Cleveland Nat. Forest v. San Diego Assn. of Gov. (2014) · DecisionDepot
Cleveland Nat. Forest v. San Diego Assn. of Gov.
California Court of Appeal Dec 16, 2014 No. D063288MPublished
Filed 12/16/14 unmodified opn. attached CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CLEVELAND NATIONAL FOREST D063288 FOUNDATION et al., Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2011-00101593- CU-TT-CTL) SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervenor and Appellant. CREED-21 et al., (Super. Ct. No. 37-2011-00101660- Plaintiffs and Appellants, CU-TT-CTL)
v.
SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., ORDER MODIFYING OPINION Defendants and Appellants; AND DENYING REHEARING THE PEOPLE, Intervenor and Appellant. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the majority opinion filed on November 24, 2014, be modified as follows:
1. On page 18, line 2 of footnote 8, after the words "explained the Guideline," the words "which supplanted any earlier, informal technical advice from the Governor's Office of Planning and Research" are added." Footnote 8 now reads:
Indeed, in its statement of reasons for adopting the Guideline, the Natural Resources Agency explained the Guideline, which supplanted any earlier, informal technical advice from the Governor's Office of Planning and Research, "reflects the existing CEQA principle that there is no iron-clad definition of 'significance.' [Citations.] Accordingly, lead agencies must use their best efforts to investigate and disclose all that they reasonably can regarding a project's potential adverse impacts." (California Natural Resources Agency, Final Statement of Reasons for Regulatory Action (Dec. 2009) p. 20 < http://resources.ca.gov/ceqa/docs/Final_ Statement_of_Reasons.pdf > (as of Nov. 21, 2014).)
Justice Benke's dissenting opinion, filed November 24, 2014, is modified as follows:
1. On page 8, in the last sentence of the first full paragraph, the words "should be a" are deleted and the word "is" is added following the word "determination." The sentence shall now read:
To the extent thresholds of significance other than the three expressly provided in subdivision (b) apply, that determination is made by an agency in the proper exercise of its discretion.
2. On page 8, after the first full paragraph ending with the words "exercise of its discretion," the following paragraph is added:
In its petition for rehearing, SANDAG contends that the Natural Resources Agency (NRA) has specifically forgone any recommendation for use of the Executive Order as a CEQA standard in Guidelines section 15064.4, which SANDAG notes was specifically developed at the direction of the Legislature to guide analysis of GHG impacts. (Petn. for rehg., pp. 4-5.) The history of Guidelines section 15064.4 is significant. Following issuance of the Executive Order, in June of 2008, the Governor's Office of Planning and Research (OPR) issued a detailed 20-page technical advisory (<http://opr.ca.gov/ceqa/pdfs/june08-ceqa.pdf> [as of Dec. 2014]; hereafter Advisory.) Noting that many public agencies were striving to determine the appropriate means by which to evaluate and mitigate the impacts of proposed projects on climate change, the Advisory set forth directions and step-by-step guidance aimed at assisting practitioners and lead agencies. The Advisory expressly recognizes that the most difficult part of climate change analysis is the determination of significance. (Advisory, p. 4.) The Governor's office thus stated, "To this end, OPR has asked [C]ARB technical staff to recommend a method for setting thresholds which will
2
encourage consistency and uniformity in the CEQA analysis of GHG emissions throughout the state. Until such time as state guidance is available on thresholds of significance for GHG emissions, we recommend the following approach to your CEQA analysis." (Advisory, pp. 4, 8-9.) In its "Recommended Approach," the Advisory is clear: It is lead agencies that are charged with selecting and implementing significance thresholds. (Advisory pp. 5-7.) Important to our purposes, in the selecting and implementing of significance thresholds, the Advisory gives no authority to the courts and claims no such power for the Governor. At the conclusion of the Advisory, the Governor's office states its intent is to deliver a package of CEQA Guidelines amendments to the Resources Agency by July 1, 2009. (Advisory, p. 9.) As a result of the Advisory, in March of 2010, Guidelines section 15064.4 was passed. It fully implements the intent and language of the Advisory, which nullifies my colleagues' expansive interpretation of the Executive Order.
3. On page 8, in the paragraph beginning with "It is apparent," the words "history and" are added to the second sentence, so that it now reads:
Despite the clear history and language of Guidelines section 15064.4, subdivision (b) and the obvious intent of that section, the majority asserts a right to determine that a gubernatorial policy statement, which does not qualify as a threshold of significance, is to be included among the "other factors" and then orders SANDAG on remand to develop an undefined "consistency analysis" between the lead agency's plan and the policy statement.
4. On page 14, in the second sentence of the first full paragraph, the words "Office of Planning and Research (OPR)" are replaced with "OPR" and the words "Natural Resources Agency (NRA)" are replaced with "NRA," so that the sentence now reads: SB 97 directed the OPR to prepare and submit to the NRA "guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions . . . including, but not limited to, effects associated with transportation or energy consumption."
There is no change in the judgment.
San Diego Association of Governments et al.'s petition for rehearing is denied.
MCConnell, P. J.
3
Filed 11/24/14 unmodified version CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CLEVELAND NATIONAL FOREST D063288 FOUNDATION et al., Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2011-00101593- CU-TT-CTL) SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervenor and Appellant.
CREED-21 et al., (Super. Ct. No. 37-2011-00101660- Plaintiffs and Appellants, CU-TT-CTL)
v.
SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervenor and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Judgment modified and affirmed.
The Sohagi Law Group, Margaret M. Sohagi, Philip A. Seymour; and Julie D.
Wiley for Defendants and Appellants San Diego Association of Governments et al.
Kamala D. Harris, Attorney General, Timothy R. Patterson and Janill L. Richards,
Deputy Attorneys General, for Intervenor and Appellant.
Shute, Mihaly & Weinberger, Rachel B. Hooper, Amy J. Bricker, Erin B.
Chalmers; Daniel P. Selmi; Coast Law Group, Marco Gonzalez; Kevin P. Bundy; and
Cory J. Briggs for Plaintiffs and Appellants Cleveland National Forest et al.
INTRODUCTION
After the San Diego Association of Governments (SANDAG) certified an
environmental impact report (EIR) for its 2050 Regional Transportation Plan/Sustainable
Communities Strategy (transportation plan), CREED-21 and Affordable Housing
Coalition of San Diego filed a petition for writ of mandate challenging the EIR's
adequacy under the California Environmental Quality Act (CEQA) (Pub. Resources
Code, § 21000 et seq.).1 Cleveland National Forest Foundation and the Center for
Biological Diversity filed a similar petition, in which Sierra Club and the People later
joined.
The superior court granted the petitions in part, finding the EIR failed to carry out
its role as an informational document because it did not analyze the inconsistency
1 Further statutory references are also to the Public Resources Code unless otherwise stated.
2
between the state's policy goals reflected in Executive Order S-3-05 (Executive Order)
and the transportation plan's greenhouse gas emissions impacts after 2020. The court
also found the EIR failed to adequately address mitigation measures for the transportation
plan's greenhouse gas emissions impacts. Given these findings, the court declined to
decide any of the other challenges raised in the petitions.
SANDAG appeals, contending the EIR complied with CEQA in both respects.
Cleveland National Forest Foundation and Sierra Club (collectively, Cleveland) cross-
appeal, contending the EIR further violated CEQA by failing to analyze a reasonable
range of project alternatives, failing to adequately analyze and mitigate the transportation
plan's air quality impacts, and understating the transportation plan's impacts on
agricultural lands. The People separately cross-appeal, contending the EIR further
violated CEQA by failing to adequately analyze and mitigate the transportation plan's
impacts from particulate matter pollution. We conclude the EIR failed to comply with
CEQA in all identified respects. We, therefore, modify the judgment to incorporate our
decision on the cross-appeals and affirm. In doing so, we are upholding the right of the
public and our public officials to be well informed about the potential environmental
consequences of their planning decisions, which CEQA requires and the public deserves,
before approving long-term plans that may have irreversible environmental impacts.
3
DISCUSSION
I
A
General Role of an EIR
"The Legislature has made clear that an EIR is 'an informational document' and
that '[t]he purpose of an environmental impact report is to provide public agencies and
the public in general with detailed information about the effect which a proposed project
is likely to have on the environment; to list ways in which the significant effects of such a
project might be minimized; and to indicate alternatives to such a project.' " (Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,
391 (Laurel Heights); Guidelines, § 15002.)2 "The EIR is the primary means of
achieving . . . the policy of this state to 'take all action necessary to protect, rehabilitate,
and enhance the environmental quality of the state.' [Citation.] The EIR is therefore 'the
heart of CEQA.' [Citations.] An EIR is an 'environmental "alarm bell" whose purpose it
is to alert the public and its responsible officials to environmental changes before they
have reached ecological points of no return.' [Citations.] The EIR is also intended 'to
demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and
considered the ecological implications of its action.' [Citations.] Because the EIR must
2 All references to Guidelines are to the CEQA Guidelines, which are located in title 14 of the California Code of Regulations beginning at section 15000. "In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous." (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 448, fn. 4 (Smart Rail).)
4
be certified or rejected by public officials, it is a document of accountability. If CEQA is
scrupulously followed, the public will know the basis on which its responsible officials
either approve or reject environmentally significant action, and the public, being duly
informed, can respond accordingly to action with which it disagrees. [Citations.] The
EIR process protects not only the environment but also informed self-government."
(Laurel Heights, supra, 47 Cal.3d at p. 392.)
B
Role of a Program EIR
The EIR at issue in this case is a program EIR. A "program EIR" is "an EIR
which may be prepared on a series of actions that can be characterized as one large
project" and are related in specified ways. (Guidelines, § 15168, subd. (a); Town of
Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 343
(Atherton).) The use of a program EIR can: "(1) Provide an occasion for a more
exhaustive consideration of effects and alternatives than would be practical in an EIR on
an individual action, [¶] (2) Ensure consideration of cumulative impacts that might be
slighted in a case-by-case analysis, [¶] (3) Avoid duplicative reconsideration of basic
policy considerations, [¶] (4) Allow the lead agency to consider broad policy alternatives
and program wide mitigation measures at an early time when the agency has greater
flexibility to deal with basic problems or cumulative impacts, [and] [¶] (5) Allow
reduction in paperwork." (Guidelines, § 15168, subd. (b); Atherton, supra, at pp. 343-
344.)
5
"[W]here an agency prepares a 'program EIR' for a broad policy document . . . ,
Guidelines section 15168, subdivision (c)(2) allows agencies to limit future
environmental review for later activities that are found to be 'within the scope' of the
program EIR." (Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192,
196; accord, Citizens Against Airport Pollution v. City of San Jose (2014) 227
Cal.App.4th 788, 801-802.) Further environmental review for such activities is required
only where "(a) Substantial changes are proposed in the project which will require major
revisions of the [EIR]. [¶] (b) Substantial changes occur with respect to the
circumstances under which the project is being undertaken which will require major
revisions in the [EIR]. [¶] (c) New information, which was not known or could not have
been known at the time the [EIR] was certified as complete, becomes available."
(§ 21166; May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1325-1326; accord,
Citizens Against Airport Pollution v. City of San Jose, supra, at p. 802.)
Because of these limitations, once an EIR is finally approved, a court generally
cannot compel an agency to perform further environmental review for any known or
knowable information about the project's impacts omitted from the EIR. (Citizens
Against Airport Pollution v. City of San Jose, supra, 227 Cal.App.4th at pp. 807-808;
Citizens for Responsible Equitable Environmental Development v. City of San Diego
(2011) 196 Cal.App.4th 515, 531-532.) A court also generally cannot compel an agency
to perform further environmental review if new regulations or guidelines for evaluating
the project's impacts are adopted in the future. (Concerned Dublin Citizens v. City of
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Dublin (2013) 214 Cal.App.4th 1301, 1320; Fort Mojave Indian Tribe v. Department of
Health Services (1995) 38 Cal.App.4th 1574, 1605.)
Hence, "[d]esignating an EIR as a program EIR . . . does not by itself decrease the
level of analysis otherwise required in the EIR. 'All EIR's must cover the same general
content. [Citations.] The level of specificity of an EIR is determined by the nature of the
project and the "rule of reason" [citation], rather than any semantic label accorded to the
EIR.' " (Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000)
82 Cal.App.4th 511, 533.) Consequently, in considering a challenge to a program EIR,
"it is unconstructive to ask whether the EIR provided 'project-level' as opposed to
'program-level' detail and analysis. Instead, we focus on whether the EIR provided
'decision makers with sufficient analysis to intelligently consider the environmental
consequences of [the] project.' " (Citizens for a Sustainable Treasure Island v. City and
County of San Francisco (2014) 227 Cal.App.4th 1036, 1052.)
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C
Standard of Review in CEQA Cases3
"[I]n a CEQA case, as in other mandamus cases, [our review] is the same as the
trial court's: [we review] the agency's action, not the trial court's decision; in that sense
[our review] is de novo. (Vineyard, supra, 40 Cal.4th at p. 427.) However, our inquiry
extends " 'only to whether there was a prejudicial abuse of discretion.' ([§ 21168.5].)"
(Vineyard, at p. 426.)
"[A]n agency may abuse its discretion under CEQA either by failing to proceed in
the manner CEQA provides or by reaching factual conclusions unsupported by
substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs
significantly: While we determine de novo whether the agency has employed the correct
procedures, 'scrupulously enforc[ing] all legislatively mandated CEQA requirements'
[citation], we accord greater deference to the agency's substantive factual conclusions."
(Vineyard, supra, 40 Cal.4th at p. 435.) "In evaluating an EIR for CEQA compliance,
then, [we] must adjust [our] scrutiny to the nature of the alleged defect, depending on
whether the claim is predominantly one of improper procedure or a dispute over the facts.
3 The California Supreme Court is currently reviewing the standard and scope of judicial review under CEQA. (Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704 [172 Cal.Rptr.3d 271], review granted Oct. 1, 2014, S219783.) Pending further guidance, we endeavor to apply the review dichotomy most recently articulated by the Supreme Court. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427, 435 (Vineyard); accord, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 131; In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1161-1162 (Bay-Delta); Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936, 944.)
