Cleveland Nat. Forest etc. v. San Diego Assn. etc. , 220 Cal. Rptr. 3d 294 ( 2017 )

Filed 7/13/17
IN THE SUPREME COURT OF CALIFORNIA
CLEVELAND NATIONAL FOREST )
FOUNDATION et al., )
)
Plaintiffs and Appellants, )
) S223603
v. )
) Ct.App. 4/1 D063288
SAN DIEGO ASSOCIATION OF )
GOVERNMENTS et al., )
) San Diego County
Defendants and Appellants; ) Super. Ct. No.
) 37-2011-00101593-
THE PEOPLE, ) CU-TT-CTL
)
Intervener and Appellant. )
____________________________________)
CREED-21 et al., )
)
Plaintiffs and Appellants, )
) Super. Ct. No.
v. ) 37-2011-00101660-
) CU-TT-CTL
SAN DIEGO ASSOCIATION OF )
GOVERNMENTS et al., )
)
Defendants and Appellants; )
)
THE PEOPLE, )
)
Intervener and Appellant. )
____________________________________)
The California Environmental Quality Act (CEQA; Pub. Resources Code,
§ 21000 et seq.) requires that public agencies assess the environmental impacts of
projects requiring government permits. The law is intended ― ‗to alert the public
SEE DISSENTING OPINION
and its responsible officials to environmental changes before they have reached
ecological points of no return.‘ ‖ (Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal. 3d 376, 392 (Laurel Heights).) One of the
impacts that public agencies must analyze under CEQA is whether a project will
significantly increase greenhouse gas emissions.
In this case, the project is a regional development plan for the San Diego
area intended to guide its transportation infrastructure from 2010 to 2050. The
Attorney General and various environmental groups challenged an environmental
impact report (EIR) accompanying the plan on several grounds. At issue here is
their claim that the EIR failed to adequately analyze the plan‘s impacts on
greenhouse gas emissions and climate change. In particular, the challengers
contend that the EIR should have evaluated the plan‘s impacts against an
executive order signed by Governor Schwarzenegger in 2005 declaring a goal of
reducing greenhouse gas emissions in California to 80 percent below 1990 levels
by the year 2050. The EIR projects that under the plan, greenhouse gas emissions
will fall through 2020 but then rise and maintain an upward trajectory through
2050. The challengers claim that this trend is at odds with the state‘s climate
change goals, as reflected in the 2005 executive order, and that the EIR should
have clearly analyzed and informed the public about that inconsistency. The San
Diego Association of Governments (SANDAG), the regional planning agency that
issued the EIR, argues that it was not obligated under CEQA or any other law to
use the executive order in its analysis.
We conclude that SANDAG did not abuse its discretion by declining to
explicitly engage in an analysis of the consistency of projected 2050 greenhouse
gas emissions with the goals in the executive order. The EIR sufficiently informed
the public, based on the information available at the time, about the regional plan‘s
greenhouse gas impacts and its potential inconsistency with state climate change
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goals. Nevertheless, we do not hold that the analysis of greenhouse gas impacts
employed by SANDAG in this case will necessarily be sufficient going forward.
CEQA requires public agencies like SANDAG to ensure that such analysis stay in
step with evolving scientific knowledge and state regulatory schemes.
I.
We begin with an overview of the regulatory scheme by which this state
seeks to address greenhouse gas emissions as part of a global effort to slow
climate change.
In June 2005, Governor Schwarzenegger signed Executive Order No. S-3-
05, which set overall greenhouse gas emissions reduction targets for California.
(Governor‘s Executive Order No. S-3-05 (June 1, 2005) (hereafter Executive
Order or EO).) The Executive Order established three general benchmarks:
(1) reduce emissions to 2000 levels by 2010; (2) reduce emissions to 1990 levels
by 2020; and (3) reduce emissions to 80 percent below 1990 levels by 2050.
These targets were based on a scientific consensus that climate change was largely
caused by human activity resulting in elevated levels of carbon dioxide and other
heat-trapping gases in the atmosphere and that drastic reductions in greenhouse
gas emissions were required to stabilize the climate.
As the California Air Resources Board (CARB), the agency charged with
implementing the state‘s climate change policy, has explained: ―The experts tell
us that an additional increase in global average temperatures of just 2 degrees
Celsius (3.6 degrees Fahrenheit) is very likely dangerous. With a 2 degree Celsius
increase, disastrous effects become likely, including more extreme and more
frequent severe weather, more wildfires, greater frequency of droughts and floods,
rapid and higher sea level rise, and increased habitat destruction and extinctions.
These environmental effects will undoubtedly lead to serious economic, political,
and national security disruptions.
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―In order to reduce the risk of dangerous climate change, we must stabilize
atmospheric levels of GHG [greenhouse gas emissions] at approximately 450 parts
per million (ppm) by mid-century. We are fast approaching this limit. . . . [¶] In
response to the challenge of climate change, California has taken a leadership role
by committing to reduce its GHG emissions to 1990 levels by 2020 (about a thirty
percent reduction in business-as-usual emissions in 2020) and to eighty percent
below 1990 levels by 2050. The latter target is consistent with the scientific
consensus of the reductions needed to stabilize atmospheric levels of GHGs at 450
ppm by mid-century.‖ (CARB, Recommended Approaches for Setting Interim
Significance Thresholds for Greenhouse Gases under the California
Environmental Quality Act (Oct. 24, 2008) p. 3, fns. omitted [preliminary draft
staff proposal].)
In 2006, shortly after the Executive Order was issued, the Legislature
enacted the California Global Warming Solutions Act of 2006 (Stats. 2006,
ch. 488, adding Health & Saf. Code, § 38500 et seq.), commonly known as
Assembly Bill No. 32 (AB 32). AB 32 partially adopted the Executive Order‘s
goals by directing CARB to ―determine what the statewide greenhouse gas
emissions level was in 1990, and approve in a public hearing, a statewide
greenhouse gas emissions limit that is equivalent to that level, to be achieved by
2020.‖ (Health & Saf. Code, § 38550.) The Legislature also directed CARB to
prepare a ―scoping plan‖ to identify how to achieve the ―maximum
technologically feasible and cost-effective reductions in greenhouse gas emissions
by . . . 2020.‖ (Id., § 38561, subd. (a).) The scoping plan prepared by CARB
explained that ― ‗[r]educing greenhouse gas emissions to 1990 levels means
cutting approximately 30 percent from business-as-usual emission levels projected
for 2020, or about 15 percent from today‘s levels.‘ (Air [Resources] Bd., Climate
Change Scoping Plan (Dec. 2008) Executive Summary, p. ES–1 (Scoping Plan).)
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The Scoping Plan then set out a ‗comprehensive array of emissions reduction
approaches and tools‘ to meet the goal, including expanding energy efficiency
programs, achieving a statewide renewable energy mix of 33 percent, developing
with our regional partners a cap-and-trade program for greenhouse gases,
establishing targets and policies for emissions in transportation and implementing
existing clean transportation programs, and creating targeted fees on certain
activities affecting emissions. (Id., pp. ES–3 to ES–4.)‖ (Center for Biological
Diversity v. California Dept. of Fish & Wildlife (2015) 62 Cal. 4th 204, 216
(Center for Biological Diversity).)
The Legislature has also adopted the Sustainable Communities and Climate
Protection Act (Stats. 2008, ch. 728, § 1; Stats. 2009, ch. 354, § 5), commonly
known as SB 375. In enacting this law, the Legislature found that the
transportation sector contributed 40 percent of the state‘s greenhouse gas
emissions and that automobiles and light trucks alone are responsible for 30
percent. (Stats. 2008, ch. 728, § 1, subd. (a).) The Legislature also found the state
could not meet its emission reduction goals without improved land use and
transportation policy. (Id., § 1, subd. (c).) SB 375 directs CARB to develop
region-by-region emission reduction targets for automobiles and light trucks for
2020 and 2035. (Gov. Code, § 65080, subd. (b)(2)(A).) CARB must update these
targets every eight years until 2050, and it may update the targets every four years
based on various factors. (Id., subd. (b)(2)(A).) The targets set by CARB for the
San Diego region, using a 2005 baseline, require a 7 percent per capita reduction
in greenhouse gas emissions by 2020 and a 13 percent per capita reduction by
2035.
In order to achieve these targets, SB 375 imposes additional requirements
on regional transportation plans (RTPs) used by federally designated metropolitan
planning organizations (MPOs), such as SANDAG. Every four to five years,
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MPOs are required to adopt a comprehensive RTP that addresses no less than a
20-year planning horizon. (23 C.F.R. § 450.324(c).) Under SB 375, MPOs are
required to develop a ―sustainable communities strategy‖ (SCS), consistent with
the CARB regional targets, as part of their RTPs. (Gov. Code, § 65080, subd.
(b)(2).) The strategy must be developed through an intensive public consultation
process. (Gov. Code, § 65080, subd. (b)(2)(E), (F).) The strategy must address,
among other things, regional distribution of land uses and population, housing
needs, and protection of resource areas. (Id., § 65080, subd. (b)(2)(B).)
