A ruling is expected any day now on a major appellate court test of a key early response to California's SB 375 law on greenhouse gas reduction. The case of Cleveland National Forest Foundation v. San Diego Association of Governments (SANDAG) was argued before California's Fourth District Court of Appeal on August 14 and submitted August 27, so the court is nearing its 90-day deadline to reach a decision.
The case is of statewide and possibly greater importance on a currently open question: What constitutes seriousness about transportation planning in the context of climate change? Each party accuses the other of irresponsibility: officials accuse environmental petitioners of asking for more than a public agency realistically can or must do; petitioners accuse officials of refusing to address foreseeable long-term consequences, especially of freeway expansion plans ? that, if acknowledged, would compel them to restrict emissions and impose mitigations more aggressively.
The RTP/SCS challenge
At issue is the SANDAG 2050 Regional Transportation Plan and Sustainable Communities Strategy (RTP/SCS). The document included the first Sustainable Communities Strategy to be developed and approved by a regional government organization in compliance with California's SB 375 law mandating greenhouse gas (GHG) reductions through transportation planning and compact urban design. SANDAG's opening brief emphasizes the numbing extent of the preparation and public review processes, reporting more than 4,000 comments from more than 1,500 commenters.
After its approval in 2011, the RTP/SCS was challenged as inadequate by the Cleveland National Forest Foundation, the Center for Biological Diversity, and other environmental community groups abbreviated as the "CREED-21" parties, joined by the state Attorney General.
For petitioners, the case is about enforcing state-level climate protection policy in the face of local institutional reluctance to change travel and development patterns.
From SANDAG's point of view as expressed in the appellate briefs, the case is about tendentious overreaching by activists who are driven by political convictions about the urgency of climate change and not by specifically applicable law or science. SANDAG's opening brief accuses petitioners of disappointment that the RTP/SCS "has fallen short of undertaking the kind of utopian planning and social engineering that would be necessary to eliminate private automobile transportation as a major source of GHG and other air pollution emissions."
Attorney Kevin Bundy with the Center for Biological Diversity retorted in an interview that the petitioners' proposed action wasn't "utopian" ? it was "just necessary." From his point of view, SANDAG's briefing showed an "almost cavalier attitude toward the physical reality of climate change and the underlying science."
SANDAG's reply brief asserts, "No party in this case, least of all SANDAG, is unaware of the seriousness of climate change. But the problem is far too serious to be addressed with idle rhetoric, finger-pointing, hopelessly vague demands for action, and baseless assumptions about what can legally, technically and practically be done." It suggests the petitioners have an unrealistic idea of SANDAG's powers and abilities and that they are failing to place the transportation plan in perspective as a relatively modest part of a much larger climate protection strategy.
(SANDAG public information officer Helen Gao responded in October to requests for comment on the case by writing, "We believe the legal briefs we have submitted speak for themselves. At this point, we would simply like to reiterate that we believe the EIR [Environmental Impact Report] for the 2050 RTP is in full compliance with CEQA." For further interpretive discussion from Bill Fulton see http://www.cp-dr.com/articles/node-3617.)
Is EO S-03-05 for real?
The first of two main issues before the court is how seriously planners should take Executive Order S-03-05. Issued in 2005 by then-Governor Arnold Schwarzenegger, EO S-03-05 calls for reductions in greenhouse gas (GHG) emissions by 2050 to 80% less than in 1990.
That goal asks for GHG reductions far beyond the mandatory requirements that were imposed under AB 32 and SB 375, to meet emissions reduction goals in 2020 under AB 32 and additionally in 2035 under SB 375. While those goals are understood to be mandatory, it is disputed whether the EO S-03-05 goals for 2050 are solid policy requirements or mere aspirations.
From the petitioners' point of view, SANDAG owes the public an account of how the likely consequences of the RTP/SCS would compare to the 2050 goals under EO S-03-05. Discussing SANDAG's view of EO S-03-05 as unrealistic, Bundy said, "Calling it pie in the sky, to mix metaphors, is putting your head in the sand."
SANDAG's analysis of its plan found initial consistency with the goals of the statewide Air Resources Board's 2008 AB 32 Scoping Plan, but only took the comparison as far as the year 2020. SANDAG likewise compared its plan to SB 375 goals until 2035 and found they were consistent.
