In Cleveland National Forest Foundation v. SANDAG, a three-judge panel from the California Forth Appellate District heard SANDAG’s appeal of a trial court ruling on the first Regional Transportation Plan put forward by one of the state’s nine regional planning entities to comply with SB 375. The trial court found that SANDAG abused its discretion under CEQA with its Environmental Impact Report (EIR) analysis of its 2050 Regional Transportation Plan. The Cleveland National Forest Foundation, the Sierra Club, and the State of California filed cross-appeals expanding the review of the original decision to include additional CEQA challenges. Justice McConnell – with a concurrence from Justice Irion – issued a two to one opinion on November 24, 2014 finding that the EIR violated CEQA. The opinion expanded the CEQA analysis resulting in a modified judgment. Justice Benke drafted a scathing dissent finding substantial evidence to uphold SANDAG’s EIR and no basis for an executive order to become a mandate or CEQA threshold of significance where the legislature has not expressly created such requirements.
The trial court granted the original petition in part finding that the EIR failed as an information document for not analyzing the inconsistency between the state’s climate policy under Executive Order S-3-05 and the transportation plan’s greenhouse gas (GHG) emission impacts after 2020. The trial court also found that the transportation plan EIR failed to adequately address mitigation measures for GHG emission impacts.
On appeal, the court found that SANDAG abused its discretion by approving an EIR that lacked a consistency analysis with the overarching emission reduction goals that form state climate policy out to 2050. The court combined the emission reduction targets from Executive Order S-3-05, AB 32, SB 375, and the California Air Resources Board’s (CARB) regional emission reduction targets to provide a state climate policy that extends out to 2050. The court found that SANDAG’s analysis that GHG emissions will increase between 2020 and 2050 violated state climate policy and CEQA.
This places the burden on SANDAG to forecast regional emission reduction targets out to 2050 using only the S-3-05 statewide goal because the SB 375 CARB regional emission reduction targets only extend to 2035. The court also found that criteria used to determine significance of impact must be consistent with the state climate policy and cannot necessarily depend on only using the expressed three significant thresholds found in CEQA Guideline Section 15064.4.
Next, the court found that the EIR must discuss mitigation alternatives that are both (1) substantially lessen GHG emission impacts and (2) be feasibly implemented. The court reviewed the three thresholds used to determine significant impact and the six mitigation alternatives for substantial evidence. The court stated that the first three mitigation alternatives deemed feasible by SANDAG required no effort to implement and provided no guarantee or concrete steps towards emission reductions and were therefore questionable as to “whether these measures even qualify as mitigation measures.” The court further stated that the three infeasible measures included in the EIR were illusory because these measures were difficult to impossible to enforce and required implementation resources not readily available. The court concluded by referencing potential mitigation alternatives from SANDAG’s Climate Action Strategy that may substantially lesson greenhouse gas emissions and can be feasibly implemented.
The court then took up the cross-appeals finding that:
- Transportation Planning project alternatives should account for long-term planning concerns and reduce total vehicle miles traveled consistent with SANDAG’s Climate Action Strategy;
- SANDAG’s omission of toxic air contaminants (TAC) exposure must be supported by substantial evidence or TAC baseline exposure information must be provided in its EIR;
- Plan level air quality impact review must correlate adverse air quality impacts to resulting adverse health impacts to meet substantial evidence;
- Program level air impact analysis and enforceable mitigation measures cannot be deferred without a showing of substantial evidence that the measures are infeasible; and
- SANDAG must use best practically available scientific information regarding resource areas and farmland in the region.
Finally, the court dismissed the last challenge to the EIR analysis on agricultural land impacts because the plaintiffs failed to exhaust their administrative remedy on these issues.
The SANDAG Board of Directors nearly unanimously approved appealing the decision to the California Supreme Court on December 5, 2014.