The State Supreme Court heard oral arguments December 2 in the major Berkeley Hillside CEQA exemptions case, focusing on the legal significance of the term "unusual circumstances". While the genesis of the case is a single residence, the ruling may have statewide impact on the application of exceptions to categorical exemptions from CEQA. Thus, the case has attracted interest from environmental advocates, public agencies, preservation activists, and the development community across the state. The case arises from a proposed single-family home in the Berkeley Hills, consisting of a 6,478-square-foot house and an integral 3,395-square-foot parking garage. The City of Berkeley approved the project without environmental review, finding it categorically exempt from CEQA under both Class 3 (single-family residence) and Class 32 (infill development). The house would be one of the largest in town but would comply with local zoning. Because the lot is sloped, the parties have disputed how much earthworks and shoring work would need to be done. In 2012, the Court of Appeal ruled against the City .  At issue in the case are two questions of statewide importance. First is how to interpret the Legislature's intent in Section 21084 of the Public Resources Code, which directs the Natural Resources Agency to list classes of projects categorically exempt from CEQA. This includes CEQA Guidelines Section 15300.2(c), which states that "a categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances" – the so-called "significant effects exception." Specifically, can a project that otherwise fits a CEQA exemption have a reasonably possible significant environmental impact and yet not be "unusual"? Second is what standard of review should apply to lead agencies' decisions regarding exceptions to categorical exemptions. Should parties challenging the agency's finding of a categorical exemption be required to demonstrate substantial evidence that there should be a significant effects exception, or is it enough to show substantial evidence that a fair argument exists for such an exception? Arguing for the respondents and real parties in interest, Amrit S Kulkarni, with the firm of Meyers Nave Riback Silver and Wilson, contended that the language of Section 15300.2(c) requires a two-step process to determine if the significant effects exception applies: first, the presence of unusual conditions must be established; and second, the potential for significant environmental effects due to those conditions must be established. Justice Goodwin Liu quickly cut to the chase, asking Kulkarni if it was his understanding that the Legislature had authorized designation of "categories that, as a rough cut, should not concern us because there are no significant impacts and… within the class there may be outliers that have significant environmental impacts, but nonetheless the categorical exclusion applies unless project characteristics, separate from the effects, make it unusual?" Kulkarni confirmed this was the respondents' interpretation, and reiterated their position that to conclude otherwise is to render the phrase, "due to unusual circumstances" meaningless. In response to questioning from Chief Justice Tani Cantil-Sakauye and Justice Marvin Baxter, Kulkarni argued there should be substantial deference to the city's discretion, and that the Court of Appeals went wrong in applying the fair argument standard instead of the substantial evidence standard. He contended the fair argument standard applies in determining if CEQA review is required for projects that are not categorically exempt. The justices then pursued the meaning of "unusual circumstances", asking what would make a project unusual, with Justice Liu noting that the project would be an "unusual size for Berkeley". Kulkarni replied that such a subjective standard as "too big" would defeat the purpose of categorical exemptions -- to which Liu asked, "Isn't your definition subjective?" Kulkarni responded that it was not, because the project was appropriate for the site per the city zoning code. Justice Carol Corrigan asked if an unusual project would be one that was non-compliant with zoning, and Kulkarni responded yes. Later, during rebuttal, Justice Liu asked it was possible for a significant effects exemption to apply even for a project that complied with zoning. Kulkarni replied that a lack of adequate sewer service at the site would constitute unusual circumstances for a zoning-compliant project. Arguing for the plaintiffs and appellants, Susan Brandt-Hawley contended that the legislative record and rulemaking file showed Section 15300.2(c) was based on Section 21084 and the holding in Wildlife Alive v. Chickering , 18 Cal. 3d 190, a 1976 Supreme Court ruling that a categorical exemption did not apply to Fish and Game Commission actions that might have significant environmental effects. She said neither of these founding sources refers to "unusual circumstances". In response to a question from Justice Corrigan asking if the appellants agreed with the two-step process for Section 15300.2(c), Brandt-Hawley argued that only one step is required: determination of the reasonable possibility of significant environmental impact, with unusual circumstances being inherent in such projects. Justice Liu asked what the point of categorical exemptions would be in that light, as opposed to evaluating all projects on a case by case basis. He said "fair argument doesn't seem very onerous for potential significant effects exceptions… if the trigger is so light, then we're sent into the quagmire so quickly," to which Brandt-Hawley replied, "That's the sky-is-falling argument" that opponents of the appellants' position had made repeatedly. She said a fair argument must still be based on facts, fact-based assumptions, or expert opinions. She also argued that the appellants' perspective would not interfere with the main time-tested function of categorical exemptions: to save local agencies the trouble of investigating each ordinary project's impact individually. Justice Liu pursued the meaning of "due to unusual circumstances", asking what "due to" meant, and if it implied a causative link between unusual conditions and impacts. Justice Liu asked if it could be understood that it was the "legislative intent to… balance, accepting some significant environmental impacts" from some projects that fell within categorical exemptions. Brandt-Hawley repeated that Section 21084 and Wildlife Alive made no reference to unusual circumstances, and that there was no presumption in favor of allowing some significant environmental impacts. Brandt-Hawley argued that in general, unusual circumstances are "not run-of-the-mill, not typical." But Justices Corrigan and Werdegar pressed her for a clearer definition. In response, Brandt-Hawley stated that unusual circumstances for the project resulted from the combination of the size of the house, which she described as planned for "a constrained space" on a small street although the lot itself is large, together with the slope of the hill, seismic hazards, and a nearby roadway bridge. The justices also asked about the potential significant effects of the project, including those based on the expert opinion of Dr. Lawrence Karp, provided by the plaintiffs/appellants to the city prior to city approval, on the extent of earthworks and retaining walls required to stabilize the house and slope. Justice Werdegar asked if the city implicitly rejected Karp's opinion and if so, if it had done so in error. Brandt-Hawley argued the city had done so in error, because Karp's opinion presented a fair argument for a significant environmental impact. Responding to Chief Justice Cantil-Sakauye later, Brandt-Hawley argued that appellants provided an expert opinion on potential significant effects, and that the city must study them. The court's ruling must be filed within 90 days. Due to the complex nature of the case, there are several possible outcomes. The court must decide if it will apply a one-step or a two-step process and what standard of review should apply. Then, it must apply the process and standard it has chosen to whether the appellants have sufficiently shown a reasonable possibility of significant effects, and/or whether the significant effects are due to unusual circumstances. In the meantime, the CEQA community will be anxiously awaiting the ruling. The case is Berkeley Hillside Preservation v. City of Berkeley , Case No. S201116. Matt Dixon is a transportation engineer in the Los Angeles area

Some important institutions got an awkward surprise last August when U.S. District Judge James Otero ruled that the Veterans Administration's sumptuous 387-acre West Los Angeles Campus was reserved for the provision of health care to U.S. military veterans, to the exclusion of several third-party lease agreements. His order sided with a group of chronically homeless veterans living with mental disabilities and/or brain injuries who argued that veterans like themselves had a priority right to receive care on the campus, including through supportive housing. Veterans are reportedly often seen sleeping outdoors near the campus gates. Otero's rulings in the case of Valentini v. Shinseki included an August 29, 2013 order invalidating a list of "Enhanced Sharing Agreements" (ESAs) that, for many years, allowed third parties to use parts of the West L.A. Campus for purposes that may have been more welcomed by the neighboring communities of Brentwood, Westwood and Bel Air. The uses included gardens, UCLA's Jackie Robinson Stadium, athletic facilities for the Brentwood School, an industrial laundry, and a "butler building" for storing film sets. Some of those third-party users are not going quietly. But the homeless plaintiffs' attorneys -- drawn from LA's major poverty law nonprofits plus a deep bench of pro bono counsel -- are intent on seeing them off. Most recently, they filed a weightily documented injunctive relief petition in the Ninth Circuit November 24. The third-party users who held ESAs on the West L.A. Campus were on the sidelines during the initial two years of litigation leading to the August 2013 order. But when Otero rejected the VA's arguments and ended the ESAs, UCLA and the Brentwood School moved to intervene, then appealed to the Ninth Circuit alongside the original parties. In a much-quoted statement, UCLA's counsel wrote that the baseball team could be made "homeless". Mediation attempts in mid-2014 fizzled and the parties are scheduled to file briefs in early 2015. Another third party that used land under an ESA agreement was the Veterans Parks Conservancy (VPC), which reportedly leases 16 acres on the West L.A. Campus for purposes including the Historic Women Veterans Rose Garden. VPC has dug in more literally: as of late November the plaintiffs alleged it was continuing work building an amphitheater on VA land. According to the plaintiffs' court exhibits, VPC signed a new agreement with the VA that says it may continue work for 90 days, from mid-November until mid-February, on the "Hollywood Canteen Amphitheater". As noted in the L.A. Times , VPC's Web site implicitly justifies it as a veterans' health use by saying it "will be used exclusively for veterans and their families" and will be "a tranquil space for various alternative wellness therapies." But the plaintiffs argue that Otero's order made an agreement for any such construction improper. In late November the plaintiffs asked Otero for a temporary restraining order against the amphitheater construction; he kicked it up to the Ninth Circuit, saying the appellate court had jurisdiction. The plaintiffs therefore took their request to the Ninth Circuit November 24, requesting emergency action within 21 days. The dispute directly with the third parties is a recent development. For most of the litigation's history, the dispute was between the plaintiffs and the VA alone. Plaintiffs argued that housing for veterans with disabilities was a specific purpose of the 1888 land gift that founded the West L.A. Campus as a veterans' service site, and they added disability rights claims to claims that the VA had failed to comply with