8
For example, where an agency failed to require an applicant to provide certain
information mandated by CEQA and to include that information in its environmental
analysis, . . . the agency 'failed to proceed in the manner prescribed by CEQA.'
[Citations.] In contrast, in a factual dispute over 'whether adverse effects have been
mitigated or could be better mitigated' [citation], the agency's conclusion would be
reviewed only for substantial evidence." (Ibid.)
II
Appeal
A
Background
1
In 2005 then Governor Arnold Schwarzenegger issued the Executive Order
establishing greenhouse gas emissions reduction targets for California. Specifically, the
Executive Order required reduction of greenhouse gas emissions to 2000 levels by 2010,
to 1990 levels by 2020, and to 80 percent below 1990 levels by 2050.4
4 "[A]n executive order is generally regarded as 'a formal written directive of the Governor.' " (75 Ops.Cal.Atty.Gen. 263 (1992).) The Executive Order provided in relevant part: "I, ARNOLD SCHWARZENEGGER, Governor of the State of California, by virtue of the power invested in me by the Constitution and statutes of the State of California, do hereby order effective immediately . . . . That the following greenhouse gas emission reduction targets are hereby established for California: by 2010, reduce [greenhouse gas] emissions to 2000 levels; by 2020, reduce [greenhouse gas] emissions to 1990 levels; by 2050, reduce [greenhouse gas] emissions to 80 percent below 1990 levels . . . ." (http://gov.ca.gov/news.php?id=1861 [as of Nov. 21, 2014].)
9
The Legislature subsequently enacted the California Global Warming Solutions
Act of 2006 (Health & Saf. Code, § 38500 et seq.), referred to by the parties as Assembly
Bill No. 32 (AB 32). Among its provisions, AB 32 tasked the California Air Resources
Board (CARB) with determining the state's 1990 greenhouse gas emissions level and
approving an equivalent emissions level to be achieved by 2020. (Health & Saf. Code,
§ 38550.)
The Legislature intended for the emissions limit to "continue in existence and be
used to maintain and continue reductions in emissions of greenhouse gases beyond
2020." (Health & Saf. Code, § 38551, subd. (b).) The Legislature also intended for the
emissions limit to work in concert with other environmental protection laws, expressly
stating AB 32 does not "relieve any person, entity, or public agency of compliance with
other applicable federal, state, or local laws or regulations, including state air and water
quality requirements, and other requirements for protecting public health or the
environment." (Health & Saf. Code, § 38592, subd. (b).) The Legislature further
intended for "the Climate Action Team established by the Governor to coordinate the
efforts set forth under [the Executive Order] continue its role in coordinating overall
climate policy." (Health & Saf. Code, § 38501, subd. (i).) Thus, the Legislature, through
AB 32, effectively endorsed the Executive Order and its overarching goal of ongoing
greenhouse gas emissions reductions as state climate policy. (See, e.g., Professional
Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, 1000,
1043-1044, 1051 [subsequent legislative endorsement operates to ratify and validate
provisions in Executive Order].)
10
Bolstering this conclusion, the Legislature also enacted the Sustainable
Communities and Climate Protection Act of 2008 (Stats. 2008, ch. 728; Stats. 2009,
ch. 354, § 5), referred to by the parties as Senate Bill No. 375 (SB 375). In enacting SB
375, the Legislature found automobiles and light trucks are responsible for 30 percent of
the state's greenhouse gas emissions. (Stats. 2008, ch. 728, § 1, subd. (a).) Accordingly,
SB 375 directed CARB to develop regional greenhouse gas emission reduction targets for
automobiles and light trucks for 2020 and 2035. (Gov. Code, § 65080, subd. (b)(2)(A).)
The targets established by CARB for the San Diego region require a 7 percent per capita
reduction in carbon dioxide emissions by 2020 and a 13 percent per capita reduction by
2035 (compared to a 2005 baseline).5 CARB must update these targets every eight years
until 2050, and may update the targets every four years based on changing factors. (Gov.
Code, § 65080, subd. (b)(2)(A)(iv).)
2
The transportation plan, which SANDAG must prepare every four years
(23 U.S.C. § 134, subd. (c); Gov. Code, § 65080, subds. (a) & (d)), "serves as the long-
range plan designed to coordinate and manage future regional transportation
improvements, services, and programs among the various agencies operating within the
San Diego region." In enacting SB 375, the Legislature found the state's emissions
reductions goals cannot be met without improved land use and transportation policy.
with the Legislature's unqualified endorsement, will continue to underpin the state's
efforts to reduce greenhouse gas emissions throughout the life of the transportation plan.
The EIR's failure to analyze the transportation plan's consistency with the Executive
Order, or more particularly with the Executive Order's overarching goal of ongoing
14
greenhouse gas emissions reductions, was therefore a failure to analyze the transportation
plan's consistency with state climate policy. As evidence in the record indicates the
transportation plan would actually be inconsistent with state climate policy over the long
term, the omission deprived the public and decision makers of relevant information about
the transportation plan's environmental consequences. The omission was prejudicial
because it precluded informed decisionmaking and public participation. (Smart Rail,
supra, 57 Cal.4th at p. 463; City of Long Beach, supra, 176 Cal.App.4th at p. 898.)
SANDAG contends the EIR cannot analyze the transportation plan's consistency
with the Executive Order because there is no statute or regulation translating the
Executive Order's goals into comparable, scientifically based emissions reduction targets.
However, we do not agree the lack of such targets precludes the EIR from performing a
meaningful consistency analysis in this instance. "Drafting an EIR . . . necessarily
involves some degree of forecasting. While foreseeing the unforeseeable is not possible,
an agency must use its best efforts to find out and disclose all that it reasonably can."
(Guidelines, § 15144.) Although SANDAG may not know precisely what future
emissions reduction targets the transportation plan will be required to meet, it knows
from the information in its own Climate Action Strategy the theoretical emissions
reduction targets necessary for the region to meet its share of the Executive Order's goals.
It also knows state climate policy, as reflected in the Executive Order and AB 32,
requires a continual decrease in the state's greenhouse gas emissions and the
transportation plan after 2020 produces a continual increase in greenhouse gas emissions.
With this knowledge, SANDAG could have reasonably analyzed whether the
15
transportation plan was consistent with, or whether it would impair or impede, state
climate policy.6
SANDAG's attempts to disavow its responsibility for performing this analysis are
unavailing. The Legislature specifically found reducing greenhouse gas emissions cannot
be accomplished without improved land use and transportation policy. Accordingly, the
transportation plan plays both a necessary and important role in achieving state climate
policy. By failing to adequately inform the public and decision makers the transportation
plan is inconsistent with state climate policy, the EIR deterred the decision makers from
devising and considering changes to favorably alter the trajectory of the transportation
plan's post-2020 greenhouse gas emissions. When the decision makers are inevitably
faced with post-2020 requirements aligned with state climate policy, their task of
complying with these requirements will be more difficult and some opportunities for
compliance may be lost. As SANDAG explained in its Climate Action Strategy, "Once
in place, land use patterns and transportation infrastructure typically remain part of the
built environment and influence travel behavior and greenhouse gas emissions for several
decades, perhaps longer." In this regard, the EIR falls far short of being "an
6 We do not intend to suggest the transportation plan must achieve the Executive Order's 2050 goal or any other specific numerical goal. Our concern is with the EIR's failure to recognize, much less analyze and attempt to mitigate, the conflict between the transportation plan's long-term greenhouse gas emissions increase and the state climate policy goal, reflected in the Executive Order, of long-term emissions reductions. In fact, the EIR does not even discuss the transportation plan's failure to maintain emissions reductions after 2020, which is AB 32's minimum expectation. (See Health & Saf. Code, § 38551, subd. (b).)
16
'environmental "alarm bell" whose purpose it is to alert the public and its responsible
officials to environmental changes before they have reach ecological points of no
return.' " (Laurel Heights, supra, 47 Cal.3d at p. 392.) It also falls far short of
" 'demonstrat[ing] to an apprehensive citizenry that the agency has, in fact, analyzed and
considered the ecological implications of its actions.' " (Ibid.)
We are likewise unpersuaded by SANDAG's assertion the EIR's analysis of the
transportation plan's greenhouse gas emissions impacts fully complies with CEQA
because it utilized significance thresholds specified in Guidelines section 15064.4,
subdivision (b).7 This Guideline states in relevant part: "A lead agency should consider
the following factors, among others, when assessing the significance of impacts from
greenhouse gas emissions on the environment: [¶] (1) The extent to which the project
may increase or reduce greenhouse gas emissions as compared to the existing
environmental setting[.] [¶] (2) Whether the project emissions exceed a threshold of
significance that the lead agency determines applies to the project. [¶] (3) The extent to
which the project complies with regulations or requirements adopted to implement a
statewide, regional, or local plan for the reduction or mitigation of greenhouse gas
emissions. Such requirements must be adopted by the relevant public agency through a
public review process and must reduce or mitigate the project's incremental contribution
7 "A threshold of significance is an identifiable quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant." (Guidelines, § 15064.7.)
17
of greenhouse gas emissions. If there is substantial evidence that the possible effects of a
particular project are still cumulatively considerable notwithstanding compliance with the
adopted regulations or requirements, an EIR must be prepared for the project."
Although this Guideline specifies three means of determining whether a project's
greenhouse gas emissions impacts are significant, the "among others" qualifying
language indicates these means are not exclusive.8 Moreover, "the fact that a particular
environmental effect meets a particular threshold cannot be used as an automatic
determinant that the effect is or is not significant . . . a threshold of significance cannot be
applied in a way that would foreclose the consideration of other substantial evidence
tending to show the environmental effect to which the threshold relates might be
significant." (Protect The Historic Amador Waterways v. Amador Water Agency (2004)
116 Cal.App.4th 1099, 1109 (Amador).) Consequently, the use of the Guideline's
thresholds does not necessarily equate to compliance with CEQA, particularly where, as
here, the failure to consider the transportation 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.
8 Indeed, in its statement of reasons for adopting the Guideline, the Natural Resources Agency explained the Guideline "reflects the existing CEQA principle that there is no iron-clad definition of 'significance.' [Citations.] Accordingly, lead agencies must use their best efforts to investigate and disclose all that they reasonably can regarding a project's potential adverse impacts." (California Natural Resources Agency, Final Statement of Reasons for Regulatory Action (Dec. 2009) p. 20 < http:// resources.ca.gov/ceqa/docs/Final_Statement_of_Reasons.pdf > (as of Nov. 21, 2014).)
18
We are also unpersuaded by SANDAG's assertion it was not required to analyze
the transportation plan's consistency with the state climate policy reflected in the
Executive Order because SANDAG has broad discretion to select the criteria it uses to
determine the significance of the transportation plan's impacts. While we agree
SANDAG has such discretion (North Coast Rivers Alliance v. Marin Municipal Water
Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 624), SANDAG abuses its discretion
if it exercises it in a manner that causes an EIR's analysis to be misleading or without
informational value. (See Smart Rail, supra, 57 Cal.4th at pp. 445, 457.) "A lead agency
cannot avoid finding a potentially significant effect on the environment by rotely
applying standards of significance that do not address that potential effect." (Rominger v.
County of Colusa (2014) 229 Cal.App.4th 690, 717, citing Amador, supra, 116
Cal.App.4th at p. 1111.)
By disregarding the Executive Order's overarching goal of ongoing emissions
reductions, the EIR's analysis of the transportation plan's greenhouse gas emissions
makes it falsely appear as if the transportation plan is furthering state climate policy
when, in fact, the trajectory of the transportation plan's post-2020 emissions directly
contravenes it. "[O]mitting material necessary to informed decisionmaking and informed
public participation" subverts the purposes of CEQA and "precludes both identification
of potential environmental consequences arising from the project and also thoughtful
analysis of the sufficiency of measures to mitigate those consequences." (Lotus v.
Department of Transportation (2014) 223 Cal.App.4th 645, 658.) Such an omission is
particularly troubling where, as here, the project under review involves long-term,
19
planned expenditures of billions of taxpayer dollars. No one can reasonably suggest it
would be prudent to go forward with planned expenditures of this magnitude before the
public and decision makers have been provided with all reasonably available information
bearing on the project's impacts to the health, safety, and welfare of the region's
inhabitants. We, therefore, conclude SANDAG prejudicially abused its discretion by
omitting from the EIR an analysis of the transportation plan's consistency with the state
climate policy, reflected in the Executive Order, of continual greenhouse gas emissions
reductions.9
C
Mitigation of Greenhouse Gas Emissions Impacts
1
Although the EIR did not analyze the transportation plan's consistency with the
state climate policy reflected in the Executive Order, the EIR nevertheless, analyzed the
transportation plan's greenhouse gas emissions impacts against three significance
thresholds for each of the planning years 2020, 2035, and 2050. Under the first
9 Our decision will not necessarily stop any project encompassed within the transportation plan. (See Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 286-289.) Our decision also will not procedurally or substantively expand CEQA requirements in violation of section 21083.1 because the EIR is required to analyze the transportation plan's potential "to degrade the quality of the environment, curtail the range of the environment, or to achieve short-term, to the disadvantage of long-term, environmental goals." (§ 21083, subd. (b)(1), italics added; Guidelines, § 15065, subd. (a)(2), (c).) Rather, our decision is consistent with the intent CEQA "be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. (Guidelines, § 15003, subd. (f).)
20
threshold, the EIR posited the transportation plan's impacts would be significant if the
transportation plan's implementation were to increase greenhouse gas emissions
compared to existing, or 2010, conditions. Under the second threshold, the EIR posited
the transportation plan's impacts would be significant if the transportation plan's
implementation conflicted with CARB's regional automobile and light truck emissions
reductions targets. Under the third threshold, the EIR stated the transportation plan's
impacts would be significant if the transportation plan's implementation conflicted with
either CARB's Climate Change Scoping Plan (Scoping Plan) or SANDAG's own Climate
Action Strategy.10
The EIR concluded the transportation plan's greenhouse gas emissions impacts
would be significant under the first significance threshold for the 2035 and 2050 planning
years because the emissions would be higher in those planning years than in 2010. The
EIR concluded the greenhouse gas emissions impacts would be less than significant in all
other respects analyzed.11
10 The Scoping Plan is CARB's roadmap for achieving greenhouse gas emissions reductions. The Climate Action Strategy is SANDAG's guide for addressing climate change. The Climate Action Strategy emphasizes the areas where the greatest impact can be made at the local level, including transportation infrastructure.
