California Court of Appeals, Fourth District, First Division
CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants,
SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants: THE PEOPLE, Intervener and Appellant. CREED-21 et al, Plaintiffs and Appellants, SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants THE PEOPLE, Intervenor and Appellant.
[REVIEW GRANTED BY CAL. SUPREME COURT]
[As Modification on December 16, 2014]
APPEAL from a judgment of the Superior Court of San Diego County, Nos. 37-2011-00101593-CU-TT-CTL, 37-2011-00101660-CU-TT-CTL Timothy B. Taylor, Judge.
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Shute, Mihaly & Weinberger, Rachel B. Hooper, Amy J. Bricker, Erin B. Chalmers; Daniel P. Selmi; Coast Law Group, Marco Gonzalez; Kevin P. Bundy; and Cory J. Briggs for Plaintiffs and Appellants.
The Sohagi Law Group, Margaret M. Sohagi, Philip A. Seymour; and Julie D. Wiley for Defendants and Appellants.
Kamala D. Harris, Attorney General, Timothy R. Patterson and Janill L. Richards, Deputy Attorneys General, for Intervener and Appellant.
McCONNELL, P. J.
After the San Diego Association of Governments (SANDAG) certified an environmental impact report (EIR) for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (transportation plan), CREED-21 and Affordable Housing Coalition of San Diego filed a petition for writ of
mandate challenging the EIR's adequacy under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). Cleveland National Forest Foundation and the Center for Biological Diversity filed a similar petition, in which Sierra Club and the People later joined.
The superior court granted the petitions in part, finding the EIR failed to carry out its role as an informational document because it did not analyze the inconsistency between the state's policy goals reflected in Executive Order S-3-05 (Executive Order) and the transportation plan's greenhouse gas emissions impacts after 2020. The court also found the EIR failed to adequately address mitigation measures for the transportation plan's greenhouse gas emissions impacts. Given these findings, the court declined to decide any of the other challenges raised in the petitions.
SANDAG appeals, contending the EIR complied with CEQA in both respects. Cleveland National Forest Foundation and Sierra Club (collectively, Cleveland) cross-appeal, contending the EIR further violated CEQA by failing to analyze a reasonable range of project alternatives, failing to adequately analyze and mitigate the transportation plan's air quality impacts, and understating the transportation plan's impacts on agricultural lands. The People separately cross-appeal, contending the EIR further violated CEQA by failing to adequately analyze and mitigate the transportation plan's impacts from particulate matter pollution. We conclude the EIR failed to comply with CEQA in all identified respects. We, therefore, modify the judgment to incorporate our decision on the cross-appeals and affirm. In doing so, we are upholding the right of the public and our public officials to be well informed about the potential environmental consequences of their planning decisions, which CEQA requires and the public deserves, before approving long-term plans that may have irreversible environmental impacts.
General Role of an EIR
"The Legislature has made clear that an EIR is 'an informational document' and that '[t]he purpose of an environmental impact report is to provide public agencies and the public in general with detailed information
about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.' " (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391 [253 Cal.Rptr.426, 764 P.2d 218] (Laurel Heights): see Guidelines, § 15002.) "The EIR is the primary means of achieving... the policy of this state to 'take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.' [Citation.] 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.)
Role of a Program EIR
The EIR at issue in this case is a program EIR. A "program EIR" is "an EIR which may be prepared on a series of actions that can be characterized as one large project" and are related in specified ways. (Guidelines, § 15168, subd. (a); see Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 343 [175 Cal.Rptr.3d 145] (Atherton).) The use of a program EIR can: "(1) Provide an occasion for a more exhaustive consideration of effects and alternatives than would be practical in an EIR on an individual action, [¶] (2) Ensure consideration of cumulative impacts that might be slighted in a case-by-case analysis, [¶] (3) Avoid duplicative reconsideration of basic policy considerations, [¶] (4) Allow the lead agency to consider broad policy alternatives and program wide mitigation measures at an early time when the agency has greater
flexibility to deal with basic problems or cumulative impacts, [and] [¶] (5) Allow reduction in paperwork." (Guidelines, § 15168, subd. (b); see Atherton, supra, at pp. 343-344.)