governing statutes, especially regarding the meaning of a "health-care resource" under 38 U.S.C. Secs. 8151 to 8153 . The VA defended in part by arguing that general principles of deference to agency discretion applied, and that the ESA decisions were within administrators' discretion under Secs. 8151 to 8153. The VA also argued the administrative record was "replete with examples" of administrative determinations that  "veterans will receive priority for services" and that ESAs would help services and the community. In some cases it said agreements had been reached with "Compensated Work Therapy" jobs in mind for veterans, and in the case of the sports facilities, "recreational opportunities for Veterans." The L.A. Times reported arguments for preserving the baseball stadium included that veterans received free admission to games and could use the stadium in the off-season. Both UCLA and the Brentwood School reportedly argue they have spent millions of dollars to create and maintain sports facilities on the land they have leased from the VA. But the Los Angeles Times recently editorialized in favor of a settlement that would provide veterans with supportive housing, and in the meantime for stopping the Hollywood Canteen Amphitheater. The editorial said it might be all right to let baseball games continue at the existing stadium pending the appeal, but new construction was another matter. Use of the West L.A. campus to house veterans would not be a break with the past. The plaintiffs' papers said the campus housed a "Soldier's Home" for disabled war veterans "for some 80 years". The L.A. Times reported last year that the site was used as veterans' housing into the 1980s. Nor would it break with typical uses of VA hospital campuses. The VA has made available an "Enhanced Use Lease" mechanism nationwide for the specific purpose of enabling long-term ground leases to nonprofits to build subsidized veterans' housing on VA hospital campuses. A recent report on the mechanism by the National Housing Conference and Center for Housing Policy features a number of "best practices" examples, and one of them is in Los Angeles: the New Directions Sepulveda I and II project in North Hills. Attorneys for the plaintiffs include Mark Rosenbaum of the Los Angeles ACLU and Gary Blasi, an elder statesman of LA-area poverty law who is a UCLA law professor emeritus. Among the pro bono counsel are several attorneys with Arnold & Porter, the same firm that also recently won a settlement in Fresno for 36 homeless people who lost property in a city sweep of encampments. UCLA's attorneys include counsel from Manatt, Phelps & Phillips. Brentwood School is represented by Gibson, Dunn & Crutcher. The following resources have more on the West L.A. Campus case: The ACLU's page on the case . Clearinghouse.net . Rep. Henry Waxman's office . August 2014 GAO report on VA land use agreements that was included as an exhibit to the recent injunction petition. News features in The Nation in March and April 2013. Los Angeles Times profile of lead plaintiff Greg Valentini in 2011.

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 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 .

California American Water won clearance from the Coastal Commission on November 12 to dig its disputed slant well from the Cemex sand mining plant in North Marina on the Monterey Peninsula. The well would allow feasibility studies for a desalination plant fed by sand-filtered water to be drawn from under Monterey Bay. The project had some unbudging opponents but received support from some conservation groups, in part because it called for subsurface rather than open-water intakes. Proof of legal access to the starting point for the dig was a prerequisite for the approval . Days before the Commission meeting, Cal Am reached a settlement allowing it to dig the well from the Cemex plant. Cal Am had previously sued Cemex to take the use of the land by eminent domain. The contemplated desalination plant would offer a way out of the bind created by the State Water Board's 2009-issued cease and desist order requiring Cal Am to stop all illegal water diversions from the Carmel River by the end of 2016 -- but the river is still the Monterey Peninsula's primary water supply. The conditional approval of the permit request overruled a denial by the City of Marina. The Monterey Herald reported the Commission rejected arguments that the well could harm nearby water supplies. Critics included the Marina Coast Water District and the Ag Land Trust, which two years ago were suing each other over a separate desalination issue. Howard "Chip" Wilkins III of the Remy Moose Manley firm, representing the Marina Coast Water District, wrote to the Commission that the matter was not ripe for Commission review, that the Commission lacked jurisdiction over the whole site and that, although the well was described as temporary, it could possibly become a supply source for desalination. The 1110-page staff report included supporting letters from the mayors of Seaside and Carmel, and the statewide and Monterey Peninsula Chambers of Commerce. Conservationist supporters included the Sierra Club and Surfrider Foundation, both of which were among parties to a settlement of a prior Public Utilities Commission dispute over the desalination proposal -- formally the Monterey Peninsula Water Supply Project. (For the settlement see http://www.watersupplyproject.org/testwellappeal .) Susan Jordan of the California Coastal Protection Network wrote in support as well -- in part citing Cal Am's interest in using subsurface intakes. Jordan has fought the proposed use of open-water intakes for desalination in Huntington Beach. Open-water intakes have been criticized, including by the National Oceanic and Atmospheric Administration (NOAA) , because ocean organisms may be drawn into the intake pipes or pressed against their protective screens. The Monterey County Weekly reported Cal Am hoped to start construction quickly ahead of Western snowy plover nesting season. The company announced in September it received a $1 million state grant to dig the test well. The Carmel Pine Cone reported the company also had a foundation grant to test the water for human pathogens. (For further coverage of Monterey water supply tensions see http://www.cp-dr.com/articles/node-3598 .) The annotated November agenda with linked staff reports is at http://coastal.ca.gov/meetings/mtg-mm14-11.html . UCSB plan approved with sustainability settlement The Commission unanimously endorsed UC-Santa Barbara's new 15-year Long Range Development Plan, which calls for expanding the 1100-acre campus and adding housing and academic structures for up to 5,000 undergraduate and 1,380 graduate students . The staff report called for 20 modifications, all of which the university accepted. The Sustainable University Now (SUN) Coalition, formed in response to the plan, reached a settlement in 2011 agreeing to support it. (See pp. 268ff of the staff report.) The Independent reports SUN's principal organizer was Prof. Richard "Dick" Flacks, a legendary 1960s figure , coauthor of the 1962 Port Huron Statement from Students for a Democratic Society. A SUN representative, longtime Santa Barbara environmental attorney Marc Chytilo, endorsed the plan at the hearing. The agreement calls for specific measures on sustainable transportation, habitat stewardship, water supply, energy conservation, community participation in governance, and housing availability, including improvements to the jobs/housing balance. Commissioner Jana Zimmer questioned the sufficiency of water supply for the plan. The staff report includes assurances by the Goleta Water District -- but often with reference to its 2010 Urban Water Management Plan. (See http://www.goletawater.com/documents/ .) Zimmer noted the district was currently not allowing new water connections , and is supplied from the State Water Project and the diminished Lake Cachuma. Jack Ainsworth, Coastal Commission Deputy Director for the region, responded that the Goleta district's groundwater was sufficient, continuing "feedback loops" would recheck adequacy of supply, and new projects would have to offset their effects through conservation. In other Coastal Commission action: - The Commission overruled its staff by a 7-4 vote to issue a determination of consistency with the Coastal Act that allowed the Navy's Silver Strand coastal campus facility to go forward in San Diego County. The San Diego Source has details , including that its functions would include assisting SEAL teams. Concerns had included effects on the Nuttall's Lotus, " traffic and visual impacts ," and the staff's complaint of insufficient access to enough information to decide if the project would create a need for a seawall or otherwise affect coastal dunes. - The Commission approved amendments to a Coastal Development Permit for beach management by the City of Santa Cruz. The Pacific Legal Foundation, which livetweeted all three days of the November meeting with exceptional diligence, reported the vote was 9-2 and came only after Commissioner Mary Shallenberger, supported by at least two others, questioned whether provisions for a nighttime curfew served the goal of preserving beach access. - The Commission heard many single-family home disputes including a number of teardown-rebuild applications for single-family houses in suburban Southern California neighborhoods. It heard public comments on usual-suspect issues including Venice zoning and the Banning Ranch. It granted extensions of time on consideration of Local Coastal Program (LCP) revisions for Chula Vista, Imperial Beach, and Malibu. It approved an amendment to the Santa Barbara LCP to create buffers between agricultural uses and "new non-agricultural development and uses." - The Commission approved 12 grants totaling $1 million for work on LCPs. - It rejected an appeal of a decision to allow emergency call boxes on Highways 1 and 128 in Mendocino County. - The meeting was the Commission's first in San Mateo County. Commissioner Groom, the local host, pronounced herself "ecstatic" but the Half Moon Bay Review noted there were few local items on the agenda. A Commissioners' field trip included the site of the "Big Wave" project proposal , subject of a recent redesign mainly affecting a part of the project designed as affordable housing for 50 adults with developmental disabilities and 20 staff. Per a recent county Planning agenda , there would also be 108 business condominium units. The Coastal Commission rejected an earlier design for the project two years ago. (The project's own site is at http://bigwaveproject.org/ . The Midcoast Community Council's page with timeline and links for the project is at http://www.midcoastcommunitycouncil.org/big-wave-project/ .) - As part of this month's anti-fracking protest, the Center for Biological Diversity announced it was delivering a petition with 30,000 signatures. - The December meeting, in Monterey, will include a long-anticipated workshop on lower-cost visitor-serving accommodations -- that is, on preservation of the cheap California seaside vacation as public resource. See http://coastal.ca.gov/mtgcurr.html . - In Coastal Commission action apart from the recent meeting, the Malibu Times reported Coastal Commission Enforcement Officer Pat Veesart was invoking the Coastal Commission's recently augmented enforcement authority under SB 861 , to warn the owners of the Paradise Cove beach access area to stop charging visitors for public access. As the Los Angeles Times reported previously , complaints about parking charges have included some from members of the Black Surfers Collective who said they had not been allowed to carry their surfboards across the sand. - Separately the Monterey Herald reported that legal troubles continue for the Sand City "eco-resort" plan in Sand City (see prior coverage of the Coastal Commission settlement at http://www.cp-dr.com/articles/node-3474 ), while a separate hotel and time-share proposal for the Sand City dunes, by developer King Ventures, goes before the Coastal Commission in December on appeal by the Ventana Chapter of the Sierra Club.

