With a split decision in a long-awaited case, the Fourth District Court of Appeal has ruled that the San Diego Association of Governments (SANDAG) should have analyzed a gubernatorial executive order on greenhouse gas emissions in the environmental impact report on its long-range transportation plan.

The ruling was not as broad as some expected. It did not, for example, conclude that SANDAG actually had to meet Executive Order S-3-05's target of an 80% reduction in GHG emissions by 2050. Rather, the majority ruling by Presiding Justice Judith McConnell said the EIR was deficient in not analyzing the Regional Transportation Plan/Sustainable Communities Strategy (SCS/RTP) against the policy contained in the executive order.

In a strongly worded dissent, Justice Patricia Benke stated the Executive Order "does not have an identifiable foundation in the constitutional power of the Governor or in statutory law" and said the majority has impermissibly elevated the Executive Order to a significance threshold "without … having to expressly declare that they are doing so."

Although SB 375 only requires an SCS to extend to 2035, the SANDAG SCS that was challenged – technically part of the Regional Transportation Plan – extended to 2050. (AB 32, on which SB 375 is based, contains only a GHG reduction target for 2020, but in the implementation documents for SB 375 the California Air Resources Board set targets for 2035 and often referred to the Executive Order.)

The EIR predicted a reduction in GHG emissions at first but acknowledged that emissions would go up in the out years, and concluded that this increase was not significant for the purposes of an analysis under the California Environmental Quality Act.

The Cleveland National Forest Foundation and other environmental groups sued, claiming that the Executive Order was, in fact, state policy and that SANDAG had to take it into account in the SCS. In 2012, San Diego County Superior Court Judge Timothy Taylor ruled in favor of the plaintiffs. Just two weeks ago, a different Fourth District panel struck down San Diego County's Climate Action Plan, saying the county had failed to show how it would conform with the "trajectory" of the Executive Order, as it had promised. (See http://www.cp-dr.com/articles/node-3617.)

The Cleveland National Forest Foundation case was viewed as a possible blockbuster that could have given the Executive Order the force of law. Executive Orders are issued by the governor to guide state agency actions and typically do not contain such power.

But in the end, Presiding Justice McConnell cast the ruling in fairly typical CEQA terms, saying that the Executive Order should have been taken into account in the EIR analysis and that SANDAG should have considered other alternatives and mitigation measures.

Perhaps most important, she concluded that even though CEQA Guidelines section 15064.4, which lays out the significance thresholds for GHG emissions reduction analysis, does not expressly adopt the Executive Order's target, SANDAG was compelled to consider the target anyway.

Noting that the Guideline section states that agencies must use the listed factors "among others" in determining significance, she concluded the following: "the use of the Guideline's thresholds does not necessarily equate to compliance with CEQA, particularly where, as here, the failure to consider the transportation plan's consistency with the state climate policy of ongoing emissions reductions reflected in the Executive Order frustrates the state climate policy and renders the EIR fundamentally misleading."

In reaching this conclusion, McConnell noted that the Executive Order "led directly to the enactment of AB 32" one year later and also influenced the way CARB is required to implement SB 375. "Thus," she wrote, "the Executive Order, with the Legislature's unqualified endorsement, will continue to underpin the state's efforts to reduce greenhouse gas emissions throughout the life of the transportation plan."

Then, McConnell lowered the boom: "SANDAG contends the EIR cannot analyze the transportation plan's [SCS's] consistency with the Executive Order because there is no statute or regulation translating the Executive Order's goals into comparable, scientifically based emissions reduction targets. However, we do not agree the lack of such targets precludes the EIR form performing a meaningful consistency analysis in this instance … Although SANDAG may not know what future emissions targets the transportation plan will be required to meet, it knows from the information in its own Climate Action Strategy the theoretical emissions reduction targets necessary for the region to meet its share of the Executive Order's goals."

McConnell referred repeatedly to the fact that land use and transportation investments, once made, stay in place for many decades and therefore decisions made under the current plan will play a major role in determining whether SANDAG can meet any long-term future emissions reduction targets the state may impose.

McConnell's opinion also found SANDAG acted improperly by evading meaningful alternatives analysis and mitigations. For example, she said the EIR contained three feasible mitigation measures that were easy to meet but contained no concrete steps to reduce emissions, as well as three infeasible mitigation measures that were could not realistically be implemented.

She concluded: "Missing from the EIR is what CEQA requires: a discussion of mitigation alternatives that could both substantially lesson the transportation plan's significant greenhouse gas emissions impacts and feasibly be implemented." For this conclusion she relied on Lincoln Place Tenants Association v. City of Los Angeles (2007) 155 Cal.App.4th 425, the same case that the Fourth District relied on in striking down San Diego County's CAP.

Benke wrote a very long dissent that harshly criticized the majority opinion "Whereas the majority purports to enforce CEQA and its Guidelines, I believe my colleagues weaken and confuse the law," she wrote.

Benke gave considerable space in her dissent to arguing that the Executive Order on its face "does not unilaterally qualify as a threshold of significance."

The majority opinion – while stating that the Executive Order must be taken into account – doid not say that it should be used as a significance threshold. Benke appeared to view this as evasion. She wrote: "They offer that the policy underlying the Executive Order is of such overarching importance that it must be included in the significant factors listed" in the CEQA Guidelines – which, she argued, essentially means the majority concluded that the Executive Order must be regarded as a significance threshold.

Benke concluded that "I believe the GHG statewide emissions reduction targets set forth in the Executive Order are nothing more than mere policy recommendations unless and until our Legislature independently acts to adopt such targets, which … it has done for 2020 and 2035, but not for 2050."

The case is Cleveland National Forest Association v. SANDAG, No. D063288. It can be found at http://www.courts.ca.gov/opinions/documents/D063288.PDF. For a prior report on briefing in the case, with comments from plaintiffs' attorneys, see http://www.cp-dr.com/articles/node-3625.