7-year dispute over San Diego regional plan settled

The San Diego Association of Governments has settled a 7-year-old lawsuit filed by environmental groups that claimed the agency failed to adequately assess the environmental impacts of a regional transportation plan issued in 2011.

As a result of the settlement, the agency will pay $1.7 million in attorney fees to the plaintiffs, which include the Cleveland National Forest Foundation, the Center for Biological Diversity and the Sierra Club.

In November, the 4th District Court of Appeal ruled that the environmental impact report for SANDAG’s 2050 Regional Transportation Plan contained several deficiencies related to its analysis of greenhouse gas impacts, air pollution, mitigation measures and impacts to agricultural land.

The opinion followed a state Supreme Court decision in favor of the regional transportation agency on an important but narrow issue. In a 6-1 decision, the state high court held in July that SANDAG had properly disclosed the impact report’s inconsistencies with a 2005 executive order by then-Gov. Arnold Schwarzenegger to curb the state’s greenhouse gas emissions.

The Supreme Court left all other issues to be resolved on remand.

Attorneys for SANDAG, led by Margaret M. Sohagi of The Sohagi Law Group, argued that the case was moot because the 2011 impact report had since been superseded by a report the agency adopted in 2015. The court of appeal, however, ruled the case was not moot because the previous report had not been decertified and could be relied upon in the future.

The 4th District appellate court ruled against SANDAG in nearly every other aspect of the case, before remanding it to San Diego County Superior Court, which ordered the agency to decertify the faulty report.

Rachel Hooper, the lead plaintiff’s attorney, said it was important to get the earlier report decertified even though it had been superseded by the one used for SANDAG’s regional transportation plan in 2015.

“We didn’t want the old EIR to stand on their shelves as a certified legal document because we were afraid that SANDAG or even another transportation agency might rely on it in some way,” said Hooper, a partner with Shute, Mihaly & Weinberger LLP in San Francisco. “We are thrilled with the result of this litigation because we have invalidated their EIR — it can never be used again — and we have established very important precedent here in this court of appeal decision.”

Environmental groups challenged the impact report in 2011 after SANDAG approved the plan, which created a framework for more than $200 billion in transportation investments.

Soon after the petition was filed, the state attorney general’s office intervened in support of the plaintiffs.

The groups asserted that the report violated the California Environmental Quality Act because it failed to analyze how the growth-induced increase in traffic and resulting air pollution generated by the plan could harm people living near freeways. They said it also failed to adequately explore measures to reduce that pollution.

“SANDAG was approving the expansion of freeways, the extension of freeways, and yet its EIR never analyzed what the impact would be on public health,” Hooper said.

Another key aspect in the case centered on the way the report analyzed the impacts of greenhouse gas emissions related to the plan. And, while the report acknowledged the plan would result in substantial greenhouse gas impacts, it did an insufficient job of mitigating those impacts, Hooper said.

Following a superior court order that SANDAG set aside the 2011impact report, the agency appealed. The court of appeal found in 2014 that the report failed to comply with CEQA in all identified respects.

Presiding Justice Judith D. McConnell said that the reports mitigation measures for greenhouse gas impacts either assured “little to no concrete steps toward emissions reduction” or were unrealistic and thus “illusory.”

In a 43-page ruling, the court found that SANDAG further violated CEQA by not providing alternatives that would significantly reduce total vehicle miles traveled, such as alternatives that emphasize mass-transit projects. Alternatives labeled “transit emphasis” are a misnomer, the opinion states, adding that those options “mainly advance certain rapid bus projects, but leave planned rail and trolley projects largely unchanged.”

The court also ruled that the report understates the effect of growth-related impacts on agricultural land.

In 2015, as the case was being appealed to the Supreme Court, SANDAG developed the updated plan, which it is required to do every four years. Using the appellate court’s ruling as a template, SANDAG revised all the deficiencies identified in the suit.

“What was very heartening to us was that their new EIR corrected the problems we identified,” Hooper said.

No legal challenges have been filed against the new plan, called San Diego Forward, or its impact report. In a news release announcing the recent settlement, SANDAG noted that the result of the case will have “no practical impact on any projects or programs being implemented by the agency.”

But, because San Diego Forward relies on an impact report that was developed in conformance with the 4th District’s initial ruling, Hooper said the case had a substantial impact on how the agency analyzes its regional plans.

“It is because of this litigation that SANDAG changed its approach to environmental review of regional transportation plans,” she said.