Two San Diego agencies that lost recent appellate cases on climate planning have decided to seek review by the state Supreme Court.
On December 2 the San Diego County Board of Supervisors voted to petition for review in Sierra Club v. County of San Diego. Decided October 29 by the Fourth District Court of Appeal, that ruling rejected San Diego County's climate action plan, finding it failed to follow mitigation measures prescribed by the county's general plan. It was ordered published as of November 24.
In the similar but separate case of Cleveland National Forest Foundation v. San Diego Association of Governments (SANDAG), SANDAG's board voted on December 5 to seek review.
The SANDAG ruling, issued November 24, narrowly rejected the environmental impact report for the agency's Regional Transportation Plan/Sustainable Communities Strategy. It held SANDAG should have analyzed whether the plan would comply with Governor Arnold Schwarzenegger's Executive Order S-3-05, which calls for dramatic reductions in greenhouse gas emissions by 2050.
The Voice of San Diego reported the SANDAG board's vote went 20 to 1 in favor of review, opposed only by Oceanside City Council member Chuck Lowery.
The SANDAG agency, which has been sparing with public comments outside of the court papers themselves, issued a detailed press release explaining the choice. Its second paragraph stated:
"'The Board decided that it is our responsibility to press forward with this case,' said SANDAG Board of Directors Chair Jack Dale. 'We've done our absolute best to follow the law in everything we've done. At this point, the law needs to be clarified – not just for our region, but for every planning agency and city in California.'"
Plaintiffs' attorneys Kevin Bundy and Rachel Hooper issued a strongly worded response:
"SANDAG's decision to prolong this litigation is disappointing, to say the least. The Court of Appeal simply told SANDAG to tell the truth about how poorly its plan matches up with sound science and state policy requiring reductions in climate pollution. At this point, SANDAG has spent far more time and taxpayer money trying to avoid telling the truth than they ever would have spent in just complying with the law. SANDAG should do now what it should have done when it lost this case the first time around nearly two years ago: do its job, follow the law, and get on with planning a transition to a more sustainable and climate-friendly future in the San Diego region."
In answer, SANDAG spokesman David Hicks referred to the comments from Dale quoted above.
The SANDAG statement said the agency had tried to follow state-level direction that was sometimes ambiguous, and "In an important element of the appellate court ruling, the majority concluded that SANDAG should have based its greenhouse gas analysis on the reduction of overall driving in the region, and disregarded the issue of reducing traffic congestion. SANDAG's long-standing position has been that it is taking a multipronged approach to greenhouse gas emissions reductions."
Elsewhere, the San Diego Union-Tribune's editorial board issued a critique of the court's decision captioned, "War on cars equals a war on sanity, reality." The Cleveland National Forest Foundation, which was among the petitioners in the SANDAG matter, started a letter-writing campaign to board members urging against the review request.
The Voice of San Diego quoted Kristine Alessio, of the SANDAG board and the La Mesa City Council, as seeing a bad precedent in the decision's deference to the executive order: "a governor could say we don't need (environmental review) at all." She also reportedly wrote to advocates that just two people had written urging against the appeal -- while "My constituents want me to close some of our trolley stations. They want freeway offramps completed, that's what they want from SANDAG and [the Metropolitan Transit System]."
If accepted for review by the state Supreme Court, an issue to watch may be how the cases are handled with respect to Sierra Club v. County of Fresno, (2014) 226 Cal.App.4th 704. That case, accepted for review in October, overturned the EIR for a large senior-oriented housing development, the "Friant Ranch", holding that projections regarding increased air pollution from the project were stated only in raw numbers, not interpreted in a way that would explain their significance to the non-expert public. A similar dispute exists in the SANDAG case over analysis of health impacts from freeway widening.