"[W]here an agency prepares a 'program EIR' for a broad policy document..., Guidelines section 15168, subdivision (c)(2) allows agencies to limit future environmental review for later activities that are found to be 'within the scope' of the program EIR." (Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 196 [164 Cal.Rptr.3d 274]; accord, Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 801-802 [173 Cal.Rptr.3d 794].) Further environmental review for such activities is required only where "(a) Substantial changes are proposed in the project which will require major revisions of the [EIR]. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the [EIR]. [¶] (c) New information, which was not known and could not have been known at the time the [EIR] was certified as complete, becomes available." (§ 21166; see May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1325-1326 [159 Cal.Rptr.3d 310]; accord, Citizens Against Airport Pollution v. City of San Jose, supra, at p. 802.)
Because of these limitations, once an EIR is finally approved, a court generally cannot compel an agency to perform further environmental review for any known or knowable information about the project's impacts omitted from the EIR. (Citizens Against Airport Pollution v. City of San Jose, supra, 227 Cal.App.4th at pp. 807-808; Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 531-532 [129 Cal.Rptr.3d 512].) A court also generally cannot compel an agency to perform further environmental review if new regulations or guidelines for evaluating the project's impacts are adopted in the future. (Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1320 [154 Cal.Rptr.3d 682]; Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, 1605 [45 Cal.Rptr.2d 822].)
Hence, "[d]esignating an EIR as a program EIR... does not by itself decrease the level of analysis otherwise required in the EIR. 'All EIR's must cover the same general content. [Citations.] The level of specificity of an EIR is determined by the nature of the project and the "rule of reason" [citation], rather than any semantic label accorded to the EIR.' " (Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 533 [98 Cal.Rptr.2d 334].) Consequently, in considering a challenge to a program EIR, "it is unconstructive to ask whether the EIR provided 'project-level' as opposed to 'program-level' detail and analysis. Instead, we focus on
whether the EIR provided 'decision makers with sufficient analysis to intelligently consider the environmental consequences of [the] project.' " (Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1052 [174 Cal.Rptr.3d 363].)
Standard of Review in CEQA Cases
"[I]n a CEQA case, as in other mandamus cases, [our review] is the same as the trial court's: [we review] the agency's action, not the trial court's decision; in that sense [our review] is de novo. (Vineyard, supra, 40 Cal.4th at p. 427.) However, our inquiry extends " 'only to whether there was a prejudicial abuse of discretion.' ([§ 21168.5].)" (Vineyard, at p. 426.)
"[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, 'scrupulously enforc[ing] all legislatively mandated CEQA requirements' [citation], we accord greater deference to the agency's substantive factual conclusions." (Vineyard, supra, 40 Cal.4th at p. 435.) "In evaluating an EIR for CEQA compliance, then, [we] must adjust [our] scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts. For example, where an agency failed to require an applicant to provide certain information mandated by CEQA and to include that information in its environmental analysis, ... the agency 'failed to proceed in the manner prescribed by CEQA.' [Citations.] In contrast, in a factual dispute over 'whether adverse effects have been mitigated or could be better mitigated' [citation], the agency's conclusion would be reviewed only for substantial evidence." (Ibid.)
In 2005 then Governor Arnold Schwarzenegger issued the Executive Order establishing greenhouse gas emissions reduction targets for California. Specifically, the Executive Order required reduction of greenhouse gas emissions to 2000 levels by 2010, to 1990 levels by 2020, and to 80 percent below 1990 levels by 2050.
The Legislature subsequently enacted the California Global Warming Solutions Act of 2006 (Health & Saf. Code, § 38500 et seq.), referred to by the parties as Assembly Bill No. 32 (2005-2006 Reg. Sess.) (Assembly Bill 32). Among its provisions, Assembly Bill 32 tasked the State Air Resources Board (CARB) with determining the state's 1990 greenhouse gas emissions level and approving an equivalent emissions level to be achieved by 2020. (Health & Saf. Code, § 38550.)