So, one of the biggest questions in planning and development today – in California and elsewhere – is what accounts for the Millenials' preferences for urban living and less driving. Is it generational? Or a lousy economy? "I think our answer is yes," says Brian Taylor, an urban planning professor at UCLA and head of the Lewis Center for Regional Policy Studies there. Taylor is one of many academic researchers – most of them, it seems, based in Los Angeles – who are trying to understand one of the most remarkable trend reversals in American history: the end of growth in driving. Since 2007, vehicle miles traveled (VMT) has been flat, after growing consistently for a hundred years. This trend reversal coincided, of course, with the biggest economic downturn since the Great Depression. But by most analyses, this reversal began before the big recession began in 2008, and it has continued to persist even though that recession is long past. So what's going on? Are people – especially young people – permanently changing their patterns? Or can they just not afford to drive as much as they used to? The popular media's narrative is, of course, the first explanation: A new generation of Americans – the Millenials, who supposedly prefer a more urban lifestyle in overwhelming numbers. The truth, apparently, is a little more complicated – as many of the L.A. researchers discussed at the recent American Collegiate Schools of Planning conference. Among other things, the drop in driving may be due not to urbanites who choose not to drive – but, rather, to poor people who can't afford to. In the one hand, Taylor said, UCLA's researchers have found that there actually is a statistically significant relationship between your age and amount of driving you do (not just the amount you personally drive, but the amount of traveling you do in private autos even if others are driving). People born in the ‘60s – now between the ages of 44 and 54 – tend to drive 5% more than average. For people born in the ‘80s, it's 7% less. And for people born in the ‘90s, it's 16% less. On the other hand, the actual number of people engaged in the urban millennial lifestyle isn't very high – at least according to research reported by one of Taylor's Ph.D. candidates, Celsie Ralph. After analyzing data about young adults – who she defined as people between the ages of 16 and 36 – Ralph divided the population into five categories: "drivers" and "long-distance trekkers" (who drive virtually all the time), "urbanistas" and "multimodals" (who drive between 50% and 80% of the time), and people who are carless. What she found was that even among young adults, more than 80% of the population fall into the "driver" and "long-distance trekker" category. Only 6% can be classified as the classic Millenials – the "urbanistas" and "multimodals". But 14% of all young adults have no car at all, and most of them have low incomes. Ralph said that although the urbanistas and the multimodals are growing in number, "the bigger story is what his happening in lowest income. There's a really dramatic increase in people without cars." These are not necessarily unemployed poor people. Many are working poor who have low-wage jobs. And while it makes sense that poor residents in cities don't have cars, she and other researchers are finding that they're not the only ones. Poor residents in the suburbs and rural areas often don't have cars either. For example, Ralph found that the number of carless households in low-density residential areas is on the rise. "We see a really remarkable increase in people with fewest resources living in the worst place," she said. "The people in D.C. are doing it by choice but also there are people in rural Ohio who have no choice." And this growing two-tier structure among people with lower incomes is creating a huge divide in the cost of travel and access to jobs. Another UCLA doctoral student, Trevor Thomas, found a stark relationship between the geographical location within a metropolitan region and the amount of driving the working poor must do. Thomas compared poverty and VMT in three communities in the Los Angeles area: Boyle Heights, located in East Los Angeles just east of downtown Los Angeles; El Monte, further east in the San Gabriel Valley; and Palmdale, located in the Antelope Valley some 40 miles north of the San Fernando Valley. All three are mixed communities with considerable poverty. But their proximity to job centers is vastly different. And so is the relationship between poverty and driving. Not surprisingly, Thomas found that in Boyle Heights – a neighborhood with a 28% poverty rate located a short bus ride from downtown L.A. – a 1% increase in the community's poverty rate will yield a per-capita VMT reduction of 12 miles per year. In El Monte, with a 24% poverty rate but located about 15 miles east of Boyle Heights, a 1% increase in the poverty rate will yield a per-capita increase of 12 VMT per year. And in Palmdale, which has a 17% poverty rate, a 1% increase in the poverty rate will yield a per-capita increase of 47 VMT per year. In other words, poor people in the suburbs are more dependent on their cars, probably because they can't take public transit to work. The actual annual VMT numbers in this last study aren't that large. But the trend is clear: The urbanistas get a lot of publicity but there aren't that many of them. VMT is levelling off in part because there are more people who are carless – but those people are mostly poor. And there's an increasing bifurcation among the poor. The urban poor can survive a downturn because of public transit service, while the suburban poor are chained to their cars just like everybody else – only they have a much tougher time paying their car bills. There are, of course, other measurements of Millenial behavior besides VMT. Millenials are buying houses and cars – and getting drivers' licenses – at a slower rate than their predecessors. These trends may hold over time; after all, habits engrained at a young age often last a lifetime. Or the urban-style Millenials may simply grow into a suburban lifestyle later than previous generations, as many demographers suggest. But there's no question that, whatever's going on these days, it's not as simple as urbanistas sitting in coffee shops. The two-tier economy and the growing number of working poor – in both cities and suburbs – is an important part of the trend as well.

A ruling is expected any day now on a major appellate court test of a key early response to California's SB 375 law on greenhouse gas reduction. The case of Cleveland National Forest Foundation v. San Diego Association of Governments (SANDAG) was argued before California's Fourth District Court of Appeal on August 14 and submitted August 27 , so the court is nearing its 90-day deadline to reach a decision. The case is of statewide and possibly greater importance on a currently open question: What constitutes seriousness about transportation planning in the context of climate change? Each party accuses the other of irresponsibility: officials accuse environmental petitioners of asking for more than a public agency realistically can or must do; petitioners accuse officials of refusing to address foreseeable long-term consequences, especially of freeway expansion plans ? that, if acknowledged, would compel them to restrict emissions and impose mitigations more aggressively. The RTP/SCS challenge At issue is the SANDAG 2050 Regional Transportation Plan and Sustainable Communities Strategy (RTP/SCS). The document included the first Sustainable Communities Strategy to be developed and approved by a regional government organization in compliance with California's SB 375 law mandating greenhouse gas (GHG) reductions through transportation planning and compact urban design. SANDAG's opening brief emphasizes the numbing extent of the preparation and public review processes, reporting more than 4,000 comments from more than 1,500 commenters. After its approval in 2011, the RTP/SCS was challenged as inadequate by the Cleveland National Forest Foundation, the Center for Biological Diversity, and other environmental community groups abbreviated as the "CREED-21" parties, joined by the state Attorney General. For petitioners, the case is about enforcing state-level climate protection policy in the face of local institutional reluctance to change travel and development patterns.  From SANDAG's point of view as expressed in the appellate briefs, the case is about tendentious overreaching by activists who are driven by political convictions about the urgency of climate change and not by specifically applicable law or science. SANDAG's opening brief accuses petitioners of disappointment that the RTP/SCS "has fallen short of undertaking the kind of utopian planning and social engineering that would be necessary to eliminate private automobile transportation as a major source of GHG and other air pollution emissions." Attorney Kevin Bundy with the Center for Biological Diversity retorted in an interview that the petitioners' proposed action wasn't "utopian" ? it was "just necessary." From his point of view, SANDAG's briefing showed an "almost cavalier attitude toward the physical reality of climate change and the underlying science." SANDAG's reply brief asserts, "No party in this case, least of all SANDAG, is unaware of the seriousness of climate change. But the problem is far too serious to be addressed with idle rhetoric, finger-pointing, hopelessly vague demands for action, and baseless assumptions about what can legally, technically and practically be done." It suggests the petitioners have an unrealistic idea of SANDAG's powers and abilities and that they are failing to place the transportation plan in perspective as a relatively modest part of a much larger climate protection strategy. (SANDAG public information officer Helen Gao responded in October to requests for comment on the case by writing, "We believe the legal briefs we have submitted speak for themselves. At this point, we would simply like to reiterate that we believe the EIR for the 2050 RTP is in full compliance with CEQA." For further interpretive discussion from Bill Fulton see http://www.cp-dr.com/articles/node-3617.) Is EO S-03-05 for real? The first of two main issues before the court is how seriously planners should take Executive Order S-03-05. Issued in 2005 by then-Governor Arnold Schwarzenegger, EO S-03-05 calls for reductions in greenhouse gas (GHG) emissions by 2050 to 80% less than in 1990. That goal asks for GHG reductions far beyond the mandatory requirements that were imposed under AB 32 and SB 375, to meet emissions reduction goals in 2020 under AB 32 and additionally in 2035 