Importantly, for purposes of this case, the strategy must ―set forth a
forecasted development pattern for the region, which, when integrated with the
transportation network, and other transportation measures and policies, will reduce
the greenhouse gas emissions from automobiles and light trucks to achieve, if
there is a feasible way to do so, the greenhouse gas emission reduction targets
approved by the state board.‖ (Gov. Code, § 65080, subd. (b)(2)(B).) The
reductions mandated by SB 375 may be achieved through a variety of means,
including ―smart growth‖ planning to maximize building densities at locations
served by public transit and to locate residences near needed services and
shopping to reduce automobile dependency. Other means include shifting
investment toward mass transit, changing transportation pricing, and encouraging
car sharing, walking, and biking. (See Cal. Transportation Com., 2010 Regional
Transportation Plan Guidelines (2010) pp. 137–138.)
Once an MPO has adopted a sustainable communities strategy that CARB
finds acceptable, some transit priority projects consistent with the strategy are
exempt from CEQA requirements, whereas other transit priority projects,
residential projects, and mixed-use projects consistent with the strategy are subject
to streamlined CEQA requirements. (Pub. Resources Code, §§ 21155–21155.4,
21159.28; Cal. Code Regs., tit. 14, § 15183.3 (Guidelines).)
6
II.
CARB‘s 2008 scoping plan (Scoping Plan) ―encourages local jurisdictions
to develop ‗ ―climate action plans‖ ‘ or greenhouse gas ‗ ―emissions reduction
plans‖ ‘ for their geographic areas, and several jurisdictions have adopted or
proposed such plans as tools for CEQA streamlining.‖ (Center for Biological
Diversity, supra, 62 Cal.4th at p. 230.) Pursuant to this directive, SANDAG in
2010 issued its ―Climate Action Strategy,‖ (sometimes CAS) that said:
―Achieving the near-term goal of reducing statewide greenhouse gas emissions to
the 1990 level by the year 2020 is ambitious but likely achievable with available
policy measures and technology options. However, the long-term goal of reducing
statewide greenhouse gas emissions to 80 percent below the 1990 level by the year
2050 will require fundamental changes in policy, technology, and behavior.‖
(SANDAG, Climate Action Strategy (Mar. 2010) p. 11.) The Climate Action
Strategy then recommended a number of land-use and transportation measures
designed to reduce greenhouse gas emissions. (Id. at pp. 24–55.)
In 2011, SANDAG issued its RTP/SCS plan (Plan) pursuant to
Government Code section 65080, subdivision (b). The Plan was adopted as a
―blueprint for a regional transportation system, serving existing and projected
residents and workers within the San Diego region . . . over the next 40 years, that
further enhances quality of life and offers more mobility options for people and
goods. The 2050 RTP/SCS looks 40 years ahead, accommodating another 1.2
million residents, half a million new jobs, and nearly 400,000 new homes. The
Plan addressed a 40 year period ending in 2050.‖ In addition, SANDAG prepared
a draft EIR (occasionally, DEIR) to analyze the Plan‘s environmental effects,
including its projected impact on the region‘s greenhouse gas emissions.
The draft EIR proposed three different measures — labeled GHG-1, GHG-
2, and GHG-3 — for determining whether the region‘s greenhouse gas emissions
7
under the Plan would be significant, and it applied each measure to the years 2020,
2035, and 2050. GHG-1 compared the projected total regional GHG emissions to
conditions existing in 2010. The draft EIR concluded that after taking into
account the transportation and land use changes set forth in the Plan, regional
greenhouse gas emissions in 2020 are expected to be lower than in 2010.
Therefore, the draft EIR judged the emission impacts for 2020 to be insignificant.
In 2035, the draft EIR found, ―[r]egional growth/land use change GHG
emissions‖ are ―expected to be greater than in 2010, while transportation-related
GHG emissions are expected to be lower than in 2010. The total emissions
expected in 2035 for both regional growth/land use change and transportation
network improvements would be 30.18 MMT CO2e [million metric tons of carbon
dioxide equivalent], accounting for state measures and including construction-
related emissions. Compared with the estimated 2010 emissions of 28.85 MMT
CO2e, this represents an increase over baseline conditions. Therefore,
implementation of the 2050 RTP/SCS would lead to an overall increase in GHG
emissions in 2035 compared to 2010 levels and constitutes a significant impact
. . . .‖
The draft EIR further concluded that ―[l]and-use and transportation-related
GHG emissions in 2050 are expected to be greater than in 2010. The total
emissions expected in 2050 would be 33.65 MMT CO2e, accounting for state
measures. Compared with the estimated 2010 emissions of 28.845 MMT CO2e,
this represents an increase over baseline conditions. Therefore, implementation of
the 2050 RTP/SCS would lead to an overall increase in GHG emissions compared
to baseline levels and constitutes a significant impact for which mitigation
measures are described in Section 4.8.5.‖
The draft EIR‘s second measure of significance, GHG-2, compared
projected regional emissions with the reduction targets mandated by SB 375. The
8
draft EIR explained: ―GHG-2 analyzes a narrower range of GHG emissions than
GHG-1. . . . SB 375 requires [CARB] to develop regional GHG emission
reduction targets, compared to 2005 emissions, for cars and light trucks for 2020
and 2035 for each of the state‘s MPOs.‖ The draft EIR concluded that the plan
would meet CARB‘s mandated targets of reducing per capita emissions 7 percent
below 2005 levels by 2020 and 13 percent below 2005 levels by 2035 through a
variety of measures, including denser residential development and increased use of
mass transit. In applying GHG-2, the draft EIR made no determination of
significant environmental effects with respect to the year 2050 because CARB has
not yet established 2050 reduction targets.
The third measure of significance, GHG-3, compared projected regional
emissions with applicable emission reduction plans, specifically CARB‘s Scoping
Plan and SANDAG‘s own Climate Action Strategy. The draft EIR states that,
consistent with the Climate Action Strategy, ―land use changes and transportation
improvements expected as a result of implementation of the 2050 RTP/SCS focus
on transit and compact development near transit centers. These are aligned with
the policies outlined in the CAS and therefore implementation of the 2050
RTP/SCS would not impede the CAS and would constitute a less than significant
impact.‖ As for comparison with the Scoping Plan, the draft EIR said: ―The
Scoping Plan does not have targets established beyond 2020 and therefore the
impacts to the Scoping Plan are not analyzed for 2050.‖
Several parties filed comments critical of the draft EIR‘s greenhouse gas
emissions analysis. Typical of these comments, the Attorney General observed
that the EIR ―finds the impact of the RTP/SCS on GHG emissions to be not
significant in 2020 . . . , significant in 2035 . . . , and significant in 2050 . . . .
SANDAG must, however, make a determination whether the project as a whole
has significant climate change impacts. We believe strongly that it does. What
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the DEIR shows is that the suite of strategies relied on by SANDAG, which
include[s] a heavy reliance on roadway expansion projects, does not deliver GHG
reductions that are sustainable in the long term. In fact, infrastructure and land use
decisions made in the early years of the RTP/SCS may lock in transportation
inefficiencies and preclude any realistic possibility of meeting the Executive
Order‘s goal of an 80% reduction in GHG emissions.‖ The Attorney General
faulted the draft EIR for rejecting any need to analyze the consistency between the
Plan‘s long-term projections and the 2050 emission reduction objectives of the
Executive Order. SANDAG‘s position, the Attorney General argued, failed to
recognize that the Executive Order ―is designed to meet the environmental
objective that is relevant under CEQA (climate stabilization).‖
In the final EIR, SANDAG maintained it had no obligation to analyze
projected emissions against the Executive Order‘s goals: ―The 2050 RTP/SCS
complies with SANDAG‘s SB 375 emissions reductions targets, which in turn are
based on AB 32 implementation. SANDAG recognizes the aspirational nature of
the EO [Executive Order] S-3-05 2050 target, but the 2050 RTP/SCS emissions
reductions are not legally required to be consistent with this target, and as
explained below, this target is not an appropriate CEQA threshold of
significance.‖ The EIR continued: ―SANDAG chose not to use the 2050 EO
emissions reduction target as a threshold of significance because the EO is not an
adopted GHG reduction plan within the meaning of CEQA Guidelines [section]
15064.4(b)(2), and because SANDAG‘s role in achieving this target is uncertain
and likely small. Although comments note the Attorney General . . . [has] advised
that the EO 2050 target can inform CEQA analysis, there is no legal requirement
to use it as a threshold of significance. Under the CEQA Guidelines and case law,
SANDAG retains the discretion to select certain GHG emissions reduction
thresholds and not select others. [¶] Furthermore, even if SANDAG had used the
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2050 EO emissions reduction target as a threshold of significance, the Impact
GHG-1 impact conclusions for 2035 and 2050 would not have changed. These
impacts would be significant and unavoidable using either the net increase
threshold used in Impact GHG-1, or an EO based threshold.‖
After SANDAG certified the EIR, two nonprofit groups, CREED-21 and
the Affordable Housing Coalition of San Diego County, filed a petition for writ of
mandate challenging the EIR‘s adequacy under CEQA. The Cleveland National
Forest Foundation and the Center for Biological Diversity filed a similar petition,
in which Sierra Club and the Attorney General later joined.
