California Supreme Court Upholds GHG Analysis in SANDAG’s Regional Transportation Plan EIR

Cleveland National Forest Foundation v. San Diego Association of Governments (2017) ___ Cal. 5th __ (Case No. S223603) (July 13, 2017).

In a 6/1 opinion, the California Supreme Court held that the San Diego Association of Governments (SANDAG) did not abuse its discretion by failing to present a consistency analysis in the EIR for its 2011 regional transportation plan (RTP) comparing anticipated GHG emissions with the long-term reduction goals presented in Executive Order (EO) S-3-05. The court reasoned that SANDAG had adequately informed the public, using information available at the time, of inconsistencies with overall state climate goals.

In 2011, SANDAG issued its RTP as a 40-year blueprint for regional transportation planning. The RTP was accompanied by an EIR that used three thresholds of significance to assess GHG impacts. Compared to existing (2010) conditions, the EIR found GHG impacts to be “not significant” in 2020, but significant in both 2035 and 2050. The EIR also analyzed GHG emissions against statutory goals for the years 2020 and 2035, but did not compare emissions against the long-term (2050) goal set forth in EO S-3-5 (80 percent below 1990 levels by 2050).  In response to comments that were critical of the GHG analysis, SANDAG maintained that it had no obligation to analyze projected GHG emissions against the Executive Order.

Several groups filed lawsuits challenging the EIR and the Attorney General later joined the petitioners. The superior court found the EIR inadequate and issued a writ of mandate. The Court of Appeal affirmed, holding that, among other flaws, the EIR violated CEQA by failing to measure GHG impacts against the Executive Order.

The Supreme Court granted review on the following question: “Must the environmental impact report for a regional transportation plan include an analysis of the plan‘s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?”

Addressing this question, the Supreme Court held that the EIR was not required to include an express analysis of GHG impacts compared to the Executive Order’s goals. The court was careful, however, to limit its holding to the facts before it, explaining that it was holding “only that SANDAG, in analyzing greenhouse gas impacts at the time of the EIR, did not abuse its discretion by declining to adopt the Executive Order as a measure of significance or to discuss the Executive Order more than it did.” The court noted that this level of analysis would not “necessarily be sufficient going forward.”

Finding that an express consistency analysis was not required, the court disagreed that the EIR obscured the statutory framework or statewide goals, although it conceded that SANDAG could have presented the information in “clearer or more graphic” ways. Because the EIR presented anticipated GHG emissions in 2050 and discussed the long-term goals in the Executive Order, the court found that the information was “not difficult” for the public to obtain to conduct a consistency analysis. The court stressed that the inclusion of this information in responses to comments instead of the EIR itself was “not an infirmity” because it would be expected that members of the public “interested in the contents of an EIR will not neglect this section.”

The court acknowledged the parties’ understanding that an executive order does not carry the “force of a legal mandate” when preparing a CEQA document but did not discuss this issue further. Nor did the Court prescribe this specific outcome for other agencies but instead repeatedly asserted the “narrowness” of its ruling and that planning agencies must ensure their analysis keeps up with “evolving scientific knowledge and state regulatory schemes.” In reversing the Court of Appeal’s judgement, the court ruled only that the 2011 analysis of GHGs emissions did not render the EIR inadequate. The court declined to express an opinion on other deficiencies identified by the trial court and Court of Appeal.

In a comprehensive dissent that included a detailed discussion of the legislative framework, Justice Cuéllar maintained that SANDAG’s EIR lacked “good faith reasoned analysis” because it obscured important GHG information. Justice Cuéllar pointed to the “relative clarity of statewide statutory goals” as reasoning why SANDAG did not have the discretion to downplay the GHG consequences of its RTP. Further, he expressed concern that the majority’s ruling could allow other regional planning agencies to “shirk their responsibilities.”

Remy Moose Manley (Whitman F. Manley, Laura M. Harris, and Christopher L. Stiles) submitted an Amicus Curiae brief in support of SANDAG.

[Casey Shorrock Smith]