Since the passage of AB 32 in 2006, the methods for climate change analysis under CEQA have taken a number of turns. Most recently, the California Supreme Court in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, concluded that an EIR for a major development project (Newhall Ranch) lacked substantial evidence to show that the project’s reductions in emissions would be consistent with AB 32’s statewide goal for greenhouse gas (GHG) reductions by the year 2020. In a harbinger of its impending opinion in Cleveland National Forest v. San Diego Assoc. of Governments, the Court suggested that AB 32’s goal for 2020 may become less and less relevant as 2020 fast approaches. The Supreme Court’s opinion did state, however, that “[w]hile the burden of CEQA’s mandate in this context can be substantial, methods for complying with CEQA do exist”—expressly referencing consistency with regional climate action plans or sustainable communities strategies under SB 375.
On June 30, the First Appellate District issued an opinion that offered some hope to agencies struggling with climate analysis by rejecting a challenge to the regional GHG reduction mandates of “Plan Bay Area,” the sustainable communities strategy developed by the Metropolitan Transportation Commission (MTC) and Association of Bay Area Governments (ABAG) to comply with the requirements of SB 375. In Bay Area Citizens v. Association of Bay Area Governments, the appeals court rejected petitioner’s argument that the EIR for the Plan should have taken into account reductions in GHGs that will occur under statewide GHG reduction mandates.
Prior to SB 375 becoming effective in 2009, California promulgated a number of mandates for the reduction of GHG emissions, including regulations issued pursuant to AB 1493, aka the “Pavley” legislation (setting statewide emissions reduction targets for passenger vehicles and light-duty trucks), AB 32 (requiring reduction of GHG emissions to 1990 levels by 2020), and Executive Order S-01-07 (the Low Carbon Fuel Standard, requiring reduction of the carbon density of transportation fuel by at least 10 percent by 2020).
SB 375 requires that each metropolitan planning organization (MPO) adopt, as part of its regional transportation plan, a “sustainable communities strategy” that sets forth plans to meet regional GHG reduction targets set by the California Air Resources Board (CARB). In 2010, CARB established the requisite GHG reduction targets for the Bay Area region. MTC and ABAG, acting collectively as the MPO for the Bay Area, then developed a sustainable communities strategy for the region called “Plan Bay Area.” In 2013, following CEQA review, MTC and ABAG adopted the Plan. In 2014, CARB accepted the determination by MTC and ABAG that the Plan would meet the GHG reduction targets set by CARB under SB 375.
Petitioner Bay Area Citizens, a group represented by the Pacific Legal Foundation, filed a CEQA challenge to the adoption of Plan Bay Area in Alameda County Superior Court, arguing that the EIR failed to comply with CEQA in five ways: (1) not adequately identifying the Plan’s basic objectives; (2) not adequately assessing a “no project” alternative; (3) relying on an outdated baseline; (4) not including a reasonable, feasible alternative; and (5) not responding to petitioner’s alternative proposed plan. All five claims relied on the same premise: that the EIR should have taken into account existing statewide GHG reduction mandates that would result in CARB’s GHG reduction targets under SB 375 being met without the need for the Plan’s “draconian, high-density land-use regime.” Petitioner argued that this alleged omission resulted in the EIR failing to satisfy CEQA’s “core purpose of informed public decision-making.” The Superior Court rejected this argument and upheld the EIR.
The First Appellate District affirmed, holding that “[t]he only legally tenable interpretation of SB 375 is that it requires [CARB] to set targets for, and [MTC and ABAG] to strive to meet these targets by, emissions reductions resulting from regionally developed land use and transportation strategies, and that it requires these reductions be in addition to those expected from the statewide mandates” (emphasis added). The Court based this holding on the language of SB 375, the accompanying legislative declarations and findings, and the interpretation of SB 375 by CARB, which is the administrative agency charged with implementing the statute.
The appeals court also rejected Petitioner’s arguments on two independent grounds. First, even if – for the sake of argument – the Legislature did not intend for MPOs to develop regional GHG reduction goals that are in addition to existing statewide mandates, CARB – as the agency charged with implementing and meeting the goals of SB 375 – had the discretion to require MTC and ABAG to do so. Second, because the lawsuit essentially argued that MTC and ABAG violated CEQA by “adopting a plan that did more than the minimum necessary to meet their SB 375 targets,” it amounted to a “substantive attack on the wisdom of Plan Bay Area itself.” However, “an objection to the substantive choice a lead agency makes in approving a project is not a legitimate basis for a CEQA lawsuit.”
This decision establishes the authority of CARB and MPOs to mandate GHG reduction measures at the regional level, independent of any statewide GHG reduction mandates. No doubt sustainable communities strategies adopted by MPOs will become key elements of the State’s efforts to combat climate change – and will contribute to the ongoing, fundamental shift toward transit-oriented, infill development throughout California.
While this case does not provide any real clarity as to how greenhouse gas impacts should be analyzed under CEQA, there is a glimmer of hope in this decision’s affirmation of Plan Bay Area, as sustainable communities strategies, climate action plans, and similar local documents will no doubt serve as the guideposts of greenhouse gas analysis in the future.