The superior court issued a writ of mandate in plaintiffs‘ favor, finding that
the EIR failed to fulfill its role as an informational document because it did not
analyze the consistency between the Plan‘s emission impacts and the Executive
Order‘s emission reduction goals. The court also found that the EIR did not
adequately address mitigation measures for significant emission impacts. In light
of these findings, the court declined to decide any of the other challenges raised in
the petitions. The writ of mandate directed SANDAG to set aside its certification
of the EIR and to prepare and certify a revised EIR curing the identified
deficiencies.
SANDAG appealed, arguing that the EIR complied with CEQA, and the
Cleveland National Forest Foundation and other environmental organizations
(collectively, Cleveland) cross-appealed, arguing that the EIR further violated
CEQA by failing to analyze a reasonable range of project alternatives, by failing to
adequately analyze and mitigate the Plan‘s air quality impacts, and by understating
the transportation plan‘s impacts on agricultural lands. The Attorney General
separately cross-appealed, contending that the EIR further violated CEQA by
failing to adequately analyze and mitigate the transportation plan‘s impacts from
particulate matter pollution. The Court of Appeal, largely agreeing with plaintiffs,
11
affirmed the trial court‘s judgment setting aside the EIR certification but modified
the judgment to require that a subsequent EIR fix most of the defects identified in
the cross-appeals. Justice Benke dissented from the court‘s holding that
SANDAG was required to analyze the consistency of projected emissions with the
goals of the Executive Order and concluded that SANDAG‘s analysis was
supported by substantial evidence.
We 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.)?‖
III.
We granted the Attorney General‘s request to judicially notice the fact that
SANDAG updated its RTP/SCS in 2015 in accordance with its statutory mandate
and, in doing so, included some analysis of the Plan‘s consistency with the
Executive Order. None of the parties contends, however, that the question of
whether CEQA requires such consistency analysis should be dismissed as moot.
The parties recognize that this question may recur. SANDAG makes clear that it
undertook the consistency analysis in 2015 because it ―prudently reacted‖ to the
Court of Appeal opinion below and that whether CEQA requires such analysis is
still in dispute. The issue before us presents an important question of law that is
likely to recur yet evade review because of the relatively short period between
adoption of a RTP and adoption of a successor plan. Accordingly, we proceed to
decide the issue even though SANDAG‘s 2010 regional transportation plan has
now been superseded. (See California Charter School Assn. v. Los Angeles
Unified School Dist. (2015) 60 Cal. 4th 1221, 1233–1234.)
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A.
―The EIR is the primary means of achieving the Legislature‘s considered
declaration that it is the policy of this state to ‗take all action necessary to protect,
rehabilitate, and enhance the environmental quality of the state.‘ ([Pub. Resources
Code,] § 21001, subd. (a).) The EIR is therefore ‗the heart of CEQA.‘ [Citations.]
An EIR is an ‗environmental ―alarm bell‖ whose purpose it is to alert the public
and its responsible officials to environmental changes before they have reached
ecological points of no return.‘ [Citations.] The EIR is also intended ‗to
‗demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed
and considered the ecological implications of its action.‘ [Citations.] Because the
EIR must be certified or rejected by public officials, it is a document of
accountability. If CEQA is scrupulously followed, the public will know the basis
on which its responsible officials either approve or reject environmentally
significant action, and the public, being duly informed, can respond accordingly to
action with which it disagrees. [Citations.] The EIR process protects not only the
environment but also informed self-government.‖ (Laurel Heights, supra, 47
Cal.3d at p. 392.) An EIR ―must include detail sufficient to enable those who did
not participate in its preparation to understand and to consider meaningfully the
issues raised by the proposed project.‖ (Id. at p. 405.)
At the same time, courts must proceed with caution when determining the
adequacy of EIRs. ―In reviewing an agency‘s compliance with CEQA in the
course of its legislative or quasi-legislative actions, the courts‘ inquiry ‗shall
extend only to whether there was a prejudicial abuse of discretion.‘ (Pub.
Resources Code, § 21168.5.) Such an abuse is established ‗if the agency has not
proceeded in a manner required by law or if the determination or decision is not
supported by substantial evidence.‘ ‖ (Vineyard Area Citizens for Responsible
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 426, fn. omitted
13
(Vineyard). ― ‗CEQA gives lead agencies discretion to design an EIR . . .‘
(2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act [Cont.
Ed. Bar (2011)] § 20.81D, p. 1030 (rev. 3/12)) and the agency is not required to
conduct every recommended test or perform all requested research or analysis
(Guidelines, § 15204, subd. (a)). . . . An EIR is required to evaluate a particular
environmental impact only to the extent it is ‗reasonably feasible‘ to do so.
(Guidelines, § 15151; 2 Kostka & Zischke, Practice Under the Cal. Environmental
Quality Act, supra, § 20.81D, p. 1030 (rev. 3/12).)‖ (Rialto Citizens for
Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, 937.)
We have also recognized that the analysis of greenhouse gas emissions in
an EIR poses particular challenges. ―First, because of the global scale of climate
change, any one project‘s contribution is unlikely to be significant by itself. The
challenge for CEQA purposes is to determine whether the impact of the project‘s
emissions of greenhouse gases is cumulatively considerable, in the sense that ‗the
incremental effects of [the] individual project are considerable when viewed in
connection with the effects of past projects, the effects of other current projects,
and the effects of probable future projects.‘ (§ 21083, subd. (b)(2); see
Guidelines, § 15064, subd. (h)(1).) ‗With respect to climate change, an individual
project‘s emissions will most likely not have any appreciable impact on the global
problem by themselves, but they will contribute to the significant cumulative
impact caused by greenhouse gas emissions from other sources around the globe.
The question therefore becomes whether the project‘s incremental addition of
greenhouse gases is ―cumulatively considerable‖ in light of the global problem,
and thus significant.‘ [Citation.]
―Second, the global scope of climate change and the fact that carbon
dioxide and other greenhouse gases, once released into the atmosphere, are not
contained in the local area of their emission means that the impacts to be evaluated
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are also global rather than local. For many air pollutants, the significance of their
environmental impact may depend greatly on where they are emitted; for
greenhouse gases, it does not.‖ (Center for Biological Diversity, supra, 62 Cal.4th
at pp. 219–220.)
In 2010, the Natural Resources Agency promulgated a guideline for
assessing the significance of greenhouse gas emissions impacts under CEQA.
Guidelines section 15064.4, subdivision (a) provides in part that ―[a] lead agency
should make a good-faith effort, based to the extent possible on scientific and
factual data, to describe, calculate or estimate the amount of greenhouse gas
emissions resulting from a project.‖ Subdivision (b) states that ―[a] lead agency
should consider the following factors, among others, when assessing the
significance of impacts from greenhouse gas emissions on the environment: [¶]
(1) The extent to which the project may increase or reduce greenhouse gas
emissions as compared to the existing environmental setting; [¶] (2) Whether the
project emissions exceed a threshold of significance that the lead agency
determines applies to the project; [¶] (3) The extent to which the project complies
with regulations or requirements adopted to implement a statewide, regional, or
local plan for the reduction or mitigation of greenhouse gas emissions.‖
B.
In addressing the controversy between the parties, we begin by noting three
points not in dispute. First, the parties agree that the EIR should consider the
Plan‘s long-range greenhouse gas emission impacts for the year 2050. As noted,
SANDAG explained in its Climate Action Strategy that ―[o]nce in place, land use
patterns and transportation infrastructure typically remain part of the built
environment and influence travel behavior and greenhouse gas emissions for
several decades, perhaps longer.‖ (SANDAG, Climate Action Strategy, supra, at
p. 25.) The EIR must reasonably evaluate these downstream impacts.
15
Second, neither party disputes that the Executive Order lacks the force of a
legal mandate binding on SANDAG in the preparation of its EIR. What plaintiffs
and the Attorney General argue here is that the Executive Order‘s significance for
purposes of CEQA analysis is its scientific basis, i.e., its expression of what
scientific research has determined to be the level of emissions reductions
necessary to stabilize the climate by midcentury and thereby avoid catastrophic
effects of climate change. Nor does any party dispute that the Executive Order‘s
2050 emissions reduction target is grounded in sound science. In its Climate
Action Strategy, SANDAG observed that the 2050 target ―is based on the
scientifically-supported level of emissions reduction needed to avoid significant
disruption of the climate and is used as the long-term driver for state climate
change policy development.‖ (SANDAG, Climate Action Strategy, supra, at
p. 10.)
Third, the parties do not dispute that the projected increase in greenhouse
gas emissions under the Plan from 2020 through 2050 is a significant
environmental effect. As noted, SANDAG stated in the EIR that
implementation of the 2050 RTP/SCS would lead to an overall increase in
greenhouse gas emissions in 2050 and that this impact is ―significant and
unavoidable.‖
What the parties dispute is 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. The
Attorney General and Cleveland argue here, as they did in their comments to the
draft EIR, that the EIR inadequately describes the Plan‘s emission impacts. The
Attorney General notes that transportation is responsible for nearly 50 percent of
greenhouse gas emissions in the San Diego region, and one of the chief objectives
of an SCS is to reduce the total amount of driving in the region, measured as
16
vehicle miles traveled (VMT). The Attorney General observes: ―The total
amount of driving expected under the 2050 Plan . . . will increase by more than 50
percent over the life of the Plan. The expected increase in driving is not due solely
to increases in population in the San Diego area; under the 2050 Plan, people will
drive more on a per capita basis in 2050 than they did in 2010.‖ The Attorney
General points to the Plan‘s projections that daily per capita VMT for all vehicle
types would fall in 2020 but would rise by 2035 and would continue to rise
through 2050. This increase in total and per capita VMT, the Attorney General
contends, drives the upward trend in projected emissions for the San Diego region
after 2035.
