EIR Need Not Analyze Consistency With GHG Executive Order
Cleveland National Forest Foundation et al. v. San Diego Association of Governments et al. (July 13, 2017, Case No. S223603)
By Christopher Burt, Associate, Land Use
Why it matters: The California Supreme Court upheld the San Diego Association of Governments’ (SANDAG) Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) and concluded that CEQA does not necessarily mandate that the environmental impact report (EIR) include an analysis of consistency with the greenhouse gas (GHG) reduction requirements of Executive Order No. S-3-05. The Supreme Court, however, also noted that its holding was specific to the EIR at issue, and cautioned that lead agencies must ensure that CEQA analysis is consistent with evolving science and regulations. Thus, what was permissible for this EIR (originally certified in 2011) may not necessarily be considered adequate in the future.
Facts: SANDAG prepared an RTP/SCS that integrated land use, housing and transportation planning to create more walkable, sustainable, transit-oriented development in compliance with the requirements of SB 375, the Sustainable Communities and Climate Protection Act of 2008. Along with the RTP/SCS, SANDAG prepared and certified a programmatic EIR. The EIR was challenged by numerous environmental organizations. The trial and appellate courts both concluded the EIR failed to comply with CEQA in multiple respects, including its failure to analyze the RTP/SCS’s consistency with the GHG emissions reduction goals of Executive Order No. S-3-05, particularly the goal that emissions be reduced to 80% below 1990 levels by 2050. With respect to this GHG analysis issue, the petitioners argued that the EIR, which acknowledged that the RTP/SCS would result in an increase in GHG emissions in 2050, was misleading and understated the project’s impacts by not analyzing consistency with the executive order.
The California Supreme Court granted review on the very limited question of whether the EIR had to include an analysis of the plan’s consistency with the GHG reduction goals of Executive Order No. S-3-05.
Decision: The Supreme Court concluded that the EIR was not invalid for its failure to expressly analyze consistency with Executive Order No. S-3-05. The Supreme Court first dismissed two of SANDAG’s response arguments. First, it rejected the argument that the RTP/SCS’s role in achieving the emissions reductions was “likely small” and, therefore, consistency with the executive order was not an appropriate threshold. The Supreme Court concluded that the nature of GHG emissions and climate change was such that individual contributions from projects were likely to be small but cumulatively impactful. Second, the Supreme Court agreed with the petitioners that the fact that the executive order was not “an adopted GHG reduction plan” and there was “no legal requirement to use it as a threshold” was not dispositive. The Supreme Court noted that lead agencies must prepare EIRs “to the extent possible on scientific and factual data” and that the executive order’s goals of reducing emissions had important scientific value to policymakers and citizens.
Notwithstanding its rejection of those two arguments, the Supreme Court concluded the EIR was not invalid because it “does not obscure the existence or contextual significance of the Executive Order’s 2050 emissions reduction target.” First, the EIR explained that the executive order reduction target is part of the regulatory setting. Second, when outlining why the reduction target was not required as a threshold, the EIR included a discussion of the project’s projected GHG emissions in 2050, and noted that emissions would increase over baseline conditions. Thus, according to the Supreme Court, the divergence between (1) projected 2050 emissions and (2) the executive order’s goals, both of which were discussed in the EIR, was “apparent from the EIR itself.” Although there may have been clearer ways to compare the project’s 2050 emissions with the executive order’s reduction requirement, the Supreme Court concluded that the EIR presented the information in a manner that adequately informed the public and decision makers. Specifically, the Supreme Court noted that “it was not difficult for the public, reading the EIR, to compare the upward trajectory of projected greenhouse gas emissions under the [RTP/SCS] … with the Executive Order’s goal of reducing emissions….”
The Supreme Court also concluded that SANDAG did not abuse its discretion by declining to use the reduction requirements as a significance threshold because “the Executive Order does not specify any plan or implementation measures to achieve its goal.” Thus, the Supreme Court found that it was not clear what additional information SANDAG should have conveyed to the public beyond the fact that the project’s 2050 emissions would conflict with the reduction requirements (because emissions would increase).
Importantly, the Supreme Court cautioned that its conclusion with respect to the SANDAG EIR is not necessarily applicable to future EIRs. Again referencing the requirement that EIRs must be based on scientific and factual data, the Supreme Court noted that as more information about GHG emissions becomes available, the analysis of the impact of RTP/SCS plans on GHGs will also improve. As such, planning agencies like SANDAG “must ensure that CEQA analysis stays in step with evolving scientific knowledge and state regulatory schemes.”
Lead agencies have discretion when setting CEQA GHG thresholds of significance and are not expressly required to use the reduction goals of Executive Order No. S-3-05 as a threshold. Agencies should, at a minimum, address the project’s consistency with the executive order.