Real Estate and Land Use

San Diego Regional Sustainable Strategies Plan Invalidated; SANDAG to Request Supreme Court Review

Author: Christopher Burt 

Cleveland National Forest Foundation et al. v. San Diego Association of Governments (November 24, 2014) Fourth District Court of Appeal Case No. D063288

Why it matters: The Court of Appeal departed from prior decisions and held that the San Diego Association of Governments (SANDAG) prejudicially abused its discretion by omitting from its Regional Transportation Plan/Sustainable Communities Strategy EIR an analysis of the plan’s consistency with the state’s greenhouse gas policy goals outlined in Executive Order S-3-05, which included a goal of an 80% reduction in GHG emissions by 2050. Even though the plan evaluated a 2035 planning horizon, the court applied the Executive Order’s 2050 deadline. SANDAG recently voted to seek California Supreme Court review of this decision. If its petition is granted, this opinion can no longer be cited. We will notify our readers whether the Supreme Court grants review or whether it refuses to hear the case and this opinion will stand.

Facts: SB 375 (codified as the Sustainable Communities and Climate Protection Act of 2008) mandates that metropolitan planning organizations, such as the San Diego Association of Governments (SANDAG), prepare a Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) that integrates land use, housing, and transportation planning to create more sustainable, walkable, transit-oriented development. In compliance with AB 32 and SB 375, SANDAG prepared an RTP/SCS and also certified a programmatic EIR. Cleveland National Forest Foundation (CNFF) challenged the EIR.

The Decision

Greenhouse Gas Emissions: CNFF argued that the EIR failed as an informational document because it did not analyze the inconsistency between the RTP/SCS’s and the state’s policy goals reflected in Executive Order S-3-05 (Executive Order), which established specific reduction goals in GHGs, in particular the 2050 goal of an 80% reduction from 1990 levels.

The court found that SANDAG’s omission of an analysis assessing the consistency of its RTP/SCS and the Executive Order did not reflect a reasonable, good faith effort at full disclosure and was unsupported by substantial evidence. The court’s conclusion was based primarily on its interpretation of the Executive Order as underpinning “all of the state’s current efforts to reduce greenhouse gas emissions.” Because the Executive Order served as the basis for various other emissions reduction legislation – AB 32 and SB 375 – it was the basis for overall emissions reductions. Thus the EIR’s failure to analyze consistency with the Executive Order was therefore a failure to analyze general consistency with state climate policy.

SANDAG argued that its analysis was appropriate because (1) it utilized the GHG thresholds specified in CEQA Guidelines § 15064.4, and (2) lead agencies have broad discretion in selecting thresholds of significance. The court rejected both of these arguments, concluding first that the thresholds in Guidelines § 15064.4 are not exhaustive and reliance upon them does not necessarily equate to compliance with CEQA. Second, while the court generally agreed that agencies have discretion to choose significance thresholds, it narrowly interpreted the deference owed to agencies, concluding that an agency may not exercise its discretion in a manner that causes the analysis to be misleading or without informational value. The court then applied this narrow interpretation, finding that “by disregarding the Executive Order’s overarching goal of ongoing emissions reductions, the EIR’s analysis of the transportation plan’s greenhouse gas emissions makes it falsely appear as if the transportation plan is furthering state climate policy” when, in fact, the post-2020 emissions directly contravene it. The court specifically noted that its concern “is with the EIR’s failure to recognize, much less analyze and attempt to mitigate, the conflict between the transportation plan’s long-term greenhouse gas emissions and the state climate policy goal, reflected in the Executive Order, of long-term emissions reductions.”

While the EIR did not analyze consistency with the Executive Order, it did analyze emissions using three significance thresholds for planning years 2020, 2035, and 2050 and concluded that there would be significant impacts that required mitigation. SANDAG implemented three mitigation measures it considered feasible:

  • SANDAG would update its future regional comprehensive plans, transportation plans, and sustainable communities plans to incorporate policies and measures leading to reductions in GHGs.
  • SANDAG would encourage the County of San Diego and regional cities to adopt and implement climate action plans, and identified provisions the plans should include.
  • SANDAG would, and other agencies should, require best available technology to reduce emissions during construction and operation of projects.

The EIR noted that these measures encouraged reductions in GHGs but could not guarantee any such reductions. It also rejected as infeasible three other measures: (1) all vehicles driven within the region to be zero-emission or powered by renewable energy, (2) all future construction to be net-zero energy use, and (3) all future construction activity must include only equipment retrofitted to significantly reduce GHGs.