11 The People and Cleveland have not challenged these conclusions and their propriety is not before us. Nonetheless, regarding the third significance threshold, we note the Climate Action Strategy expresses far stronger views than the transportation plan on the steps necessary to achieve the state's long-term greenhouse gas emissions reductions goals. For example, the Climate Action Strategy maintains achieving the goals "will require fundamental changes in policy, technology, and behavior" and "[b]y 2030, the region must have met and gone below the 1990 [emissions] level and be well on its way to doing its share for achieving the 2050 greenhouse gas reduction level." 21
2
To mitigate the significant greenhouse gas emissions impacts found under the first
threshold, the EIR identified three mitigation measures it deemed feasible.12 The first
mitigation measure required SANDAG to update its future regional comprehensive plans,
regional transportation plans, and sustainable communities plans to incorporate policies
and measures leading to reduced greenhouse gas emissions. The second mitigation
measure encouraged the San Diego region cities and the County of San Diego (County)
to adopt and implement climate action plans for reducing greenhouse gas emissions to a
level the particular city or the County determined would not be cumulatively
considerable. The second mitigation measure also identified various provisions the plans
should include and stated SANDAG would assist in the preparation of the plans and other
climate strategies through the continued implementation of its own Climate Action
Strategy and Energy Roadmap Program.13 The third mitigation measure stated
SANDAG would and other agencies should require the use of best available control
technology to reduce greenhouse gas emissions during the construction and operation of
projects.
12 " 'Feasible' means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." (Guidelines, § 15364.)
13 According to the record, the Energy Roadmap Program "identifies energy-saving measures that can be integrated into local planning and permitting processes, ordinances, outreach and education efforts, and municipal operations."
22
According to the EIR, these mitigation measures encourage reduction in
greenhouse gas emissions, but they do not provide a mechanism guaranteeing such
reductions. Consequently, the EIR concluded the significant impacts found under the
first threshold would remain significant and unavoidable.
The EIR also considered and rejected three other mitigation measures deemed
infeasible. These mitigation measures were: (1) requiring all vehicles driven within the
region to be zero-emission vehicles or to be powered by renewable energy; (2) requiring
all future construction to be net-zero energy use; and (3) requiring all future construction
activity to include only equipment retrofitted to significantly reduce greenhouse gas
emissions.
3
SANDAG contends the EIR adequately addressed mitigation for the transportation
plan's significant greenhouse gas emissions impacts. Given our conclusion in part II.B,
ante, this challenge is at least partially moot as the additional analysis necessary to
properly address the transportation plan's consistency with the state climate policy
reflected in the Executive Order will likely require revisions to related sections of the
EIR, including the EIR's discussion of mitigation measures. (Communities for a Better
Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 91 [once a lead agency
recognizes an impact is significant, the agency must describe, evaluate, and adopt
23
feasible mitigation measures to mitigate or avoid the impact].)14 We, nonetheless,
briefly address SANDAG's contention. As this contention is predominately factual, our
review is for substantial evidence. (Vineyard, supra, 40 Cal.4th at p. 435.)
a
"The core of an EIR is the mitigation and alternatives sections." (Citizens of
Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564; Watsonville Pilots
Assn. v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1089.) "Section 21002
requires agencies to adopt feasible mitigation measures to substantially lessen or avoid
otherwise significant adverse environmental impacts. [¶] The CEQA guidelines state that
to be legally adequate mitigation measures must be capable of: '(a) Avoiding the impact
altogether by not taking a certain action or parts of an action. (b) Minimizing impacts by
limiting the degree or magnitude of the action and its implementation. (c) Rectifying the
impact by repairing, rehabilitating, or restoring the impacted environment. (d) Reducing
or eliminating the impact over time by preservation and maintenance operations during
the life of the action.' [Citation.]
"For each significant effect, the EIR must identify specific mitigation measures;
where several potential mitigation measures are available, each should be discussed
separately, and the reasons for choosing one over the others should be stated. If the
14 We do not express any view on precisely how SANDAG must remedy the analytical deficiencies identified in this opinion as we recognize a court may direct SANDAG to comply with CEQA, but a court may not direct SANDAG to exercise its discretion in a particular fashion or to produce a particular result. (§ 21168.9, subd. (c); Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245, 1266.) 24
inclusion of a mitigation measure would itself create new significant effects, these too,
must be discussed, though in less detail than required for those caused by the project
itself." (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027.)
For significant greenhouse gas emissions effects, feasible mitigation measures
may include: "(1) Measures in an existing plan or mitigation program for the reduction
of emissions that are required as part of the lead agency's decision; [¶] (2) Reductions in
emissions resulting from a project through implementation of project features, project
design, or other measures . . . ; [¶] (3) Off-site measures, including offsets that are not
otherwise required, to mitigate a project's emissions; [¶] (4) Measures that sequester
greenhouse gases; [¶] [and] (5) In the case of the adoption of a plan, such as a general
plan, long range development plan, or plans for the reduction of greenhouse gas
emissions, mitigation may include the identification of specific measures that may be
implemented on a project-by-project basis. Mitigation may also include the incorporation
of specific measures or policies found in an adopted ordinance or regulation that reduces
the cumulative effect of emissions." (Guidelines, § 15126.4, subd. (c).)
b
At one extreme, the EIR in this case considered and deemed feasible three
measures requiring little to no effort to implement and assuring little to no concrete steps
toward emissions reduction. In addition, according to the EIR, many of the suggestions
contained in these measures have already been incorporated into the transportation plan
and, by implication, the transportation plan's emissions estimates. "A 'mitigation
measure' is a suggestion or change that would reduce or minimize significant adverse
25
impacts on the environment caused by the project as proposed." (Lincoln Place Tenants
Association v. City of Los Angeles (2007) 155 Cal.App.4th 425, 445.) A mitigation
measure is not part of the project. (Lotus v. Department of Transportation, supra, 223
Cal.App.4th at p. 656 & fn. 8.) Thus, it is questionable whether these measures even
qualify as mitigation measures.
At the other extreme, the EIR considered and deemed infeasible three particularly
onerous measures. Each of the measures would be difficult, if not impossible, to enforce
and each requires implementation resources not readily available. Unrealistic mitigation
measures, similar to unrealistic project alternatives, do not contribute to a useful CEQA
analysis. (See Watsonville Pilots Assn. v. City of Watsonville, supra, 183 Cal.App.4th at
p. 1089; 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act
(Cont.Ed.Bar 2014) § 15.10, pp. 15-16.) As none of these measures had any probability
of implementation, their inclusion in the EIR was illusory.
Missing from the EIR is what CEQA requires: a discussion of mitigation
alternatives that could both substantially lessen the transportation plan's significant
greenhouse gas emissions impacts and feasibly be implemented. (Lincoln Place Tenants
Association v. City of Los Angeles, supra, 155 Cal.App.4th at p. 445.) A few examples of
potential alternatives identified in the Climate Action Strategy include: supporting the
planning and development of smart growth areas through transportation investments and
other funding decisions; offering incentives for transit-oriented developments in smart
growth areas; coordinating the funding of low carbon transportation with smart growth
development; and encouraging parking management measures that promote walking and
26
transit use in smart growth areas. Given the absence of any discussion of such mitigation
alternatives, we conclude there is not substantial evidence to support SANDAG's
determination the EIR adequately addressed mitigation for the transportation plan's
greenhouse gas emissions impacts. The error is prejudicial because it precluded informed
public participation and decisionmaking. (§ 21005, subd. (a); City of Maywood, supra,
208 Cal.App.4th at p. 386.)
III
Cross-Appeals
A
Forfeiture
The People's and Cleveland's pleadings and briefs below challenged many aspects
of the EIR in addition to the EIR's analysis and mitigation of greenhouse gas emissions
impacts. In its tentative ruling, the superior court acknowledged the other challenges, but
determined it could resolve the case solely on the greenhouse gas emissions impacts
analysis and mitigation issues and, consequently, it did not need to address the other
challenges. The People and Cleveland through their cross-appeals now seek rulings from
this court on many of the other challenges. SANDAG contends they forfeited these
challenges by failing to attempt to obtain rulings on them below.
Even if SANDAG's contention were correct, the application of the forfeiture rule
is not automatic and we may excuse forfeiture in cases presenting "an important legal
issue." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) We are persuaded the legal issues
raised in the cross-appeals are sufficiently important we should exercise our discretion to
27
excuse any forfeiture. Moreover, we are mindful of the Legislature's intent "that any
court, which finds, or, in the process of reviewing a previous court finding, finds, that a
public agency has taken an action without compliance with [CEQA], shall specifically
address each of the alleged grounds for noncompliance." (§ 21005, subd. (c).)
B
Project Alternatives
1
The EIR analyzed seven project alternatives. They were:
1. A no project alternative, which assumed the transportation plan would not
be adopted and only transportation improvements under construction or development
would be built (Alternative 1);
2. A modified funding strategy alternative, which deleted some highway
improvements, delayed other highway improvements, added some transit projects,
advanced other transit projects, and increased some transit service frequencies
(Alternative 2a);
3. The same modified funding strategy alternative coupled with a modified
"smart growth" land use pattern, which assumed added infill and redevelopment to
increase residential development density in urban and town center areas and increased
employment within job centers (Alternative 2b);
4. A transit emphasis alternative, which advanced the development of some
transit projects, but did not add any new transit projects (Alternative 3a);
28
5. The same transit emphasis alternative, but assuming the modified smart
growth land use pattern (Alternative 3b);
6. An alternative implementing the transportation plan's transportation
network, but assuming the modified smart growth land use pattern (Alternative 4); and
7. A slow growth alternative, which assumed the application of regulations
and/or economic disincentives to slow population and employment and delayed the
complete implementation of the transportation plan by five years (Alternative 5).
2
Cleveland contends the EIR fails to comply with CEQA because the EIR did not
analyze a reasonable range of project alternatives. As the focus of this contention is
whether the analysis was reasonable and not whether it occurred, the contention presents
a predominately factual question and our review is for substantial evidence. (Vineyard,
supra, 40 Cal.4th at p. 435.)
"CEQA requires that an EIR, in addition to analyzing the environmental effects of
a proposed project, also consider and analyze project alternatives that would reduce
adverse environmental impacts. [Citations.] The [Guidelines] state that an EIR must
'describe a range of reasonable alternatives to the project . . . which would feasibly attain
most of the basic objectives of the project but would avoid or substantially lessen any of
the significant effects of the project . . . .' [Citation.] An EIR need not consider every
conceivable alternative to a project or alternatives that are infeasible. [Citations.]
[¶] . . . [¶]
29
" 'There is no ironclad rule governing the nature or scope of the alternatives to be
discussed other than the rule of reason.' [Citation.] The rule of reason 'requires the EIR
to set forth only those alternatives necessary to permit a reasoned choice' and to 'examine
in detail only the ones that the lead agency determines could feasibly attain most of the
basic objectives of the project.' [Citations.] An EIR does not have to consider
alternatives 'whose effect cannot be reasonably ascertained and whose implementation is
remote and speculative.' " (Bay-Delta, supra, 43 Cal.4th at p. 1163, fn. omitted.) A court
will uphold the selection of project alternatives unless the challenger demonstrates " 'that
the alternatives are manifestly unreasonable and that they do not contribute to a
reasonable range of alternatives.' " (California Native Plant Society v. City of Santa Cruz
(2009) 177 Cal.App.4th 957, 988.)
In this case, the EIR's discussion of project alternatives is deficient because it does
not discuss an alternative which could significantly reduce total vehicle miles traveled.
Although Alternatives 3a and 3b are labeled "transit emphasis" alternatives, the labeling
is a misnomer. These alternatives mainly advance certain rapid bus projects, but leave
the planned rail and trolley projects largely unchanged. In addition, these alternatives do
not provide any new transit projects or significant service increases. In fact, the "transit
emphasis" alternatives include fewer transit projects than some of the other non-"transit-
emphasis" alternatives.
The omission of an alternative which could significantly reduce total vehicle miles
traveled is inexplicable given SANDAG's acknowledgment in its Climate Action
Strategy that the state's efforts to reduce greenhouse gas emissions from on-road
30
transportation will not succeed if the amount of driving, or vehicle miles traveled, is not
significantly reduced. The Climate Action Strategy explained, "Lowering vehicle miles
traveled means providing high-quality opportunities to make trips by alternative means to
driving alone such as walking, bicycling, ridesharing, and public transit, and by
shortening vehicle trips that are made. This can be accomplished through improved land
use and transportation planning and related measures, policies and investments that
increase the options people have when they travel." Accordingly, the Climate Action
Strategy recommended policy measures to increase and prioritize funding and system
investments for public transit and transit operations, increase the level of service on
existing routes and provide new public transit service through expanded investments, and
improve the performance of public transit with infrastructure upgrades. Given these
recommendations, their purpose, and their source, it is reasonable to expect at least one
project alternative to have been focused primarily on significantly reducing vehicle trips.
Instead, it appears the project alternatives focused primarily on congestion relief.
The Climate Action Strategy provides evidentiary support for the consideration of
congestion relief alternatives as it notes, "Eliminating or reducing congestion can lead to
more efficient travel conditions for vehicles and greenhouse gas savings." However, the
transportation plan is a long-term plan and congestion relief is not necessarily an
effective long-term strategy. As the Climate Action Strategy explains, "Measures to
relieve congestion also may induce additional vehicle travel during uncongested periods,
particularly over the long-term, which can partially or fully offset the greenhouse gas
reductions achieved in the short-term from congestion relief. Induced demand
31
(sometimes called the rebound effect) in transportation refers to the increase in travel that
can occur when the level of service on a roadway or other facility improves. Travelers
sometimes respond to faster travel times and decreased costs of travel by traveling more,
resulting in increased vehicle miles traveled." (Fns. omitted.) Given the acknowledged
long-term drawbacks of congestion relief alternatives, there is not substantial evidence to
support the EIR's exclusion of an alternative focused primarily on significantly reducing
vehicle trips. The error is prejudicial because it precluded informed public participation
and decisionmaking. (§ 21005, subd. (a); City of Maywood, supra, 208 Cal.App.4th at
p. 386.)