Petitioners' briefs argue that since the Scoping Plan incorporates EO S-03-05, SANDAG should have continued the Scoping Plan comparison forward beyond 2020 to 2050. They contend that the decision to stop the analyses at 2020 and 2035 respectively is misleading. They write, "SANDAG admits that, as it implements its RTP/SCS, the region's emissions will increase after 2020 and exceed current levels by 2050."
Bundy agreed SANDAG met its SB 375 targets, but said the problem was the trajectory of the projected trend line for emissions: it didn't start high and head down; it dropped at first, then rebounded, intersecting the 2035 target "on its way up".
SANDAG's appellate briefs respond that nothing is misrepresented about the analyses that stop in 2020 and 2035. Further, SANDAG protests that it does additionally include "a quantitative and qualitative discussion of vehicle-related GHG emission trends through 2050." This is apparently the first of the EIR's three separate GHG analyses ? the one that considers changes to the existing GHG emissions baseline. The other two consider consistency with SB 375 GHG reduction targets; and consistency with both the AB 32 Scoping Plan (until 2020) and SANDAG's own Climate Action Strategy.
Elsewhere SANDAG's briefing says "Per capita GHG emissions will actually decrease to approximately 10% below 2005 levels by 2050, further confirming that population growth, not the RTP/SCS, is the driver of GHG emission increases." SANDAG's briefs say the region's population is expected to grow from 3.2 million in 2010 to 4.4 million by 2050, an increase that the agency plans to accommodate through dense construction served by transit.
In a Dec. 3, 2012 trial court ruling, Judge Timothy Taylor of the San Diego Superior Court agreed with petitioners that SANDAG's plan was "impermissibly dismissive of" EO S-03-05 in saying it did not "constitute a 'plan'," when in the court's view the order "is an official policy of the State of California." He wrote that "the failure of the EIR to cogently address the inconsistency" between the projected GHG increases after 2020 and the reduction goals in the EO "constitutes a legally defective failure of the EIR to provide the SANDAG decision makers (and thus the public) with adequate information about the environmental impacts of the SCS/RTP [sic]."
In a phrase much quoted since the ruling, Taylor wrote that SANDAG had chosen to "kick the can down the road" by trusting local jurisdictions and programs with climate action spending decisions ? when, the court said, SANDAG should use its "purse string control" over San Diego County's TransNet sales tax fund to make local officials and Caltrans follow an overarching plan. In Taylor's view the result "falls well short of a legally enforceable mitigation commitment with teeth." (SANDAG responds in an appellate brief that the contested EIR is at the program level and does not have to "do the impossible" by anticipating climate protection approaches to future projects over the next 40 years.)
The petitioners argue that CEQA Guidelines §15064.4(b)(3) "requires agencies to consider how a project complies with statewide plans" but SANDAG writes that §15064.4(b)(3) does not require it to apply EO S-03-05.
The environmental petitioners' lawyers saw a split among the other Metropolitan Planning Organizations (MPOs) on whether to make definite efforts toward compliance with the EO S-03-05 targets in 2050 ? and also on the seriousness of their efforts to reduce reliance on cars and to "impose all feasible mitigation" under CEQA. The impending decision could help resolve that split.
Adequacy of public health analysis
A second issue that Taylor did not reach has been argued on appeal: the petitioners' assertion that SANDAG advisedly chose to be less careful than necessary about assessing public health impacts of roadway expansions and about adopting available emissions reduction or mitigation approaches.
Rachel Hooper, an attorney with the Shute, Mihaly & Weinberger firm representing the Cleveland National Forest Foundation, said in an interview this fall that the SANDAG RTP/SCS calls for widening freeways throughout San Diego County, yet its EIR does not consider the resulting danger of respiratory harm to nearby residents as carefully as other regional transportation agencies, including the Southern California Association of Governments (SCAG), have done in environmental reviews for their regional transportation plans.