The court initially took issue with the SANDAG’s mitigation measures noting that they require “little or no effort” and included no concrete steps toward emissions reduction. Because mitigation measures are changes that would reduce significant impacts, the court questioned whether the measures even qualified as mitigation.

The court also found that the measures included but rejected as infeasible were illusory because they would be difficult, if not impossible, to enforce or implement and, therefore, did not contribute to the meaningful environmental analysis required by CEQA. Because a discussion of mitigation measures that could both substantially lessen the transportation plan’s significant impacts and be fairly implemented was omitted from the EIR, it failed to comply with CEQA. The court then, opining as to measures that could have been included in the EIR, identified specific policies/measures from SANDAG’s Climate Action Strategy.

Range of Alternatives: In addition to its criticism of the GHG analysis, the court also found the EIR inadequate in its range of alternatives, the adequacy of the air quality environmental setting description and the inappropriate deferral of mitigation measures, and the evaluation of impacts on agricultural lands. Among other factors, the court found that the alternatives focused on congestion relief and not the reduction of vehicle miles traveled.

Air Quality: With respect to air quality, the issue of the adequacy of air quality impacts on human health was argued. The EIR forecasted that the daily tonnage of on-road mobile emissions of PM10 and PM2.5 would increase from 2010 to 2050 and noted that such emissions could impact sensitive receptors if located near congested areas. SANDAG, believing its description of existing conditions was appropriate for a programmatic EIR, stated that the particular level of exposure could not be determined until project-level environmental review. The court disagreed, finding that while more precise information may be available during project-level environmental review, this information should reasonably have been included in the SANDAG programmatic EIR.

CNFF also asserted that the air quality analysis was inappropriate because it failed to correlate adverse air quality impacts to resulting health impacts. The EIR had generally identified the adverse health impacts that might result, but did not specifically link the additional tons of emissions to adverse health impacts. The court disagreed with SANDAG’s programmatic-level analysis, noting that the record did not contain any evidence, let alone substantial evidence, that it was not feasible to provide more detailed information about possible health impacts. CEQA obligates a lead agency to disclose what it reasonably can about adverse air impacts and potential associated health impacts.

Practice Pointers

  • For greenhouse gases, lead agencies should be aware that some courts will not defer to agency thresholds of significance if they do not account for the 2050 reduction goals in Executive Order S-3-05.
  • An EIR should include all information that is reasonably ascertainable, even if the document is of a programmatic nature and further information will be available at project-level review.
  • Reiterating the holdings of prior recent decisions, the court held that an EIR should correlate, as much as reasonably possible, the health impacts associated with air quality impacts.

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Court Applies Low Standard to File a CEQA Challenge

Author: Christopher Burt  

Paulek v. California Department of Water Resources (October 31, 2014) Fourth District Court of Appeal Case No. E060038

Why it matters: In order to file a CEQA challenge, a petitioner is required under CEQA (Public Resources Code § 21177) to object to the approval of the project and present the reasons why it believes the agency has failed to comply with CEQA. This decision finds that a petitioner has sufficiently objected if he or she expresses general concerns about a proposed project by asking questions about the project. A petitioner does not have to specifically “object” to the project. Despite having standing to sue, the court found that the agency’s CEQA compliance was adequate and rejected the petitioner’s challenge because, among other issues, the agency’s initial decision to analyze three proposed activities together – and then dropping one from the project later – was not improper piecemealing of the project.

Facts: A foundation study of Perris Dam and Reservoir revealed structural deficiencies in its ability to withstand seismic events and recommended remediation measures to improve seismic stability of the foundation and additional seismic review. The California Department of Water Resources (Department) developed a proposal responding to the study that recommended (1) remediation of the foundation, (2) replacement of the existing outlet tower, and (3) construction of a new emergency outlet extension. The outlet extension was not recommended or discussed in the initial study, but was proposed to create a safe route for water released in an emergency that would otherwise flood residential areas downstream

A Draft EIR analyzing the environmental impacts of all three parts of the proposal was prepared and circulated. During the public review period, a workshop on the Draft EIR was held at which the petitioner, Tom Paulek, attended and asked questions about the project. Written comments on the Draft EIR were submitted by a local organization for which Paulek signed the letter. The Final EIR, however, did not include the emergency outlet extension component, which had been removed in response to comments suggesting consideration of additional alternatives. The Department certified the Final EIR for the dam remediation and outlet tower replacement.