The Legislature intended for the emissions limit to "continue in existence and be used to maintain and continue reductions in emissions of greenhouse gases beyond 2020." (Health & Saf. Code, § 38551, subd. (b).) The Legislature also intended for the emissions limit to work in concert with other environmental protection laws, expressly stating Assembly Bill 32 does not "relieve any person, entity, or public agency of compliance with other applicable federal, state, or local laws or regulations, including state air and water quality requirements, and other requirements for protecting public health or the environment." (Health & Saf. Code, § 38592, subd. (b).) The Legislature further intended for "the Climate Action Team established by the Governor to coordinate the efforts set forth under [the Executive Order]
continue its role in coordinating overall climate policy." (Health & Saf. Code, § 38501, subd. (i).) Thus, the Legislature, through Assembly Bill 32, effectively endorsed the Executive Order and its overarching goal of ongoing greenhouse gas emissions reductions as state climate policy. (See, e.g., Professional Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, 1000, 1043-1044, 1051 [116 Cal.Rptr.3d 480, 239 P.3d 1186] [subsequent legislative endorsement operates to ratify and validate provisions in Executive Order].)
Bolstering this conclusion, the Legislature also enacted the Sustainable Communities and Climate Protection Act of 2008 (Stats. 2008, ch. 728 p. 5065; Stats. 2009, ch. 354, § 5), referred to by the parties as Senate Bill No. 375 (2007-2008 Reg. Sess.) (Senate Bill 375). In enacting Senate Bill 375, the Legislature found automobiles and light trucks are responsible for 30 percent of the state's greenhouse gas emissions. (Stats. 2008, ch. 728, § 1(a), p. 5065.) Accordingly, Senate Bill 375 directed CARB to develop regional greenhouse gas emission reduction targets for automobiles and light trucks for 2020 and 2035. (Gov. Code, § 65080, subd. (b)(2)(A).) The targets established by CARB for the San Diego region require a 7 percent per capita reduction in carbon dioxide emissions by 2020 and a 13 percent per capita reduction by 2035 (compared to a 2005 baseline). CARB must update these targets every eight years until 2050, and may update the targets every four years based on changing factors. (Gov. Code, § 65080, subd. (b)(2)(A)(iv).)
The transportation plan, which SANDAG must prepare every four years (23 U.S.C. § 134(c); Gov. Code, § 65080, subds. (a) & (d)), "serves as the long-range plan designed to coordinate and manage future regional transportation improvements, services, and programs among the various agencies operating within the San Diego region." In enacting Senate Bill 375, the Legislature found the state's emissions reductions goals cannot be met without improved land use and transportation policy. Consequently, Senate Bill 375 (Gov. Code, § 65080, subd. (b)(2)(B)) mandates the transportation plan include a sustainable communities strategy to, as the EIR states, "guide the San Diego region toward a more sustainable future by integrating land use, housing, and transportation planning to create more sustainable, walkable, transit-oriented, compact development patterns and communities that meet [CARB's greenhouse gas] emissions targets for passenger cars and light-duty trucks." Once the sustainable communities strategy is approved, some transit priority projects consistent with the strategy are exempt from CEQA requirements. Other transit priority projects, residential projects, and
mixed-use projects consistent with the strategy are subject to streamlined CEQA requirements. (§§ 21155-21155.4, 21159.28; Guidelines, § 15183.3.)
Greenhouse Gas Emissions Impacts Analysis
The EIR acknowledged the transportation plan's implementation would lead to an overall increase in greenhouse gas emissions levels; however, the EIR did not analyze whether this consequence conflicted with the Executive Order, or would impair or impede the achievement of the Executive Order's goals. As it did in the EIR and below, SANDAG contends on appeal its decision to omit an analysis of the transportation plan's consistency with the Executive Order (consistency analysis) did not violate CEQA because CEQA does not require such a consistency analysis. Whether the EIR's analysis complies with CEQA depends on whether the analysis reflects a reasonable, good faith effort to disclose and evaluate the transportation plan's greenhouse gas emissions impacts. We review the sufficiency of the analysis in light of what is reasonably foreseeable. (Guidelines, § 15151; City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 386 [145 Cal.Rptr.3d 567] (City of Maywood); City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 897-898 [98 Cal.Rptr.3d 137] (City of Long Beach).) As the focus of SANDAG's contention is whether the EIR's analysis was reasonable and not whether the EIR violated a specific statute or regulation, the contention presents a predominately factual question and our review is for substantial evidence. (Vineyard, supra, 40 Cal.4th at p. 435.)
Substantial evidence for CEQA purposes is "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (Guidelines, § 15384, subd. (a).) Substantial evidence includes "facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." (Id., subd. (b).) It does not include argument, speculation, unsubstantiated opinion or narrative, clearly erroneous or inaccurate evidence, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment. (Id., subd. (a).)