under SB 375. While those goals are understood to be mandatory, it is disputed whether the EO S-03-05 goals for 2050 are solid policy requirements or mere aspirations. From the petitioners' point of view, SANDAG owes the public an account of how the likely consequences of the RTP/SCS would compare to the 2050 goals under EO S-03-05. Discussing SANDAG's view of EO S-03-05 as unrealistic, Bundy said, "Calling it pie in the sky, to mix metaphors, is putting your head in the sand." SANDAG's analysis of its plan found initial consistency with the goals of the statewide Air Resources Board's 2008 AB 32 Scoping Plan, but only took the comparison as far as the year 2020. SANDAG likewise compared its plan to SB 375 goals until 2035 and found they were consistent. Petitioners' briefs argue that since the Scoping Plan incorporates EO S-03-05, SANDAG should have continued the Scoping Plan comparison forward beyond 2020 to 2050. They contend that the decision to stop the analyses at 2020 and 2035 respectively is misleading. They write, "SANDAG admits that, as it implements its RTP/SCS, the region's emissions will increase after 2020 and exceed current levels by 2050." Bundy agreed SANDAG met its SB 375 targets, but said the problem was the trajectory of the projected trend line for emissions: it didn't start high and head down; it dropped at first, then rebounded, intersecting the 2035 target "on its way up". SANDAG's appellate briefs respond that nothing is misrepresented about the analyses that stop in 2020 and 2035. Further, SANDAG protests that it does additionally include "a quantitative and qualitative discussion of vehicle-related GHG emission trends through 2050." This is apparently the first of the EIR's three separate GHG analyses ? the one that considers changes to the existing GHG emissions baseline. The other two consider consistency with SB 375 GHG reduction targets; and consistency with both the AB 32 Scoping Plan (until 2020) and SANDAG's own Climate Action Strategy. Elsewhere SANDAG's briefing says "Per capita GHG emissions will actually decrease to approximately 10% below 2005 levels by 2050, further confirming that population growth, not the RTP/SCS, is the driver of GHG emission increases." SANDAG's briefs say the region's population is expected to grow from 3.2 million in 2010 to 4.4 million by 2050, an increase that the agency plans to accommodate through dense construction served by transit. In a Dec. 3, 2012 trial court ruling , Judge Timothy Taylor of the San Diego Superior Court agreed with petitioners that SANDAG's plan was "impermissibly dismissive of" EO S-03-05 in saying it did not "constitute a 'plan'," when in the court's view the order "is an official policy of the State of California." He wrote that "the failure of the EIR to cogently address the inconsistency" between the projected GHG increases after 2020 and the reduction goals in the EO "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 SCS/RTP ." In a phrase much quoted since the ruling, Taylor wrote that SANDAG had chosen to "kick the can down the road" by trusting local jurisdictions and programs with climate action spending decisions ? when, the court said, SANDAG should use its "purse string control" over San Diego County's TransNet sales tax fund to make local officials and Caltrans follow an overarching plan. In Taylor's view the result "falls well short of a legally enforceable mitigation commitment with teeth." (SANDAG responds in an appellate brief that the contested EIR is at the program level and does not have to "do the impossible" by anticipating climate protection approaches to future projects over the next 40 years.) The petitioners argue that CEQA Guidelines §15064.4(b)(3) "requires agencies to consider how a project complies with statewide plans" but SANDAG writes that §15064.4(b)(3) does not require it to apply EO S-03-05. The environmental petitioners' lawyers saw a split among the other Metropolitan Planning Organizations (MPOs) on whether to make definite efforts toward compliance with the EO S-03-05 targets in 2050 ? and also on the seriousness of their efforts to reduce reliance on cars and to "impose all feasible mitigation" under CEQA. The impending decision could help resolve that split. Adequacy of public health analysis A second issue that Taylor did not reach has been argued on appeal: the petitioners' assertion that SANDAG advisedly chose to be less careful than necessary about assessing public health impacts of roadway expansions and about adopting available emissions reduction or mitigation approaches. Rachel Hooper, an attorney with the Shute, Mihaly & Weinberger firm representing the Cleveland National Forest Foundation, said in an interview this fall that the SANDAG RTP/SCS calls for widening freeways throughout San Diego County, yet its EIR does not consider the resulting danger of respiratory harm to nearby residents as carefully as other regional transportation agencies, including the Southern California Association of Governments (SCAG), have done in environmental reviews for their regional transportation plans. Hooper said the agency received notice early in its drafting process that both the petitioners and the Attorney General viewed the EIR's level of detail as inadequate: "We alerted SANDAG it had not properly correlated the emissions caused by its project with public health impacts." She said that, early on, they also brought to SANDAG's attention the case of Bakersfield Citizens for Local Control v. City of Bakersfield , (2004) 124 Cal.App.4th 1184. The Bakersfield case was a leading authority on the need to both consider and explain public health impacts in EIRs. It was followed by this year's Friant Ranch ruling, Sierra Club v. County of Fresno , (2014) 226 Cal.App.4th 704, which has now been accepted for review by the State Supreme Court. (On the Friant Ranch matter, including its importance in the SANDAG case, see http://www.cp-dr.com/articles/node-3595.) As recounted in the trial court's opinion, petitioners accused SANDAG of approaching the transportation plan's health impacts too generically, with the excuse that the EIR was programmatic and not intended for specific projects. Bundy said the importance of a program EIR under CEQA is to do the big-picture, program-level analysis and mitigation, and "Our argument was, SANDAG missed that opportunity by trying to punt analysis that could and should have been done at the program level forward to the project level." Standard of review On the standard of review, SANDAG's brief argues that petitioners' preference for another analysis is not enough to meet the "substantial evidence" test ? the requirement that challengers show no substantial evidence supports the EIR's existing discussion of project harms and mitigations. It accuses the petitioners of failing even to specify clearly what mitigations they would prefer. Petitioners respond that the "substantial evidence" test, with its deference to agencies' judgment, applies to factual determinations. Instead, they argue that SANDAG chose to follow the wrong procedures for its EIR, making it incomplete as a matter of law ? hence that the EIR's adequacy "as an informational document" is eligible for de novo review by the appellate court. Oral argument Hooper said the justices gave an unusual and impressive two hours to the oral argument on the matter in August. She said they did not raise new issues, but addressed the major issues raised in the briefing. She said the discussion did include the Friant Ranch case, which she viewed as "a very close analogy to our SANDAG case" with respect to petitioners' argument that the EIR's authors "quantify what the emissions are but fail to correlate that in any meaningful way to the expected health effects." After oral argument SANDAG sought but was denied permission for followup briefing on SANDAG's Climate Action Strategy, the nature of its duties if any to evaluate GHG emissions under EO S-03-05, and "the significance, if any, of the extra-record information offered by petitionrs purporting to establish that other regional transportation planning agencies have developed alternate methods of analyzing regional health impacts which may result from implementation of a regional transportation plan." Would-be amici Several proposed amicus briefs are still available online to help round out the importance of the case for developers and public officials. The California Association of Councils of Governments (CALCOG) reviews possible statewide effects for public agencies in two proposed amicus briefs that it was denied permission to file at both the trial and appellate court levels. On the trial court brief CALCOG was joined by some of its major member organizations, including SCAG; on the appellate brief more local-government organizations chimed in, including the League of California Cities. (See http://www.calcog.org/DocumentCenter/View/105 and http://www.counties.org/sites/main/files/file-attachments/creed_21_v_sandag.pdf .) Attorneys with the Remy Moose Manley firm, which represents many CEQA lead agencies, framed both briefs as a reminder that officials preparing an RTP/SCS must reconcile legal and policy imperatives other than CEQA climate change requirements. They argued, "CEQA requires that policy decisions be informed by environmental considerations, not that environmental considerations trump other policy issues." The Council of Infill Builders and the Planning and Conservation League joined together on a proposed amicus brief prepared by the Center for Law, Energy and the Environment at UC Berkeley School of Law. It argues that the plan "failed to analyze feasible 'smart growth' or transit-oriented alternatives" to reduce GHG emissions. Stanford Law School's Environmental Law Clinic attempted to file an amicus brief ? also rejected ? on behalf of the Center on Race, Poverty and the Environment and other environmental and public health organizations. A copy is at http://bit.ly/1xcJQED . The Stanford brief sets out the greater impact of pollution from roadways on low-income communities of color and charges that the EIR does not adequately consider impacts of major projects such as the projected I-5 expansion. (For the Coastal Commission's August grant of approvals enabling the I-5 expansion see http://www.cp-dr.com/articles/node-3558 . The Commission's annotated August agenda, with linked materials, is at http://coastal.ca.gov/meetings/mtg-mm14-8.html .) CALCOG's Web page on the site, which links to additional materials, is at http://www.calcog.org/index.aspx?NID=107 . SANDAG's own Web site on the plan is at http://www.sandag.org/index.asp?projectid=349&fuseaction=projects.detail

