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In the Supreme Court of the State of California
In the Supreme Court of the State of California
CLEVELAND NATIONAL FOREST
FOUNDATION; SIERRA CLUB;
CENTER FOR BIOLOGICAL
DIVERSITY; CREED-21; AFFORDABLE
HOUSING COALITION OF SAN
DIEGO; PEOPLE OF THE STATE OF
CALIFORNIA,
Case No. S223603
Plaintiffs and Cross-Appellants,
v.
SAN DIEGO ASSOCIATION OF
GOVERNMENTS; SAN DIEGO
ASSOCIATION OF GOVERNMENTS
BOARD OF DIRECTORS,
Defendants and Appellants.
Fourth Appellate District, Div. Two, Case No. D063288
County Superior Court, Case No. 37-2011-00101593-CU-TT-CTL
Timothy B. Taylor, Judge PEOPLE OF THE STATE OF CALIFORNIA’S
ANSWER BRIEF ON THE MERITS
KAMALA D. HARRIS
Attorney General of California
EDWARD C. DUMONT
Solicitor General
MARK J. BRECKLER
Chief Assistant Attorney General
SALLY MAGNANI
Senior Assistant Attorney General
TIMOTHY R. PATTERSON
Supervising Deputy Attorney General
State Bar No. 72209
*JANILL L. RICHARDS
Principal Deputy Solicitor General
State Bar No. 173817
1515 Clay Street, 20th Floor
P.O. Box 70550 Oakland, CA 94612-0550 (510) 622-2130
[email protected] Attorneys for People of the State of
California, ex rel. Kamala D. Harris,
Attorney General
TABLE OF CONTENTS
Page
Statement of the Issue................................................................................... 1
Short Answer to Statement of the Issue ....................................................... 1
Introduction .................................................................................................. 2
Statement of the Case ................................................................................... 6
I.
SANDAG’s Regional Transportation Planning Obligations ............................................................................. 6
II.
The CEQA Process for the 2011 Update to SANDAG’s 2050 Plan ........................................................... 7
III.
The Ensuing CEQA Litigation and Lower Court Decisions .............................................................................. 10
Background: The Science, Law, and Policy of Climate Change .............. 12
A.
Executive Order No. S-03-05 (2005) ........................ 13
B.
The Global Warming Solutions Act (AB 32) (2006) and the AB 32 Scoping Plan (2008).............. 14
C.
Legislation Directing Amendments to the CEQA Guidelines to Address Greenhouse Gas
Emissions (2007) and Resulting Amendments
(2010) ........................................................................ 17
D.
SANDAG’s Climate Action Strategy (2010)............ 19
E.
The Sustainable Communities Strategies Law (2008) and SANDAG’s Regional Targets (2010) ........................................................................ 20
Standard of Review .................................................................................... 21
Argument .................................................................................................... 22
I.
Summary of Argument......................................................... 22
II.
Summary of the 2050 Plan EIR ........................................... 25
A.
Project Description.................................................... 25
B.
Disclosure and Analysis of the 2050 Plan’s Greenhouse Gas Emissions ....................................... 25
C.
Significance Determination....................................... 27
i
TABLE OF CONTENTS
(continued)
Page
D.
Response to Comments Requesting Consideration of Climate Stabilization ..................... 31
III.
CEQA Requires SANDAG to Consider the Science and Policy of Climate Stabilization in Determining the Significance of the 2050 Plan’s Greenhouse Gas Emissions ............................................................................. 31
IV.
The 2050 Plan EIR’s Failure to Consider Climate Science and Policy Was Prejudicial ..................................... 35
V.
SANDAG’s Additional Arguments Do Not Excuse the 2050 Plan EIR’s Substantial Deficiencies............................ 38
VI.
A.
Deference to Agency Discretion Does Not Sanction a Document that Minimizes a Project’s Environmental Effects............................................... 38
B.
The 2009 Amendments to the CEQA Guidelines Did Not Excuse Lead Agencies From Exercising Careful Judgment and Making Their Best Efforts in Determining Significance ....... 40
C.
The EIR’s Disclosure of 2050 Gross Emissions and Bare Mention of the Executive Order Are Not a Substitute for Good Faith, Reasoned Analysis..................................................................... 46
D.
SANDAG’s Post Hoc Attempts to Justify its Refusal to Consider the Science and State Policy Concerning Long-Term Climate Stabilization Should Be Rejected.............................. 49
This Court Should Remand the Matter and Allow SANDAG to Remedy the 2011 Environmental Impact Report’s Deficiencies in the Course of the Pending 2050 Plan Update ................................................................. 52
Conclusion .................................................................................................. 54
ii
TABLE OF AUTHORITIES
Page
CASES
Assn. of Irritated Residents v. California Air Resources Bd.
(2012) 206 Cal.App.4th 1487 .................................................... 15, 36, 43
Berkeley Hillside Preservation v. City of Berkeley
(2015) 60 Cal.4th 1086 .............................................................. 21, 39, 42
Berkeley Keep Jets Over the Bay v. Bd. of Port Comrs.
