Exercising Discretion in CEQA EIR GHG Analysis: Cleveland National Forest v. SANDAG

Yesterday, the California Supreme Court issued a narrow opinion on the appeal by the San Diego Association of Government (SANDAG) of the appellate decision in Cleveland National Forest Foundation et al., v. San Diego Association of Government.  The California Supreme Court granted review on narrow grounds: “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 (Public Resource Code, § 21000 et seq.)?” The California Supreme Court held in a 6-1 decision that SANDAG did not abuse its discretion in its environmental impact report (EIR) greenhouse gas (GHG) analysis either by declining to adopt the Executive Order (EO) No. S-3-05 2050 emission reduction target as a measure of significance or by not discussing the EO more than it did in its analysis and response to comments.  The limited review of this opinion keeps in place all other holdings of Court of Appeal affirming the trial court’s judgement that the 2011 EIR’s analysis of GHG emission mitigation was inadequate, included identified EIR deficiencies, and affirmed issuance of a writ of mandate setting aside the EIR’s certification on these grounds. You can read more about that appellate decision here.

CEQA review in this case centered on whether SANDAG abused its discretion as a lead agency when it declined to analyze projected emissions for its SB 375 regional transportation plan (RTP) and sustainable communities strategy (SCS) against the EO’s goals to reduce emission 80% below 1990 by 2050.  Of importance to this analysis is whether SANDAG met its obligation of informing the public and decision makers of the environmental impacts of its regional transportation plan through its draft and final EIR. This formed the dispute among the parties as to “whether CEQA required SANDAG to analyze the consistency between the plan and the Executive Order in assessing the significance of the Plan’s impact on greenhouse gas emissions in 2050.”

Cleveland National Forest and the Attorney General argued in their briefing, and comments to the draft EIR, that the EIR inadequately described the RTP’s emission impacts, in light of transportation accounting for 50% of GHG emissions in the San Diego region.  The Attorney General further argued that because emissions from vehicle per miles traveled (VMT) increase by 2035 and continue to increase through 2050, environmental impacts were significant and unavoidable in 2035 and 2050. Analyzing the impact as being significant because it is above the 2010 gross annual emission levels – the baseline year for the EIR – “understates and obscures the extent to which the Plan’s emission impacts run counter to the State’s climate change goals; analyzing the consistency of the Plan with the Executive Order’s 2050 emissions reduction target would supply the missing context.”  The final EIR responded to these concerns as to why SANDAG did not use the EO as threshold of significance for environmental impact on the basis that the 2050 EO emission reduction targets are not an adopted GHG reduction plan within the meaning of CEQA and “because SANDAG’s role in achieving this target is uncertain and likely small.”  SANDAG further stated that there is no legal requirement to use the EO for significance determination and that it retains discretion to select GHG emission reduction thresholds.

Writing for the majority, Justice Liu’s opinion makes three points in response:

  1. An EIR’s designation of a particular adverse environmental effect as “significant” does not excuse the EIR’s failure to reasonably describe the nature and magnitude of the adverse effect. An adequate description of the adverse environmental effects is necessary to inform the critical discussion of mitigation measures and project alternatives at the core of the EIR.
  2. SANDAG’s conclusory statement that its role in achieving the EO’s 2050 emission reduction target is “likely small” is not a valid reason for rejecting the targets as a measure of significance. The fact that a regional plan’s contribution to reducing greenhouse gas emissions is likely to be small on a statewide level is not necessarily a basis for concluding that its impact will be insignificant in the context of a statewide goal.
  3. While SANDAG’s response in its final EIR is not dispositive of this issue, the EIR “does not obscure the existence or contextual significance of the Executive Order’s 2050 emissions reduction target.” The divergence between the projected 2050 emissions and the EO’s goals is apparent in the EIR and the EIR presented the information to enable comparison that adequately informed the public and decision makers through the “Response to Comments” section of the EIR.

From this, the opinion concluded that SANDAG did not abuse its discretion “in light of fact that the Executive Order does not specify any plan or implementation measures to achieve its goal.” It notes that neither the Attorney General or any plaintiff can point to “any guidance as to how the 2050 goals translates into specific reduction targets broken down by region or sector of emission producing activity.” This is compounded by the fact that SANDAG lacked a reliable means to forecast how future technology and state legislative action will affect future emissions in any one jurisdiction leading to the conclusion that it is unclear what additional information SANDAG could have provided beyond the “general point that the upward trajectory of emission under the Plan may conflict with the 2050 emission reduction goal.”

Finally, the Court found that SANDAG’s three method approach analyzing potential GHG emission impacts was reasonable.  This methods used the SB 375 statute and regulatory 2020 and 2035 targets for cars and light duty trucks, a 2010 baseline for long-term emissions out to 2050, and analysis of whether the regional transporation plan incorporated land use changes and transportation improvements to reduce emission found in SANDAG’s Climate Action Strategy and CARB’s Scoping Plan.  The Court did not conclude as to whether or not any one method would provide sufficient and instead found it reasonable for the EIR to use all three to inform the public and decision makers adequately.

The opinion provides a statement of narrowness that it is not a general endorsement of the adequacy of SANDAG’s EIR or the endorsement of the adequacy of the regional plan analyzed by the EIR. The opinion ends with the caution its finding that SANDAG did not abuse its discretion in its 2011 EIR GHG emissions impact analysis does not mean that it can be used as a template for future EIRs.  The opinion emphasizes that CEQA requires the utilization of better data, that the analysis of impacts of regional transportation plans on GHG emission will improve, and that SANDAG’s capacity to do this type of analysis will also improve, a fact reflected in SANDAG’s 2015 regional transportation plan EIR. This Court acknowledged that statutes (such as SB 32 requiring a 40% reduction below 1990 levels by 2030), regulations (such as CARB”s proposed Scoping Memo update), and improved methods of analysis may further clarify the path to meeting the state’s 2050 goals.  This may in turn change the manner in which long-term GHG analysis is conducted under CEQA.  This demonstrates the weight that statutory targets and CARB’s Scoping Memo play in how local governments and regional metropolitan planning entities perform this analysis and make decision to reduce GHG emissions through their planning processes. Local governments will continue to exercise discretion subject to statutory targets and regulatory guidance.

About Joe Kaatz

Staff Attorney at the Energy Policy Initiatives Center, University of San Diego School of Law.
This entry was posted in CEQA, Energy, Greenhouse Gas, Legislation, Litigation, Transportation and tagged , , , , , . Bookmark the permalink.

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