California Court of Appeals, Fourth District, First Division
December 16, 2014
CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants,
SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervenor and Appellant. CREED-21 et al., Plaintiffs and Appellants,
SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants THE PEOPLE, Intervenor and Appellant.
—IT IS ORDERED that the majority opinion filed on November 24, 2014,
231 Cal.App.4th 1056;___ Cal.Rptr.3d ___ be modified as follows and the petition for rehearing is DENIED:
1. On page 18, line 2 of footnote 8 [231 Cal.App.4th 1074, advance report, fn. 8, line 2], after the words "explained the Guideline, " the words "which supplanted any earlier, informal technical advice from the Governor's Office of Planning and Research" are added." Footnote 8 now reads:
Indeed, in its statement of reasons for adopting the Guideline, the Natural Resources Agency explained the Guideline, which supplanted any earlier, informal technical advice from the Governor's Office of Planning and Research, "reflects the existing CEQA principle that there is no iron-clad definition of 'significance.' [Citations.] Accordingly, lead agencies must use their best efforts to investigate and disclose all that they reasonably can regarding a project's potential adverse impacts." (Cal. Natural Resources Agency, Final Statement of Reasons for Reg. Action (Dec. 2009) p. 20 < http://resources.ca.gov/ceqa/docs/Final_Statement_of_Reasons.pdf > [as of Nov. 24, 2014].)
Justice Benke's dissenting opinion, filed November 24, 2014, is modified as follows:
1. On page 8, in the last sentence of the first full paragraph [231 Cal.App.4th 1098, advance report, 3d par., line 11], the words "should be a"
are deleted and the word "is" is added following the word "determination." The sentence shall now read:
To the extent thresholds of significance other than the three expressly provided in subdivision (b) apply, that determination is made by an agency in the proper exercise of its discretion.
2. On page 8, after the first full paragraph ending with the words "exercise of its discretion, " [231 Cal.App.4th 1098, advance report, after the 3d par.], the following paragraph is added:
In its petition for rehearing, SANDAG contends that the Natural Resources Agency (NRA) has specifically forgone any recommendation for use of the Executive Order as a CEQA standard in Guidelines section 15064.4, which SANDAG notes was specifically developed at the direction of the Legislature to guide analysis of GHG impacts. The history of Guidelines section 15064.4 is significant. Following issuance of the Executive Order, in June of 2008, the Governor's Office of Planning and Research (OPR) issued a detailed 20-page technical advisory (<http://opr.ca.gov/ceqa/pdfs/june08-ceqa.pdf> [as of Nov. 24, 2014]; hereafter Advisory.) Noting that many public agencies were striving to determine the appropriate means by which to evaluate and mitigate the impacts of proposed projects on climate change, the Advisory set forth directions and step-by-step guidance aimed at assisting practitioners and lead agencies. The Advisory expressly recognizes that the most difficult part of climate change analysis is the determination of significance. (Advisory, p. 4.) The Governor's office thus stated, "To this end, OPR has asked [C]ARB technical staff to recommend a method for setting thresholds which will encourage consistency and uniformity in the CEQA analysis of GHG emissions throughout the state. Until such time as state guidance is available on thresholds of significance for GHG emissions, we recommend the following approach to your CEQA analysis." (Advisory, pp. 4, 8-9.) In its "Recommended Approach, " the Advisory is clear: It is lead agencies that are charged with selecting and implementing significance thresholds. (Advisory pp. 5-7.) Important to our purposes, in the selecting and implementing of significance thresholds, the Advisory gives no authority to the courts and claims no such power for the Governor. At the conclusion of the Advisory, the Governor's office states its intent is to deliver a package of CEQA Guidelines amendments to the Resources Agency by July 1, 2009. (Advisory, p. 9.) As a result of the Advisory, in March of 2010, Guidelines section 15064.4 was passed. It fully implements the intent and language of the Advisory, which nullifies my colleagues' expansive interpretation of the Executive Order.
3. On page 8, in the paragraph beginning with "It is apparent, " the words "history and" are added to the second sentence [231 Cal.App.4th 1098, advance report, 4th par., line 2], so that it now reads:
Despite the clear history and language of Guidelines section 15064.4, subdivision (b) and the obvious intent of that section, the majority asserts a right to determine that a gubernatorial policy statement, which does not qualify as a threshold of significance, is to be included among the "other factors" and then orders SAND AG on remand to develop an undefined "consistency analysis" between the lead agency's plan and the policy statement.
4. On page 14, in the second sentence of the first full paragraph, the words "Office of Planning and Research (OPR)" are replaced with "OPR" and the words "Natural Resources Agency (NRA)" [231 Cal.App.4th 1102, advance report, 1st full par., lines 4-6], are replaced with "NRA, " so that the sentence now reads:
SB 97 directed the OPR to prepare and submit to the NRA "guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions... including, but not limited to, effects associated with transportation or energy consumption."
There is no change in the judgment.
San Diego Association of Governments et al.'s petition for rehearing is denied.