In light of this projected trend, the Attorney General argues that the EIR‘s
analysis of emission impacts is misleading: ―Without placing these emissions into
any meaningful context, the EIR summarily concludes that the impacts are
‗significant and unavoidable‘ in 2035 and 2050 because gross annual emissions
will be above 2010 levels in these discrete years.‖ According to the Attorney
General, this 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.
In response to this concern, the final EIR said that ―SANDAG chose not to
use the 2050 EO emissions reduction target as a threshold of significance because
the EO is not an adopted GHG reduction plan within the meaning of CEQA
Guidelines 15064.4(b)(2), and because SANDAG‘s role in achieving this target is
uncertain and likely small. Although the comments note the Attorney General . . .
[has] advised that the EO 2050 target can inform CEQA analysis, there is no legal
requirement to use it as a threshold of significance. Under the CEQA Guidelines
17
and case law, SANDAG retains the discretion to select certain GHG emissions
reduction thresholds and not select others.‖
In evaluating these arguments, we begin with three points. First, 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. (See Berkeley Keep Jets Over the Bay Committee v. Board of Port
Comrs. (2001) 91 Cal. App. 4th 1344, 1371 [―The EIR‘s approach of simply
labeling the effect ‗significant‘ without accompanying analysis of the project‘s
impact on the health of the Airport‘s employees and nearby residents is inadequate
to meet the environmental assessment requirements of CEQA.‖]; Galante
Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal. App. 4th
1109, 1123.) An adequate description of adverse environmental effects is
necessary to inform the critical discussion of mitigation measures and project
alternatives at the core of the EIR. (See Guidelines, § 15151 [―An EIR should be
prepared with a sufficient degree of analysis to provide decisionmakers with
information which enables them to make a decision which intelligently takes
account of environmental consequences.‖].)
Second, SANDAG‘s conclusory statement that its role in achieving the
Executive Order‘s 2050 emission reduction target is ―likely small‖ is not a valid
reason for rejecting the target as a measure of significance. As noted, ―because of
the global scale of climate change, any one project‘s contribution is unlikely to be
significant by itself.‖ (Center for Biological Diversity, supra, 62 Cal.4th at
p. 219.) The solution to climate change requires the aggregation of many small
reductions in greenhouse gas emissions by public and private actors at all levels.
(See United Nations Framework Convention on Climate Change, Paris Agreement
(Dec. 12, 2015, ___ U.N.T.S. ___ [English text, p. 52; Annex, p. 21]
[―[recognizing] the importance of the engagement of all levels of government and
18
various actors, in accordance with respective national legislation of Parties, in
addressing climate change‖].) 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.
Third, we agree with plaintiffs that SANDAG‘s response in the final EIR
that the Executive Order ―is not an adopted GHG reduction plan‖ and that ―there is
no legal requirement to use it as a threshold of significance‖ is not dispositive of
the issue before us. Although lead agencies have discretion in designing an EIR,
the exercise of that discretion must be ―based to the extent possible on scientific
and factual data.‖ (Guidelines, § 15064, subd. (b).) The Executive Order‘s 2050
goal of reducing California‘s greenhouse gas emissions to 80 percent below 1990
levels expresses the pace and magnitude of reduction efforts that the scientific
community believes necessary to stabilize the climate. This scientific information
has important value to policymakers and citizens in considering the emission
impacts of a project like SANDAG‘s regional transportation plan.
Nonetheless, contrary to what plaintiffs and our dissenting colleague
contend, the EIR does not obscure the existence or contextual significance of the
Executive Order‘s 2050 emissions reduction target. The EIR makes clear that the
2050 target is part of the regulatory setting in which the Plan will operate.
Further, the EIR straightforwardly mentions the 2050 target in the course of
explaining why SANDAG chose not to use the target as a measure of significance.
This discussion appears just three pages after the EIR declares, with supporting
analysis, that ―[l]and-use and transportation-related GHG emissions in 2050 are
expected to be greater than in 2010. The total emissions expected in 2050 would
be 33.65 MMT CO2e, accounting for state measures. Compared with the
estimated 2010 emissions of 28.85 MMT CO2e, this represents an increase over
19
baseline conditions. Therefore, implementation of the 2050 RTP/SCS would lead
to an overall increase in GHG emissions compared to baseline levels and
constitutes a significant impact for which mitigation measures are described in
Section 4.8.5.‖ (Italics added.) Similarly, in its responses to comments, the EIR
repeatedly mentions the 2050 target in the course of restating its conclusion that
the increase in greenhouse gas emissions compared to existing conditions ―would
be significant in 2035 and 2050.‖ In sum, the basis of plaintiffs‘ and the dissent‘s
critique of the EIR — i.e., the divergence between projected 2050 emissions and
the Executive Order‘s goals — is apparent in the EIR itself. If the long-term rise
in projected emissions was ―the elephant in the room‖ (dis. opn., post, at pp. 2, 10,
16), then a fair reading of the EIR confirms that an elephant is hard to hide.
Although there were perhaps clearer or more graphic ways the EIR could
have facilitated a comparison between 2050 projected emissions and the Executive
Order‘s 2050 emissions reduction target, we find that the EIR presented the
information enabling that comparison ―in a manner calculated to adequately
inform the public and decision makers, who may not be previously familiar with
the details of the project.‖ (Vineyard, supra, 40 Cal.4th at p. 442; see Citizens for
a Sustainable Treasure Island v. City and County of San Francisco (2014) 227
Cal. App. 4th 1036, 1046 [―[A]n EIR must be upheld if it ‗reasonably sets forth
sufficient information to foster informed public participation and to enable the
decision makers to consider the environmental factors necessary to make a
reasoned decision.‘ ‖].) We have made clear, and recently reiterated, that
― ‗information ―scattered here and there in EIR appendices‖ or a report ―buried in
an appendix,‖ is not a substitute for ―a good faith reasoned analysis.‖ ‘ ‖
(Vineyard, at p. 442; see Banning Ranch Conservancy v. City of Newport Beach
(2017) 2 Cal.5th 918, 941.) Here, however, it was not difficult for the public,
reading the EIR, to compare the upward trajectory of projected greenhouse gas
20
emissions under the Plan from 2020 through 2050 with the Executive Order‘s goal
of reducing emissions to 80 percent below 1990 levels by 2050. The fact that part
of the discussion of greenhouse gas impacts and the Executive Order occurs in the
―Response to Comments‖ section of the EIR rather than the original draft (see dis.
opn., post, at p. 8) is not an infirmity. Because a lead agency‘s response to
comments is an integral part of the EIR (see Rural Landowners Assn. v. City
Council (1983) 143 Cal. App. 3d 1013, 1023 [EIRs must adequately address
comments of state agencies]), it is reasonable to expect that those interested in the
contents of an EIR will not neglect this section.
Moreover, SANDAG did not abuse its discretion in declining to adopt the
2050 goal as a measure of significance in light of the fact that the Executive Order
does not specify any plan or implementation measures to achieve its goal. In its
response to comments, the EIR said: ―It is uncertain what role regional land use
and transportation strategies can or should play in achieving the EO‘s 2050
emissions reduction target. A recent California Energy Commission report
concludes, however, that the primary strategies to achieve this target should be
major ‗decarbonization‘ of electricity supplies and fuels, and major improvements
in energy efficiency [citation].‖ We cannot say that SANDAG abused its
discretion by refusing, on these grounds, to say more in the EIR about whether the
projected emissions were consistent with the 2050 goal. Neither the Attorney
General nor the other plaintiffs point to any guidance as to how the 2050 goal
translates into specific reduction targets broken down by region or sector of
emission-producing activity. Further, as SANDAG notes, ―there are presently no
reliable means of forecasting how future technological developments or state
legislative actions to reduce greenhouse gas emissions may affect future emissions
in any one planning jurisdiction. . . . Lead agencies can only guess how future
technical developments or state (or federal or international) actions may affect
21
emissions from the myriad of sources beyond their control.‖ (See Marin Mun.
Water Dist. v. KG Land California Corp (1991) 235 Cal. App. 3d 1652, 1663
[CEQA does not require analysis of potential impacts from possible future
development that are too speculative to evaluate].) It is not clear what additional
information SANDAG should have conveyed to the public beyond the general
point that the upward trajectory of emissions under the Plan may conflict with the
2050 emissions reduction goal. (Cf. Center for Biological Diversity, supra, 62
Cal.4th at pp. 225–228 [discussing difficulty of inferring required level of
emissions reduction for an individual project from a statewide emissions reduction
goal].)
