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Cleveland National Forest Foundation v. San Diego Association of Governments

Supreme Court of California

July 13, 2017

CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants,
v.
SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervener and Appellant. CREED-21 et al., Plaintiffs and Appellants,
v.
SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervener and Appellant.

         

         Court: Superior County San Diego, Nos. 37-2011-00101593-CU-TT-CTL, 37-2011-00101660-CU-TT-CTL, Ct.App. 4/1 D063288 Timothy B. Taylor Judge.

          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.

          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.

          Liu, J.

         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 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 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.

         “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).) 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, 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).)

         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 ...


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