Insight: Enviros Use Power of CEQA To Poke Hole In SANDAG's SB 375 Effort

 

Love’ em or hate ‘em, those litigators at the Center for Biological Diversity are the best in the business. Seems like they always find a way to win.

Take, for example, the Center’s recent victory in the Superior Court striking down the Sustainable Communities Strategy adopted by the San Diego Association of Governments. It’s an impressive example of the Center’s clever legal strategy. If the Center is ultimately successful, it will probably force a significant rejiggering of the San Diego transportation strategy. But SANDAG will probably appeal the case, and it’s not at all clear that the cleverness is transferable to any other region in the state. Nevertheless, the case is an object lesson in the use of the California Environmental Quality Act, which in this case overpowered a statutory regime that was silent on the situation.

The key to the Center’s win in front of San Diego Superior Court Judge Timothy Taylor was figuring out how to take advantage of the fact that SANDAG had pushed the timeline for the SCS out to 2050 – farther down the road than SB 375 requires. It’s an excellent lesson in how to win a lawsuit. The Center filed the lawsuit jointly with the Cleveland National Forest Foundation and the Sierra Club.

Like other metropolitan planning organizations around the state, SANDAG approved a sustainable communities strategy, or SCS, under SB 375 and tied it to the federally mandate regional transportation plan, or RTP. The state Air Resources Board's target for SANDAG’s SCS was 7% by 2020 and 13% by 2035. 

SANDAG did an environmental impact report showing that would reduce per-capita greenhouse gas emissions by 14% for 2020. However, critics of the plan claim that after 2020, per-capita emissions will actually increase, resulting in a net decrease in per-capita emissions of 9% by 2050.

Whether or not that’s true, it would appear that SANDAG’s strategy was to use 2050 to “wait out” both SB 375 and AB 32. But in court, SANDAG was tripped up by something Gov. Arnold Schwarzenegger did before either of those two laws were passed.

All through the debate on both AB 32 and SB 375, Schwarzenegger kept trumpeting the idea that California would reduce greenhouse gas emissions by 80% by 2050. He said it over and over again, and some news reports claimed that this goal was contained in AB 32. 

But AB 32 sets no greenhouse-gas emissions reduction target for 2050. AB 375 doesn’t mention 2050, either. And ARB did not set a 2050 target for regions to meet. Presumably, then, SANDAG thought it was “safe” for 2050.

However, the Center for Biological Diversity remembered something everyone else seemed to have forgotten: Executive Order S-03-05.

Schwarzenegger issued Executive Order S-03-05 on June 1, 2005 – the year before AB 32 was passed and three years before he signed SB 375. It prefigured AB 32 almost exactly, stating that “the following greenhouse gas emission reduction targets are hereby established for California: by 2010, reduce GHG emissions to 2000 levels; by 2020, reduce GHG emissions to 1990 levels; by 2050, reduce GHG emissions to 80 percent below 1990 levels.” (Italics mine.)

Since Executive Order S-03-05 has never been rescinded and no subsequent legislation has ever addressed the 2050 question, Judge Taylor bought the Center’s argument that Schwarzenegger’s edict about 2050 is still in force. And so SANDAG’s clever attempt to push the SCS out to 2050 ran into the Executive Order.

In his ruling at the beginning of December, Judge Taylor somewhat amusingly notes that he did not ask for briefings on all the issues that he might have because the court’s budget has been cut. But he did hear briefs from the plaintiffs, SANDAG, and the California Attorney Genera’s Office, which joined the environmental groups in challenging the SCS.

The relevant portions of Judge Taylor’s ruling are worth reading: 

SANDAG argues that the Executive Order does not constitute “plan” for GHG reduction, and no state plan has been adopted to achieve the 2050 goal. The EIR therefore does not find the RTP/SCS's failure to meet the Executive Order's goals to be a significant impact. This position fails to recognize that Executive Order S-3-05 is an official policy of the State of California, established by a gubernatorial order in 2005, and not withdrawn or modified by a subsequent (and predecessor) governor. Quite obviously it was designed to address an environmental objective that is highly relevant under CEQA (climate stabilization). …

SANDAG thus cannot simply ignore it. This is particularly true in a setting in which hundreds of thousands of people in the communities served by SANDAG live in low lying areas near the coast, and are thus susceptible to rising sea levels associated with global climate change. The court in Association of Irritated Residents v. State Air Resources Board, 206 Cal. App. 4th 1487, 1492-93 (2012), recognized the importance of the Executive Order in upholding the ARB's Scoping Plan.

The court agrees with petitioners that the failure of the EIR to cogently address the inconsistency between the dramatic increase in overall GHG emissions after 2020 contemplated by the RTP/SCS and the statewide policy of reducing same during the same three decades (2020-2050) constitutes a legally defective failure of the EIR to provide the SANDAG decision makers (and thus the public) with adequate information about the environmental impacts of the SCSIRTP. Moreover, as was pointed out in oral argument, having chosen to develop a plan for 15 years beyond that which was required under law, SANDAG was obligated to discuss impacts beyond the 2020 horizon. The ARB's scoping plan adopts the Executive Order, and SANDAG failed to extend the analysis to 2050.

Second, SANDAG's response has been to "kick the can down the road" and defer to  "local jurisdictions." … This perverts the regional planning function of SANDAG, ignores the purse string control SANDAG has over TransNet funds, and more importantly conflicts with Govt. Code section 65080(b)(2)(B) quoted above. As the AG argues, it is certainly feasible for SANDAG to agree to fund local climate action plans, yet the EIR does not adopt or even adequately discuss this form of mitigation.

And as argued by petitioners in their consolidated reply brief, "encouraging" an optional local plan that "should" incorporate regional policies falls well short of a legally enforceable mitigation commitment with teeth. This is what the CEQA Guidelines require at subsections 15126.4(a)(1)(B), (a)(2) and (c)(5) in a setting in which SANDAG controls the funding for at least some of the projects contemplated by the SCS/RTP. Contrary to SANDAG's assertion , it does have the legal power -- indeed, the obligation - to see to it that TransNet funds are spent in a manner consistent with the law. (Cleveland National Forest Foundation v. SANDAG, San Diego Superior Court Case No. 2011-00101593.)

Of course, you can argue the case the other way, as SANDAG did. We’re not talking about a law or a policy or a plan. We’re talking about an executive order from the governor – essentially a directive to the executive branch. The state could have included the 80%-by-2050 goal in AB 32 but chose not to.  That’s a perfectly plausible argument. Except for CEQA.

It’s CEQA that gives life to the executive order in this case. If there were no CEQA, it would be harder to make the argument that an executive order. You could probably make the argument that the RTP would have to take greenhouse gas emissions into account because it involves state transportation funds. But CEQA is the trump card: The CEQA Guidelines are written by the executive branch, and so everybody’s got to use CEQA the executive branch wants done. Hence the significance of the executive order.

And that’s the real lesson of this case: CEQA is an awfully muscular law, able to push environmental issues far beyond where other laws might take them. We’ll see whether the appellate court agrees – or whether the Center for Biological Diversity will find similar openings with other SCSs.