Hooper said the agency received notice early in its drafting process that both the petitioners and the Attorney General viewed the EIR's level of detail as inadequate: "We alerted SANDAG [that] it had not properly correlated the emissions caused by its project with public health impacts." She said that, early on, they also brought to SANDAG's attention the case of Bakersfield Citizens for Local Control v. City of Bakersfield, (2004) 124 Cal.App.4th 1184. The Bakersfield case was a leading authority on the need to both consider and explain public health impacts in EIRs. It was followed by this year's Friant Ranch ruling, Sierra Club v. County of Fresno, (2014) 226 Cal.App.4th 704, which has now been accepted for review by the State Supreme Court. (On the Friant Ranch matter, including its importance in the SANDAG case, see http://www.cp-dr.com/articles/node-3595.)
As recounted in the trial court's opinion, petitioners accused SANDAG of approaching the transportation plan's health impacts too generically, with the excuse that the EIR was programmatic and not intended for specific projects. Bundy said the importance of a program EIR under CEQA is to do the big-picture, program-level analysis and mitigation, and "Our argument was, SANDAG missed that opportunity by trying to punt analysis that could and should have been done at the program level forward to the project level."
Standard of review
On the standard of review, SANDAG's brief argues that petitioners' preference for another analysis is not enough to meet the "substantial evidence" test ? the requirement that challengers show no substantial evidence supports the EIR's existing discussion of project harms and mitigations. It accuses the petitioners of failing even to specify clearly what mitigations they would prefer. Petitioners respond that the "substantial evidence" test, with its deference to agencies' judgment, applies to factual determinations. Instead, they argue that SANDAG chose to follow the wrong procedures for its EIR, making it incomplete as a matter of law ? hence that the EIR's adequacy "as an informational document" is eligible for de novo review by the appellate court.
Hooper said the justices gave an unusual and impressive two hours to the oral argument on the matter in August. She said they did not raise new issues, but addressed the major issues raised in the briefing. She said the discussion did include the Friant Ranch case, which she viewed as "a very close analogy to our SANDAG case" with respect to petitioners' argument that the EIR's authors "quantify what the emissions are but fail to correlate that in any meaningful way to the expected health effects."
After oral argument SANDAG sought but was denied permission for followup briefing on SANDAG's Climate Action Strategy, the nature of its duties if any to evaluate GHG emissions under EO S-03-05, and "the significance, if any, of the extra-record information offered by petitionrs purporting to establish that other regional transportation planning agencies have developed alternate methods of analyzing regional health impacts which may result from implementation of a regional transportation plan."
Several proposed amicus briefs are still available online to help round out the importance of the case for developers and public officials.
The California Association of Councils of Governments (CALCOG) reviews possible statewide effects for public agencies in two proposed amicus briefs that it was denied permission to file at both the trial and appellate court levels. On the trial court brief CALCOG was joined by some of its major member organizations, including SCAG; on the appellate brief more local-government organizations chimed in, including the League of California Cities. (See http://www.calcog.org/DocumentCenter/View/105 and http://www.counties.org/sites/main/files/file-attachments/creed_21_v_sandag.pdf.) Attorneys with the Remy Moose Manley firm, which represents many CEQA lead agencies, framed both briefs as a reminder that officials preparing an RTP/SCS must reconcile legal and policy imperatives other than CEQA climate change requirements. They argued, "CEQA requires that policy decisions be informed by environmental considerations, not that environmental considerations trump other policy issues."
The Council of Infill Builders and the Planning and Conservation League joined together on a proposed amicus brief prepared by the Center for Law, Energy and the Environment at UC Berkeley School of Law. It argues that the plan "failed to analyze feasible 'smart growth' or transit-oriented alternatives" to reduce GHG emissions.
Stanford Law School's Environmental Law Clinic attempted to file an amicus brief ? also rejected ? on behalf of the Center on Race, Poverty and the Environment and other environmental and public health organizations. A copy is at http://bit.ly/1xcJQED. The Stanford brief sets out the greater impact of pollution from roadways on low-income communities of color and charges that the EIR does not adequately consider impacts of major projects such as the projected I-5 expansion. (For the Coastal Commission's August grant of approvals enabling the I-5 expansion see http://www.cp-dr.com/articles/node-3558. The Commission's annotated August agenda, with linked materials, is at http://coastal.ca.gov/meetings/mtg-mm14-8.html.)
CALCOG's Web page on the site, which links to additional materials, is at http://www.calcog.org/index.aspx?NID=107.
SANDAG's own Web site on the plan is at