(2001) 91 Cal.App.4th 1344 ............................................................ 36, 46
Bozung v. Local Agency Formation Com.
(1975) 13 Cal.3d 263 ............................................................................. 41 California Charter Schools Assn. v. Los Angeles Unified
School Dist.
(2015) 60 Cal.4th 1221 .......................................................................... 53 Californians for Alternatives to Toxics v. Dept. of Food &
Agriculture
(2005) 136 Cal.App.4th 1 ...................................................................... 42 Citizens of Goleta Valley v. Bd. of Supervisors
(1990) 52 Cal.3d 553 ....................................................................... 21, 32
City of Marina v. Bd. of Trustees of the California State
University
(2006) 39 Cal.4th 341 ...................................................................... 21, 39
Communities for a Better Environment v. California
Resources Agency
(2002) 103 Cal.App.4th 98 .................................................................... 42 Communities for a Better Environment v. South Coast Air
Quality Management Dist.
(2010) 48 Cal.4th 310 ............................................................................ 36 Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist.
Agricultural Assn.
(1986) 42 Cal.3d 929 ............................................................................. 35 iii TABLE OF AUTHORITIES
(continued)
Page
Edna Valley Assn. v. San Luis Obispo County and Cities
APCC
(1977) 67 Cal.App.3d 444 ....................................................................... 7 Friends of Sierra Madre v. City of Sierra Madre
(2001) 25 Cal.4th 165 ............................................................................ 28 Kings County Farm Bur. v. City of Hanford
(1990) 221 Cal.App.3d 692 ............................................................. 35, 48
Laurel Heights Improvement Assn. v. Regents of University of
California
(1988) 47 Cal.3d 376 ................................................................... 2, 22, 32
Massachusetts v. EPA
(2007) 549 U.S. 497............................................................................... 49 Neighbors for Smart Rail v. Exposition Metro Line
Construction
(2013) 57 Cal.4th 439 ............................................................................ 35 No Oil, Inc. v. City of Los Angeles
(1974) 13 Cal.3d 68 ............................................................................... 28 Protect the Historic Amador Waterways v. Amador Water
Agency
(2004) 116 Cal.App.4th 1099 ................................................................ 42 Vineyard Area Citizens for Responsible Growth, Inc. v. City
of Rancho Cordova
(2007) 40 Cal.4th 412 ............................................................ 21 et passim
iv
TABLE OF AUTHORITIES
(continued)
Page
STATUTES
23 U.S.C. § 134 ............................................................................................. 6 Government Code
§ 12600, subd. (b) .................................................................................. 10 § 12606................................................................................................... 10 § 65080 et seq.
(Sustainable Communities Strategy Law, SB 375)............ 6 et passim
§ 65080, subd. (b)(2).......................................................................... 7, 20
Health and Safety Code
§ 38500 et seq. (Global Warming Solutions Act of 2006, AB 32) ............. 1 et passim
§ 38501, subd. (i) ..................................................................................... 1 § 38550................................................................................................... 14 § 38551............................................................................................... 1, 14
§ 38551, subd. (b) ............................................................................ 14, 15
§ 38551, subd. (c)................................................................................... 15 § 38561................................................................................................... 15 Public Resources Code
§ 21000 et seq.
(California Enviornmental Quality Act) ............................ 1 et passim
§ 21000, subd. (a)................................................................................... 33 § 21000, subd. (d) .................................................................................. 17 v
TABLE OF AUTHORITIES
(continued)
Page
§ 21001, subd. (a)................................................................................... 33 § 21001, subd. (c)................................................................................... 33 § 21001, subd. (d) ........................................................................ 2, 17, 33
§ 21002..................................................................................................... 8 § 21002.1, subd. (a), (b) ........................................................................... 8 § 21002.1, subd. (c).................................................................................. 8 § 21061............................................................................................... 8, 28
§ 21081............................................................................................... 8, 28
§ 21083................................................................................................... 39 § 21083, subd. (b) .................................................................................. 18 § 21083.1................................................................................................ 39 § 21083.05........................................................................................ 18, 44
§ 21151................................................................................................... 28 § 21168.5................................................................................................ 21 § 21168.9, subd. (a)................................................................................ 53 Public Utilities Code
§ 120300................................................................................................... 6 § 132050................................................................................................... 6 § 132051................................................................................................... 6 Stats. 1970, ch. 1433.................................................................................... 17 Stats. 2007, ch. 185, § 1............................................................................... 18 vi
TABLE OF AUTHORITIES
(continued)
Page
Stats. 2012, ch. 548, § 5............................................................................... 18 REGULATIONS
California Code of Regulations, title 14
§ 15000 et seq. (CEQA Guidelines) .................................................. 9, 17
§ 15003, subd. (i) ................................................................................... 34 § 15003, subd. (h) .................................................................................. 33 § 15021, subd. (d) .................................................................................... 9 § 15064................................................................................. 18, 34, 38, 43
§ 15064, subd. (a)................................................................................... 28 § 15064, subd. (b) ............................................................................ 19, 34
§ 15064, subd. (h)(1).............................................................................. 28 § 15064, subd. (h)(3).............................................................................. 44 § 15064.4................................................................................ 18 et passim
§ 15064.4, subd. (a).................................................................... 18, 19, 40
§ 15064.4, subd. (b)(1)........................................................................... 18 § 15064.4, subd. (b)(2)..................................................................... 41, 48
§ 15064.4, subd. (b)(3)......................................................... 41, 42, 43, 44
§ 15064.7................................................................................................ 18 § 15064.7, subd. (a)................................................................................ 41 § 15065................................................................................................... 43 § 15065, subd. (a)(2).............................................................................. 33 vii TABLE OF AUTHORITIES
(continued)
Page
§ 15126.2, subd. (a)................................................................................ 33 § 15126.2, subd. (c)................................................................................ 33 § 15126.2, subd. (d) ............................................................................... 35 § 15144............................................................................................. 34, 41
§ 15151................................................................................. 34, 35, 38, 43
§ 15204................................................................................................... 34 § 15384, subd. (b) .................................................................................. 22 OTHER AUTHORITIES
Executive Order No. S-3-05 (2005) .............................................. 1 et passim
Executive Order No. B-30-15 (2015).................................................... 51, 52
viii
STATEMENT OF THE ISSUE
“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 to
comply with the California Environmental Quality Act (Pub. Resources
Code, § 21000 et seq.)?”