C
Air Quality Impacts
1
Eleven air quality monitoring stations throughout the region measure ambient air
pollutant concentrations to determine whether the region's air quality meets federal and
state standards. The region does not meet the state standards for emissions of respirable
particulate matter with an aerodynamic resistance diameter of 10 micrometers or less
(PM10) and fine particulate matter with an aerodynamic resistance diameter of 2.5
micrometers or less (PM2.5).15 The EIR forecasted the daily tonnage of on-road mobile
emissions of PM10 and PM2.5 from the transportation plan's transportation network
15 According to the EIR, "respirable" means the particulate matter can "avoid many of the human respiratory system defense mechanisms and enter deeply into the lung."
32
improvements would steadily and substantially increase from 2010 to 2050. The EIR did
not forecast whether there would be any increase in these emissions from regional growth
or land use changes associated with the transportation plan. Instead, the EIR indicated
such forecasting would be done during the next tier of environmental review.
Five of the region's air quality monitoring stations also sample toxic air
contaminants (TACs), which are contaminants known or suspected to cause cancer or
serious health problems, but for which there are no federal or state ambient air quality
standards. State law also requires facilities to report any emissions of TACs in order to
quantify the amount released, the location of the release, the concentrations to which the
public is exposed, and the resulting potential health risk. (Health & Saf. Code, § 44300
et seq.) In 2009, annual emissions of TACs in the region were estimated to be more than
64.9 million pounds.
According to the EIR, exposure to TACs can cause cancer and other serious health
problems. This is especially true of exposure to diesel particulate matter, which is
respirable (see fn. 15, ante). The EIR further explained, "The carcinogenic potential of
TACs is a particular public health concern because many scientists currently believe that
there is no 'safe' level of exposure to carcinogens. Any exposure to a carcinogen poses
some risk of contracting cancer."
One of the thresholds the EIR used to determine the significance of the
transportation plan's air quality impacts was whether sensitive receptors would be
exposed to substantial pollutant concentrations. For purposes of this threshold, "sensitive
33
receptors" included children, the elderly, and communities already experiencing high
levels of air pollution and related diseases.
As to PM10 and PM2.5 emissions, the EIR indicated sensitive receptors could be
significantly impacted if they were located near congested intersections. As to TACs, the
EIR indicated TACs emitted from highway vehicles and nonroad equipment tend to
impact those closest to the emission sources. The EIR explained, "[a] growing body of
scientific evidence shows that living or going to school near roadways with heavy traffic
volumes is associated with a number of adverse effects. These include increased
respiratory symptoms, increased risk of heart and lung disease, and elevated mortality
rates."
Although 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, the EIR stated the level of exposure could not and
would not be determined until the next tier of environmental review when facility designs
of individual projects became available. The EIR made identical statements regarding
proposed transportation improvements associated with the transportation plan.
The EIR summarized several studies linking proximity to heavily traveled roads
and freeways to harmful health effects to children. The EIR also noted CARB had
estimated the region's health risk from diesel particulate matter in 2000 was 720 excess
cancer cases per million and had recommended sensitive land uses not be sited within
500 feet of a freeway, urban roads with 100,000 vehicles per day, and rural roads with
50,000 vehicles per day.
34
2
Cleveland contends the EIR's air quality impacts analysis violates CEQA because
the EIR's description of existing conditions does not adequately depict the public's
existing exposure to TACs. Cleveland contends the existing conditions description also
fails to identify the approximate number and location of sensitive receptors near planned
transportation projects. SANDAG, however, asserts its existing conditions description is
sufficiently detailed for a program level EIR. As these contentions focus on the
reasonableness of the EIR's analysis, they present predominately factual questions and
our review is for substantial evidence. (Vineyard, supra, 40 Cal.4th at p. 435; accord,
Smart Rail, supra, 57 Cal.4th at pp. 447-449; Communities for a Better Environment v.
South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 328.)
To fulfill its information disclosure function, "an EIR must delineate
environmental conditions prevailing absent the project, defining a baseline against which
predicted effects can be described and quantified." (Smart Rail, supra, 57 Cal.4th at
p. 447; see County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th
931, 953 [without an adequate baseline description, "analysis of impacts, mitigation
measures and project alternatives becomes impossible"]; Guidelines, § 15125, subd.
(a).)16 If the description of the environmental setting " 'is inaccurate, incomplete or
16 Guidelines section 15125, subdivision (a), provides: "An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and 35
misleading, the EIR does not comply with CEQA. [Citation.] "Without accurate and
complete information pertaining to the setting of the project and surrounding uses, it
cannot be found that the [EIR] adequately investigated and discussed the environmental
impacts of the development project." ' " (Clover Valley Foundation v. City of Rocklin
(2011) 197 Cal.App.4th 200, 219.)
In this case, for TACs exposures, the record shows there was available data from
monitoring stations and mandatory reports with which SANDAG could have developed a
reasoned estimate of the region's existing TACs exposures. Likewise, for sensitive
receptors, the record shows SANDAG has data showing current population and land use
patterns and current transportation infrastructure from which it could have developed a
reasoned estimate of the number and location of sensitive receptors adjacent to highways
and heavily traveled roadways.
The fact more precise information may be available during the next tier of
environmental review does not excuse SANDAG from providing what information it
reasonably can now. (Guidelines, § 15144.) Moreover, if known impacts are not
analyzed and addressed in a program EIR, they may potentially escape analysis in a later
tier EIR. (§ 21166; Citizens Against Airport Pollution v. City of San Jose, supra, 227
Cal.App.4th at pp. 807-808; Concerned Dublin Citizens v. City of Dublin, supra, 214
Cal.App.4th at p. 1320; Citizens for Responsible Equitable Environmental Development
v. City of San Diego, supra, 196 Cal.App.4th at pp. 531-532; Fort Mojave Indian Tribe v.
regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant."
36
Department of Health Services, supra, 38 Cal.App.4th at p. 1605.) We, therefore,
conclude there is not substantial evidence to support SANDAG's determination it could
not reasonably provide additional baseline information in the EIR about TACs exposures
and the location of sensitive receptors. The error is prejudicial because it precluded
informed public participation and decisionmaking. (§ 21005, subd. (a); City of Maywood,
supra, 208 Cal.App.4th at p. 386.)
3
Both the People and Cleveland contend the EIR's analysis of air quality impacts
fails to comply with CEQA because it fails to correlate the transportation plan's adverse
air quality impacts to resulting adverse health impacts. SANDAG again contends its
disclosure efforts are adequate for the program level of environmental review and
producing additional information at this level is infeasible. As with the parties' other
contention, this contention is predominantly factual and our review is for substantial
evidence. (Vineyard, supra, 40 Cal.4th at p. 435.)
"Guidelines section 15126.2, subdivision (a) requires an EIR to discuss, inter alia,
'health and safety problems caused by the physical changes' that the proposed project will
precipitate." (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124
Cal.App.4th 1184, 1219 (Bakersfield Citizens).) Accordingly, an EIR must identify and
analyze the adverse health impacts likely to result from the project's air quality impacts.
(Id., at p. 1220; Berkeley Keep Jets Over the Bay Com. v. Board of Port Comrs., supra,
91 Cal.App.4th at pp. 1367-1371.)
37
Here, the EIR identified in a general manner the adverse health impacts that might
result from the transportation plan's air quality impacts. However, the EIR failed to
correlate the additional tons of annual transportation plan-related emissions to anticipated
adverse health impacts from the emissions. Although the public and decision makers
might infer from the EIR the transportation plan will make air quality and human health
worse, at least in some respects for some people, this is not sufficient information to
understand the adverse impact. (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1220
[EIR analysis of air quality impacts deficient where public would have no idea of the
health consequences of increased air pollution].)
While SANDAG contends it is not feasible to provide more definite information at
this juncture, we have not located nor has SANDAG identified any evidence in the record
supporting this contention. Instead, SANDAG impermissibly relies solely on its own
bald assertions of infeasibility contained in the EIR. (City of Maywood, supra, 208
Cal.App.4th at p. 385 [an EIR must contain facts and analysis, not just the agency's bare
conclusions].) Certainly, we recognize there are limitations to the precision of a
program-level analysis. SANDAG is nonetheless obliged to disclose what it reasonably
can about the correlation, it has not done so, and there is not substantial evidence
showing it could not do so. The error is prejudicial because it precluded informed public
38
participation and decisionmaking.17 (§ 21005, subd. (a); City of Maywood, supra, at
p. 386.)
4
a
To mitigate the transportation plan's air quality impacts, the EIR identified the
following mitigation measures:
1. Local jurisdictions should incorporate into their land use decisions certain
measures recommended by the California Attorney General for reducing greenhouse gas
emissions.
2. At the next tier of environmental review, SANDAG will and other
implementing agencies should incorporate certain dust control measures into project
specifications for transportation network improvements.
3. At the next tier of environmental review, SANDAG will and other
implementing agencies should require any heavy duty off-road vehicles used to construct
transportation network improvements to utilize all feasible measures to reduce specified
emissions to a less than significant level.
4. At the next tier of environmental review, SANDAG will and other
implementing agencies should evaluate potential impacts from carbon monoxide, PM10
17 Given this conclusion and its bases, we need not decide the People's conditional motion for judicial notice of examples of correlative information contained in comparable EIRs from other jurisdictions.
39
and PM2.5 emissions and their health risks and, if required, add one or more
recommended mitigation measures to reduce the emissions.
The EIR further concluded these were the only mitigation measures available at
the program-level of environmental review.
b
Both the People and Cleveland contend these measures, except for the second,
violate CEQA because they improperly defer mitigation of the transportation plan's
significant air quality impacts. SANDAG once more counters these measures are
adequate for the program level of environmental review.
This issue, like the issue involving the mitigation of greenhouse gas emissions
impacts, is at least partially moot given our conclusion in parts III.C.2 & 3, ante, as the
additional analysis necessary to correct the noted deficiencies will likely require revisions
to related sections of the EIR, including the discussion of mitigation measures.
(Communities for a Better Environment v. City of Richmond, supra, 184 Cal.App.4th at
p. 91.) However, we briefly address the People's and Cleveland's contentions. As these
contentions are predominantly factual, our review is for substantial evidence. (Vineyard,
supra, 40 Cal.4th at p. 435.)
"An EIR shall describe feasible measures which could minimize significant
adverse impacts. (Guidelines, § 15126.4, subd. (a)(1).) An EIR may not defer the
formulation of mitigation measures to a future time, but mitigation measures may specify
performance standards which would mitigate the project's significant effects and may be
accomplished in more than one specified way. (Id., subd. (a)(1)(B).)
40
"Thus, ' " 'for [the] kinds of impacts for which mitigation is known to be feasible,
but where practical considerations prohibit devising such measures early in the planning
process (e.g., at the general plan amendment or rezone stage), the agency can commit
itself to eventually devising measures that will satisfy specific performance criteria
articulated at the time of project approval. Where future action to carry a project forward
is contingent on devising means to satisfy such criteria, the agency should be able to rely
on its commitment as evidence that significant impacts will in fact be mitigated.' " '
[Citation.] Conversely, ' "[i]mpermissible deferral of mitigation measures occurs when
an EIR puts off analysis or orders a report without either setting standards or
demonstrating how the impact can be mitigated in the manner described in the EIR." ' "
(Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 280-281.)
In this case, with one exception, the EIR defers the analysis of appropriate
mitigation measures. It also fails to set performance standards and commit SANDAG to
complying with them. Although SANDAG contends no other mitigation is feasible at the
program level of environmental review, we have not located nor has SANDAG pointed to
any evidence in the record supporting this contention. Accordingly, we conclude there is
not substantial evidence to support SANDAG's determination the EIR adequately
addressed mitigation for the transportation plan's air quality impacts. The error is
prejudicial because it precluded informed public participation and decisionmaking.
(§ 21005, subd. (a); City of Maywood, supra, 208 Cal.App.4th at p. 386.)
41
D
Agricultural Impacts
1
The EIR evaluated the transportation plan's agricultural impacts under two
significance thresholds. Under the first threshold, the EIR evaluated the impacts to land
designated prime farmland, unique farmland or farmland of statewide significance under
the California Resources Agency's Farmland Mapping and Monitoring Program.18 The
EIR concluded implementation of the transportation plan would result in the conversion
of 3,485.09 acres of such farmland by 2050.
Under the second threshold, the EIR evaluated impacts to all land with existing
agricultural uses regardless of classification, lands subject to Williamson Act contracts,
and lands designated under the California Farmland Conservancy Program Act.19 The
EIR concluded implementation of the transportation plan would result in the conversion
18 According to the EIR, the Farmland Mapping and Monitoring Program is used to identify agricultural resources of 10-acres or more. "Farmlands are classified according to soil factors, including available water holding capacity, temperature regime, acidity, depth to the water table, electrical conductivity, flooding potential, erosion hazard, permeability, rock content, and rooting depth. The best quality land is identified as Prime Farmland and Farmland of Statewide Importance."
19 According to the EIR, "the Williamson Act [Gov. Code, § 51200 et seq.] enables local governments to enter into contracts with private landowners for the purpose of restricting specific parcels of land to agricultural or related open space use. In return, landowners receive property tax assessments that are much lower than normal because they are based upon farming and open space uses as opposed to full market value." The California Farmland Conservancy Program Act (§ 10200 et seq.) encourages "the long-term, private stewardship of agricultural lands through the voluntary use of agricultural conservation easements."
42
of 7,023.07 acres of such land by 2050. The conclusion was based on data from the
Farmland Mapping and Monitoring Program augmented with data from SANDAG's own
geographic information system.
2
a
Cleveland contends the EIR violates CEQA by understating the transportation
plan's growth-induced impacts on agricultural lands. As this contention is predominantly
factual, our review is for substantial evidence. (Vineyard, supra, 40 Cal.4th at p. 435.)
