The question of whether a transportation agency must perform an environmental review before placing a sales tax measure on the ballot remains unresolved. In a case from San Bernardino County that could have answered the question, the Fourth District Court of Appeal instead ruled on a procedural matter.

The Sierra Club argued that San Bernardino County should have prepared an environmental impact report before a half-cent sales tax measure for transportation appeared on the November 2004 ballot. However, the Fourth District ruled that the Sierra Club should have challenged the San Bernardino Associated Government’s decision to exempt the sales tax measure and expenditure plan from environmental review.

The Sierra Club did not choose this line of attack. Instead, the group challenged the Board of Supervisors’ conclusion to exempt from review the decision to place the measure on the ballot. That was not the proper legal route for the Sierra Club, the court ruled, because the Board of Supervisors’ decision to place the measure on the ballot was ministerial and, therefore, exempt from the California Environmental Quality Act (CEQA).

“That troubles me,” Sierra Club attorney Barrington Daltrey said of the ruling, “because we’re saying that the public agency that is paid to carry out the law can play ‘gotcha.’”

The California State Association of Counties, however, was pleased with the ruling. The association had submitted an amicus brief contending that a Board of Supervisors has no discretion over ballot measures sent from other governmental entities for placement on a county ballot. The Fourth District agreed the board’s duty in such instances is ministerial and not subject to CEQA — a decision that is helpful to counties, said Jennifer Henning, CSAC litigation coordinator.

Different agencies provide different answers to the question of whether to study the potential impacts created by a proposed sales tax measure and its related spending plan. Most transportation agencies have not performed environmental review prior to the placement of a sales tax measure on the ballot. But in recent years, transportation agencies in Contra Costa County and San Francisco have completed environmental evaluations prior to putting sales tax extensions on the ballot. The Orange County Transportation Agency has indicated it will do the same before seeking an extension.

San Bernardino Associated Governments (SANBAG) was in the majority of agencies that declined to complete an environmental review. In June 2004, SANBAG authorized a 30-year extension of an existing half-cent sales tax override, adopted a transportation expenditure plan and requested the San Bernardino County Board of Supervisors place the extension before voters. On June 15, 2004, SANBAG posted a notice of exemption stating that its decision was not a project under the California Environmental Quality Act (CEQA). Two weeks later, the Board of Supervisors approved placing the measure on the ballot and posted its own notice of exemption.

On August 3, 2004, the Sierra Club filed a lawsuit contending that SANBAG and the county were required to prepare an EIR before placing the measure on the ballot. The election went ahead, and 80% of voters approved the sales tax extension (see CP&DR, December 2004, October 2004). The measure is expected to raise $6 billion over 30 years starting in 2010.

The county and SANBAG asked San Bernardino County Superior Court Judge Shahla Sabet to dismiss the Sierra Club’s lawsuit. When she declined to do so, SANBAG appealed.

On appeal, the Sierra Club presented two primary arguments: First, the county, as a member of SANBAG, helped shaped the measure, so it had a duty to study the environmental consequences. Second, the group argued, placing the measure on the ballot was a discretionary action requiring environmental review. In overturning the lower court, the Fourth District rejected both lines of reasoning.

The court noted that the Local Transportation Authority and Improvement Act (Public Utility Code § 180200 et seq.) gives the sales tax override jurisdiction to the county transportation authority, not to the county itself.

“The purposefully broad-based process for approving the expenditure plan and the two-thirds requirement for the authority to adopt the sales tax ordinance indicate the Legislature’s intent to prevent the county from exercising its concentrated power over the dispersed and, presumably, less powerful individual cities. This purpose would be poorly served if we were to read into the act a discretionary power or duty on the part of the Board [of Supervisors] to reject or change the sales tax ordinance and expenditure plan after it has been formulated, reviewed and approved by the authority and its members,” Justice Jeffrey King wrote for the unanimous three-judge appellate panel.

The court then turned to the issue of whether the Board of Supervisors’ decision to place the measure on the ballot was discretionary. The Sierra Club argued that, underFriends of Sierra Madre v. City of Sierra Madre, (2001) 25 Cal.4th 165 (see CP&DR Legal Digest, May 2001), any public agency must comply with CEQA before placing a measure on the ballot.

“A close reading of Sierra Madre does not support the Sierra Club’s position,” Justice King opined. “The precise holding of the Supreme Court in Sierra Madre is as follows: ‘CEQA compliance is required when a project is proposed and placed on the ballot by a public agency.’”

In this case, King wrote, SANDBAG — not the county — generated the ballot measure. The county “was merely the agent of SANBAG.”

“If the expenditure plan or the measure required compliance with CEQA (a question we do not decide), it was SANBAG, as the body substantively responsible for the measure, that would have been required to conduct an environmental review,” the court held. “The governmental officials who shape the contents of the expenditure plan, and who must be knowledgeable about the environmental consequences of their decisions, are the members of SANBAG.”

The Sierra Club pointed to Local Transportation Authority and Improvement Act language that says a transportation agency shall “request” a Board of Supervisors place a measure on the ballot. The term “request” implies that the board has discretion, the environmentalists argued. The Fourth District, though, found that a request “is merely the event that triggers the calling of the special election; as such it implies no discretion or decision-making power in anyone.”

Finally, after determining the county did not have to perform an environmental review, the court ruled that the lawsuit was filed after the statute of limitations had expired on SANBAG’s notice of exemption.

Daltrey, the Sierra Club’s attorney, said that a master EIR on the transportation expenditure plan would have provided the best study of cumulative impacts, and would have provided useful information for voters. Now, SANBAG will have to address cumulative impacts while reviewing every individual project, he said.

SANBAG officials have contended throughout the controversy that it would be pointless to study the potential impacts of projects that will not be carried out for years or even decades because an EIR would be obsolete by the time a project commences.

The Case:
San Bernardino Associated Governments v. Superior Court, No. E037468, 06 C.D.O.S. 675, 2006 DJDAR 893. Filed January 23, 2006.

The Lawyers:
For SANBAG: Michelle Ouellette, Best, Best & Krieger, (951) 686-1450.
For Sierra Club: Barrington Daltrey, (951) 780-5131.