In a long-awaited 2-1 decision, a court of appeal overturned the environmental impact report for the San Diego Association of Governments’ 2050 Regional Transportation Plan and Sustainable Communities Strategy. Cleveland National Forest Foundation v. San Diego Association of Governments (4th Dist., Div. 1, No. D063288, Nov. 24. 2014). The most remarkable ruling, in what is likely to be viewed as a highly controversial decision, is the majority’s finding that the EIR was deficient because it did not assess the plan’s consistency with the 2050 greenhouse gas emissions reduction goal contained in an executive order issued by the Governor in 2005.
Analysis of Greenhouse Gas Emissions Impacts
In 2005, Governor Schwarzenegger issued an executive order establishing statewide targets for greenhouse gas emissions reductions that included reducing emissions to 1990 levels by 2020 and to 80 percent below 1990 levels by 2050. The EIR found that SANDAG’s plan would reduce greenhouse gas emissions until 2020, but would increase them in later years. While it discussed the 2050 emissions reduction target in the executive order, it did not treat the order’s 2050 emissions reduction target as a standard for assessing the significance of the plan’s greenhouse gas impacts.
The majority held that the EIR’s greenhouse gas impacts analysis was inadequate for failing to analyze the plan’s consistency with the executive order. While the executive order was not a legislative enactment, and established only statewide rather than regional emissions reduction targets, the majority reasoned that the executive order led to later legislation that “validated and ratified the executive order’s overarching goal of ongoing emissions reductions,” and therefore the executive order continues to “underpin the state’s efforts to reduce greenhouse gas emissions throughout the life of the transportation plan.” Thus, according to the majority, the absence of an analysis of the plan’s consistency with the executive order was “a failure to analyze the Plan’s consistency with state climate policy” which amounted to a prejudicial violation of CEQA.
The majority rejected SANDAG’s argument that the EIR’s use of three different significance thresholds authorized by CEQA Guidelines section 15064.4(b) was sufficient, stating: “the use of the Guideline’s thresholds does not necessarily equate to compliance with CEQA, particularly where . . . the failure to consider the [plan’s] consistency with the state climate policy of ongoing emissions reductions reflected in the Executive Order frustrates the state climate policy and renders the EIR fundamentally misleading.”
Mitigation of Greenhouse Gas Emissions Impacts
The majority also held that the EIR did not consider a sufficient range of mitigation measures for greenhouse gas emissions, and should have discussed mitigation options that could “both substantially lessen the transportation plan’s significant greenhouse gas emissions impacts and feasibly be implemented.”
Alternatives Analysis
Although the EIR analyzed seven alternatives to the proposed plan, the majority nonetheless concluded that the EIR failed to analyze a reasonable range of alternatives. The majority found the EIR deficient because it had not discussed an alternative which could significantly reduce total vehicle miles traveled and instead focused on congestion relief. Given the drawbacks of congestion relief as a strategy for reducing greenhouse gas emissions in the long term, the court concluded the EIR was fatally flawed because it did not include an alternative focused primarily on reducing vehicle miles traveled.
Air Quality Impacts
The majority also found several deficiencies in the plan’s air quality impacts analysis. These issues concerned the required level of detail in a program-level EIR.
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Description of Existing Conditions. The EIR recognized regional growth and land use changes associated with the transportation plan had the potential to expose sensitive receptors to substantial localized pollutant concentrations, but asserted the level of exposure could not be determined until the next tier of environmental review when designs of individual projects became available. The majority nevertheless concluded that SANDAG’s failure to provide additional baseline information in the EIR’s description of existing toxic air contaminant exposure and the location of sensitive receptors violated CEQA.
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Correlation to Adverse Health Impacts. The EIR generally identified the adverse health impacts that might result from the transportation plan’s air quality impacts. The court held, however, that the EIR must either correlate the additional transportation plan-related emissions to anticipated adverse health impacts or demonstrate why it could not do so.
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Inadequate Mitigation. The court also found the EIR’s mitigation of significant air quality impacts to be insufficient finding it improperly deferred analysis of appropriate mitigation measures and failed to set performance standards. SANDAG contended that no other mitigation was feasible at the program level of environmental review, but the court found that SANDAG failed to point to any evidence in the record supporting that contention.
Agricultural Resource Impacts
Finally, the court found issue with the EIR’s agricultural impacts analysis. SANDAG used data from the state’s Farmland Mapping and Monitoring Program to analyze the agricultural impacts of the project, as permitted by Appendix G of the Guidelines, augmented by SANDAG’s own geographic information system. The court found that the EIR’s analysis understated the impacts to agricultural resources because the FMMP data do not capture information for farmland under 10 acres and SANDAG’s own geographic information system may not have included agricultural lands that went into production after the mid-1990s. On this basis, the court concluded that the EIR’s analysis of impacts to agricultural resources violated CEQA.
The Dissenting Opinion
The dissent vehemently disagreed with the majority’s rulings on greenhouse gas issues. The dissent expressed serious concern over the majority’s analysis of the executive order characterizing its ruling as an improper determination by the court of what significance standards SANDAG should have used. This decision, according to the dissenting opinion, “strips lead agencies of the discretion vested in them by the Legislature and reposes that discretion in the courts.” Stating the point even more bluntly, dissent stated: “This insinuation of judicial power into the environmental planning process and usurping of legislative prerogative is breathtaking.”
