Planning agency must consider greenhouse gas emissions, court rules

In a significant win for environmental groups, a state appellate panel ruled that regional planners must sufficiently consider public health and mass transit when creating plans to mitigate greenhouse gas emissions.

In the closely-watched case, 4th District Court of Appeal ruled Thursday — for a second time — that the environmental impact report for a San Diego regional transportation plan is inadequate.

The opinion followed a July state Supreme Court decision that overruled the appellate court on an important but narrow point. Cleveland National Forest Foundation et al. v. San Diego Association of Governments et al., 2017 DJDAR 10931.

The state high court ruled in July that the plan from the San Diego Association of Governments, or SANDAG, did not need to comply with a 2005 executive order by then Gov. Arnold Schwarzenegger.

State Supreme Court justices found that the former governor’s order — to reduce the state’s emissions to 80 percent below 1990 emissions by 2050 — was not binding.

Agreeing in part with a 2014 dissent by 4th District Justice Patricia D. Benke, the high court found that SANDAG did not abuse its discretion in using its own alternate targets.

But Thursday’s ruling represents a victory for the plaintiffs, a coalition of environmental groups that have long criticized SANDAG for not adequately pursuing public transit and other means of lowering emissions.

The 4th District panel maintained the impact report for the 2050 Regional Transportation Plan/Sustainable Communities Strategy fails on other levels. The case was remanded to San Diego County Superior Court.

In briefs, SANDAG asked the 4th District to declare its earlier ruling moot, since it has since issued another impact report on the project that addresses many of the plaintiffs’ concerns. Once again, Benke dissented, saying those issues should be decided all over again by San Diego County Superior Court.

In her 43-page ruling, Presiding Justice Judith D. McConnell roundly rejected this reasoning. Justice Joan K. Irion concurred.

In one key section, McConnell wrote that the environmental impact report was missing what the California Environmental Quality Act requires: “a discussion of mitigation alternatives that could both substantially lessen the transportation plan’s significant greenhouse gas emissions impacts and feasibly be implemented.”

Phillip H. Babich, a senior associate with Reed Smith LLP who is not involved in the case, said the portions of the opinion following the Supreme Court’s narrow reasoning were “not surprising.”

“What is a little surprising is how the majority fully took the opportunity to once again find that virtually all other aspects of the 2011 EIR were inadequate even though it could have found these issues to be moot in light of the later issued and unchallenged 2015 EIR,” Babich said.

But the lead plaintiffs’ attorney in the case, Rachel B. Hooper, said the majority honed in on the most important aspects of the case.

“Where the case provides important precedential value is in its determination regarding the mitigation that is required under CEQA,” said the partner with Shute, Mihaly & Weinberger LLP in San Francisco.

“What SANDAG did here was provide a set of mitigation measures that were either toothless and ineffective, or were too difficult to implement,” Hooper said.

She added that the appellate court properly found the EIR failed by not providing alternatives to plans that would result in more vehicle miles traveled. It also did not properly look at the effects of vehicle emissions on the health of people living near highways.

Many attorneys who work on California Environmental Quality Act cases were hoping for more guidance from the high court and the 4th District on how to craft an environmental impact report that would survive challenges, said Arthur F. Coon, a partner at Miller Starr Regalia in Walnut Creek.

Coon defends public agencies and private developers in CEQA cases but was not involved in the SANDAG case.

The high court’s opinion on the executive order was helpful, but also very limited, Coon said.

“That’s what the Supreme Court seems to do these days in these CEQA cases: decide a narrow issue and throw the rest back to the Court of Appeal,” Coon said.