There could have been more fireworks at the USF debate, but it was fierce enough. Sponsored by the USF Law School's Environmental Law Society with support from local bar groups, the debate featured a speaker who is distinctly not a convert to the Office of Planning and Research (OPR) view of CEQA transportation impact metrics: Holland & Knight's Jennifer Hernandez. Back in August, Hernandez was the lead author of her firm's polemical criticism against OPR's discussion draft on guidelines to substitute vehicle miles traveled (VMT) analysis for the existing Level of Service (LOS) analysis. The article, titled, " OPR Proposes to Increase CEQA's Costs, Complexity and Litigation Risks with SB 743 Implementation ," especially warned against litigation potential in a group of very specific suggested VMT mitigation approaches that were proposed to be added to Appendix F of the guidelines. (See http://www.cp-dr.com/articles/node-3560 and our recent OPR coverage at http://www.cp-dr.com/articles/node-3623 .) On the USF panel with Hernandez were NRDC's Eaken and UCLA Prof. Ethan Elkind, both of whom had published indignant responses to the Holland & Knight article. Elkind's called the article a "misleading diatribe" . Eaken's blog post titled, " Setting the record straight on the Governor's CEQA reform proposal " didn't say directly what it was answering but did announce "an effort to clarify misconceptions and stop the ill-intended rumors" before launching into a string of arguments, including "Fact: Suggestions of Mitigation Measures are Just Suggestions..." Appearing as a fourth panelist was San Francisco's lead transportation planner, Michael Schwartz. Prof. Adam Hofmann moderated the panel. Schwartz and Eaken, making the general case for the LOS to VMT transition, used arguments, phrases, and even a slide or two that were familiar from the OPR presentation -- Eaken however unbending a little for a largely student audience, saying LOS to VMT "has been a dream of mine ever since planning school," but that a colleague had told her, "You have very weird dreams." In arguing the case for VMT, Schwartz said the Van Ness BRT project would have gone much faster under a VMT standard. Elkind suggested the LOS to VMT transition, by highlighting the greater travel demands of "greenfield" projects, could change "sprawl culture" in California. While he suggested CEQA was "not particularly environmental," he said the new rule would help the "E" in CEQA to "make a little bit more sense." Where others have talked about risks of new litigation against projects, Elkind said he knew some "lawyers who go after infill projects" who found the new rules worrying. Hernandez came in on a different note entirely, working to introduce a student audience to a generally critical view of CEQA litigation as a tool for exclusive, self-serving and sometimes racist obstruction of projects. Using a confidential tone and frequent invitations to shared skepticism, she identified herself with environmentalist and politically liberal principles, but moved on to relate her firm's research on CEQA outcomes in general -- she said 43% of CEQA lawsuits are successful. She said, "This is a broken statutory scheme. It is used mostly against the projects that really want to promote: renewable energy, infill, transit. The last thing I want to do is introduce any new uncertainty into CEQA." Instead of applying VMT analysis she suggested projects should be approved more easily without "re-asking the question" about each project's appropriateness, allowing it to be litigated "by the neighbor, by the union, by the competitor, by the bounty-hunting lawyer." She said NRDC and others had decided "LOS is really stupid," and "I couldn't agree more." But her objection was to the addition of VMT standards. Observing that LOS rules still apply to many aspects of CEQA analysis, she said, "This does not get rid of LOS. It adds VMT." She asked, "Why would you give another tool to a CEQA litigant?" And yet the differences weren't complete. Eaken said her longer-term hope was to bring California program requirements with sustainability goals -- and as part of that, the opportunity to enact the LOS to VMT transition came up in part due to "Jennifer's work" demonstrating problems with CEQA. Elkind, protesting, "I'm not a CEQA ideologue," still said without the law there had been deference on development issues to government and private industry. "It's a lot harder to barrel a freeway through a neighborhood." Hernandez, protesting in turn that she was "far from rabidly anti-CEQA," said the 43% lawsuit success rate suggested problems with the law -- compared with which NEPA challenges failed 80% of the time. But Elkind managed to agree with Hernandez on the ineffectuality of Regional Housing Needs Assessment affordable housing targets, and she agreed with Eaken in deploring an injunction that held up San Francisco's bicycle plan in part for LOS reasons. They only drew opposite conclusions about what should happen instead. Hernandez criticized a part of the OPR guidelines draft that shifts from the LOS-driven view of road-widening as a mitigation, to the VMT-based notion that road widening can itself be an impact if it invites extra traffic. She said, "OPR knew there is no established methodology for doing the induced growth thing they proposed." Similarly, she said in any given region it wouldn't be clear which VMT model to use -- so "let's litigate." Hernandez said "We created a monster with GHG by not having clear guidelines" in the 2008 enactment of SB 375, and she suggested the VMT rule drafters hadn't learned that lesson. Elkind countered that VMT analysis is "a fairly off-the-shelf technology" and a lot of California is actually in areas covered by the VMT analysis exemption for projects within half a mile of transit, where new construction would be presumed to have no significant impact under the VMT rules. It was Hofmann who, as moderator, offered to play "the true right-winger" by taking a position in defense of the LOS standard. He asked, what if people didn't like living in dense environments? Eaken countered that with the general move toward denser housing, the Urban Land Institute found California's real estate market had enough "single-family product" -- freestanding houses -- to last until 2050. Elkind's own account of the debate is at http://www.ethanelkind.com/a-debate-on-sb-743/ .

Last week Harvard history professor Naomi Oreskes defended the public figure that many planners love to hate: the NIMBY. In a column in the Washington Post entitled, "Stop hating on NIMBYs. They're saving communities," she argues that "NIMBY" does not deserve the pejorative connotation that many in the planning community naturally ascribe to it. She focuses on an example from New Hampshire, where communities have raised opposition to a high-voltage transmission wire from a hydroelectric plant in Quebec. Who would be against power lines, she wonders? Anyone who values, "quiet, safety, security, and peace of mind." The beauty of the New Hampshire landscape, and all the therapeutic benefits that come from it, justifies opposition to the power lines. Her argument is as convincing as it is obvious. Even so, Oreskes writes that opponents have been "dismissed" by the project's supporters. The puzzling thing about her argument is that she writes that "communities and individuals who oppose fracking, nuclear power, high voltage power lines, and diverse other forms of development have all been accused of NIMBYism." Accused by whom? I know of few Americans who would welcome a nuclear power plant anywhere near their backyards, and for good reason.  Given that she's writing about New Hampshire, the stunning but un-captioned photo of a skyline (Chicago, maybe?) that accompanies Oreskes' piece is misleading. She is really referring to rural NIMBYs opposed to big-time infrastructure projects with deep-pocketed backers -- she doesn't touch on the urban situation at all. To most urban planners, the classic NIMBY is an urban resident who opposes intensive urban development, such as an office building or large, high-density residential development. They base their opposition on much the same grounds that Oreskes cites: aesthetics, environmentalism, community character. In New Hampshire, these positions may be genuine. In cities, they are often--not always, but often--disingenuous. Oreskes writes that many of the people who vilify the opponents of the power lines are in fact those who would profit from their construction. No surprise there. You have to take things with a grain of salt when your bete noire is Mr. Burns.  Progressive urban planners, many of whom are avowed environmentalists, often decry NIMBYism in cities because it can stand in the way of genuine improvements. All too often NIMBYs obstruct projects that are intended to revitalize neighborhoods, supply needed housing, or even create environmental benefits. Many urban projects, such as mixed-use apartment buildings, are often oriented towards transit lines and walkable neighborhoods. They often help reduce traffic and energy use. Try getting one of those past the local homeowners association unscathed. (Hint: It's difficult .) Oreskes thus misses a crucial nuance: the ethics of NIMBYism depend largely on the kind of environment that you're trying to save. A pristine White Mountains peak suffers different impacts from development than does a block on Hollywood Boulevard with a subway underneath it. Many planners accustomed to these urban battles would surely recoil at Oreskes' suggestion that we indiscriminately "stop hating on" those NIMBYs who oppose developments purely out of self-interest.  Oreskes writes, "Most supposedly NIMBY arguments are not NIMBYist at all--they are about preserving beauty, safety and integrity of communities." If you consider this statement in full, then it's easier to come to terms with NIMBYism. NIMBYism isn't inherently bad just as not all development is inherently good. The value of opposition, and even obstructionism, depends not only on the merits of this or that project but also on the initial "beauty, safety and integrity of communities." Only then can we decide whether an intervention is good or bad. The same goes for our decisions about obstruction: just as planners shouldn't always "hate on" NIMBYs, neither should they support them indiscriminately.  The main streets and steeples of New Hampshire's towns are the stuff of dreams for many of us who live in urban America. Those communities, and many others both urban and rural, are well worth "saving." Every community not worth saving is, by definition, one that should be improved. The real NIMBY's--the ones who deserve the derision--are those who don't recognize the difference.