As we have previously indicated, when reviewing the adequacy of an EIR's
disclosures, we are chiefly concerned with whether the EIR reasonably fulfills its
function of facilitating informed decisionmaking. An analysis which understates the
severity of a project's impacts "impedes meaningful public discussion and skews the
decisionmaker's perspective concerning the environmental consequences of the project,
the necessity for mitigation measures, and the appropriateness of the project approval."
(Citizens to Pres. the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 431.)
In this case, both of the data sets used to analyze the transportation plan's
agricultural impacts have important limitations. The Farmland Mapping and Monitoring
Program does not capture information for farmland under 10 acres. In addition,
according to SANDAG, its own geographic information system's inventory of
agricultural land may not include any agricultural lands that went into production after
the mid-1990s. The combined effect of these limitations is that there is not substantial
evidence to show the EIR's analysis accounted for impacts to farmland of less than 10
43
acres put into production within the last 20 years. The error necessarily prejudiced
informed public participation and decisionmaking because 68 percent of the farmland in
the County is between one and nine acres, with the average farm size being four acres.
(§ 21005, subd. (a); City of Maywood, supra, 208 Cal.App.4th at p. 386.)
While SANDAG correctly points out CEQA permits the use of data from the
Farmland Mapping and Monitoring Program to analyze a project's agricultural impacts
(Guidelines, Exhibit G), CEQA does not mandate the use of such data nor does it insulate
an EIR from further scrutiny if the EIR relies on the data. Moreover, because the
transportation plan included the sustainable communities strategy, SANDAG was
required by statute to "gather and consider the best practically available scientific
information regarding resource areas and farmland in the region . . . ." (Gov. Code,
§ 65080, subd. (b)(2)(B)(v).) By choosing a methodology with known data gaps,
SANDAG produced unreliable estimates of the amount of existing farmland and,
consequently, unreliable estimates of the transportation plan's impacts to existing
farmland. Accordingly, SANDAG failed to comply with its statutory obligation as well
as CEQA's information disclosure requirements.
b
Finally, in addition to Cleveland's general contention that the EIR understated the
transportation plan's agricultural impacts, Cleveland raises two specific contentions: (1)
the EIR failed to disclose and analyze the transportation plan's impacts to small farms;
and (2) the EIR's discussion of impacts to agricultural land from growth inaccurately
assumed land converted to a rural residential designation would remain farmland.
44
SANDAG counters Cleveland is precluded under section 21177, subdivision (a), from
raising these two specific contentions because Cleveland never exhausted its
administrative remedies as to them.20 Except to the extent the specific contentions are
subsumed within the general contention, we agree.
"A CEQA challenge is not preserved 'unless the alleged grounds for
noncompliance with [CEQA] were presented to the public agency orally or in writing by
any person during the public comment period provided by this division or prior to the
close of the public hearing . . . .' [Citation.] 'Exhaustion of administrative remedies is a
jurisdictional prerequisite to maintenance of a CEQA action.' [Citation.]
" 'To advance the exhaustion doctrine's purpose "[t]he 'exact issue' must have been
presented to the administrative agency . . . ." [Citation.] While " 'less specificity is
required to preserve an issue for appeal in an administrative proceeding than in a judicial
proceeding' because, . . . parties in such proceedings generally are not represented by
counsel . . . ' [citation]" [citation], "generalized environmental comments at public
hearings," "relatively . . . bland and general references to environmental matters"
[citation], or "isolated and unelaborated comment[s]" [citation] will not suffice. The
same is true for " '[g]eneral objections to project approval . . . .' [Citations.]" [Citation.]
20 Section 21177, subdivision (a), provides: "An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." 45
" '[T]he objections must be sufficiently specific so that the agency has the opportunity to
evaluate and respond to them.' " ' [Citation.]
" ' "The petitioner bears the burden of demonstrating that the issues raised in the
judicial proceeding were first raised at the administrative level. [Citation.]" [Citation.]
An appellate court employs a de novo standard of review when determining whether the
exhaustion of administrative remedies doctrine applies.' " (Citizens for Responsible
Equitable Environmental Development v. City of San Diego, supra, 196 Cal.App.4th at
p. 527.)
Cleveland has not met its burden in this case. Before SANDAG approved the
EIR, Cleveland submitted a letter commenting on the EIR's analysis of agricultural
impacts from growth as follows: "[T]he [EIR] states that approximately 10,500[21] acres
of agricultural land will be impacted due to regional growth and land use change by the
year 2050. [Citations.] The [EIR] also acknowledges that its regional growth projections
are based on current planning assumptions for San Diego County and the jurisdictions
therein. [Citation.] However, the EIR for the County's current General Plan update,
which by definition reflects current planning assumptions (as of 2011), shows that the
General Plan expects 55,963 acres of agricultural land to convert to non-agricultural uses
by the year 2030. [Citation.] Even though they account for conditions expected to exist
20 years sooner, these impacts are more than five times greater than the impacts
identified in the [transportation plan's EIR].
21 This figure apparently represents the combined total of the impacts identified under both significance thresholds (see part III.D.1, ante). 46
"It is not clear how the [EIR] could use current planning assumptions for growth
and determine that there will be only 10,500 acres of agricultural land impacted, when the
current plans on which it bases its assumptions assume there will be more than five times
as many acres impacted. SANDAG must explain if there is a basis for this discrepancy.
Without any such explanation, the [EIR] appears to severely underestimate the amount of
agricultural land that will be impacted, in contravention of CEQA. [¶] In sum, the
[EIR's] failure to accurately account for impacts to agricultural land renders it inadequate
as a matter of law."
Even read liberally, Cleveland's comment letter did not fairly apprise SANDAG
that Cleveland had specific concerns about the EIR's handling of impacts to small farms
and lands redesignated rural residential. Instead, Cleveland's comment letter focused on
the discrepancy between SANDAG's estimate of overall growth-induced impacts and the
County's estimate of overall growth-induced impacts. Cleveland cites to no other place
in the record where any other person or organization raised specific concerns about the
EIR's handling of impacts to small farms and lands designated rural residential.
Consequently, Cleveland has not demonstrated exhaustion of administrative remedies as
to these concerns.
47
DISPOSITION
The matter is remanded to the superior court with directions to modify the
judgment and writ of mandate to incorporate our decision on the cross-appeals. The
judgment is affirmed as so modified. The People and Cleveland are awarded their appeal
and cross-appeal costs.
MCCONNELL, P. J.
I CONCUR:
IRION, J.
48
BENKE, J., Dissenting.
My colleagues and I have vastly different views on the extent to which this court
can and should control environmental review of the planning decisions of a regional
transportation agency such as the San Diego Association of Governments (SANDAG).
Where the majority, as a result of the alleged inadequacy of the environmental impact
report's (EIR) analysis of greenhouse gas (GHG) impacts, would strike down the EIR
implementing SANDAG's regional transportation plan (RTP) calling for investment of
about $214 billion over the next several decades in the San Diego region, I would not.
Where the majority purports to enforce the California Environmental Quality Act
(CEQA) and its Guidelines,1 I believe my colleagues weaken and confuse the law. Thus,
although I conclude that substantial evidence supports the finding SANDAG's GHG
impacts analysis is CEQA-compliant, I preface that substantial evidence analysis with the
following observations and concerns.
In order to understand the full impact of my colleagues' decision regarding the
adequacy of SANDAG's assessment of the GHG impacts of the project, it is first
necessary to define a "threshold of significance." CEQA requires "[a]ll public agencies
. . . adopt by ordinance, resolution, rule, or regulation, objectives, criteria, and procedures
for the evaluation of projects and the preparation of environmental impact reports." (Pub.
Resources Code, § 21082.)2 Such "objectives, criteria, and procedures" are also known
1 Citations to "Guidelines" refer to California Code of Regulations, title 14, section 15000 et seq., which are the guidelines for the application of CEQA. (Cal. Code Regs., tit. 14, §§ 15000, 15001.)
2 All further statutory citations refer to the Public Resources Code unless otherwise indicated.
as "thresholds of significance" and are used by an agency as a benchmark in determining
the significance of environmental effects of a project. (Guidelines, § 15064.7, subd. (a).)
A threshold of significance for GHG impacts may be accompanied by a plan to achieve
the reduction or mitigation of GHG emissions, but the plan must be adopted through a
public review process. (Guidelines, § 15064.4, subd. (b)(3).)
Executive Order No. S-3-05, signed in 2005 by then Governor Arnold
Schwarzenegger (Executive Order), does not unilaterally qualify as a threshold of
significance. To reach this conclusion, one need go no further than our Supreme Court's
opinion of Professional Engineers in California Government v. Schwarzenegger (2010)
50 Cal.4th 989 (Professional Engineers). In Professional Engineers, the court concluded
that an executive order, which attempted to implement a mandatory furlough program
during our state's fiscal crisis, had no foundation in the state constitution or existing
statutes. In particular, the court noted "the Governor fails to cite any judicial decision or
other supporting authority holding or suggesting that the power under the California
Constitution to establish or revise the terms and conditions of state employment, even in
a fiscal emergency, resides in the Governor (or any other executive officer or entity)
rather than in the Legislature. To the contrary, the following is well established: (1)
Under the California Constitution it is the Legislature, rather than the Governor, that
generally possesses the ultimate authority to establish or revise the terms and conditions
of state employment through legislative enactments, and (2) any authority that the
Governor or an executive branch entity . . . is entitled to exercise in this area emanates
from the Legislature's delegation of a portion of its legislative authority to such executive
officials or entities through statutory enactments." (Id. at p. 1015.)
2
The court in Professional Engineers likewise rejected the Governor's argument
that his power to impose a mandatory work furlough program through an executive order
was supported by statutes, including several specific statutory provisions. Among the
factors noted contrary to this position, the court recognized that "the Legislature has
demonstrated a special interest in retaining . . . [the] ultimate control over the salary and
wages of such employees." (Professional Engineers, supra, 50 Cal.4th at p. 1024.) The
court held that the mandatory furlough program was valid only because the Legislature,
"through the exercise of its own legislative prerogative," independently adopted the
program. (Id. at p. 1047.)
Similarly, the Executive Order at issue in this case, which includes statewide GHG
reduction targets for 2020, 2035 and 2050, was at its inception merely a broad policy
statement of goals issued by the Governor. Like the order at issue in Professional
Engineers, it too does not have an identifiable foundation in the constitutional power of
the Governor or in statutory law.
The majority cites no judicial decision or other supporting authority holding or
even suggesting that the power to establish thresholds of significance, qualitative or
quantitative, resides in the Governor rather than in the Legislature. Nor is there any
authority supporting the view that the Legislature has delegated to the Governor any
power to enact or establish thresholds of significance, including with respect to GHG at
issue in this case.
To the contrary, as I discuss, the Legislature has clearly demonstrated it intends to
retain ultimate control over the regulation of environmental planning. It has vested in the
California Air Resources Board (CARB) the responsibility for coordinating efforts to
3
attain and maintain ambient air quality standards, to conduct research into the causes of
and solution to air pollution, and systematically attack the serious problem caused by
motor vehicles. (Health & Saf. Code, § 39003.) It also has limited by statute the ability
of courts to add substantive or procedural requirements to CEQA provisions. (Pub.
Resources Code, § 21083.)
The majority is either unable or unwilling to expressly declare its position on
whether the Executive Order is a threshold of significance as that term is employed in
CEQA analysis. I sympathize with their apparent uneasiness. If the majority declares the
Executive Order is a threshold of significance, it is faced with the reality that the
Executive Order simply does not meet the requirements necessary to have attained that
status. If it expressly acknowledges that the Executive Order is not a threshold of
significance, then it must also acknowledge that SANDAG is quite correct that it was not
required to employ it as a CEQA measuring stick in assessing compliance.
My colleagues attempt to avoid the dilemma altogether. They offer that the policy
underlying the Executive Order is of such overarching importance that it must be
included within the significance factors listed in Guidelines section 15064.4, subdivision
(b), and, therefore, SANDAG was required to consider that policy in what they
euphemistically refer to as a "consistency analysis" involving the GHG impacts of its
project and the Executive Order. Because SANDAG failed to provide such a policy
analysis in its EIR, my colleagues conclude SANDAG abused its discretion. By this
exercise in linguistics, the majority in contravention of Professional Engineers has
elevated the Executive Order to the status of a threshold of significance without ever
having to expressly declare they are doing so. Its action is judicial fiat, pure and simple.
4
The majority seeks support for its new formulation of the law by noting that
important legislation has sprung from the Executive Order, and they offer that the
Executive Order will continue to be the springboard for legislative action. Relying on
Professional Engineers, the majority also concludes the policy underlying the Executive
Order has been "ratified" by subsequent legislation. (Maj. opn. ante, at p. 14.) If, by this
reasoning, the majority implies that subsequent environmental legislation somehow
bestowed on the Executive Order a power it did not have, I believe it is mistaken. As
Profession Engineers recognizes, our Legislature acts independently. As I discuss, the
fact that the Legislature has enacted environmental legislation in recognition of the
Executive Order's goals does not bestow on the Executive Order any more power than it
had before the Legislature acted.
Moreover, although the Legislature has exercised its own independent prerogative
by tasking CARB with adopting regional GHG reduction targets for 2020 and 2035, it
has not done so for 2050. As I also discuss, the Legislature is currently considering a
comprehensive and complex plan for 2050 that tasks the CARB to establish regional
targets. It is possible the Legislature may alter the Executive Order's 2050 goals or reject
them altogether. Using the majority's own logic, the Legislature has not ratified the
Executive Order's qualitative or quantitative goals for 2050.
It is true, of course, that qualitative thresholds of significance are acceptable in
assessing significance. (See Guidelines, § 15064.7, subd. (a).) However, qualitatively
addressing the policy and sciences underlying the Executive Order—if this in fact is what
the majority means by a "consistency analysis"—adds little if any meaning to the
discussion of the significance of GHG impacts. SANDAG considered in its EIR the
5
important public policy of GHG emissions reduction in implementing its project. It
acknowledged the Executive Order and its goals. It concluded the 2050 goal in that order
was not at this time applicable. The purpose of remand is therefore unclear to me if the
majority merely requires additional, undefined consideration of the qualitative aspects of
the Executive Order.