Standing: The Department first argued that Paulek lacked standing to bring the challenge because he failed to object to the “approval of the project orally or in writing during the public comment period” or prior to close of the public hearing, as required by Public Resources Code § 21177. At the public workshop, Paulek expressed general concern that the proposed remediation measures were, as he understood them, insufficient. He specifically asked whether the “solution would fix the problem” and questioned whether the remediation would work. The court recognized that comments must be sufficiently specific so that the agency has an opportunity to evaluate and respond to them. According to the court, Paulek’s comments were “not generalized comments, but rather expressions of concern specifically regarding the proposed project – essentially, objections – that are sufficiently specific in both subject and level of detail . . . .” Paulek’s comments were also sufficient despite the fact that he raised no environmental issue because, according to the court, an objection challenging a project’s benefits is just as pertinent to the balancing of environmental impacts and project benefits required by CEQA. Finally, the court held that a comment that raises a question about whether a project will solve a problem it is supposed to remedy is understood as an expression of disapproval, regardless of whether it is phrased as a question or made as an affirmative statement of objection.

No Mitigation for Baseline Conditions: Paulek raised two arguments regarding the agency’s decision to drop the emergency outlet extension from the project in the Final EIR. Paulek first contended that removal of the emergency outlet extension was erroneous because it would result in a significant environmental impact (flooding of residential uses). The court rejected this argument, noting that the environmental impact would exist independent of the project and agencies are required only to mitigate or avoid the significant environmental effects of the project. Because the environmental impact was part of the baseline conditions and not a result of the project, the impact need not be mitigated.

Piecemealing: Paulek then argued that removal of the emergency outlet extension constituted improper piecemealing. The court rejected this argument, noting that other courts found improper segmentation when (1) the second project is a reasonably foreseeable consequence of the first project, (2) the second activity is afuture expansion of the first that will change the scope of the first’s impacts, or (3) both activities are integral parts of the same project. The facts here did not fall into one of these situations. The court also noted that the Department’s initial decision to analyze each of the three proposed activities together in one Draft EIR is not “determinative, or even probative, of whether the emergency outlet extension is part of a single larger project.”

Response to Comments: Finally, Paulek argued that the responses to his public comments were insufficient. Paulek submitted a letter stating that the Draft EIR did not provide the necessary information and analysis for informed decision making, but omitted specific examples of this deficiency. The Department’s response stated generally that the Draft EIR “adequately discusses the types and level of impacts this project will have on the environment.” The court found this response to be sufficient because a general comment requires only a general response.

Paulek also argued that a number of the responses were insufficient because they merely included references to analysis contained in the Draft EIR. The court found this argument unavailing, holding that references to an EIR are permissible and Paulek had not provided any analysis as to why the referenced sections of the Draft EIR were not responsive to the comments.

Conclusion: In conclusion, despite finding that Paulek had standing to bring the challenge, the court rejected all of Paulek’s substantive arguments regarding the adequacy of the Department’s CEQA compliance and upheld the agency’s decision and adequacy of its EIR.

Practice Pointers:

  • The threshold for “objecting” to a project under Public Resources Code § 21177 is low and may be met by expressions of concern about the design of the project. Just posing questions about a project may be sufficient to provide standing to challenge a project approval.
  • Improper segmentation occurs when (1) the second project is areasonably foreseeable consequence of the first project, (2) the second activity is afuture expansion of the first that will change the scope of the first’s impacts, or (3) both activities are integral parts of the same project.
  • When responding to public comments, the level of specificity of the response is dictated by the level of detail of the comment. Also, references to the EIR’s analysis can be a sufficient response provided they address the issues raised by the comment.

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UPDATE: Accepting a Permit “Under Protest” Does Not Work in the Coastal Zone

In our October issue, we reported on the Lynch v. California Coastal Commission (2014) 229 Cal. App. 4th 658 decision, which held that homeowners who received a coastal development permit from the Coastal Commission to rebuild their stairway that was damaged by a storm waived the right to challenge the 20-year expiration date on the repair because acceptance of the permit reflected their voluntary agreement to the conditions. The Court of Appeal rejected the notion that a permit can be accepted “under protest.” The California Supreme Court has granted review of this decision, which will be closely monitored by property rights advocates and applicants throughout the state. Supreme Court review automatically “depublishes” the Court of Appeal opinion – leaving this issue unresolved until the Court issues its decision, which can take several years. (Click here to read the original story.)

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