Nor can we say it was unreasonable for SANDAG to use its threefold
approach in the EIR: (1) Where statute and regulation provide specific regional
emissions reduction targets, as for cars and light trucks for 2020 and 2035, the EIR
analyzes consistency of projected emissions with those targets (GHG-2). (2) For
longer-term emissions through 2050, for which no statute or regulation provides
regional or sector targets, the EIR analyzes projected emissions against a baseline
of current emissions (GHG-1). This is one of the approaches specified in
Guidelines section 15064.4, subdivision (b), which calls on lead agencies to
consider ―[t]he extent to which the project may increase or reduce greenhouse gas
emissions as compared to the existing environmental setting.‖ (3) The EIR
analyzes whether the Plan incorporates land use changes and transportation
improvement designed to reduce emissions, as reflected in SANDAG‘s Climate
Action Strategy and CARB‘s Scoping Plan (GHG-3). (See Center for Biological
Diversity, supra, 62 Cal.4th at p. 229 [recognizing the potential value of
― ‗performance based standards‘ ‖ as outlined in the Scoping Plan or other
authoritative body of regulation].) Whether or not any one method, by itself,
would have provided sufficient analysis, we conclude that these three methods
22
together adequately informed readers of potential greenhouse gas emission
impacts.
We emphasize the narrowness of today‘s holding. Our decision is not a
general endorsement of the adequacy of SANDAG‘s EIR, much less an
endorsement of the adequacy of the regional plan that the EIR analyzes.
Specifically, we do not address whether SANDAG‘s responses to the indisputably
significant greenhouse gas impacts of the 2011 regional plan were adequate. The
Court of Appeal concluded that the EIR failed to sufficiently consider feasible
mitigation measures and project alternatives that would reduce vehicle miles
traveled and curb the rise in greenhouse gas emissions. These issues are not
before us, and we express no view on them. We hold 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.
Moreover, we caution that our conclusion that SANDAG did not abuse its
discretion in its analysis of greenhouse gas emission impacts in the 2011 EIR does
not mean that this analysis can serve as a template for future EIRs. Under CEQA,
―[t]he determination of whether a project may have a significant effect on the
environment calls for careful judgment on the part of the public agency involved,
based to the extent possible on scientific and factual data.‖ (Guidelines, § 15064,
subd. (b).) As more and better data become available, analysis of the impact of
regional transportation plans on greenhouse gas emissions will likely improve.
Indeed, SANDAG explains that its EIR, in analyzing its 2015 regional
transportation plan, ―was able to account for many factors in the GHG inventories
that were not accounted for in 2011, reflecting ‗additional certainty regarding the
regulatory environment, including future projections of renewable energy,
building energy efficiency, water conservation programs, and solid waste
23
diversion.‖ A regional planning agency like SANDAG, charged with assisting the
implementation of the state‘s climate goals, must straightforwardly address in the
relevant environmental review documents whether its regional transportation plan
as a whole is in accord with those goals. Its capacity to do so will likely improve
over time.
Furthermore, after briefing was submitted in this case, the Legislature in
2016 enacted Senate Bill No. 32 (SB 32) (2015–2016 Reg. Sess.), adding Health
and Safety Code section 38566, which adopts a goal of reducing greenhouse gas
emissions by 40 percent below 1990 levels by the year 2030. This 40 percent
reduction is widely acknowledged as a necessary interim target to ensure that
California meets its longer-range goal of reducing greenhouse gas emissions to 80
percent below 1990 levels by the year 2050. (See Governor‘s Executive Order
No. B–30–15 (Apr. 29, 2015) [explaining the significance of the 40 percent
reduction].) SB 32 thus reaffirms California‘s commitment to being on the
forefront of the dramatic greenhouse gas emission reductions needed to stabilize
the global climate. The legislation directs CARB to craft regulations to implement
its goal. (Health & Saf. Code, § 38566.) These regulations may further clarify the
way forward for public agencies to meet the state‘s 2050 climate goals. This
regulatory clarification, together with improved methods of analysis, may well
change the manner in which CEQA analysis of long-term greenhouse gas emission
impacts is conducted.
In sum, nothing we say today invites regional planners to ―shirk their
responsibilities‖ under CEQA or other environmental statutes. (Dis. opn., ante, at
p. 16.) To the contrary, we affirm that planning agencies like SANDAG must
ensure that CEQA analysis stays in step with evolving scientific knowledge and
state regulatory schemes.
24
CONCLUSION
We reverse the judgment of the Court of Appeal insofar as it determined
that the 2011 EIR‘s analysis of greenhouse gas emission impacts rendered the EIR
inadequate and required revision. As noted, the Court of Appeal also affirmed the
trial court‘s judgment that the 2011 EIR‘s analysis of greenhouse gas emission
mitigation measures was inadequate, identified other deficiencies in the EIR, and
affirmed the issuance of a writ of mandate setting aside the EIR‘s certification on
these grounds. We did not grant review on these issues and express no view on
how, if at all, today‘s opinion affects their disposition. We remand to the Court of
Appeal for proceedings consistent with this opinion.
LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
KRUGER, J.
25
DISSENTING OPINION BY CUÉLLAR, J.
Through statutes enacted by its elected representatives, the State of
California recognizes climate change spurred by greenhouse gases to be a
staggering threat to California and the world. The state‘s response to this
challenge reflects not only the projected harm to California but also the state‘s
own contribution to the problem. (See Health & Saf. Code, § 38501.) At the core
of that response is a comprehensive effort updating a long-established body of
laws designed to protect the environment. Among the most important of those
laws is the California Environmental Quality Act (CEQA; Pub. Resources Code,
§ 21001 et seq.), which requires public officials to disclose the environmental
harm of proposed construction projects. Enacted nearly a half century ago, CEQA
mandates that ―the long-term protection of the environment, consistent with the
provision of a decent home and suitable living environment for every Californian,
shall be a guiding criterion in public decisions.‖ (Pub. Resources Code, § 21001,
subd. (d).) For decades CEQA has ensured public deliberation about present
choices that bear future environmental harm. Now, a new generation of state
environmental statutes has aligned California law with scientific consensus
regarding how to confront climate change. Long-term greenhouse gas emissions
have taken their place among the most important harms that CEQA requires public
officials to analyze and meaningfully explain.
1
The question in the case is whether the San Diego Association of
Governments (SANDAG) violated CEQA when it issued an environmental impact
report (EIR) for a long-term transportation development plan that failed to explain
the plan‘s divergence from long-term greenhouse gas emissions reduction targets
first set out in a 2005 executive order. There is no dispute that those targets are
relevant to this case regardless of the executive order‘s legal force, to the extent
the targets reflect sound scientific consensus about the steps necessary to stabilize
the climate. Likewise, no one disputes that SANDAG has flexibility in designing
its regional transportation plan and framing the plan‘s environmental impact
report. Instead, the critical issue in the case is whether the EIR is clear enough
about the environmental harm of SANDAG‘s plan, which reshapes the region‘s
transportation infrastructure in a manner that will increase per capita greenhouse
gas emissions and per capita vehicle use in the long term. The answer is no,
because among other things the EIR manages to occlude the elephant in the room
— that the plan was associated with a major projected increase in greenhouse gas
emissions, diverging sharply from emission reduction targets reflecting scientific
consensus. This issue matters not only because CEQA aims to facilitate public
deliberation and limit the risk that policymakers ignore the environmental
consequences of their choices but also because the precise contours of an EIR‘s
impact analysis dictate what mitigation measures and alternative options public
officials must consider. Because I believe SANDAG did not fulfill its CEQA
obligations, I dissent.
I.
In June 2005, Governor Arnold Schwarzenegger issued Executive Order
No. S-3-05, which announced statewide greenhouse gas reduction targets for
2010, 2020, and 2050. The 2050 target proposed to reduce statewide emissions to
80 percent below 1990 levels by that year. This target reflects scientific consensus
2
about the greenhouse gas emissions reductions necessary to stabilize global
temperatures and prevent catastrophic climate effects. The Legislature soon began
to carry out the Governor‘s mandate through a series of statutes. One of the first
of these laws was the Global Warming Solutions Act of 2006. (Stats. 2006, ch.
488, § 1, p. 3419.) Since recognized as ―landmark legislation,‖ this act
―established as state policy the achievement of a substantial reduction in the
emissions of gases contributing to global warming.‖ (Center for Biological
Diversity v. California Department of Fish & Wildlife (2015) 62 Cal. 4th 204, 215
(Center for Biological Diversity).) The statute directed the Air Resources Board
to announce strategies for achieving the Governor‘s emissions reduction targets.
This plan was issued in 2008.
Next came the Sustainable Communities and Climate Protection Act,
enacted as SB 375. This act focuses on the role that regional planners will play in
reversing climate change. In particular, the Legislature observed that the
transportation sector produces a significant share of the state‘s greenhouse gas
emissions. (See Stats. 2008, ch. 728 § 1(a), p. 5065 [―The transportation sector
contributes over 40 percent of the greenhouse gas emissions in the State of
California; automobiles and light trucks alone contribute almost 30 percent. The
transportation sector is the single largest contributor of greenhouse gases of any
sector.‖].) Though new fuel and vehicle technology would help reduce those
emissions, the Legislature recognized that those advances would not be enough;
instead, the state would also need to reshape its transportation infrastructure to
reduce vehicle use. (See id., § 1(c), p. 5065 [―Greenhouse gas emissions from
automobiles and light trucks can be substantially reduced by new vehicle
technology and by the increased use of low carbon fuel. However, even taking
these measures into account, it will be necessary to achieve significant additional
3
greenhouse gas reductions from changed land use patterns and improved
transportation.‖].)