Quantitatively speaking, as noted, SANDAG in its EIR considered, but did not
use, the 2050 GHG reduction targets set forth in the Executive Order. Until the
Legislature independently acts and tasks the CARB with adopting regional 2050 GHG
emissions reduction targets, SANDAG in my view was not required to consider in its EIR
the broad 2050 statewide goals set forth in the Executive Order. (See Professional
Engineers, supra, 50 Cal.4th at p. 1047.)
The majority states that it is not requiring SANDAG's project to "achieve the
Executive Order's 2050 goal or any other specific numerical goal" in undertaking the
now-required "consistency analysis." (Maj. opn. ante, at p. 15, fn. 6.) This comes as
little surprise, inasmuch as an EIR is merely an "informational document." (See
Guidelines, § 15003, subd. (i).)
Nonetheless, whether qualitative or quantitative, it is not clear to me how, in
assessing the significance of GHG impacts of the project—including for 2050—a lead
agency is supposed to adopt from the Executive Order regional GHG emissions reduction
targets. The majority appears to answer this question by stating SANDAG can determine
its "share" of GHG emissions reduction responsibility from theoretical targets. With
respect to SANDAG's share of responsibility, it is important to emphasize what the
majority has not acknowledged: SANDAG is responsible only for its "fair share" when
6
assessing significance. Establishing an agency's "fair share" is a complex and science-
based process. It begins by recognizing that the level of GHG emissions is a statewide
problem encompassing a diverse array of emitters. Included in the array is not only
transportation but also, for example, land use and development, agriculture, electricity
generation, forestry, and industrial sectors. The analysis of GHG impacts thus involves
emissions across sectors both within SANDAG's planning discretion (i.e., transportation
and land use) and outside SANDAG's planning discretion (i.e., heavy industry).
SANDAG is not empowered or equipped to offer and use analyses in statewide sectors
over which it has no control.
The point is SANDAG, unlike the CARB, is a regional and not a state agency.
Without a model addressing regional GHG emissions reduction targets between 2035 and
2050, it is impossible for SANDAG in its RTP to conduct a "consistency analysis" for
these years of study.
As the lack of substance in the now-required "consistency analysis" attests, there is
little to say except that, in the world of GHG emissions, "more of them are bad and less is
good." It is a reasonable conclusion here that the SANDAG Board of Directors,
comprised of locally elected officials from San Diego County and the 18 cities in the
region, are already well aware of this. The EIR in any event recognizes the important
policy goal of reducing GHG emissions.
As I discuss, there is legislation currently pending tasking the CARB with setting
state and regional targets for 2050. This pending legislation further demonstrates my
point that the Legislature has not yet independently adopted the Executive Order's 2050
statewide GHG emissions reduction goals. Once the CARB sets these regional targets,
7
which incidentally, may be different than the Executive Order's statewide goal,
SANDAG and the other 18 metropolitan planning agencies (MPO's) throughout the state
can then use them to determine their "fair share" of GHG emissions in analyzing the
significance of GHG impacts of their projects. I fear the majority's demand that
SANDAG "do more" now based on mere policy goals and/or theoretical targets, and
without providing any guidance as to what more should be done, will in effect require
SANDAG to set unilaterally 2050 regional GHG reduction targets in order to try to
satisfy, somehow, the majority's "consistency analysis." In doing so, it may take action
that ultimately conflicts with requirements set by CARB.
Perhaps the most profound harm arising from the majority's finesse of CEQA is
the lasting damage it does to Guidelines section 15064.4. This section gives a lead
agency substantial discretion to determine both the amount of GHG emissions from a
project and whether such emissions are significant. Subdivision (b) of Guidelines section
15064.4 in particular states that in assessing GHG impacts, the lead agency should
consider three factors, among others. One such factor expressly gives a lead agency the
discretion to determine the thresholds of significance that should apply to its project in
determining significance. (Guidelines, § 15064.4, subd. (b)(2).) To the extent thresholds
of significance other than the three expressly provided in subdivision (b) apply, that
should be a determination made by an agency in the proper exercise of its discretion.
It is apparent to me that identifying and selecting thresholds of significance is not
a judicial function. Despite the clear language of Guidelines section 15064.4, subdivision
(b) and the obvious intent of that section, the majority asserts a right to determine that a
gubernatorial policy statement, which does not qualify as a threshold of significance, is to
8
be included among the "other factors" and then orders SANDAG on remand to develop
an undefined "consistency analysis" between the lead agency's plan and the policy
statement.
This insinuation of judicial power into the environmental planning process and
usurping of legislative prerogative is breathtaking. Now we, the courts, without
institutional planning expertise or knowledge, get to tell a lead agency what it must use as
a threshold of significance. As a consequence of not being prescient enough to know
what a court might select, the EIR's of projects such as this RTP, which, as noted, calls
for investment of about $214 billion in the San Diego region over the next few decades,
are invalidated and sent back to the lead agency to anticipate what we, the court, might
next decide is or has become of such critical policy significance that the agency must use
it as a threshold of significance. There is no legal support for our action, which strips
lead agencies of the discretion vested in them by the Legislature and reposes that
discretion in the courts. To be clear, I do not believe our action expands Guidelines
section 15064.4; instead, I believe it destroys the integrity of that section. (See Maj. opn.
ante, at p. 20, fn. 9.)
The mischief caused by the majority would not be confined to the SANDAG
region. The majority would have each of our states' six appellate districts, and multiple
divisions within many of them, instructing the 18 MPO's regarding whether a
"consistency analysis" is required based on, for example, the Executive Order, and, if so,
what it should contain. It does not take much energy to foresee the permutations possible
as each MPO receives judicial instruction. Chaos in environmental planning comes to
mind.
9
The Legislature, in its wisdom, has foreseen the kind of damage we do today, and
it has taken steps to forbid such judicial interference. First, the Legislature vested one
agency, CARB, with creating the targets and metrics in assessing, and ultimately
Second, it has, in CEQA itself, expressly prevented courts from selecting what "other
factors" an agency should consider in assessing significance of GHG impacts.
Indeed, section 21083.1 provides the legislative intent underlying CEQA and the
interpretation of its statutes and guidelines by our courts: "It is the intent of the
Legislature that courts, consistent with generally accepted rules of statutory
interpretation, shall not interpret this division or the state guidelines adopted pursuant to
Section 21083 in a manner which imposes procedural or substantive requirements beyond
those explicitly stated in this division or in the state guidelines." Judicial imposition of
significance thresholds does precisely what the statute prohibits.
As I discuss in more detail post, I conclude substantial evidence in the record
shows SANDAG made a good faith and reasonable effort to analyze in its EIR the GHG
impacts of its project. In its 39-page GHG impacts analysis, SANDAG, as noted,
analyzed the targets set by the CARB for 2020 and 2035 under three thresholds of
significance, in compliance with Guidelines section 15064.4. I thus would reverse the
trial court's order finding SANDAG's GHG impacts analysis of the project was
inadequate, including because SANDAG did not address the 2050 GHG statewide
reduction goals set forth in the Executive Order.
As to the cross-appeal, because the trial court declined to reach those issues and
because the majority in any event is remanding the matter with respect to the EIR's
10
treatment of GHG impacts and mitigation measures of the project, I would defer the
issues raised in the cross-appeal to the trial court for consideration in the first instance. I
do, however, note that our instructions on remand include what appears to be a directive
that SANDAG consider further analysis of mass transportation. This directive, coupled
with the vague requirement of a "consistency analysis," leaves me with an uncomfortable
feeling that some might believe that, in sending this case back, we are sub rosa directing
SANDAG to shift the emphasis in its plan to mass transportation. If that is a direction in
which we inadvertently venture, I would only comment that it is not a journey we are
empowered or equipped to undertake.
DISCUSSION
I
GHG Impacts
A. Regulation of GHG by the CARB
On June 1, 2005, at the United Nations World Environment Day in San Francisco,
Governor Schwarzenegger signed the Executive Order in front of hundreds of
international leaders. The Governor told his invited guests, which included mayors from
more than 70 cities from around the world, that the "debate" over global warming from
GHG emissions was "over." (Marshall, Schwarzenegger Issues Plan to Reduce
Greenhouse Gases (June 2, 2005) N.Y. Times <http://www.nytimes.com/2005/06/02/
national/02arnold.html?_r=0> [as of November 2014].)
The Executive Order established the following statewide reduction targets for
greenhouse gas emissions: by 2010, to 2000 levels; by 2020, to 1990 levels; and by 2050,
to 80 percent below 1990 levels. It also directed the California Environmental Protection
11
Agency (Cal-EPA) to develop strategies to meet these targets. In response, the "Climate
Action Team," comprised of representatives from various agencies and commissions
including the Cal-EPA and the CARB, was created. (See Rialto Citizens for Responsible
Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 938; see also Comment,
Quantifying an Uncertain Future: The Demands of the California Environmental Quality
Act and the Challenge of Climate Change Analysis (2012) McGeorge L.Rev. 1065, 1068-
1069.)
Although the Executive Order provided the "power" for its issuance was derived
from "the Constitution and statutes of the State of California," that order did not identify
any article, section and/or statute as the source of this alleged authority. In any event, as
noted, I do not believe our Constitution, including article V, vested the Governor with the
authority to singlehandedly issue and enforce the Executive Order. (See, i.e.,
Professional Engineers, supra, 50 Cal.4th at p. 1015 [rejecting the argument the governor
had the unilateral authority to implement a mandatory furlough program].) I also do not
believe that our Legislature expressly granted that authority to the Governor. (See id. at
p. 1000.) Therefore, I believe the GHG statewide emission reduction targets set forth in
the Executive Order are nothing more than mere policy recommendations unless and until
our Legislature independently acts to adopt such targets, which, as I explain, it has done
for 2020 and 2035, but not for 2050. (See ibid.)
The Executive Order was by no means the first attempt in our state to address
GHG emissions. In 2002, our Legislature passed a law regulating GHG vehicle
emissions. (See Stats. 2002, ch. 200, enacting Assem. Bill No. 1493 (2001-2002 Reg.
Sess.) (AB 1493).) Under this law, the CARB was required to develop and adopt, by
12
January 1, 2005, "regulations that achieve the maximum feasible and cost-effective
reduction of greenhouse gas emissions from motor vehicles." (Health & Saf. Code,
§ 43018.5, subd. (a).) In enacting this law, our Legislature noted that the "control and
reduction of emissions of greenhouse gases are critical to slow the effects of global
warming." (Stats. 2002, ch. 200, § 1(c).) Thus, AB 1493 shows that our state policy of
reducing GHG emissions did not originate with the 2005 Executive Order, as the majority
appears to suggest, but rather was in existence before the Executive Order was issued.3
The California Global Warming Solutions Act of 2006 (Health & Saf. Code,
§ 38500 et seq., added by Stats. 2006, ch. 488, § 1, enacting Assem. Bill No. 32 (AB 32))
implemented the 2020 reduction target set forth in the Executive Order. (See Health &
Saf. Code, § 38550; see also Rialto Citizens for Responsible Growth v. City of Rialto,
supra, 208 Cal.App.4th at p. 939.) AB 32 directed the CARB to develop a "scoping plan
. . . for achieving the maximum technologically feasible and cost-effective reductions in
greenhouse gas emissions from sources or categories of sources of greenhouse
gases . . . ." (Health & Saf. Code, § 38561, subd. (a); see Health & Saf. Code, § 38562,
subd. (a) [requiring the CARB to "adopt greenhouse gas emission limits and emission
reduction measures by regulation . . . to become operative beginning on January 1,
2012"]; see also Association of Irritated Residents v. State Air Resources Bd. (2012) 206
Cal.App.4th 1487, 1490 [noting AB 32 designated the CARB as "'the state agency
3 Our Legislature as early as 1975 tasked the CARB with the responsibility of "coordinating efforts to attain and maintain ambient air quality standards, to conduct research into the causes of and solution to air pollution, and to systematically attack the serious problem caused by motor vehicles, which is the major source of air pollution in many areas of the state." (Health & Saf. Code, § 39003.)
13
charged with monitoring and regulating sources of emissions of greenhouse gases that
cause global warming in order to reduce emissions of greenhouse gases' . . . and imposes
numerous directives and timelines on the [CARB]"].)
To assist an agency in its analysis of GHG emissions in CEQA review, our
Legislature in 2007 enacted, among other provisions, section 21083.05 (added by Stats.
2007, ch. 185, § 1, enacting Sen. Bill No. 97 (SB 97)).4 SB 97 directed the Office of
Planning and Research (OPR) to prepare and submit to the Natural Resources Agency
(NRA) "guidelines for the mitigation of greenhouse gas emissions or the effects of
greenhouse gas emissions . . . including, but not limited to, effects associated with
transportation or energy consumption." (Former § 21083.05, subd. (a).) SB 97 further
provided that the OPR and NRA "shall periodically update the guidelines to incorporate
new information or criteria" established by the CARB pursuant to AB 32. (Id., subd. (c).)
The NRA adopted regulations on the significance of GHG emissions for CEQA,
which were then incorporated into the CEQA Guidelines including, as perhaps most
In 2008, our Legislature passed the Sustainable Communities and Climate
Protection Act of 2008 (Sen. Bill No. 375 (2007-2008 Reg. Sess.)). As the majority
recognizes, SB 375 supports the state's climate action goals to reduce GHG emissions
through coordinated transportation and land use planning. Under SB 375, the CARB—
4 SB 97 was amended effective January 1, 2013. (Stats. 2012, ch. 548, § 5.)
5 "In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428, fn. 5.)
14
once again—was directed to provide each region by no later than September 30, 2010
with GHG emission "reduction targets for the automobile and light truck sector for 2020
and 2035, respectively." (Gov. Code, § 65080, subd. (b)(2)(A).) Once these targets were
established by the CARB, each of the state's MPO's was required to prepare under
Government Code former section 65080, subdivision (b)(2) a "sustainable communities
strategy" (SCS) as part of the MPO's RTP. (See Gov. Code, former § 65080, subd.
