California Supreme Court Will Hear Suit On SANDAG’s Transportation Plan

The California Supreme Court will decide whether the environmental impact report for SANDAG’s regional transportation plan must include an analysis of the plan’s consistency with statewide greenhouse gas emission reduction goals established by executive order. The San Diego Association of Governments (“SANDAG”) brought the appeal in Cleveland National Forest Foundation v. San Diego Association of Governments.

This is an important case to watch.  Greenhouse gas emissions analysis will become more complicated and expensive for local government agencies and project applicants if consistency with the executive order is required.

In 2005, Governor Arnold Schwarzenegger issued Executive Order S-3-05, establishing greenhouse gas emissions reduction targets for California.  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.  This executive order, still effective today, was at issue in the case.

SANDAG is the public body charged with preparing a regional transportation plan and sustainable communities strategy for the San Diego region. The proposed plan is the guidance document for transportation investment of approximately $214 billion over the next several decades.

SANDAG prepared an EIR to analyze the environmental impacts of the proposed transportation plan.  The EIR was held defective by the lower court for several reasons, but the most controversial reason related to the EIR’s discussion of the plan’s greenhouse gas emissions.  While the EIR did include a lengthy discussion of the plan’s greenhouse gas emissions impacts, the EIR did not specifically analyze whether the overall increase in greenhouse gas emissions levels disclosed by the plan conflicted with the executive order or would impair or impede the achievement of the executive order’s goals.  The court held that SANDAG’s decision to omit an analysis of the 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 because SANDAG’s decision ignored the Executive Order’s role in shaping state climate policy.”

SANDAG argued that the court was asking it to do something that CEQA did not require.  There is no statute or regulation translating the executive order’s goals into scientifically based emissions reductions targets.  The EIR’s analysis of the transportation plan’s greenhouse gas emissions impacts complied with CEQA because it used significance thresholds specified in CEQA Guidelines section 15064.4.  Moreover, SANDAG argued that, as the public agency with applicable authority, it had the discretion to select the criteria to determine the significance of the plan’s greenhouse gas impacts.  We will see if SANDAG takes up these arguments again with the high court.

The California Supreme Court may also answer an important question raised by the dissent in the lower court case:  whether Executive Order S-3-05 is a threshold of significance, as understood by CEQA.  A “threshold of significance” is an objective, criteria or procedure used to measure or determine the significance of the environmental effects of a project.  Thresholds of significance must be adopted through a public review process.

The dissent argued that there is no authority for the proposition that the Governor has the power to establish thresholds of significance, qualitative or quantitative.  Rather, the Legislature has retained control over the regulation of environmental planning, vesting responsibility in the California Air Resources Board in particular to help implement greenhouse gas emissions policy.

This latter, exciting “separation of powers” issue is more apparent than real.  The executive order established greenhouse gas emissions targets, certainly.  But was the governor’s executive order intended to have a CEQA purpose? More specifically, was it intended to establish a threshold of significance?  Since all seven members of the Supreme Court voted in favor of taking this case, could this suggest that they are willing to take on this tough issue raised by the dissent?