For now, the environmentalists have won their lawsuit challenging the San Diego Association of Governments' sustainable communities plan (which is part of SANDAG's regional transportation plan). SANDAG has appealed the ruling to the California Supreme Court.
If the Supreme Court takes the case, it will provide the justices with an opportunity to clarify the most important – and, to me, most disturbing – part of the environmentalists' case: The idea that a governor's executive order – in this case, Gov. Arnold Schwarzenegger's Executive Order S-3-05 from 2005 – can be viewed as "state policy" and therefore must be considered in a lead agency's analysis under the California Environmental Quality Act.
This may seem kind of silly, but given the circumstances it's probably worth reviewing the difference between a statute and an executive order and then walking through how the Court of Appeal came to this conclusion.
A statute is a state law, binding on everyone in the state, which has been approved by both houses of the legislature and signed by the governor. The process for adopting a law is laid out in the California Constitution.
An executive order is statement issued by the governor directing state agencies in their operations – most often directing them on the question of how to implement statutes. The president also issues executive orders (the most famous one was the Emancipation Proclamation), and the current food fight in Washington over President Obama's independent action on immigration is essentially a fight over whether Obama has the power to issue an executive order telling federal agencies how to implement federal immigration law. Even when executive orders are not explicitly designed to implement law but rather simply provide direction for government operations, obviously they have to abide by the laws on the books.
Schwarzenegger's Executive Order S-3-05, however, is breathtaking in its scope – a fact that the environmentalists have taken advantage of in this case. It is written as if it were a law. Citing no state statutes whatsoever, S-3-05 simply states that climate change is a major threat to the future of California and establishes greenhouse gas emissions reduction targets statewide for 2010, 2020, and 2050. (The executive order does allude to other actions taken by the California Air Resources Board to reduce GHGs under the special regulatory power California has under the federal Clean Air Act, which was challenged by the Bush Administration at the time.)
The year after EO S-3-05 appeared, AB 32 was adopted and enshrined many of the aspects of the executive order in state law, including the 2020 GHG emissions reduction target. But it did not set a target for 2050 – nor, indeed, for any year beyond 2020.
Subsequently, SB 375 directed CARB to establish emissions reduction targets for 2020 and 2035. But SB 375 does not deal with all emissions – only transportation emissions that can be controlled through the Regional Transportation Plan. CARB subsequently adopted per-capita emissions targets for transportation for each region – not an overall emissions reduction target.
So how did an executive order – which under law is a directive guiding state agencies – become the state's climate policy, according to environmental lawyers and the Fourth District Court of Appeal? Through the wording of the legislative intent in SB 32. According to Presiding Justice Judith McConnell, who wrote the majority opinion, that wording states the following:
- The legislature intends for the emissions limits to continue past 2020 to maintain and further reduce emissions.
- The legislature intends for the emissions limits to work in concert with other environmental laws rather than trump any of them.
- The legislature intends that the state Climate Action Team created by EO S-3-05 continue in its role as coordinator of state climate policy. (This is the only explicit mention of EO S-3-05 in SB 32.)
Justice McConnell bought the environmentalists' argument that these statements of legislative intent "effectively endorsed the Executive Order and its overarching goal of ongoing greenhouse gas emissions reduction as state climate policy." She also noted that SB 375 called upon CARB to adopt 2035 targets for the transportation sector and revisit the targets every few years through 2050.
McConnell didn't say that SANDAG actually had to meet the 2050 target, but she did say that because EO S-3-05 is state policy, the environmental impact report must analyze why SANDAG is not meeting the target.
I think this is a pretty big leap. If I were a state legislator charged with voting on statutes, I'd feel cut out. If I were still a local elected official charged with implementing state policies, I'd wonder why I had to follow the directives of the governor rather than making him get laws passed by the legislature first.
In her dissent in the SANDAG case, Justice Patricia Benke wrote bluntly: "[T]he fact that the Legislature has enacted environmental legislation in recognition of the Executive Order's goals does not bestow on the Executive Order any more power than it had before the Legislature acted." She called McConnell's ruling "judicial fiat".
I usually reserve this space for analysis rather than to express a strong opinion, but in this case I'm going to depart from my customary practice. I agree with Justice Benke and disagree with Justice McConnell. You can see the danger embedded in the McConnell ruling: A governor of either party with a sweeping frame of mind could issue an executive order on almost any topic and it would have to be considered – not just in the CEQA context but possibly more broadly as well – as state policy.
It's also worth noting that Justice McConnell's majority opinion is – in my opinion, at least – tortured in its reasoning, whereas Justice Benke's is straightforward and strongly argued. This is often the case when a majority opinion is straining to make the reasoning fit the desired outcome. Benke's dissent also addresses the CEQA implications much more directly, making a convincing argument that the majority opinion essentially tells lead agencies to use the executive order as a significance threshold. This is a conclusion that the majority opinion takes care to avoid stating directly, but, as Benke points out, it would be almost impossible not to use EO S-3-05 as a significance threshold given McConnell's opinion.
Part of the reason I have strong personal feelings about this is because of the experience I had in crafting the still-pending climate action plan when I was the planning director for the City of San Diego. Even before the appellate ruling – when all they had was Superior Court Judge Timothy Taylor's ruling in the same direction – environmentalists routinely threw around EO S-3-05 as the rationale for their insistence that the CAP contain hard post-2020 targets that would be locked in under CEQA. We tried to push back by arguing that, as a city, we didn't have to follow an executive order because, simply put, it wasn't a law. You'd be surprised at how hard it was to get people to see the argument.
But that's the danger of Justice McConnell's ruling, if it stands: If you want all the regional and local governments in the state to do something – or at least explain why they are not doing that something – then you don't need to pass a law. All you need is a governor with a pen.