(b)(2).)6
In developing the SCS, SB 375 required each MPO to "conduct at least two
informational meetings . . . within the region for members of the board of supervisors and
city councils" on the SCS. (Gov. Code, § 65080, subd. (b)(2)(E).) The purpose of the
meetings was to "discuss the [SCS] . . . , including the key land use and planning
assumptions to the members of the board of supervisors and the city council members in
that county and to solicit and consider their input and recommendations." The SCS, if
and when implemented, would allow the MPO to reach the GHG reduction targets
established by the CARB. If those targets were unmet, the MPO would be required to
prepare an alternative planning strategy to the SCS. (Gov. Code, § 65080, subd.
(b)(2)(E).)
As the agency responsible for "target-setting" GHG emissions reductions, the
CARB in 2010 created reduction targets for SANDAG's MPO region for 2020 and 2035.
6 Government Code section 65080 was amended effective January 1, 2010 (Stats. 2009, ch. 354, § 1) and again effective January 1, 2011 (Stats. 2010, ch. 328, § 95). The requirement of an SCS as part of an MPO's RTP remains in the current version of Government Code section 65080, subdivision (b).
15
SANDAG used these targets in addressing in its EIR the GHG impacts of the project.
However, as SANDAG properly recognized in its EIR impact analysis, the CARB has
not yet set 2050 GHG emissions reduction targets for the MPO's. As noted and as I
discuss, there is legislation currently pending, Assembly Bill No. 2050 (AB 2050), that
would require the CARB to do so.7
Thus, our Legislature has recognized the strong public policy of GHG emissions
reductions in our state and has fully occupied this enormously complex field by
delegating the "target-setting responsibility" of such reductions to the CARB through a
series of comprehensive legislative enactments, including in AB 32, SB 97 and SB 375.8
7 According to a recent summary prepared by the Senate Appropriations Committee, AB 2050 would amend SB 32 by requiring "the California Air Resources Board (CARB) to develop greenhouse gas (GHG) emissions reductions goals for 2050, including intermediate goals, and to perform a number of analyses of the strategies that would be required to reach those goals" for purposes of the next scoping plan update. (Sen. Appropriations. Com., analysis of Assem. Bill No. 2050 (2013-2014 Reg. Sess.) p. 1.)
8 This list is not exhaustive. For example, in 2010 legislation was enacted requiring the Department of Transportation to update the federally mandated California Transportation Plan (CTP) by December 31, 2015 and every five years thereafter. (Gov. Code, §§ 65070, subd. (a) & 65071.) The CTP requires identification of a "statewide integrated multimodal transportation system" that includes among other requirements the incorporation of all SCS and/or alternate planning strategies required by SB 375. (Gov. Code, § 65072.2) "In developing the [CTP] . . . , the department shall address how the state will achieve maximum feasible emissions reductions in order to attain a statewide reduction of [GHG] emissions to 1990 levels by 2020 as required by [AB 32] and 80 percent below 1990 levels by 2050." (Ibid.) The CTP must include: "(a) A policy element that describes the state's transportation policies and system performance objectives. These policies and objectives shall be consistent with legislative intent described in Sections 14000, 14000.5, 14000.6, and 65088. [¶] (b) A strategies element that shall incorporate the broad system concepts and strategies synthesized from the adopted regional transportation plans prepared pursuant to Section 65080. The California Transportation Plan shall not be project specific. [¶] (c) A recommendation element that includes economic forecasts and recommendations to the Legislature and the Governor to 16
The CARB in response has then set reduction targets for each of the 18 MPO's in our
state.
Against this backdrop, I disagree with the majority's conclusion that SANDAG
acted unreasonably in refusing to engage in a "consistency analysis" using the Executive
Order as a CEQA measuring stick when accessing the GHG impacts of its regional
project. (See Professional Engineers, supra, 50 Cal.4th at p. 1000.) Instead, in my view,
the record contains more than sufficient evidence showing SANDAG acted in good faith
and properly exercised its broad discretion under Guidelines section 15064.4 in assessing
the significance of GHG impacts of the project.
achieve the plan's broad system concepts, strategies, and performance objectives." (Id., § 65072.) The Legislature in the CTP directly (id., § 14000.6, subd. (b)) and indirectly (id., § 65072.2) referenced the Executive Order and its goal of reducing GHG emissions to 80 percent of 1990 levels by 2050. However, as noted, the Legislature has not yet tasked the CARB to set 2050 GHG regional reduction targets for the MPO's. 17
B. Guidelines Section 15064.49
As noted, CEQA requires that public agencies "adopt by ordinance, resolution,
rule, or regulation" criteria for the evaluation of a project and the preparation of an EIR
that are consistent with the statutory provisions of CEQA and its Guidelines. (§ 21082.)
Section 21083, subdivision (a) directs the OPR to "prepare and develop proposed
guidelines" for implementation by a public agency. Subdivision (b) of that statute states
the "guidelines shall specifically include criteria for public agencies to follow in
determining whether or not a proposed project may have a 'significant effect on the
environment.'" As noted ante, section 21083.5 was added by SB 97 to require the OPR to
9 Guideline section 15064.4 provides: "(a) The determination of the significance of greenhouse gas emissions calls for a careful judgment by the lead agency consistent with the provisions in section 15064. A lead agency should make a good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project. A lead agency shall have discretion to determine, in the context of a particular project, whether to: [¶] (1) Use a model or methodology to quantify greenhouse gas emissions resulting from a project, and which model or methodology to use. The lead agency has discretion to select the model or methodology it considers most appropriate provided it supports its decision with substantial evidence. The lead agency should explain the limitations of the particular model or methodology selected for use; and/or [¶] (2) Rely on a qualitative analysis or performance based standards. [¶] (b) A lead agency should consider the following factors, among others, when assessing the significance of impacts from greenhouse gas emissions on the environment: [¶] (1) The extent to which the project may increase or reduce greenhouse gas emissions as compared to the existing environmental setting; [¶] (2) Whether the project emissions exceed a threshold of significance that the lead agency determines applies to the project. [¶] (3) The extent to which the project complies with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of greenhouse gas emissions. Such requirements must be adopted by the relevant public agency through a public review process and must reduce or mitigate the project's incremental contribution of greenhouse gas emissions. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding compliance with the adopted regulations or requirements, an EIR must be prepared for the project." 18
prepare specific guidelines dealing with CEQA review of GHG.
Adopted after passage of SB 97, Guidelines section 15064.4, subdivision (a)
requires a lead agency to make a "good-faith effort" to determine the GHG emissions of a
project. In making this determination, a lead agency has the discretion to "[u]se a model
or methodology to quantify greenhouse gas emissions resulting from a project, and which
model or methodology to use" (Guidelines, § 15064.4, subd. (a)(1)) and/or to "[r]ely on a
qualitative analysis or performance based standards" (id., subd. (a)(2)). After choosing a
methodology and selecting significance thresholds, the lead agency next is required under
Guidelines section 15064.4 to assess the "significance of impacts" of GHG emissions.
(Id., subd. (b).)
In assessing the significance of GHG impacts of a given project, Guidelines
section 15064.4 states a lead agency "should" consider among others the following
factors: (1) the extent to which the project may increase or reduce GHG "as compared to
the existing environmental setting"; (2) whether the project's GHG emissions "exceed a
threshold of significance that the lead agency determines applies to the project"; and (3)
the extent to which the project "complies with regulations or requirements adopted to
implement a statewide, regional, or local plan for the reduction or mitigation" of GHG.
Guidelines section 15064.4 further provides that "[s]uch requirements must be adopted
by the relevant public agency through a public review process and must reduce or
mitigate the project's incremental contribution of greenhouse gas emissions."
Guidelines section 15064.4 thus "'confirms that lead agencies retain the discretion
to determine the significance of greenhouse gas emissions and should "make a good-faith
19
effort, based to the extent possible on scientific and factual data, to describe, calculate or
estimate the amount of [GHG] emissions resulting from a project." [Citation.]'
[Citations.]" (Citizens Against Airport Pollution v. City of San Jose (2014) 227
Cal.App.4th 788, 807.)
I therefore disagree with the majority's interpretation of Guidelines section
15064.4: although subdivision (b) of this section clearly states the factors listed in
subdivisions (1), (2) and (3) are not exhaustive, that does not ipso facto mean the courts
may require an agency to consider additional "factors" (i.e., the Executive Order) in
evaluating the GHG impacts of a project, as the majority has done here. In my view, the
majority's reading of Guidelines section 15064.4 usurps the broad discretion afforded an
agency in analyzing significance and improperly puts courts in charge of determining
whether benchmarks other than those expressly provided in subdivisions (1), (2) and (3)
must be considered by an agency when undertaking such an analysis.
Here, as I have noted, the EIR used three separate GHG analyses utilizing two of
the specific significance criteria authorized by Guidelines section 15064.4. GHG-1, the
first analysis, is an "existing conditions" baseline analysis authorized by subdivision
(b)(1) of Guidelines section 15064.4.10 Under this analysis, any increase of GHG
emissions over existing conditions (i.e., 2010) was deemed to be a significant impact.
10 I note the existing environmental setting "normally constitute[s] the baseline physical conditions by which a lead agency determines whether an impact is significant." (Guidelines, § 15125, subd. (a); see Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 445 [holding that "[w]hile an agency has the discretion under some circumstances to omit environmental analysis of impacts on existing conditions and instead use only a baseline of projected future conditions, existing conditions 'will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant'"].) 20
The GHG-1 analysis concluded that, although regional GHG emissions would decrease
under the project from existing levels until after 2020, they would increase above existing
levels by 2035 and increase still further by 2050, largely as a result of population increase
and development. The EIR therefore determined the GHG impacts in 2020 would be a
less than significant impact but would be significant in 2035 and 2050.
The second analysis, GHG-2, used the GHG reduction targets set forth in SB 375
as a significance criteria. GHG-2 used a narrower range of GHG emissions than GHG-1.
GHG-2's approach, in my view, was also fully consistent with Guidelines section
15064.4.
Under SB 375, as I have noted, the CARB prepared regional GHG emission
reduction targets, compared to 2005 emissions, for cars and light trucks for 2020 and
2035 for each of the state's MPO's. In response, each of the MPO's, including SANDAG,
prepared an SCS as part of its RTP to "reduce GHGs by better aligning transportation,
land use, and housing. For SANDAG, the targets are to reduce per capita CO2 emissions
7 percent below 2005 levels by 2020 and 13 percent below 2005 levels by 2035. Because
CARB has not developed a target for 2050, no analysis is provided for that year."
Using this significance criteria, the EIR concluded the project would have less
than a significant impact because the project met SB 375's goals, as set by the CARB, for
lowered per capital vehicle-related GHG emissions in 2020 and 2035.
The third GHG impact analysis, GHG-3, analyzed whether regional GHG
emissions (from both transportation and land use/growth) would conflict with (1) the
scoping plan adopted by the CARB pursuant to AB 32, which plan functions as a
roadmap to achieve GHG reductions in our state, and (2) SANDAG's own adopted
21
Climate Action Strategy (CAS), which was created in 2010 under a partnership with the
California Energy Commission "as a guide for SANDAG and local governments and
policymakers in addressing climate change."
Because the scoping plan time horizon was limited to 2020, the EIR's analysis of
whether or not the project under GHG-3 would have a significant impact with respect to
GHG was limited to 2020, and no analysis was presented for 2035 and 2050. Although
recognizing 2035 and 2050 emission reduction targets for GHG's were established in the
Executive Order, the EIR in my view properly concluded the order was not a "'plan'"
adopted through a public review process as required in subdivision (b)(3) of Guidelines
section 15064.4. The EIR, however, analyzed transportation and land use/growth in 2035
and 2050 expected as a result of implementation of the project, with respect to the CAS.
The EIR analysis concluded that with respect to transportation, the estimated
emissions from transportation in 2020 would be less than required by AB 32 and would
constitute a less than significant impact under this threshold. The EIR also concluded
that the project would not impede the CAS and its policy of promoting the reduction of
vehicle miles traveled and minimization of GHG in transportation, inasmuch as the
project also sought to reduce GHG emissions in transportation through a series of
projects. Therefore, for transportation, the EIR found the implementation of the project
would constitute a less than significant impact under the CAS threshold for 2020, 2035
and 2050.
With respect to land use/growth, the EIR analysis concluded in GHG-3 that
emissions of GHG in 2020 were expected to exceed the scoping plan reduction goals.
However, it noted several other measures included in the scoping plan were not yet
22
adopted or implemented, including "cap-and-trade," and, therefore, were not included in
the GHG reduction calculations. Because the RTP was itself consistent with its role in
the overall scoping plan strategy, SANDAG concluded for land use/growth that for 2020
the impact would be less than significant under this threshold. The EIR further provided
for 2020, 2035 and 2050, implementation of the project would not impede the CAS but in
fact would promote it and the goals of increasing energy efficiency and reducing energy
consumption and, therefore, would constitute a less than significant impact.
C. Substantial Evidence Supports the Finding SANDAG's Assessment of
Significance of GHG Impacts in its EIR Satisfied CEQA
Unlike my colleagues, I do not believe SANDAG's failure to discuss the project's
consistency with the Executive Order shows a lack of a "good-faith effort" to assess in
the EIR the GHG impacts of the project.11 Rather, in my view, there is abundant
evidence in the record showing that SANDAG made a "good-faith effort, based to the
extent possible on scientific and factual data, to describe, calculate or estimate the
amount of greenhouse gas emissions [in the SANDAG MPO region] resulting from [the]
project" (Guidelines, § 15064.4, subd. (a)); and that it properly assessed the significance
of these emissions under applicable thresholds (id., subd. (b)), including those adopted by
the CARB (through enabling legislation) for 2020 and 2035. (See Citizens for
Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197
Cal.App.4th 327, 335-336 (City of Chula Vista).)
11 In finding an alleged lack of evidence in the record of a reasonable, good-faith effort by SANDAG to assess the GHG impacts, the majority, in my view, is in effect applying an independent standard of review, and its contention otherwise is one of form over substance. (Maj. opn. ante, at p. 14.) 23
Moreover, the record also contains substantial evidence showing SANDAG
properly exercised its discretion when it decided not to use the Executive Order's 2050
statewide emission reduction target as a CEQA measuring stick for its regional plan.