"In reviewing for substantial evidence, [we] 'may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable, ' for, on factual questions, our task 'is not to weigh conflicting evidence and determine who has the better argument.' " (Vineyard, supra, 40 Cal.4th at p. 435; Laurel Heights, supra, 47 Cal.3d at p. 393.) Rather, we must resolve any reasonable doubts and any conflicts in
the evidence in favor of the agency's findings and decision. (Laurel Heights, at p. 393; Citizens for Responsible Equitable Environmental Development v. City of San Diego, supra, 196 Cal.App.4th at pp. 522-523.)
In this case, SANDAG's decision to omit an analysis of the transportation plan's consistency with the Executive Order did not reflect a reasonable, good faith effort at full disclosure and is not supported by substantial evidence because SANDAG's decision ignored the Executive Order's role in shaping state climate policy. The Executive Order underpins all of the state's current efforts to reduce greenhouse gas emissions. As SANDAG itself noted in its Climate Action Strategy, the Executive Order's 2050 emissions reduction goal "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." (Italics added.)
Indeed, the Executive Order led directly to the enactment of Assembly Bill 32, which validated and ratified the Executive Order's overarching goal of ongoing emissions reductions, recognized the Governor's climate action team as the coordinator of the state's overall climate policy, and tasked CARB with establishing overall emissions reduction targets for 2020 and beyond. The Executive Order also led directly to the enactment of Senate Bill 375. which tasked CARB with establishing regional automobile and light truck emissions reduction targets for 2020 and 2035. CARB is required to revisit these targets every eight years through 2050, or sooner if warranted by changing circumstances. (Gov. Code, § 65080, subd. (b)(2)(A)(iv).) Thus, the Executive Order, with the Legislature's unqualified endorsement, will continue to underpin the state's efforts to reduce greenhouse gas emissions throughout the life of the transportation plan.
The EIR's failure to analyze the transportation plan's consistency with the Executive Order, or more particularly with the Executive Order's overarching goal of ongoing greenhouse gas emissions reductions, was therefore a failure to analyze the transportation plan's consistency with state climate policy. As evidence in the record indicates the transportation plan would actually be inconsistent with state climate policy over the long term, the omission deprived the public and decision makers of relevant information about the transportation plan's environmental consequences. The omission was prejudicial because it precluded informed decisionmaking and public participation. (Smart Rail, supra, 57 Cal.4th at p. 463; City of Long Beach, supra, 176 Cal.App.4th at p. 898.)
SANDAG contends the EIR cannot analyze the transportation plan's consistency with the Executive Order because there is no statute or regulation translating the Executive Order's goals into comparable, scientifically based emissions reduction targets. However, we do not agree the lack of such
targets precludes the EIR from performing a meaningful consistency analysis in this instance. "Drafting an EIR... necessarily involves some degree of forecasting. While foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can." (Guidelines, § 15144.) Although SANDAG may not know precisely what future emissions reduction targets the transportation plan will be required to meet, it knows from the information in its own Climate Action Strategy the theoretical emissions reduction targets necessary for the region to meet its share of the Executive Order's goals. It also knows state climate policy, as reflected in the Executive Order and AB 32, requires a continual decrease in the state's greenhouse gas emissions and the transportation plan after 2020 produces a continual increase in greenhouse gas emissions. With this knowledge, SANDAG could have reasonably analyzed whether the transportation plan was consistent with, or whether it would impair or impede, state climate policy.
SANDAG's attempts to disavow its responsibility for performing this analysis are unavailing. The Legislature specifically found reducing greenhouse gas emissions cannot be accomplished without improved land use and transportation policy. Accordingly, the transportation plan plays both a necessary and important role in achieving state climate policy. By failing to adequately inform the public and decision makers the transportation plan is inconsistent with state climate policy, the EIR deterred the decision makers from devising and considering changes to favorably alter the trajectory of the transportation plan's post-2020 greenhouse gas emissions. When the decision makers are inevitably faced with post-2020 requirements aligned with state climate policy, their task of complying with these requirements will be more difficult and some opportunities for compliance may be lost. As SANDAG explained in its Climate Action Strategy, "Once 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." In this regard, the EIR falls far short of being "an 'environmental "alarm bell" whose purpose it is to alert the public and its responsible officials to environmental changes before they have reach ecological points of no return.' " (Laurel Heights, supra, 47 Cal.3d at p. 392.) It also falls far short of " 'demonstrat[ing] to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its actions.' " (Ibid.)
