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Solimar Research

Will Brown's 40% Executive Order Squeeze Regions Via SB 375?

Josh Stephens & Bill Fulton on
May 1, 2015

This week, Gov. Jerry Brown announced an executive order to cut greenhouse gas emissions by 40% from 1990 levels by 2030. It's being hailed as the most aggressive climate change policy pursued by any government in North America but will it put the squeeze on California's metropolitan planning organizations and their sustainable communities strategies?

Brown's order has drawn attention for its combination of ambition and immediacy. But it does not come out of thin air. Brown's 2030 targets fit, substantively and chronologically, between those of Fran Pavley's 2006 law Assembly Bill 32, which mandates lowering GHG emissions to 1990 levels by 2010, and former Gov. Arnold Schwarzenegger's goals of 80 percent reduction by 2050, also established by executive order. Meeting them means that, in relatively short order, California will look, drive, and power itself far differently than it does today especially as its population continues to rise. 

The order requires all state agencies with jurisdiction over sources of greenhouse gas emissions to participate. Agencies must prepare implementation plans by September 2015, with guidance from a technical advisory group that will be set up by the Governor's Office of Planning and Research. 

The governor's order does not explicitly mention Senate Bill 375, the companion legislation to AB 32 that promotes reduction of GHG emissions through changes in land use. But it could have a profound impact on the regional Sustainable Communities Strategies that are at the heart of SB 375. 

Sustainable Communities Strategies are at the heart of SB 375, outlining regions' land use plans and ways that localities can promote walking, biking, and use of public transit. Though the spirit of SB 375 is in keeping with the Brown's goals, SCS's have a fraught relationship with executive orders. 

In 2013, the environmental impact report for the 2011 Regional Transportation Plan a crucial component of the SCS adopted by the San Diego Association of Governments (SANDAG) was invalidated by a 2013 superior court ruling, which was upheld in November by the Fourth District Court of Appeals. The courts reasoned that Schwarzenegger's executive order effectively made 2050 greenhouse gas emissions analysis mandatory under the California Environmental Quality Act. While the RTP was found to meet 2020 goals, it fell woefully short of 2050 goals and therefore was in violation of CEQA. 

In March the California Supreme Court granted SANDAG's request for review. With Brown's order, all SCS's not just San Diego's may find themselves in limbo. 

If the Supreme Court sides with the lower courts, the question becomes: Does any executive order on greenhouse gas emissions become part of CEQA, and will all of the state's 20 SCS's have to be updated accordingly? If so, the ruling would create a major conflict between two well intentioned policies that should, by all accounts, complement each other. And it could set back years of work that have been intended to put California's metro areas on the path to smart growth. 

Shortly after Brown made his announcement, CP&DR's Josh Stephens posed these questions to OPR director Ken Alex, who was also speaking at the NACW conference. Alex said that he does not expect Brown's order to require any changes in SCS's regardless of the Supreme Court's decision. 

Alex said that the court was focused on the science behind the executive orders and not on the orders per se. Essentially, he felt that the court struck down the RTP not because it failed to conform with an executive order but because, by leading to increased carbon emissions post-2020, it violated just about everything that SB 375 and AB 32 stand for. Alex said that because Brown's new targets are reasonable and necessary steps on the way to Schwarzenegger's targets, they should essentially be a non-issue for SCS's and the metropolitan planning organizations that are drafting them. (Meanwhile, Pavley has introduced Senate Bill 32, which would codify Schwarzenegger's 2050 goals.)

Clearly, California's MPO's are going to hope that Alex is right. But Alex may be focusing more on outcomes than on process. Unfortunately for the MPO's, CEQA is all about process, and a ruling against SANDAG that effectively makes Brown's executive order part of CEQA, could add a major step in what is already a long process. 2020 is only five years away. 2030 will be here before we know it.