The Sandag Decision: How Lead Agencies Can "stay in Step" With Law and Science in Addressing the Climate Impacts of Large-scale Planning and Infrastructure Projects
| Publication year | 2017 |
| Author | by Janill L. Richards |
by Janill L. Richards*
In March 2015, the California Supreme Court granted review in Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al., framing the issue presented as follows:
Must the environmental impact report for a regional transportation plan include an analysis of the plan's consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 [1990 levels by 2020, and 80% below 1990 levels by 2050] to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?1
Cleveland Nat. Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 510 (hereinafter SANDAG).
At that time, some commentators suggested the case would provide an opportunity for the Court to "reform" CEQA—that is, to pull back from a broad reading of the Act's fundamental (and nearly 50-year-old) objectives. Others hoped the Court would provide clear, step-by-step guidance on how lead agencies must analyze a project's long-term climate impacts to comply with CEQA. The Court—quite reasonably—did neither. Though it resolved the particular dispute in SANDAG's favor, the Court emphasized that, going forward, more will likely be required of lead agencies—particularly those with responsibilities for large-scale, long-term planning and infrastructure projects. This article explores how such agencies might endeavor to "stay in step" with the law and science related to the State's long-term climate objectives as they carry out their duties under CEQA. See SANDAG, supra, 3 Cal.5th at p. 504; see also id. at p. 519.
The Court (Liu, J., writing for the majority) answered "yes" to the precise issue presented, reaffirming CEQA's commitment to long-term environmental protection.2 It accepted and started from the premise that a regional transportation plan EIR "should consider the Plan's long-range greenhouse gas emission impacts for the year 2050." SANDAG, supra, 3 Cal.5th at p. 513 (stating that this point was "not in dispute"). Further, it held that the 2005 Executive Order's 2050 greenhouse gas reduction goal provides relevant context for determining whether such long-term impacts are significant. Id. at p. 515.3 "Although lead agencies have discretion in designing an EIR, the exercise of that discretion must be 'based to the extent possible on scientific and factual data.' (Guidelines, § 15064, subd. (b).)" Id. at p. 515. And "[t]he Executive Order's 2050 goal of reducing California's greenhouse gas emissions to 80 percent below 1990 levels expresses the pace and magnitude of reduction efforts that the scientific community believes necessary to stabilize the climate." Ibid.4 "This scientific information has important value to policymakers and citizens in considering the emission impacts of a project like SANDAG's regional transportation plan." Ibid.
The Court held that "[a] regional planning agency like SANDAG, charged with assisting the implementation of the state's climate goals, must straightforwardly address in the relevant environmental review documents whether its regional transportation plan as a whole is in accord with those goals" SANDAG, supra, 3 Cal.5th at p. 518, italics added.5 This simple pronouncement makes clear that regional planning agencies have an important role to play in meeting statewide climate objectives—with the endpoint being climate stabilization—and that doing so requires playing a long game.
The Court concluded that SANDAG in 2011 "did not abuse its discretion by declining to explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals in the executive order." SANDAG, supra, 3 Cal.5th at p. 504, italics added.6 While a discussion of the plan's long-term climate impacts was required, in the majority's view, the particular EIR at issue did "not obscure the existence or contextual significance of the Executive Order's 2050 emissions reduction target." Id. at p. 515. By disclosing the project's total projected emissions in the discrete years of 2020, 2035, and 2050, noting that they were expected to be higher in the latter two benchmark years than in 2010, and determining the impacts in those years to be significant, "[t]he EIR sufficiently informed the public, based on the information available at the time, about the regional plan's greenhouse gas impacts and its potential inconsistency with state climate change goals." Id. at p. 504; see also id. at p. 515 ("the EIR does not obscure the existence or contextual significance of the Executive Order's 2050 emissions reduction target"); id. at p. 516 (EIR was sufficient to allow reader "to compare the upward trajectory of projected greenhouse gas emissions under the Plan from 2020 through 2050 with the Executive Order's goal of reducing emissions to 80 percent below 1990 levels by 2050").7
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The majority's discussion of what a CEQA-compliant analysis of a project's consistency with state climate goals might look like is largely backwards-looking. This is in part a result of the narrow nature of the issue presented—which focused on whether the analysis is required rather than on how it must be conducted. In addition, as the appeal proceeded, the world moved on. The EIR at issue in the case had been certified in 2011, and by the spring of 2015, the regional planning agency was already well into the CEQA process for the plan's next update, which by law occurs every four years.8 By the time of oral argument, SANDAG's 2015 regional transportation plan update had been approved, a new EIR for that update had been certified (see SANDAG, supra, 3 Cal.5th at pp. 510-511 [judicially noticing the inclusion of "some analysis of the Plan's consistency with the Executive Order" in the 2015 EIR]), and the agency was moving into its 2019 planning and CEQA compliance cycle. And on the law and policy front, the California Air Resources Board—the agency charged with implementing the Global Warming Solutions Act of 2006 (Cal. Health & Saf. Code, § 38500, et seq., more commonly known as "AB 32")—had issued its first update to the initial 2008 Climate Change Scoping Plan (May 2014); the Governor had issued a new executive order setting out a science-based reduction target of 40 percent below 1990 levels by 2030 (Governor's Exec. Order No. B-30-15 (Apr. 29, 2015)); and the Legislature had enacted Senate Bill 32 (2015-2016 Reg. Sess.), codifying the 2030 reduction target as "a necessary interim target to ensure that California meets" its 2050 objective, with the result that CARB is required to incorporate the 2030 target in its next Scoping Plan update. SANDAG, supra, 3 Cal.5th at p. 519.9
Thus, the decision in fact emphasizes that SANDAG's approach in 2011 should not be followed as a "template" for future CEQA compliance. SANDAG, supra, 3 Cal.5th at p. 518. "[W]e do not hold that the analysis of greenhouse gas impacts employed by SANDAG in this case will necessarily be sufficient going forward." Id. at p. 504; see also id. at p. 518. The Court observed that the State's legal and policy framework for addressing climate change continues to evolve. Id. at pp. 518-519. It also noted that "[a]s more and better data become available, analysis of the impact of regional transportation plans on greenhouse gas emissions will likely improve." Id. at p. 518. "[R]egulatory clarification, together with improved methods of analysis...
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