Apart from any other practical impact they had, these laws also affected
CEQA –– a statute as ubiquitous in disputes about land and infrastructure as it is
important to California‘s protection of its environment. For 47 years, CEQA has
required for ―the long-term protection of the environment‖ to serve as ―the guiding
criterion in public decisions.‖ (Pub. Resources Code, § 21001, subd. (d), as added
by Stats. 1970, ch. 1433, § 1, p. 2781.) In particular, the statute requires agencies
that oversee projects like SANDAG‘s regional transportation plan to prepare an
EIR whose ―purpose is to inform the public and its responsible officials of the
environmental consequences of their decisions before they are made.‖ (Citizens of
Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564.) Given
CEQA‘s focus on long-term environmental impact, an agency needs to do more
than simply list a few short-term benefits and claim success. Rather, an EIR must
look beyond immediate impact and explain clearly whether the project prioritizes
―short-term environmental goals to the disadvantage of long-term environmental
goals.‖ (Cal. Code Regs., tit. 14, § 15065, subd. (a)(2).)
When it comes to climate change, the state‘s long-term environmental goals
are clear. SB 375 and other statutes have codified into California law the
scientific consensus that the state must reduce greenhouse gas emissions over the
next few decades. (See, e.g., Center for Biological Diversity, supra, 62 Cal. 4th at
p. 215; Health & Saf. Code, § 38501.) While the particulars of that goal (exactly
what quantities of reduction, through what means, at what times) might remain
subject to some debate, the overall trend — reduction of emissions, not steep
increases — does not. In October 2011, SANDAG issued one of the plans
required by SB 375, along with an EIR laying out the plan‘s environmental costs.
Though this EIR is governed by the same general framework that governs the
4
validity of an EIR for a typical development project, it was also somewhat distinct
in that the whole purpose of the project at issue — the entire reason the
Legislature directed SANDAG to issue a regional transportation plan — was to
help achieve the state‘s goal of reducing greenhouse gas emissions from
transportation infrastructure. CEQA and SB 375 together created a duty to explain
in detail whether SANDAG‘s regional transportation plan will work ―to the
disadvantage of‖ that long-term goal. (Pub. Resources Code, § 21083, subd.
(a)(1).) The Court of Appeal was persuaded by the Attorney General and other
challengers that the EIR failed that requirement. I agree.
II.
Throughout our CEQA jurisprudence, we have recognized how statutes
enacted after CEQA may train attention on certain environmental impacts in ways
that limit an agency‘s discretion about whether and how to depict those particular
impacts. For example, we recently explained that the California Coastal Act of
1976‘s (Coastal Act) ―enhanced protection‖ for sensitive coastal habitats requires
heightened CEQA concern for harm to those areas. (Banning Ranch Conservancy
v. City of Newport Beach (2017) 2 Cal.5th 918, 936 (Banning Ranch).) In this
way, the Coastal Act answers questions that might otherwise have been left to
local discretion, and an agency cannot pretend those answers are too speculative
for it to incorporate into analysis of potential environmental impact. (Banning
Ranch, at pp. 936-937.) SB 375 is another statute that changed how public
officials must measure environmental impact. Crucially, this change does not
have the same effect on every EIR. Instead, SB 375 took aim at the precise type
of public actor whose EIR is under scrutiny in this case: a large regional planner.
And it told that actor to do the very thing SANDAG failed to do: take long-term
steps to reduce greenhouse gas emissions from transportation, rather than expect
these reductions to come from technological advances or other measures.
5
SB 375‘s particularized focus sets today‘s case apart from a typical
development project or permit application. In fact, that legislation established that
the EIR in this case will preclude certain environmental analysis for various future
projects. Part of the political bargain behind SB 375 was a tradeoff between
centralized coordination and individual action. Once a regional transportation
plan is final, SB 375 provides that any future ―mixed-use and transit priority
projects that are consistent with the limits and policies specified in [the plan] need
not additionally analyze greenhouse gas emissions from cars and light trucks.‖
(Center for Biological Diversity, supra, 62 Cal.4th at p. 230.) This is another
reason why SANDAG was required by both SB 375 and CEQA to elaborate on
why the plan‘s long-term emissions increases are harmful. When a regional
planner‘s EIR fails to sufficiently depict long-term impact, the problem trickles
down into other projects over the years, further compounding the harm to the
Legislature‘s climate stabilization goals.
Because this case is our court‘s first effort to address the relationship
between SB 375 and CEQA, it‘s worth emphasizing what is at stake in mapping
the intersection of these two statutes. SB 375 is part of a new generation of
California law that deals with the complex threat of greenhouse gas emissions.
And the parts of the statute at issue in this case specifically confront the role that
actors such as SANDAG — the regional planner for a sprawling metropolitan area
that millions of Californians call home — play in the generation of greenhouse
gases. To the extent climate change is the starkest environmental threat of our
time, SB 375 is one of this era‘s most important environmental statutes. CEQA,
meanwhile, has long stood as one of the state‘s most important classic
environmental statutes. Today‘s majority opinion is the first statement from this
court about how the duties created by each of these statutes relate to one another.
6
By ruling that the EIR in this case passes CEQA muster, the majority does harm
not only to CEQA but to SB 375 as well.
III.
The fundamental problem with SANDAG‘s plan is that it fails the exact
long-term environmental goal SB 375 was enacted to further. Climate change is
distinct from certain other types of environmental harm in that individual
contributions to the overall problem are both small and widespread. But rather
than simply accepting the widespread responsibility for greenhouse gas emissions
as a structural constraint limiting California‘s capacity to reduce emissions,
SB 375 calls on regional planners to coordinate a response, in the form of
centralized plans to reduce greenhouse gas emissions from a region‘s
transportation infrastructure. (See Gov. Code, § 65080, subd. (b)(2).) The
legislation begins by warning that the ―transportation sector is the single largest
contributor of greenhouse gases‖ in the state, producing nearly half of overall
greenhouse gas emissions. (Stats. 2008, ch. 728, § 1(a), p. 5065.) The Legislature
thus declared that ―greenhouse gas reductions from changed land use patterns and
improved transportation‖ will be ―necessary‖ to slowing climate change. (See id.,
§ 1(c).)
Though the EIR carefully occludes this problem, it nonetheless appears
SANDAG largely ignored SB 375‘s call. As is true statewide, vehicle emissions
comprise nearly half of the San Diego region‘s output of greenhouse gas. But
rather than confronting that problem in the manner SB 375 prescribes —
reductions in overall vehicle use — SANDAG proposes to increase vehicle
emissions in the long run. Crucially, this increase goes well beyond the effect of
population growth. SANDAG‘s regional transportation plan proposed to increase
both per capita greenhouse gas emissions and per capita daily vehicle miles
traveled between 2010 and 2050. Once SANDAG‘s plan is implemented, each
7
person in the San Diego region will on average be driving more every day and
generating more greenhouse gas than the region‘s inhabitants today. Needless to
say, the entire region will be producing far more greenhouse gas from
transportation in 2050 than today as well.
Increasing per capita greenhouse gas emissions and vehicle miles traveled
over the next 40 years cuts precisely against SB 375‘s mandate to dramatically
reduce greenhouse gas emissions and vehicle use in the long run. But because this
is a CEQA case, the ultimate question is not whether SANDAG‘s plan will
achieve some particular measure of environmental preservation. Rather, the
question is whether SANDAG explained the plan‘s environmental impact in
enough detail and with enough clarity that the public can make an informed
decision that the proposed changes are worth the long-term cost to the planet‘s
health, as well as understand the urgency of mitigating the harm. (See In re Bay–
Delta etc. (2008) 43 Cal. 4th 1143, 1162 (Bay–Delta) [―The purpose of an EIR is
to give the public and government agencies the information needed to make
informed decisions, thus protecting ‗ ―not only the environment but also informed
self-government.‖ ‘ ‖].) SANDAG‘s EIR fails on that score.
Even as SANDAG‘s plan contemplate, on careful inspection, four decades
of increased emission of greenhouse gases, its EIR obscures this problem in
several ways. For starters, the crucial fact that the plan will increase per capita
vehicle miles driven throughout the next 40 years does not appear to have been
included anywhere in the body of the EIR‘s cumulative impact analysis, which is
where most people are likely to focus their attention when considering the plan‘s
costs and benefits. Instead, SANDAG appears to have not mentioned this fact up
until it issued a response to the objections that the Attorney General filed to the
draft EIR. That response to objections triggered by the draft is buried in a nearly
700-page appendix to the EIR. As this court explained just a few months ago,
8
― ‗ ―[i]nformation ‗scattered here and there in EIR appendices,‘ or a report ‗buried
in an appendix,‘ is not a substitute for ‗[the] good faith reasoned analysis‘ ‘‘ ‘ ‖
that CEQA requires. (Banning Ranch, supra, 2 Cal.5th at p. 941.) Instead, the
statute requires for this information to ― ‗be presented in a manner calculated to
adequately inform the public and decision makers, who may not be previously
familiar with the details of the project.‘ ‖ (Ibid.)