Californians voted cautiously this week if they chose to vote at all. It would be foolish to look for just one electoral mood in such a large state – but when voters considered ballot measures related to land use, they mainly chose to preserve status quos. This was conservatism in a sense not necessarily pro-business or libertarian, but almost more Tory than American in pattern. The current conditions that California voters chose to protect included existing open spaces, existing public services, and, in some cases, existing development potential. Voters were often willing to accept small new taxes. General-purpose sales taxes were most likely to pass but some special-purpose taxes were approved, especially for schools, infrastructure, transportation, parks and open space. Voters tended to reject dramatic hard-sell appeals or egalitarian political gestures related to land use. Tenant protections were scarce on the ballot and not favored. Anti-development measures tended to succeed when they defended open space but fail when they resisted infill. "No" campaigns often won by raising doubts about hidden consequences of complex measures. At CP&DR we have a selection of initial results on land use ballot measures posted at http://www.cp-dr.com/articles/node-3619 and many of the same measures are profiled further at http://www.cp-dr.com/articles/node-3613. In this article we'll get to some of those, and a few more land use measures that other commenters have mentioned – from an anti-growth measure that failed in Menlo Park, to an expression of strong feelings against roundabouts in Placerville. Not In My Back Forty Open space measures did well, notably the passage of Santa Clara County Measure Q, a tax to preserve open space. Measure P, a much-criticized parks tax in Los Angeles County (see http://www.cp-dr.com/articles/node-3613), failed to reach the required 2/3 vote but won 62.04% of the vote . Anti-development campaigns did well when they focused on preservation of open space, as with the defeats of two eastern Bay Area measures: Dublin's Measure T, which would have countermanded open space measures, mainly on the eastern Doolan Canyon area; and Union City's Measure KK , which would have relaxed development limits for a proposed 63-acre mixed-use project with potential impacts beyond the current proposal. Measures did badly if they were presented as anti-development but had complex provisions that opponents could characterize as stealth upzoning. El Dorado County anti-development measures M, N and O all lost, but the strongest margin -- 75.0% no to 25.0% yes -- was against Measure N, which was criticized as having mixed effects that could support a Sacramento-based developer. (See http://www.cp-dr.com/articles/node-3613 and http://www.cp-dr.com/articles/node-3565.) Similarly, the City of Riverside's Measure L would have approved a specific plan that both promised open space and was criticized as seeking development authorizations , lost by 56.83% "No" to 43.17% "Yes". The Press-Enterprise reported a small grassroots campaign, and skepticism about an out-of-town developer, defeated the measure. In Santa Monica, both Measure D and Measure LC used anti-development rhetoric (see http://www.cp-dr.com/articles/node-3613) in characterizing their measures as limiting potential future development of the Santa Monica Airport, but the winner was Measure LC, supported by conservationists and longtime opponents of airport noise. As the SF Chron 's architecture critic, John King, has noted, on three Bay Area measures, positions against downtown infill development lost: Measure R in Berkeley, which failed, would have imposed especially strict community-benefit requirements to exceed downtown height limits. (See our discussion of Measure R at http://www.cp-dr.com/articles/node-3613.) Measure M in Menlo Park would have limited the size of commercial projects and would have capped new office space overall. It failed dramatically in Menlo Park's small voting electorate, with 62.25% (4,144 voters) opposed. In working-class San Bruno, near the airport, over two-thirds of voters supported increasing height limits to add density around the Caltrain commuter station. King commented in detail on all three measures in September. The Escondido Country Club Homeowners Organization (ECCHO) handed a setback (likely temporary) to developer Michael Schlesinger in the defeat of the Lakes Specific Plan via Proposition H. That long-running dispute, however, is unlikely to be resolved by one vote. Voters did go for measures that were presented as offering them a chance to undo a specific act by local officials: for example, Measure S to undo a prior 2013 Berkeley redistricting choice; Measure P, an advisory measure opposing the Highway 405 toll lanes in Costa Mesa; Measure S to undo a City Council billboard replacement deal in Santa Clarita, and Dublin's Measure T as mentioned above. Irvine's Measure V, a financial accountability measure on the Irvine Great Park, passed with a steep 88.7% "yes" vote. And then Streetsblog LA and Nelson/Nygaard's Jeffrey Tumlin picked up on the Case of the Placerville Roundabout Menace. As we last discussed in July, some Placerville voters became agitated this summer over a plan to resolve an awkward meeting of streets by installing a roundabout. (For links to the campaign Web site and a Google Terrain map of the intersection, see our July item at http://www.cp-dr.com/articles/node-3532.) California voters may be turning Tory in their politics, but not so in their taste for street design. Placerville voted by an initial count of 58.2% to 41.8% to approve Measure K, requiring a public vote for construction of any roundabout in the city. Tax choices Voters' tax and other revenue choices are helpfully tabulated in a report by the California Local Government Finance Almanac. The charts there show specially earmarked sales taxes did not do well overall – just four passed of 13 – but one of the four winners was the large-scale Measure BB for BART to Livermore. A differently structured big transportation proposal, San Francisco's Proposition A , also succeeded (and so did Supervisor Scott Wiener's disputed Measure B to support the Muni system). Measures passed for streets and drains in Monterey, paratransit on the Monterey/Salinas system, and the Fresno Zoo. Measures that failed included one for the Del Norte County Fair, a library measure in Sonoma County, and a streets measure in Turlock. Proposals to raise or extend transient occupancy taxes were surprisingly unpopular: only four passed out of 14. Sales and use taxes did better, almost regardless of the tax increment's amount. Rental affordability measures disfavored Tenant protection and affordable housing measures generally failed when they were substantive rather than symbolic. In San Francisco, the nonbinding Measure K passed, with a policy statement in favor of affordable housing, but Measure G, the anti-speculation tax, was defeated, in a major defeat for San Francisco's embattled pro-tenant lobby. The vote against Measure G also fits a larger pattern in that, like Berkeley's Measure R, it sought to redress inequality by placing what could easily be characterized as arbitrary burdens on a very specifically defined type of real estate activity. Opponents were able to create significant doubt about whether Measure G would be applied fairly to individual property owners' business and family situations. In Santa Monica, Measure FS, to raise registration fees for rent-controlled landlords, won narrowly but Measure H, to increase the transfer tax on million-dollar properties, failed. Its companion Measure HH, an advisory measure to spend the Measure H proceeds, if any, on affordable housing, won narrowly but has no effect because H was defeated. Few grand gestures Voters in general rejected grand gestures if they threatened to have substantive effects. Where anti-fracking measures affected less current business in Mendocino and San Benito Counties, they passed. (An analysis by the Stoel Rives firm says San Benito County does have "significant reserves within its jurisdiction that require unconventional extraction techniques to produce.") Where it mattered the most economically, in oil-rich Santa Barbara County, the anti-fracking measure failed. San Francisco's dueling astroturf measures, Propositions H and I, were subjects of an environmentalist campaign against health risks of artificial turf through the summer and fall, but voters chose to allow the Golden Gate Park playing fields to install astroturf and nighttime lighting. San Francisco Proposition L, the pro-car "Restore Transportation Balance" measure backed by tech billionaire Sean Parker, failed resoundingly. Sacramento's strong-mayor Measure L, another grand gesture in its way, also failed .