North Coast Rivers Alliance v. Marin Municipal Water Dist. Board of Directors (2013)
216 Cal.App.4th 614 (North Coast) informs my view on this issue.
There, the petitioners contended an EIR for a project to build a sea-water
desalination plant approved by a local water district was deficient because, among other
reasons, it contained an inadequate analysis of GHG emissions. Although the trial court
rejected this argument, it nonetheless found the EIR lacked substantial evidence to
support the water district's conclusion the plant's GHG emissions were not cumulatively
considerable. (North Coast, supra, 216 Cal.App.4th at p. 650.)
In reversing, the court concluded the EIR's use of AB 32, and its requirement that
the CARB "'adopt regulations that would require the reporting and verification of
statewide GHG emissions and limit statewide GHG emissions to 1990 levels by 2020,'"
was acceptable as a threshold of significance, inasmuch as the EIR properly noted "no
CEQA thresholds of significance have been established for GHG[]." (North Coast,
supra, 216 Cal.App.4th at p. 651.) The court also concluded the EIR used as a threshold
a program voluntarily adopted by Marin County, which the water district joined, where
GHG emissions would be reduced to 15 percent below 1990 levels by 2020. (Ibid.)
The North Coast court then reviewed the EIR in light of these thresholds, which
focused primarily on energy consumption for plant operations. (North Coast, supra, 216
Cal.App.4th at p. 652.) In concluding the EIR's analysis "more than satisfied the
requirements of CEQA" (id. at p. 652), the court recognized that the petitioners'
24
disagreement with the district's significance conclusion for GHG impacts was insufficient
under CEQA because a "'"reviewing court 'may not set aside an agency's approval of an
EIR on the ground that an opposite conclusion would have been equally or more
reasonable,' for, on factual questions, [the court's] 'task is not to weigh conflicting
evidence and determine who has the better argument.'"'" (Id. at p. 653.)
Similarly, this court in City of Chula Vista rejected the petitioner's contention the
lead agency (i.e., the city) was required to use three other well-recognized potential
thresholds of significance, instead of the goals set forth in AB 32, in analyzing the GHG
impacts of a store replacement project. Citing to then-newly enacted Guidelines section
15064.4, this court concluded that this regulation "confirms that lead agencies retain the
discretion to determine the significance of greenhouse gas emissions." (City of Chula
Vista, supra, 197 Cal.App.4th at p. 336.) This court also concluded the lead agency
"properly exercised its discretion to utilize compliance with [AB 32] as the threshold"
and, as such, rejected the petitioner' contention the lead agency erred by not applying
different thresholds. (Ibid.; see Citizens Against Airport Pollution v. City of San Jose,
supra, 227 Cal.App.4th at p. 807 [recognizing that Guidelines, § 15064.4 gives a lead
agency discretion to determine the significance of GHG emissions based to the extent
possible on available scientific and factual data].)
North Coast and City of Chula Vista, in my view, provide guidance in the instant
case and support the conclusion that SANDAG properly exercised its discretion under
Guidelines section 15064.4, subdivision (b)(1), (2) and (3), including when it used the
regional target numbers established by the CARB (developed in response to AB 32 and
SB 375) in analyzing the impacts of GHG of the project. (See Citizens for a Sustainable
25
Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036,
1060-1061 [noting the "core principle" that an EIR is not required to engage in
"speculative analysis," and, thus, a lead agency is not required to "'forsee[] the
unforeseeable,'" "predict[] the unpredictable or quantify[] the unquantifiable"] (Treasure
Island).) North Coast and City of Chula Vista also support the conclusion that, subject to
the requirements of Guidelines section 15064.4, lead agencies and not the courts have the
discretion to determine the benchmarks to be used for determining the GHG impacts of a
project.
Indeed, as I previously noted, there is legislation currently pending, Assembly Bill
No. 2050 (AB 2050), that among other purposes would delegate to the CARB the
authority to set specific GHG emission reduction targets for the MPO's, including in the
SANDAG region, but in this instance, the targets would be for 2050. Regardless of
whether AB 2050 ultimately passes, the bill is significant because it shows our
Legislature has not yet acted to set 2050 reduction targets (through the CARB). AB 2050
also demonstrates, yet again, the intent of the Legislature to fully occupy the field of
regulating GHG emissions in our state. I believe the majority ignores this intent by
requiring SANDAG, based on a strained interpretation of Guidelines section 15064.4, to
do a "consistency analysis" using the Executive Order as a CEQA measuring stick. I also
believe doing so has far-reaching, negative consequences.
By imposing a requirement on SANDAG that does not exist under CEQA,
including in the applicable GHG Guidelines, the majority is contravening section
21083.1, as I have already discussed. In addition, as I have noted, the regulation of GHG
emissions is better left to our Legislature and government agencies like the CARB in
26
what is clearly an area that "involves numerous highly technical and novel scientific,
technical and economic issues" that will span many decades. (Association of Irritated
Residents v. State Air Resources Bd., supra, 206 Cal.App.4th at pp. 1502, 1505 [noting
the CARB has been "assigned the responsibility of designating and overseeing the
implementation of measures" to achieve the "challenging" goals of reducing GHG
emissions in our state].)
The complexity of the issues addressed by SANDAG's RTP, the first of its kind to
be approved in this state, cannot be overstated. The sheer volume of the record in this
case pays homage to the difficult issues facing a lead agency like SANDAG in preparing
a RTP with an SCS component, where transportation planning and land use are linked to
regional GHG emissions reduction goals for the next several decades. In contrast, judges
"have neither the resources nor scientific expertise to engage in such analysis." (Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,
393.)
Until our Legislature directs the CARB to set regional goals for 2050, I do not
believe SANDAG was required to use the Executive Order and/or its 2050 GHG
statewide reduction goal as a threshold to assess the significance of the GHG impacts of
the project. (See Treasure Island, supra, 227 Cal.App.4th at p. 1054 [refusing to "fault"
an EIR for a project to redevelop a former naval station into a new, mixed-use
community because there were many project features that were subject to future revision,
and, thus, the EIR "cannot be faulted for not providing detail that, due to the nature of the
[p]roject, simply does not now exist"].)
27
Finally, the majority in my view is unnecessarily interfering with SANDAG's
program EIR and tiering, which frustrates the goal of good planning: "Where a lead
agency is using the tiering process in connection with an EIR for a large-scale planning
approval, such as a general plan or component thereof . . . , the development of detailed,
site-specific information may not be feasible but can be deferred, in many instances, until
such time as the lead agency prepares a future environmental document in connection
with a project of a more limited geographic scale, as long as deferral does not prevent
adequate identification of significant effects of the planning approval at hand."
(Guidelines, § 15152, subd. (c).)
Our high court in In re Bay-Delta etc. (2008) 43 Cal.4th 1143 rejected a challenge
to a program EIR on the basis it lacked sufficient detail regarding water sources to
implement a project to restore the ecological health and improve the management of the
Bay-Delta region. In so doing, the court noted that the Bay-Delta project was a "broad,
general, multiobjective, policy-setting, geographically dispersed" plan (id. at p 1171);
that at the first-tier program level, the "environmental effects of obtaining water from
potential sources may be analyzed in general terms, without the level of detail appropriate
for second-tier, site-specific review" (id. at p. 1169); that the advantage of a program EIR
is it allows a lead agency "'to consider broad policy alternatives and program wide
mitigation measures at an early time when the agency has greater flexibility to deal with
§ 15091, subds. (a), (b).)" (Federation of Hillside & Canyon Assns. v. City of Los
Angeles (2004) 126 Cal.App.4th 1180, 1198; see South County Citizens for Smart
Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 336 [noting that "'CEQA
requires the appropriate public agency "to find, based on substantial evidence, that the
mitigation measures are 'required in, or incorporated into, the project'; or that the
measures are the responsibility of another agency and have been, or can and should be,
adopted by the other agency; or that mitigation is infeasible and overriding considerations
outweigh the significant environmental effects"'"].)
Claims concerning the feasibility or effectiveness of mitigation measures are
reviewed for substantial evidence, which is defined as "'enough relevant information and
reasonable inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached.'" (Mira Mar Mobile
Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 486.) In reviewing an
agency's decision for substantial evidence, courts "'must indulge all reasonable inferences
from the evidence that would support the agency's determinations and resolve all
conflicts in the evidence in favor of the agency's decision.'" (California Native Plant
35
Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 985.) This standard of review
flows from the fact that an "agency has the discretion to resolve factual issues and to
make policy decisions." (Save Our Peninsula Committee v. Monterey County Bd. of
Supervisors (2001) 87 Cal.App.4th 99, 120.)
"'"As with all substantial evidence challenges, an appellant challenging an EIR for
insufficient evidence must lay out the evidence favorable to the other side and show why
it is lacking. Failure to do so is fatal. A reviewing court will not independently review
the record to make up for appellant's failure to carry his [or her] burden."'" (Pfeiffer v.
City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1572.)
Here, I conclude petitioners have not met their burden of showing the mitigation
measures for GHG emissions described by SANDAG in its program EIR were
inadequate. As noted, the EIR discussed three separate mitigation measures in
connection with impact analysis GHG-1. Each such measure complies with Guidelines
section 15126.4, subdivision (c)(5), which was adopted in response to SB 97 and which
provides the GHG mitigation measures proposed in connection with adoption of a long-
range plan, such as the instant project, "may include the identification of specific
measures that may be implemented on a project-by-project basis."12
12 Subdivision (c) of Guideline section 15126.4 provides in part: "[L]ead agencies shall consider feasible means, supported by substantial evidence and subject to monitoring or reporting, of mitigating the significant effects of greenhouse gas emissions. Measures to mitigate the significant effects of greenhouse gas emissions may include, among others: [¶] (1) Measures in an existing plan or mitigation program for the reduction of emissions that are required as part of the lead agency's decision; [¶] (2) Reductions in emissions resulting from a project through implementation of project features, project design, or other measures, such as those described in Appendix F; [¶] (3) Off-site measures, including offsets that are not otherwise required, to mitigate a project's emissions; [¶] (4) Measures that sequester greenhouse gases; [¶] (5) In the case of the 36
Moreover, the record shows SANDAG considered additional mitigation measures
to reduce GHG emissions and found them infeasible. (See Clover Valley Foundation v.
City of Rocklin (2011) 197 Cal.App.4th 200, 245 [noting that CEQA does not require "an
EIR to explain why certain mitigation measures are infeasible"]; see also Cherry Valley
Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 351 [noting
CEQA does not require an EIR to analyze in detail mitigation measures deemed
infeasible].)
At the conclusion of the CEQA review process, the record shows SANDAG
adopted both the mitigation measures within its power to implement and a mitigation
monitoring program (MMRP) for compliance. (See §§ 21081 & 21081.6.) The
mitigation measures and MMRP confirm SANDAG's commitment to implementing GHG
mitigation measures described in the EIR.
I do not agree with petitioners that the mitigation measures were insufficiently
unenforceable because, particularly with respect to GHG-A and GHG-B, they depended
on the cooperation of multiple other agencies. As noted, CEQA allows a lead agency to
approve or carry out a project with potential adverse impacts if "[c]hanges or alterations
have been . . . incorporated into[] the project" and "[t]hose changes or alterations are
within the responsibility and jurisdiction of another public agency and have been, or can
and should be, adopted by that other agency." (§ 21081, subd. (a)(1) & (2).)
adoption of a plan, such as a general plan, long range development plan, or plans for the reduction of greenhouse gas emissions, mitigation may include the identification of specific measures that may be implemented on a project-by-project basis. Mitigation may also include the incorporation of specific measures or policies found in an adopted ordinance or regulation that reduces the cumulative effect of emissions." 37
Finally, because SANDAG in my view satisfied its initial burden to consider a
range of reasonable mitigation measures in its EIR, I would conclude the burden then
switched to petitioners to establish from the record what petitioners describe as other
"effective" mitigation measures that allegedly were omitted from consideration in the EIR
and to show, again from the record, that such "effective" measures 1) were not only
legally feasible but also suitable for discussion in a program EIR involving a project
incorporating a broad range of planning measures and policies over the next several
decades, and 2) would avoid or substantially lessen the project's GHG impacts. (See San
Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 14-17
[rejecting the petitioners' contention that unspecified, additional mitigation measures
should have been considered in "meaningful detail" in an EIR and noting the general rule
that "CEQA does not . . . require discussion of every mitigation measure the agency
rejected as infeasible"].) I would conclude petitioners have not met, and cannot meet,
this burden in this case. (See id. at p. 17 [noting that "[f]easibility under CEQA
encompasses desirability to the extent that desirability is based on a reasonable balancing
of the relevant economic, environmental, social, and technological factors"].)13
BENKE, J.
13 Because the trial court never reached the issues raised in the cross-appeal and because the majority in any event is remanding the matter with respect to the EIR's treatment of GHG impacts and mitigation measures of the project, as I have noted, I would defer the issues raised in the cross-appeal to the trial court for consideration. Nonetheless, I feel compelled to state my objection to the majority's conclusion that SANDAG failed to consider a reasonable range of project alternatives. 38
AI Brief
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Holding. The court held that the environmental impact report (EIR) for the regional transportation plan failed to comply with the California Environmental Quality Act (CEQA) because it did not analyze the inconsistency between the plan's greenhouse gas emissions impacts and the state's long-term climate policy goals established by Executive Order S-3-05.
Issues
Whether the EIR's failure to analyze the transportation plan's consistency with the greenhouse gas emissions reduction goals of Executive Order S-3-05 violated CEQA.
Whether the EIR failed to adequately address mitigation measures for greenhouse gas emissions impacts.
Whether the EIR failed to analyze a reasonable range of project alternatives and adequately analyze air quality and particulate matter impacts.
Disposition. affirmed
Quotations verified verbatim against the opinion
“SANDAG's decision to omit an analysis of the transportation plan's consistency with the Executive Order did not reflect a reasonable, good faith effort at full disclosure and is not supported by substantial evidence”