But the problem with SANDAG‘s EIR is not simply that the agency failed
to mention the projected increases to per capita vehicle use until it responded to
outside comments. Even if this information were part of the impact analysis, the
EIR would still obscure the plan‘s long-term environmental harm. SANDAG‘s
EIR uses three significance criteria to depict greenhouse gas emissions under the
plan. Only two of these three criteria actually measure emissions levels. The
third, labeled GHG-3, addresses the Air Resources Board‘s statewide ―Scoping
Plan‖ and SANDAG‘s own ―Climate Action Strategy.‖ Neither of these
documents establishes specific emissions targets. Instead, they both focus on the
general strategies and policies that will be needed to reverse climate change. But
even for these strategies and policies, SANDAG‘s EIR misleads the public. First,
the statewide Scoping Plan specifically calls on regional planners to ―implement
sound land use and transportation policies to lower VMT [vehicle miles traveled]
and shift travel modes.‖ The plan also predicts that over the next few decades
―[r]egional land use and transportation strategies would grow in importance and
reverse the trend of per-capita vehicle miles traveled.‖ Nowhere does the Scoping
Plan support SANDAG‘s implicit assumptions that others will conveniently make
up for emissions increases from increased driving. To the contrary: the Scoping
Plan expects regional planners to reduce vehicle traffic.
SANDAG‘s Climate Action Strategy — issued in the same year as the EIR
challenged here — similarly lists ―Reduce Total Miles of Vehicle Travel‖ as
9
―Goal 1‖ in a list of ―land use and transportation-related policy options available
to help SANDAG‖ ―achieve short-term (2020) and longer-term (2035 and 2050)
goals for greenhouse emissions.‖ The Climate Action Strategy further observed
that ―[s]tate-level efforts to reduce greenhouse gas emissions . . . will not succeed
if the amount of driving — also known as vehicle miles traveled — continues to
follow past trends and rates of increase‖ and warned that improvements in fuel
technology alone ―will not achieve the long-term 2050 goal for greenhouse gas
reduction unless per capita vehicle miles traveled in the state is reduced about five
percent below the baseline 2005 level.‖ Indeed, the Climate Action Strategy even
proposed strategies for reducing vehicle use, explaining that ―[l]owering vehicle
miles traveled means providing high-quality opportunities to make trips by
alternative means to driving alone . . . and by shortening vehicle trips that are
made.‖
Which brings us to the elephant in the room –– one SANDAG‘s EIR
manages to leave remarkably occluded. Given the relative clarity of statewide
statutory goals for greenhouse gas emissions and the nature of SANDAG‘s
responsibilities under CEQA, there is a jarring disconnect between the projected
impact of SANDAG‘s plan and the reference points that GHG-3 uses to measure
the plan‘s harm. Whereas the Air Resource Board‘s Scoping Plan and
SANDAG‘s Climate Action Strategy both recognize that the San Diego region
needs to reduce vehicle use and shift travel modes in the long run, SANDAG‘s
plan projects decades of per capita increases. But instead of acknowledging this
problem –– the elephant in the room –– the EIR states the ―[t]he Scoping Plan
does not have targets established beyond 2020‖ and claims that the regional
transportation plan ―would be aligned with‖ and ―help to implement the goals and
policies‖ of the Climate Action Strategy. SANDAG‘s attempt to ignore what it
recognized just months earlier in its Climate Action Strategy is troubling, since it
10
lets SANDAG make reassuring promises in an aspirational strategy document
while at the same time investing billions in contrary policies whose impact the
EIR in this case obscured. An EIR that ignores the authoring agency‘s own
promises to the public does not contribute to ―informed self-government‖ in the
way CEQA contemplates. (Bay–Delta, supra, 43 Cal.4th at p. 1162.)
Just as misleading is SANDAG‘s presentation of the two significance
criteria in the EIR that quantify emissions increases. GHG-2 is the only one of
those two criteria that analyzes greenhouse gas impact for the plan‘s entire
lifetime, rather than just a short-term window before the real harm sets in. This is
a problem because SANDAG‘s plan deviates from the state‘s long-term goals
even as the plan technically meets short-term emissions targets. According to the
Attorney General and other challengers, even this short-term good news is not due
to anything SANDAG is doing or building. Rather, it comes from the success of
the state‘s new vehicle efficiency regulations as well as the lingering effects of the
economic recession. And sure enough, as construction under SANDAG‘s plan
sets in, emissions will increase. Because GHG-2 ends real analysis at 2035
though, it does not depict the harm of the plan‘s later phases. Instead, SANDAG
presents a rosy picture of limited immediate harm, even while it marches the
region toward a much worse future. SANDAG needed to communicate this
problem better. A future in which the San Diego region‘s transportation sector
emits more greenhouse gas than today — both per capita and cumulatively — is at
odds with the state‘s aim to reduce vehicle use and cut greenhouse gas emissions
in the long run, no matter if the plan meets short-term reduction targets.
As for GHG-1, the sole criteria that measures long-term impact in more
detail, it too fails to depict the extent of the plan‘s harm. GHG-1 compares 2010
emissions levels with projections for 2020, 2035, and 2050. The plan first notes
that 2020 emissions will be lower than 2010 levels and thus notes that the plan
11
will not be harmful in that timeframe. Again, this may have more to do with
statewide vehicle regulations than any of SANDAG‘s choices. And more to the
point, the state‘s climate plan is not to reduce transportation emissions for a few
years and then give up and begin to increase them again. But that is exactly what
SANDAG is proposing. By 2035, as the infrastructure changes take hold, the
region‘s transportation emissions will begin to surpass 2010 levels. That increase
becomes more dramatic by 2050, once, in the EIR‘s words, ―most of the highway,
transit, and . . . other infrastructure projects, [will] be in place and operational in
accordance with the [plan].‖ The EIR thus notes that the plan will have ―a
significant impact‖ by that year.
While SANDAG is correct to note that 2050 greenhouse gas output will be
―significant,‖ the EIR never explains the extent and impact of the plan‘s steep
emissions increase. After all, SANDAG‘s plan does more than simply fall short of
statewide emissions reduction goals. Rather, the plan trends in the opposite
direction and thus makes those goals difficult to achieve, with no analysis in the
EIR of just how difficult. The majority observes that ―the basis of the plaintiffs‘
. . . critique of the EIR . . . is apparent in the EIR itself.‖ (Maj. opn., supra, at p.
20.) Yet CEQA‘s provisions and purpose are designed to facilitate deliberation by
empowering the public to understand environmental consequences, and not simply
to ensure that an expert reading an EIR could conceivably connect the dots. (See
California Building Industry Assn. v. Bay Area Air Quality Management Dist.
(2015) 62 Cal. 4th 369, 388.) In the absence of additional explanation and context,
the public simply has no way to understand what it means for a raw emissions
quantity (in this case, 33.65 million metric tons of carbon dioxide equivalent for
2050 compared to 28.85 for 2010) to be ―significant.‖ The EIR never compares
the plan‘s increased greenhouse gas output with the emissions reductions that both
scientific consensus and state policy have deemed necessary to stabilize the
12
climate. And it never explains whether or to what extent long-term emissions
reduction goals will remain feasible if SANDAG builds what it has proposed. The
EIR‘s cursory treatment of 2050 impact — with no meaningful effort to explain
how the emissions increase is significant — fails to depict the plan‘s
incompatibility with the goals recognized in SB 375 and in SANDAG‘s own
Climate Action Strategy.
SANDAG was not required to reduce emissions at precisely the same rate
that the entire state aims to do the same. (Cf. Center for Biological Diversity,
supra, 62 Cal.4th at p. 226 [noting that ―nothing . . . cited in the administrative
record indicates the required percentage reduction from business as usual is the
same for an individual project as for the entire state population and economy‖].)
But it needed to explain better the danger of increasing vehicle miles traveled and
greenhouse gas emissions (both total and per capita), in defiance of the statutory
call to dramatically reduce those contributors to climate change. Long-term plans
require long-term impact analysis. (See Vineyard Area Citizens for Responsible
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 441.) Instead, this
one highlights the plan‘s limited short-term damage and then fails to contextualize
or explain the cause and extent of long-term damage. Difficult though it may be to
hide the elephant in the room, the EIR manages time and again to obscure the
problems SANDAG‘s plan would beget.
IV.
California law makes greenhouse gas emission reduction a priority and
embraces an understanding of metropolitan governance that places regional
planners in a pivotal position to support that long-term goal. Now that SB 375 and
other statutes clearly establish both the statewide goal of reducing greenhouse gas
emissions and place regional planners in such a crucial role, SANDAG and other
regional planning agencies have a duty under CEQA to explain where and how the
13
regional transportation plans they issue pursuant to SB 375 disadvantage that goal.
