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Cleveland National Forest Foundation v. San Diego Association of Governments

California Court of Appeals, Fourth District, First Division

November 16, 2017

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

         APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct Nos. 37-2011-00101593- CU-TT-CTL, 37-2011-00101660- CU-TT-CTL, Timothy B. Taylor, Judge. Judgment reversed in part, affirmed in part, modified in part, and remanded with directions.

          The Sohagi Law Group, Margaret M. Sohagi, Philip A. Seymour; and Julie D. Wiley for Defendants and Appellants San Diego Association of Governments et al.

          Kamala D. Harris, Attorney General, Timothy R. Patterson and Janill L. Richards, Deputy Attorneys General, for Intervenor and Appellant.

          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 Cleveland National Forest et al.

          McCONNELL, P. J.

         I

         INTRODUCTION

         A

         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.).[1] 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 appealed, contending the EIR complied with CEQA in both respects. Cleveland National Forest Foundation and Sierra Club (collectively, Cleveland) cross-appealed, 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-appealed, contending the EIR further violated CEQA by failing to adequately analyze and mitigate the transportation plan's impacts from particulate matter pollution.

         A majority of this court concluded the EIR failed to comply with CEQA in all identified respects. (Cleveland National Forest Foundation v. San Diego Assn. of Governments (Nov. 24, 2014, D063288) [nonpub. opn.] (Cleveland I).)

         B

         The California Supreme Court granted review on the sole issue of whether the EIR should have analyzed the transportation plan's impacts against the greenhouse gas emission reduction goals in the Executive Order. (Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 503-504, 510 (Cleveland II).) The Supreme Court concluded, "The EIR sufficiently informed the public, based on the information available at the time, about the [transportation] 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." (Cleveland II, at p. 504.)

         Consequently, the Supreme Court reversed this court's judgment "insofar as it determined that the [EIR's] analysis of greenhouse gas emission impacts rendered the EIR inadequate and required revision." (Cleveland II, supra, 3 Cal.5th at p. 519.) The Supreme Court did not grant review of this court's other holdings nor did it express how, if at all, its opinion affected their disposition. (Ibid.) The Supreme Court remanded the matter to this court for further proceedings consistent with the Supreme Court's opinion. (Ibid.)

         C

         Cleveland and the People filed supplemental opening briefs (Cal. Rules of Court, rule 8.200(b)(1)) requesting this court revise its decision in Cleveland I by removing the discussion of the adequacy of the EIR's analysis of the transportation plan's greenhouse gas emissions impacts and consistency with the Executive Order, and replacing the discussion with a reference to the Supreme Court's decision on this issue. Cleveland and the People further requested this court keep the remainder of the decision substantially intact and publish it as revised.[2]

         SANDAG did not file a supplemental opening brief, but SANDAG filed a supplemental responding brief (Cal. Rules of Court, rule 8.200(b)(1)). In its brief, SANDAG did not assert the Supreme Court's decision in Cleveland II affected any of this court's other holdings in Cleveland I. Instead, SANDAG asserted the case is moot because the EIR and the transportation plan have been superseded by more recent versions, which Cleveland and the People have not challenged. SANDAG also asserted the EIR and transportation plan will be superseded once more by another EIR and transportation plan currently being prepared.

         Cleveland and the People dispute the EIR has been superseded and is legally ineffective.[3] They further contend that, even if this case were technically moot, the EIR's analytical errors are capable of repetition and could evade review because SANDAG must update the transportation plan every four years.

         We agree with Cleveland and the People that SANDAG has not established this case is moot. "[A] moot case is one in which there may have been an actual or ripe controversy at the outset, but due to intervening events, the case has lost that essential character and, thus, no longer presents a viable context in which the court can grant effectual relief to resolve the matter." (Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1222.) While there is evidence in the record suggesting SANDAG prepared different environmental review documents for the 2015 version of the transportation plan, there is no evidence indicating the EIR at issue in this case has been decertified and can no longer be relied upon for the current version or future versions of the transportation plan, or for projects encompassed with the transportation plan. Additionally, while there is evidence suggesting the environmental review documents associated with the 2015 version of the transportation plan may have addressed this court's concerns about the EIR's greenhouse gas emissions impacts analysis, there is no evidence indicating these environmental review documents addressed this court's concerns about any of the EIR's other analytical deficiencies. Consequently, on this record, it appears this case may still be able to provide Cleveland and the People with effective relief because correcting the defects in the EIR may result in modifications to the current version or future versions of the transportation plan, or to projects encompassed within the transportation plan.[4] (See Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.)

         Even if this case were moot, its falls within the exception for cases "present[ing] important questions of continuing public interest that may evade review" because of the frequency with which SANDAG must update the transportation plan (see part II.B.1.b, post) as well as the nature of a program EIR and the associated limits on future environmental review (see part II.A.2, post). (California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933; Cleveland II, supra, 3 Cal.5th at p. 511; Peterson v. City of San Diego (1983) 34 Cal.3d 225, 227.) We, therefore, exercise our discretion to once again address the issues presented in this appeal that were not reviewed or decided by the Supreme Court in Cleveland II. (California Cannabis Coalition v. City of Upland, supra, at p. 933.)

         II

         DISCUSSION

         A

         1

         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 (Laurel Heights); Guidelines, § 15002.)[5] "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, at p. 392; accord, Cleveland II, supra, 3 Cal.5th at p. 511.)

         2

         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); Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 343 (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); 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; accord, Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 801-802.) 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 or could not have been known at the time the [EIR] was certified as complete, becomes available." (§ 21166; May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1325-1326; 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.) 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; Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, 1605.)

         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.) 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.)

         3

         Standard of Review in CEQA Cases[6]

         "[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.)

         B

         Appeal

         1

         Background

         a

         In 2005 then Governor Arnold Schwarzenegger issued the Executive Order establishing greenhouse gas emissions reduction targets for California.[7] 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 California 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 also enacted the Sustainable Communities and Climate Protection Act of 2008 (Stats. 2008, ch. 728; 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).) 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).[8] 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).)

         More recently, while this case was pending before the Supreme Court, the Legislature "enacted Senate Bill 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.... 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." (Cleveland II, supra, 3 Cal.5th at p. 518-519.)

         b

         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.)

         2

         Analysis of Greenhouse Gas Emissions Impacts

         The EIR 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.[9]

         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.[10]

         The Supreme Court concluded SANDAG did not abuse its discretion in the manner in which SANDAG chose to analyze the transportation plan's impacts. (Cleveland II, supra, 3 Cal.5th at p. 518.) Nevertheless, the Court cautioned its conclusion did not mean the EIR's analysis could "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, ยง 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.... A regional planning agency like SANDAG, charged with assisting the implementation of the state's ...


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