We are likewise unpersuaded by SANDAG's assertion the EIR's analysis of the transportation plan's greenhouse gas emissions impacts fully complies with CEQA because it utilized significance thresholds specified in Guidelines section 15064.4, subdivision (b). This Guideline states in relevant part: "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. Such requirements must be adopted by the relevant public agency through a public review process and must reduce or mitigate the project's incremental contribution of greenhouse gas emissions. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding compliance with the adopted regulations or requirements, an EIR must be prepared for the project." (Guidelines, § 15064.4, subd. (b), italics added.)
Although this Guideline specifies three means of determining whether a project's greenhouse gas emissions impacts are significant, the "among others" qualifying language indicates these means are not exclusive. Moreover, "the fact that a particular environmental effect meets a particular threshold cannot be used as an automatic determinant that the effect is or is not significant... a threshold of significance cannot be applied in a way that would foreclose the consideration of other substantial evidence tending to show the environmental effect to which the threshold relates might be significant." (Protect
the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th
1099, 1109 [11 Cal.Rptr.3d 104] (Amador).) Consequently, the use of the Guideline's thresholds does not necessarily equate to compliance with CEQA, particularly where, as here, the failure to consider the transportation plan's consistency with the state climate policy of ongoing
emissions reductions reflected in the Executive Order frustrates the state climate policy and renders the EIR fundamentally misleading.
We are also unpersuaded by SANDAG's assertion it was not required to analyze the transportation plan's consistency with the state climate policy reflected in the Executive Order because SANDAG has broad discretion to select the criteria it uses to determine the significance of the transportation plan's impacts. While we agree SANDAG has such discretion (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 624 [157 Cal.Rptr.3d 240]), SANDAG abuses its discretion if it exercises it in a manner that causes an EIR's analysis to be misleading or without informational value. (See Smart Rail, supra, 57 Cal.4th at pp. 445, 457.) "A lead agency cannot avoid finding a potentially significant effect on the environment by rotely applying standards of significance that do not address that potential effect." (Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, 717 [177 Cal.Rptr.3d 677], citing Amador, supra, 116 Cal.App.4th at p. 1111.)
By disregarding the Executive Order's overarching goal of ongoing emissions reductions, the EIR's analysis of the transportation plan's greenhouse gas emissions makes it falsely appear as if the transportation plan is furthering state climate policy when, in fact, the trajectory of the transportation plan's post-2020 emissions directly contravenes it. "[O]mitting material necessary to informed decisionmaking and informed public participation" subverts the purposes of CEQA and "precludes both identification of potential environmental consequences arising from the project and also thoughtful analysis of the sufficiency of measures to mitigate those consequences." (Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645, 658 [167 Cal.Rptr.3d 382].) Such an omission is particularly troubling where, as here, the project under review involves long-term, planned expenditures of billions of taxpayer dollars. No one can reasonably suggest it would be prudent to go forward with planned expenditures of this magnitude before the public and decision makers have been provided with all reasonably available information bearing on the project's impacts to the health, safety, and welfare of the region's inhabitants. We, therefore, conclude SANDAG prejudicially abused its discretion by omitting from the EIR an analysis of the transportation plan's consistency with the state climate policy, reflected in the Executive Order, of continual greenhouse gas emissions reductions.
Mitigation of Greenhouse Gas Emissions Impacts
Although the EIR did not analyze the transportation plan's consistency with the state climate policy reflected in the Executive Order, the EIR nevertheless, analyzed the transportation plan's greenhouse gas emissions impacts against three significance thresholds for each of the planning years 2020, 2035, and 2050. Under the first threshold, the EIR posited the transportation plan's impacts would be significant if the transportation plan's implementation were to increase greenhouse gas emissions compared to existing, or 2010, conditions. Under the second threshold, the EIR posited the transportation plan's impacts would be significant if the transportation plan's implementation conflicted with CARB's regional automobile and light truck emissions reductions targets. Under the third threshold, the EIR stated the transportation plan's impacts would be significant if the transportation plan's implementation conflicted with either CARB's Climate Change Scoping Plan (Scoping Plan) or SANDAG's own Climate Action Strategy.