The first problem with SANDAG failing that duty in this case is that the public
was left with little sense of how harmful the region‘s continual emissions increases
will be in the long run. A second, related problem is that this shortsighted
discussion of environmental impact limited the EIR‘s analysis of potential
alternatives and mitigation. The majority and I seem to agree that SANDAG and
other regional planning authorities have a responsibility to ―ensure that CEQA
analysis stays in step with evolving scientific knowledge and state regulatory
schemes.‖ (Maj. opn., supra, at p. 24.) The crux of my concern here is that it is
precisely this responsibility SANDAG failed to fulfill. This failure distorts both
the public‘s deliberation about the plan and the agency‘s proposed efforts to
mitigate the harm of the projected emissions increases.
CEQA‘s environmental protection comes not only from requiring public
officials to disclose environmental impact but also from analysis of how harmful
impact can be mitigated or avoided. This ―mitigation and alternatives discussion
forms the core of an EIR.‖ (Bay–Delta, supra, 43 Cal.4th at p. 1162.) While the
validity of SANDAG‘s mitigation and alternatives analysis was not the question
we granted review on, that issue is not fully separable from the question of
whether SANDAG did enough to depict the environmental impact of its plan. An
EIR‘s failure to explain the precise nature and extent of that harm can affect —
and in this case, limit — the alternative measures that the agency offers to the
public. (See, e.g., Lotus v. Department of Transportation (2014) 223 Cal. App. 4th
645, 658 [―The failure of [an] EIR to separately identify and analyze the
significance of the impacts . . . precludes both identification of potential
environmental consequences arising from the project and also thoughtful analysis
of the sufficiency of measures to mitigate those consequences.‖].)
14
SANDAG was required under CEQA to explain feasible measures for
mitigating or avoiding the steep emissions increases (both per capita and
cumulative) that its plan proposed. (See Pub. Resources Code, § 21601.)
Sometimes it proves difficult for a reviewing court to identify what alternative
measures an EIR could in theory have compared to the proposed plan. But the
amicus curiae briefing in this case explains that the EIR considered no plans to
prioritize mass transit over highway lane construction. This includes two
alternative plans — both proposed during the CEQA process by members of the
public — that would have led to much lower vehicle miles traveled and overall
greenhouse gas emissions while accommodating the region‘s projected population
growth. The EIR never analyzed an alternative plan of that kind. Instead, five of
the six alternatives analyzed in the EIR produce either the same or more
greenhouse gas emissions as SANDAG‘s plan. And the one alternative plan that
compares favorably to SANDAG‘s plan would still produce more greenhouse gas
emissions in 2050 than the region emitted in 2010. Put simply, despite the
mandate in SB 375 that regional planners reduce greenhouse gas emissions,
SANDAG refused to consider any future scenario where the region‘s
transportation infrastructure emits less greenhouse gas than today. Part of why the
agency could get away with this halfhearted — if not highly misleading —
mitigation analysis is that it downplayed the impact of increasing greenhouse gas
emissions into 2050. As the Court of Appeal found, SANDAG‘s failure to convey
the extent of its long-term harm made it easy for the agency to ignore alternatives
to the plan‘s steep emissions increases.
V.
Together, CEQA and the state‘s greenhouse gas emission statutes establish
the legal structure for how the state is to contend with climate change, and how it
may balance the considerable benefits of development with the costs to the
15
planet‘s health. In providing that framework, the statutes leave regional planners
an important measure of discretion. But there are limits on that discretion. Where
statutes establish environmental goals as clearly as SB 375 and the rest of the
state‘s climate change legislation, CEQA requires analysis of whether a project
will work ―to the disadvantage of‖ those imperatives. (Pub. Resources Code,
§ 21083, subd. (b)(1).) At a minimum, SANDAG had to explain how its regional
transportation plan affects the state‘s long-term goal of reducing greenhouse gas
emissions from transportation infrastructure.
No one is asking SANDAG to singlehandedly prevent California from
blowing through its greenhouse gas emissions limits. But the agency was given a
specific role in the state‘s coordinated climate change agenda: to reduce
transportation emissions from the San Diego region. Under SANDAG‘s plan and
according to its projections, the opposite will occur. While the agency is for the
most part entitled to make that choice, it does not have discretion to downplay the
consequence — one requiring blunter acknowledgement as the elephant in the
room that it is. If SANDAG plans to permit hundreds of billions of dollars to be
spent in pursuit of a plan that departs so starkly from scientific and political
consensus about the emissions decreases needed to avert climate catastrophe, it
must explain this divergence in sufficient detail for the public to recognize the
long-term harm that will unfold in its name. SANDAG‘s EIR is too vague and
shortsighted to fulfill that duty. In excusing this failure, the majority heightens the
risk that other regional planners will shirk their responsibilities, too.
CUÉLLAR, J.
16
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Cleveland National Forest Foundation v. San Diego Association of Governments
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 231 Cal. App. 4th 1056
Rehearing Granted
__________________________________________________________________________________
Opinion No. S223603
Date Filed: July 13, 2017
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Timothy B. Taylor
__________________________________________________________________________________
Counsel:
Kevin P. Bundy; Cory J. Briggs Shute, Mihaly & Weinberger, Rachel B. Hooper, Amy J. Bricker, Erin B.
Chalmers; Daniel P. Selmi; Coast Law Group and Marco Gonzalez for Plaintiffs and Appellants.
Frank G. Wells Environmental Law Clinic UCLA School of Law, Cara Horowitz and Jesse Lueders for
Climate Scientists Dennis D. Baldocchi, Robert A. Eagle, Marc Fischer, John Harte, Mark Z. Jacobson,
James C. McWilliams, Aradhna K. Tripati and Anthony L. Westerling as Amici Curiae on behalf of
Plaintiffs and Appellants.
Michelle W. Anderson, Deborah A. Sivas and Luke W. Cole for League of Women Voters of California,
Audubon California, Bike San Diego, California Native Plant Society, California Wildlife Foundation,
Center on Race, Poverty and the Environment, Climate Action Campaign, Coalition for Clean Air,
Committee for Green Foothills, Communities for a Better Environment, Defenders of Wildlife,
Environmental Defense Center, Environment Now, Environmental Protection Information Center, Food &
Water Watch, Friends of Harbors, Beaches and Parks, Greenbelt Alliance, High Sierra Rural Alliance, Hills
for Everyone, Landwatch Monterey County, League to Save Lake Tahoe, Marin Conservation League,
Mono Lake Committee, Mountain Area Preservation, Napa County Farm Bureau, SanDiego350, Save
Mount Diablo, Save the Bay, Sierra Nevada Alliance, Sierra Watch and Solano County Orderly Growth
Committee as Amici Curiae on behalf of Plaintiffs and Appellants.
Law Offices of Stephan C. Volker, Stephan C. Volker, Alexis E. Krieg and Daniel P. Garrett-Steinman for
Backcountry Against the Dump, Inc., as Amicus Curiae on behalf of Plaintiffs and Appellants.
Julie D. Wiley; Cox, Castle & Nicholson, Michael H. Zischke, Andrew B. Sabey, Linda C. Klein; The
Sohagi Law Group, Margaret M. Sohagi and Philip A. Seymour for Defendants and Appellants.
M. Reed Hopper and Jonathan Wood for Pacific Legal Foundation as Amicus Curiae on behalf of
Defendants and Appellants.
Pages 2 – S223603 – counsel continued
Counsel:
Thomas Law Group and Tina Thomas for California Infill Builders Federation and San Diego Housing
Commission as Amici Curiae on behalf of Defendants and Appellants.
Richard M. Frank, Jayni Foley Hein and Ethan N. Elkind for The Council of Infill Builders and The
Planning and Conservation League as Amici Curiae on behalf of Defendants and Appellants.
Miller & Owen, Nancy C. Miller and Jennifer V. Gore for Building Industry Legal Defense Foundation,
American Council of Engineering Companies, Associated General Contractors of California, Associated
General Contractors of America, San Diego Chapter, California Building Industry Association, California
Chamber of Commerce, California Construction and Industrial Materials Association, Construction
Industry Air Quality Coalition, Golden State Gateway Coalition, Los Angeles Chamber of Commerce, San
Gabriel Valley Economic Partnership and Southern California Contractors Association as Amici Curiae on
behalf of Defendants and Appellants.
Remy Moose Manley, Whitman F. Manley, Laura M. Harris and Christopher L. Stiles for California
Association of Councils of Governments, Southern California Association of Governments, Metropolitan
Transportation Commission, League of California Cities, California State Association of Counties, Self-
Help Counties Coalition, American Planning Association-California Chapter, Association of
Environmental Professionals and Riverside County Transportation Commission as Amici Curiae on behalf
of Defendants and Appellants.
Kamala D. Harris and Xavier Becerra, Attorneys General, Edward C. DuMont, State Solicitor General,
Mark J. Breckler, Chief Assistant Attorney General, Sally Magnani, Assistant Attorney General, Janill L.
Richards, Principal Deputy State Solicitor General, and Timothy R. Patterson, Deputy Attorney General,
for Intervener and Appellant.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Kevin P. Bundy
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612
(510) 844-7100
Michael H. Zischke
Cox, Castle & Nicholson
50 California Street, Suite 3200
San Francisco, CA 94111
(415) 262-5100
Janill L. Richards
Principal Deputy State Solicitor General
1515 Clay Street, 20th Floor
Oakland, CA 94612-0550
(510) 622-2130