Out of the many land use measures on California ballots, we profiled some picks at http://www.cp-dr.com/articles/node-3613 , and here we're offering a tracking grid of key measures for use in keeping score. The following is by county in alphabetical order. Key links for your convenience if you don't see a measure listed here: Secretary of State, directory of county elections offices ; Ballotpedia, local ballot measures . Statewide: Measure 1 . Water bond. ( Sacramento Bee early election report here. ) Yes: 66.8%           No: 33.2% Percent Reporting: 100% of precincts "partially reporting" Measure 2 . "Rainy day" fund. Yes: 68.7%           No: 31.3% Percent Reporting: 100% of precincts "partially reporting" Secretary of State's office, election results page: http://vote.sos.ca.gov/returns/ballot-measures/ Alameda County Countywide: Measure BB. Would institute a transportation commission sales tax and implement a 30-year 2014 Alameda County Transportation Expenditure Plan , significantly to pay for extending BART to Livermore. Would renew existing half-cent sales tax and add another half-cent for a one-cent transportation funding tax until 2015. (Needs 2/3 majority.) Yes: 69.56%           No: 30.44% Percent Reporting: 100% Berkeley: Measure F. A special parks tax would raise the existing levy by 16.7% for parks funding. (Needs 2/3 majority.) Yes: 74.90%           No: 25.10% Percent Reporting: 100% Measure R . Zoning ordinances for downtown Berkeley construction, including requirements of community benefits in exchange for exceeding maximum height limits. Yes: 26.13%           No: 73.87% Percent Reporting: 100% Measure S . Would cancel redistricting map approved by City Council in 2013. A "Yes" vote approves the redistricting map as adopted by City Council; a "No" vote requires the council to adopt a new redistricting plan, leaving the 2002 districting in place for the interim. Yes: 64.16%           No: 35.84% Percent Reporting: 100% Dublin: Measure T. The "2014 Let Dublin Decide Initiative" would set the stage for annexation of Doolan Canyon and partly override prior conservation measures. Yes: 17.21%           No: 82.79% Percent Reporting: 100% Union City: Measure KK. Complies with Hillside Area Plan by submitting a proposal for 63 acres of senior-focused development to the voters. Yes: 34.86%           No: 65.14% Percent Reporting: 100% Alameda County election results will be posted at: http://www.acgov.org/rov/elections/20141104/ . El Dorado County Cameron Estates: Measure D. Authorizes the city to increase the Cameron Estates Community Services District parcel tax by $100 annually, to a total of $350 per parcel, to fund road improvements and maintenance. (Needed 2/3 to pass.) Yes: 59.67%          No: 40.33%          Percent Reporting: 100% Countywide: Measure M . Would prohibit construction of any housing developments of five parcels or more unless CalTrans certifies that two preconditions exist: first, that the stretch of Highway 50 west of Placerville has traffic levels that do not reach Level of Service F, and, second, that traffic will remain at an LOS above F in the foreseeable future. Would prohibit rezoning of land currently designated as farming or open space for other purposes. Limits up zoning low-density residential areas, creates exemptions for non-residential and ag-related development. Yes: 42.06%          No: 57.94%          Percent Reporting:   100% Measure N . Framed as a competing alternative to Measures M and O. Would extend Measure Y slow-growth restrictions but opponents allege it would change the General Plan to allow more development in some areas. Yes: 25.00%          No: 75.00%          Percent Reporting: 100% Measure O . Would rezone a large portion of the county from "Community Region" to a "Rural" designation, changing the required traffic Level of Service of D instead of E. Yes: 33.20%          No: 66.80%          Percent Reporting:   100% Tahoe Truckee Unified School District (Parts of El Dorado, Placer, Nevada Counties): Measures U and E: Would authorize $62 million in bonds financing to update existing facilities, to be paid by an increase in annual property taxes of $29.75 per $100,000  of assessed value. Measure E results by county (requires 55% to pass): El Dorado County: Yes: 54.63%          No: 45.37% Percent Reporting: 100% Placer County: Yes: 59.05%          No: 40.95%          Percent Reporting: 100% Measure U results by county: Nevada County: Yes: 52.30%           No: 47.70% Percent Reporting: 100% Placer County: Yes: 51.97%          No: 48.03%          Percent Reporting: 100% El Dorado County election results will be posted at: http://elections.edcgov.us/results.fwx Placer County results: http://www.placerelections.com/election-night-results.aspx Nevada County results: http://www.mynevadacounty.com/nc/elections/Pages/November-4-2014-Election-Information.aspx Humboldt County Measure P . "Genetic Contamination Prevention Ordinance" would define as a public nuisance the act of growing genetically modified organisms in the county, with an exemption for research institutions that contain their work. GMO human foods, animal feeds, and medicines would be allowed into the county. Yes: 59.43%           No: 40.57% Percent Reporting: 100% Humboldt County election results will be posted at: http://www.humboldtgov.org/890/Elections-Voter-Registration Lake County Measure O . The "Medical Marijuana Control Act," one of many marijuana regulation items on local ballots, competing with Measure P. An attempt to limit cultivation to a scale consistent with personal medical use. Yes: 36.5%           No: 63.5% Percent Reporting: 100% Measure P . The "Freedom to Garden Human Rights Restoration Act" would recognize a "fundamental self evident right to have and grow the natural plants of this earth," with possible anti-GMO implications in a duty to "take reasonable care to prevent environmental destruction". Would preempt the competing Measure O and many regulations imposed on medical marijuana by the currently applicable Measure N. Yes: 32.0%           No: 68.0% Percent Reporting: 100% Lake County election results will be posted at: http://www.co.lake.ca.us/Government/Directory/ROV.htm Los Angeles County Santa Monica: Measure D . Would prohibit new development of Santa Monica Airport property without voter approval. Yes: 41.70%           No: 58.30% Percent Reporting: 100% Measure LC . Competing with Measure D, placed on the ballot by the city Airport Development Council, would also prohibit new development on the site without voter approval, but would except parks and related facilities, and would also "affirm the City Council's authority to manage the Airport and to close all or part of it." Yes: 59.73%           No: 40.27%    Percent Reporting: 100% Measure FS . Would raise registration fees for rent-controlled landlords from $174.96 to amounts of up to $288 per unit per year, allowing half of each unit's fee to be passed through to its tenant. Yes: 51.50%           No: 48.50%   Percent Reporting: 100% Measure H . Would raise the local real estate transfer tax from $3 to $9 per thousand of sale price, only on sale prices of $1 million or more. Yes: 42.20%     No: 57.80% Percent Reporting: 100% Measure HH . Advisory measure whether proceeds from the single-H measure should be spent on affordable housing. Yes: 50.10%           No: 49.90% Percent Reporting: 100% Countywide: Measure P Parcel tax of $23 per year per land parcel, for park funding. Yes: 62.04%           No: 37.96% Percent Reporting: 100% Malibu: Measure R. Would require voter approval for any commercial project of more than 20,000 square feet. Supported by film director Rob Reiner. Yes: 59.27%           No: 40.73% Percent Reporting: 100% Santa Clarita: Measure S. Placed on the ballot by a petition rescind an agreement approved by the Santa Clarita City Council to remove existing billboards and replace them with three digital billboards. A "Yes" vote keeps the deal; sponsors of the petition are on the side of a "No" vote to rescind the deal. Yes: 43.81%           No: 56.19% Percent Reporting: 100% Los Angeles County election results will be posted at: http://www.lavote.net/home/voting-elections/current-elections/election-results . (More direct: http://rrcc.co.la.ca.us/elect/downrslt.html-ssi .) Mendocino County Measure S . Fracking and water use initiative. Yes: 67.18%           No: 32.82%   Percent Reporting: 100% Mendocino County election results will be posted at: http://www.co.mendocino.ca.us/acr/elections.htm (More direct: http://www.co.mendocino.ca.us/acr/current.htm .) Monterey County Marina Measure E . Would make permanent an existing temporary increase in the Transient Occupancy Tax from 10% to 12%. Yes: 73.22%           No: 26.78% Percent Reporting: 100% Monterey County election results will be posted at: http://www.montereycountyelections.us/Election%20Result.htm Orange County Costa Mesa Measure P . Advisory measure opposing the Highway 405 toll lanes. ( A "Yes" vote opposes the toll lanes . See early election results coverage .) Yes: 53.8%           No: 46.2% Percent Reporting: 100% Fountain Valley Measure S . Transient occupancy tax increase Yes: 39.7%           No: 60.3% Percent Reporting: 100% Irvine Measure V . Parks accountability measure related to management of Irvine Great Park. Yes: 88.7%           No: 11.3% Percent Reporting: 100% Newport Beach Measure Y . Amendment of Newport Beach General Plan, Land Use Element Yes: 30.7%           No: 69.3%    Percent Reporting: 100% Tustin Measure HH . Increase in Hotel Room Tax Yes: 52.5%           No: 47.5%        Percent Reporting: 100% Orange County election results will be posted at: http://www.ocvote.com/results/current-election-results/ Sacramento County: Isleton Measure D . Tax to support "Public Safety and Parks and Recreation projects and services." (Needs 2/3 vote.) Yes: 60.22%           No: 39.78% Percent Reporting: 100% Rancho Cordova Measure H . Half-cent sales tax. Proceeds are not actually restricted, but measure has been promoted as raising money to reduce "blight" on Folsom Boulevard and to assert local control. Yes: 58.79%           No: 41.21% Percent Reporting: 100% City of Sacramento. Measure L. The "Strong mayor" initiative promoted by Sacramento Mayor Kevin Johnson. Would give the mayor veto power, power to hire and fire the city manager, and other responsibilities of the city manager. Would subject the mayor to term limits and review by an independent budget analyst. Would return for a public vote in 2020. Yes: 42.78%           No: 57.22%   Percent Reporting: 100% Sacramento County election results will be posted at: http://www.elections.saccounty.net/Pages/default.aspx (More direct: http://www.eresults.saccounty.net/ .) San Benito County Measure H . Vehicle registration fee to fund the Vehicle Abatement Program. (Needs 2/3 vote) Yes: 66.90%           No: 33.10%    Percent Reporting: 100% Measure I . Transient occupancy tax increase from 8% to 12% Yes: 39.28%           No: 60.72% Percent Reporting: 100% Measure J . Anti-fracking measure Yes: 57.36%           No: 42.64 Percent Reporting: 100% Measure L . Hollister transient occupancy tax increase to 12% Yes: 32.51%           No: 67.49%   Percent Reporting: 100% San Benito County election