANDAG prejudicially abused its discretion by omitting from the EIR a discussion of the transportation plan’s consistency with the state climate policy of continual greenhouse gas emissions reductions, presented in Executive Order S-3-05.  According to the court, failing to include such an analysis deprived the public and decisionmakers of important information regarding the project’s greenhouse gas emissions.  The court additionally found no substantial evidence supported the agency’s determination the EIR adequately addressed mitigation for the transportation plan’s greenhouse gas emissions impacts.

Case Implications

If the Court of Appeal’s opinion is upheld, local agencies would be required to consider consistency with EO S-3-05 and other executive orders related to climate change when analyzing a project’s greenhouse gas impacts.  This interpretation would impose on local agencies new obligations that are not supported by CEQA, the CEQA Guidelines, or California case law.  Requiring agencies to comply with executive orders, specifically EO S-3-05, would take away their discretion to establish their own significance thresholds and to rely on AB 32 when evaluating a project’s greenhouse gas impacts.

Key Cases that May be Affected by the Court’s Ruling

• Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, Professional Engineers in Cal. Gov’t v. Schwarzenegger (2010) 50 Cal.4th 989;  Here the court held that “it is for the Legislature to make public policy,” rather than the Governor via executive order.
• Carmel Valley Fire Protection Dist. v. State of Cal. (1987) 190 Cal.App.3d 521;  Here, the court held that executive orders establish state policy and are not binding on local districts.
• Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327;  The court evaluated the use of AB 32 as a CEQA significance threshold for a project’s greenhouse gas impacts.
• Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059;  The court discussed the discretion CEQA grants agencies to develop their own significance thresholds.
• Sacramento Old City Ass’n. v. City Council (1991) 229 Cal.App.3d 1011, Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99;  Here, the court held that the courts may not overturn an agency’s discretionary decisions and substitute their own judgment.