Jennifer Hernandez is a Partner for Holland & Knight's San Francisco office.

Joanna Meldrum is an Associate for Holland & Knight's San Francisco office.

HIGHLIGHTS:

  • The California Supreme Court, in a 6-1 ruling, in Cleveland National Forest Foundation, et al v. San Diego Association of Governments held that San Diego Association of Governments' (SANDAG) Environmental Impact Report's (EIR) greenhouse gas analysis for its regional transportation plan (Plan) was not required to "explicitly engage in an analysis of the consistency of projected 2050 emissions" with the 80 percent reduction goal called for in an Executive Order.
  • This case is the first time the Supreme Court addressed the relationship between the Sustainable Communities and Climate Protection Act (SB 375) and California Environmental Quality Act (CEQA). SB 375 directs the California Air Resources Board (CARB) to develop region-by-region emission reduction targets for automobiles and light trucks.
  • The question before the Court in this case was narrow: Does an EIR for a plan established under the SB 375 and designed to guide SANDAG's redirection of funding to transit and higher density housing to meet the state's ambitious greenhouse gas reduction mandates, needs to adopt the Executive Order's 80 percent reduction by 2050 goal as a threshold of significance? The Court answered, "No."

The California Supreme Court, in a 6-1 ruling, in Cleveland National Forest Foundation, et al v. San Diego Association of Governments (2017) ___ Cal. 5th __, Supreme Court Case No. 5223603 held that San Diego Association of Governments' (SANDAG) Environmental Impact Report's (EIR) greenhouse gas analysis for its regional transportation plan (Plan) was not required to "explicitly engage in an analysis of the consistency of projected 2050 emissions" with the 80 percent reduction goal called for in an Executive Order.

This case is the first time the Supreme Court addressed the relationship between Sustainable Communities and Climate Protection Act (SB 375) and California Environmental Quality Act (CEQA). SB 375 directs the California Air Resources Board (CARB) to develop region-by-region emission reduction targets for automobiles and light trucks for 2020 and 2035, and it was undisputed in this case that the San Diego region met the targets set by CARB that require a 7 percent per capita reduction in greenhouse gas emissions (GHG) by 2020 and a 13 percent per capita reduction by 2035.

The question before the Court in this case was narrow: Does an EIR for a plan established under the SB 375, which is designed to guide SANDAG's redirection of funding to transit and higher density housing to meet the state's ambitious greenhouse gas reduction mandates, needs to adopt the Executive Order's 80 percent GHG reduction by 2050 goal as a threshold of significance? The Court answered, "No." Key to the Court's holding was that the EIR "sufficiently informed the public, based on the information available at the time, about the Plan's greenhouse gas impacts."

Upheld Significance Thresholds

The Court concluded that the use of the following three significance thresholds "adequately informed readers of potential greenhouse gas emissions" as required by CEQA:

  1. consistency of projected emissions with specific regional emissions reduction targets for cars and light trucks for 2020 and 2035 (where provided by statute and regulation)
  2. projected emissions against a baseline of current emissions for longer-term emissions through 2050, for which no statute or regulation provides regional or sector targets
  3. confirmation that land use changes and transportation improvements designed to reduce emissions as reflected in SANDAG's Climate Action Strategy and CARB's Scoping Plan are incorporated into the Plan

Rejected Arguments

In upholding the greenhouse gas analysis, the Court explicitly rejected the following arguments brought by the Attorney General's Office and other parties, including the Center for Biological Diversity, Sierra Club and Cleveland National Forest Foundation:

  • The agency must make a determination whether the project as a whole has significant climate change impacts, rather than a separate determination for the 2020, 2035 and 2050 scenarios.
  • EIR must analyze consistency between the Plan's long-term projections and the Executive Order's 2050 emission reduction goals.
  • Only analysis of consistency with the Executive Order's 2050 emission reduction target can put the trend of increasing total and per capita vehicle miles traveled (VMT) in context.
  • The "Existing Conditions" comparison of projected Plan emissions in 2020, 2035 and 2050 to regional land use and transportation emissions in 2010 obscures the Plan's impacts.
  • Compliance with regional targets established under SB 375 for 2020 and 2035 masks the Plan's rising emissions trajectory.
  • Consistency with the AB 32 Scoping Plan and SANDAG's Climate Action Strategy ignores these Plans' incorporation of the Executive Order's goals.
  • SANDAG's approach would transform CEQA into a mere checklist for compliance with other law.

Practice Tips

Although the Court's holding provides welcome guidance to CEQA practitioners, the Court's dicta creates ample opportunities for future compliance and litigation uncertainties. For example, the Court emphasized the narrowness of its holding and cautioned that the three significance thresholds described above may not necessarily "serve as a template to future EIRs" because "as more and better data become available, analysis of the impact of regional transportation plans on greenhouse gas emissions will likely improve." The Court further noted that Senate Bill No. 32's emission reduction target (40 percent below 1990 levels by the year 2030) "is widely acknowledged as a necessary interim target to ensure that California meets its longer-range goal of reducing greenhouse gas emissions to 90 percent below 1990 levels by the year 2050." CARB has been directed by the legislature to craft regulations to implement SB 32's goals. Until they are enacted, CEQA practitioners and lead agencies should ensure that CEQA analysis discloses long-term (i.e., 2050) greenhouse gas emissions, and "stays in step with evolving scientific knowledge and state regulatory schemes."

This is the Supreme Court's second major decision on the interplay between CEQA and California's greenhouse gas reduction laws. In the Newhall case described here, the Court identified several compliance "pathways" for addressing greenhouse gas emissions under CEQA with a similar caution that these pathways "may" – and by implication may not – be appropriate in every circumstance. Two of the most important outcomes of the SANDAG decision was the Court's rejection of argument made by the California Attorney General and others that CEQA always and independently requires "more" mitigation than what would be achieved by plans and projects that comply with all applicable greenhouse gas reduction legal mandates such as SB 32 and SB 375 regional sustainable communities plans, as well as their argument that Executive Orders setting more ambitious greenhouse gas reduction targets must be used as CEQA significance thresholds. The Court in SANDAG thus reaffirmed its Newhall conclusion that compliance with all applicable greenhouse gas reduction legal mandates is a legally adequate compliance "pathway" for both plans and projects.

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