results will be posted at: http://results.sbcvote.us/ San Francisco County Proposition A . $500 million bond measure for roads and transportation. Yes: 71.23%           No: 28.77%   Percent Reporting: 100% Proposition B . Supervisor Scott Wiener's effort to strengthen funding for San Francisco's Muni transit system in proportion to future daytime and nighttime population increases. Yes: 61.14%           No: 38.86%    Percent Reporting: 100% Proposition F . Would approve major redevelopment of the decayed Union Iron Works plant at Pier 70 on the southeast waterfront. Required to comply with the new Proposition B waterfront height limits. Yes: 72.28%           No: 27.72% Percent Reporting: 100% Proposition G . the anti-speculation tax, would increase transfer taxes for most multi-unit residential properties resold within five years of their last purchase or transfer. Yes: 46.01%           No: 53.99%      Percent Reporting: 100% Proposition H . Opposing artificial turf and stadium lighting on Golden Gate Park playing fields. Yes: 45.85%           No: 54.15%   Percent Reporting: 100% Proposition I . In opposition to Proposition H, supporting the Golden Gate Park artificial turf and renovations. Yes: 54.80%           No: 45.20%   Percent Reporting: 100% Measure K . Affordable housing policy statement against displacement of existing city residents and in favor of finding land and money to build new affordable housing. Yes: 65.05%           No: 34.95% Percent Reporting: 100% Proposition L . "Restore Transportation Balance" measure to protect car drivers' parking opportunities, restrict expansion of "demand-responsive pricing" of parking meters, and otherwise shift city priorities to favor car drivers. Yes: 37.67%           No: 62.33% Percent Reporting: 100% San Francisco election results will be posted at: http://www.sfgov2.org/index.aspx?page=4414 San Luis Obispo County Pismo Beach: Measure H . "Area R Development Standards General Plan Amendment." Would increase voter control over the Price Canyon area, outside the town of Pismo Beach but within its sphere of influence. Responds to the "Spanish Springs" golf/residential development proposal. Yes: 65.70%           No: 34.30%    Percent Reporting: 100% San Luis Obispo County election results will be posted at: http://www.slocounty.ca.gov/clerk/Elections/ElectionsInfo/110414GeneralElection.htm Santa Barbara County Measure O . Would increase county's transient occupancy tax from 10% to 12.5%. Yes: 41.49%           No: 58.51% Percent Reporting: 100% Measure P . Anti-fracking ballot measure, in a county with an oil industry. Yes: 39.29%           No: 60.71% Percent Reporting: 197 precincts of 250 Santa Barbara County election results will be posted at: http://www.sbcassessor.com/Elections/UpcomingElections.aspx Santa Clara County Measure B . Would increase City of Palo Alto Transient Occupancy Tax from 12% to 14% and dedicate the funding to infrastructure improvements. Yes: 75.61%           No: 24.39%   Percent Reporting: 100% Measure Q . Would raise funds over 15 years to preserve open space across San Jose, four suburban cities, and unincorporated areas. Yes: 67.03%           No: 32.97% Percent Reporting: 100% Santa Clara County election results will be posted at: http://results.enr.clarityelections.com/CA/Santa_Clara/54209/144518/Web01/en/summary.html

In an unpublished opinion, the Fourth District Court of Appeal has ruled that in adopting a climate action plan, San Diego County violated the California Environmental Quality Act by not following the mitigation measures the county laid out in the general plan process. The ruling is a significant victory for environmentalists and could portend future rulings from the Fourth District in the facing environmental plaintiffs, especially in the pending environmental challenge to the sustainable communities strategy adopted by the San Diego Association of Governments (SANDAG). The ruling might also influence the pending City of San Diego Climate Action Plan, in which many of the same issues are at play. (Disclosure: As most CP&DR readers know, the author was until recently the planning director for the City of San Diego and as such was in the middle of the debate on this very issue.) San Diego County adopted its general plan in 2011. The general plan's environmental impact report contained a mitigation measure requiring the county to adopt a climate action plan that would reduce greenhouse gas emissions from county operations by 17% between 2006 and 2020 and community emissions by 9% between 2006 and 2020. The county also agreed to adopt significance thresholds to implement the CAP. However, the appellate court found that the actual climate action plan, adopted by the county in 2012, did not fulfill this promise. " hen it approved the CAP and Thresholds project, the County stated that the CAP does not ensure the required GHG emissions reductions," wrote Justice Gilbert Nares for a unanimous three-judge panel. "Rather, the County described the strategies as recommendations." The court also concluded that, in the general plan EIR and mitigation monitoring and reporting program (MMRP) adopted with it, the county agreed to follow the "trajectory" called for in Executive Order S-3-05, issued by Gov. Arnold Schwarzenegger in 2005 but did not do so in the CAP. EO S-3-05 requires state agencies to pursue a goal of reducing GHG emissions by 80% by 2050. Its application to SANDAG's SCS via the environmental review process is also an issue in the SANDAG case. The county's defense consisted largely of an argument that the statute of limitations had passed by the time the Sierra Club filed the lawsuit because the Sierra Club should have challenged the general plan EIR, not the CAP. The court rejected this argument and in so doing gave the county a stern lecture for attempting to consider the CAP, as well as adoption of significance thresholds associated with the CAP, as part of the same "project (for CEQA purposes) as the general plan itself. On this point, the court relied heavily on the Second District's decision in Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 443-444 ( Lincoln Place II ). In that case, the court rejected the City of L.A.'s argument that a tenants' association could not sue to enforce mitigation measures resulting from a tentative vesting map approval because the 180-day window for suing under the Permit Streamlining Act had closed. Although the court concluded that both the CAP and the significance thresholds were separate projects – and relied on that conclusion to strike down the County's defense – it did not order the County to prepare a CEQA analysis for other one. Nor did the court explain in detail its conclusion that the general plan and its EIR committed the county to meeting the "trajectory" of EO S-3-05. Although the EIR provides a description of EO S-3-05 , it acknowledges that AB 32, the state statute calling for greenhouse gas emissions reductions, sets no targets past 2020. Furthermore, the MMRP makes no mention of EO S-3-05 or targets past 2020. AB 32 does contain general language saying that emissions reduction efforts should continue past 2020, and the court does cite general language in the EIR about the ongoing risk of climate change. The court apparently based its conclusion on the idea that, in adopting the CAP and the significance thresholds as plan-level documents, the county sought to truncate or eliminate environmental review based on GHG emissions past 2020, even though the county staff acknowledged that GHG emissions might increase after 2020. In the ruling, the court noted that in appearances before the Board of Supervisors the county staff stated that because EO-S-3-05 was an executive order and not a statute, the county was not required to follow it. The Fourth District's ruling in the county case could portend a similar ruling in the SANDAG case. The environmentalists were successful at the trial level in using this argument, though the case involves a different kind of plan produced by a different type of government agency operating under a different state law (SB 375 as opposed to the general plan law). Judge Taylor's ruling was issued almost two years ago. The case is still pending in the Court of Appeal, though oral arguments occurred in August and a ruling is expected soon. Environmentalists have been aggressive in promoting the same set of arguments during the development of the City of San Diego's CAP. Recent press reports suggest that Mayor Kevin Faulconer and environmentalists are on the same page regarding the proposed CAP , although the post-2020 targets have become softer in recent drafts. The case is Sierra Club v. County of San Diego , D064243, at http://www.courts.ca.gov/opinions/nonpub/D064243.PDF.

CalEPA has expanded its definition of "disadvantaged communities" in the cap-and-trade grantmaking programs under SB 535 to the most environmentally burdened 25% of all census tracts.   CalEPA originally proposed using the most burdened 20% of all census tracts. Although Friday's announcement changed the definition of disadvantaged communities, it continues to propose using  the CalEnviroscreen 2.0 environmental justice mapping tool . As CP&DR reported in September ,  CalEPA officials had noted that for most SB 535 programs 25% is the minimum proportion of benefits required to serve "disadvantaged communities", so in those programs a 25% cutpoint guarantees "disadvantaged communities" no more than their proportional share of the total. On the other hand, 50% of funds must be spent to benefit disadvantaged populations in the new Affordable Housing and Sustainable Communities (AHSC) program. CP&DR 's previous coverage on how the metric and the AHSC program interact can be found here . The originally proposal for a 20% "cutpoint" had more starkly disproportionate effects by region. It would have denied the "disadvantage" label to many coastal, northern or hilly census tracts that have suffered from environmental injustice and disinvestment, but that have comparatively good air quality, and/or comparatively high absolute incomes. The metric does not incorporate factors that compare individuals' incomes to local costs of living, and it emphasizes types of environmental injustice that are especially severe in the Central Valley and Southern California.  Accordingly there was pressure to either widen the designation pool or change the metric. Activists and legislators from the San Francisco Bay Area had been especially indignant. The expansion from 20% to 25% adds the "disadvantaged" designation to more Bay Area neighborhoods, including parts of Bayview/Hunter's Point in San Francisco. The CalEPA press release said, "In response to comments, CalEPA said it will evaluate suggestions to further refine the information and methodologies used to develop CalEnviroScreen." New materials posted at http://www.calepa.ca.gov/EnvJustice/GHGInvest/ include a 40-page narrative of the selection process that, from the "Public Input" discussion onward, acknowledges some of the regional concerns, some methodology concerns raised by the Bay Area Air Quality Management District through its complex "Method 6" proposal, and the possibility of including factors like cost of living in the future.