The EIR concluded the transportation plan's greenhouse gas emissions impacts would be significant under the first significance threshold for the 2035 and 2050 planning years because the emissions would be higher in those planning years than in 2010. The EIR concluded the greenhouse gas emissions impacts would be less than significant in all other respects analyzed.
To mitigate the significant greenhouse gas emissions impacts found under the first threshold, the EIR identified three mitigation measures it deemed feasible. The first mitigation measure required SANDAG to update its future regional comprehensive plans, regional transportation plans, and sustainable communities plans to incorporate policies and measures leading to reduced greenhouse gas emissions. The second mitigation measure encouraged the San Diego region cities and the County of San Diego (County) to adopt and implement climate action plans for reducing greenhouse gas emissions to a level the particular city or the County determined would not be cumulatively considerable. The second mitigation measure also identified various provisions the plans should include and stated SANDAG would assist in the preparation of the plans and other climate strategies through the continued implementation of its own Climate Action Strategy and Energy Roadmap Program. The third mitigation measure stated SANDAG would and other agencies should require the use of best available control technology to reduce greenhouse gas emissions during the construction and operation of projects.
According to the EIR, these mitigation measures encourage reduction in greenhouse gas emissions, but they do not provide a mechanism guaranteeing such reductions. Consequently, the EIR concluded the significant impacts found under the first threshold would remain significant and unavoidable.
The EIR also considered and rejected three other mitigation measures deemed infeasible. These mitigation measures were: (1) requiring all vehicles driven within the region to be zero-emission vehicles or to be powered by renewable energy; (2) requiring all future construction to be net-zero energy use; and (3) requiring all future construction activity to include only equipment retrofitted to significantly reduce greenhouse gas emissions.
SANDAG contends the EIR adequately addressed mitigation for the transportation plan's significant greenhouse gas emissions impacts. Given our conclusion in part II.B, ante, this challenge is at least partially moot as the additional analysis necessary to properly address the transportation plan's
consistency with the state climate policy reflected in the Executive Order will likely require revisions to related sections of the EIR, including the EIR's discussion of mitigation measures. (Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 91 [108 Cal.Rptr.3d 478] [once a lead agency recognizes an impact is significant, the agency must describe, evaluate, and adopt feasible mitigation measures to mitigate or avoid the impact].) We, nonetheless, briefly address SANDAG's contention. As this contention is predominately factual, our review is for substantial evidence. (Vineyard, supra, 40 Cal.4th at p. 435.)
"The core of an EIR is the mitigation and alternatives sections." (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 [276 Cal.Rptr. 410, 801 P.2d 1161]; see Watsonville Pilots Assn. v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1089 [108 Cal.Rptr.3d 577].) "[S]ection 21002 requires agencies to adopt feasible mitigation measures to substantially lessen or avoid otherwise significant adverse environmental impacts. [¶] The CEQA guidelines state that to be legally adequate mitigation measures must be capable of: '(a) Avoiding the impact altogether by not taking a certain action or parts of an action. (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. (c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment. (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.' [Citation.]
"For each significant effect, the EIR must identify specific mitigation measures; where several potential mitigation measures are available, each should be discussed separately, and the reasons for choosing one over the others should be stated. If the inclusion of a mitigation measure would itself create new significant effects, these too, must be discussed, though in less detail than required for those caused by the project itself." (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027 [280 Cal.Rptr. 478].)
For significant greenhouse gas emissions effects, feasible mitigation measures may include: "(1) Measures in an existing plan or mitigation program for the reduction of emissions that are required as part of the lead agency's decision; [¶] (2) Reductions in emissions resulting from a project
through implementation of project features, project design, or other measures...; [¶] (3) Off-site measures, including offsets that are not otherwise required, to mitigate a project's emissions; [¶] (4) Measures that sequester greenhouse gases; [¶] [and] (5) In the case of the adoption of a plan, such as a general plan, long range development plan, or plans for the reduction of greenhouse gas emissions, mitigation may include the identification of specific measures that may be implemented on a project-by-project basis. Mitigation may also include the incorporation of specific ...