SHORT ANSWER TO STATEMENT OF THE ISSUE
To preserve our existing environment and reduce the risk of
dangerous climate change, science instructs that we must continually and
substantially reduce our greenhouse gas emissions through midcentury.
The objective of climate stabilization is now firmly embedded in state law
and policy, including the State’s foundational climate law, the Global
Warming Solutions Act of 2006, commonly referred to as AB 32 (Health &
Saf. Code, § 38500 et seq.).
Where the proposed update to a 40-year regional transportation plan
shows near-term reductions in greenhouse gas emissions, but the reductions
are not projected to continue over the longer-term, the lead agency must
make a good faith, reasonable effort to analyze and discuss in its
Environmental Impact Report whether the proposed project may conflict or
interfere with the State’s climate stabilization objectives, or explain why it
cannot conduct such an analysis. To be clear, in the present case, this
requirement arises not from any executive order, but from CEQA’s
requirement that a public agency exercise its careful judgment in light of
the available facts and science and disclose all that it reasonably can about a
project’s short- and long-term environmental effects, including whether the
project may undermine well-established, long-term environmental goals.
1
INTRODUCTION
Appellants, the San Diego Association of Governments (SANDAG)
and its Board, contend this case presents a thicket of thorny questions on
such things as the proper standard of review, deference to agency decision
making, separation of powers and the effect of executive orders, and
interpretation of the CEQA Guidelines as applied to greenhouse-gas related
impacts. But this case turns on a simpler and more fundamental question:
Whether SANDAG in its Environmental Impact Report for the 2050
Regional Transportation Plan and Sustainable Communities Strategy (2050
Plan) could decline to consider the State’s long-term climate stabilization
objectives, and the science that underlies those objectives, and still produce
a document that serves the basic informational purposes of CEQA. As both
the trial court and Court of Appeal held, it could not.
In enacting CEQA, the Legislature determined “that the long-term
protection of the environment, consistent with the provision of a decent
home and suitable living environment for every Californian, shall be the
guiding criterion in public decisions.” (Pub. Resources Code, § 21001,
subd. (d).) 1 This end is served by requiring an Environmental Impact
Report for any project that may have a significant effect on the
environment. In the seminal Laurel Heights decision, this court described
the EIR as the “heart of CEQA” and an “environmental ‘alarm bell’ whose
purpose it is to alert the public and its responsible officials to environmental
changes before they have reached ecological points of no return.” (Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47
Cal.3d 376, 392 [internal quotations omitted].) The public agency’s charge
in preparing an EIR thus is to make a reasonable, good faith effort to
disclose all that it reasonably can about the project’s significant
1
All cites are to the Public Resources Code unless otherwise noted.
2
environmental effects. The agency is required to present the hard questions
about the project’s potential impacts, and to endeavor to answer those
questions in light of available facts and science, and with short- and long­
term environmental objectives in mind. When the agency meets its CEQA
obligations, the EIR serves the law’s purposes by fostering informed public
discussion and ensuring governmental accountability. In those
circumstances, though a challenger may view the document as imperfect, or
the agency’s decision as unwise, the EIR and the agency’s decision to
approve the project are legally sufficient and must stand as an exercise of
the lead agency’s considerable discretion.
This same deference cannot apply where, as in this case, the agency
declines to present or attempt to answer the hard environmental questions.
In 2011, SANDAG, the Metropolitan Planning Organization for the 4,200­
plus square mile San Diego region, prepared an EIR for its 2050 Plan, a
planning and expenditure document that, in SANDAG’s words, will serve
as the region’s transportation system “blueprint” for the next 40 years. As
the Attorney General noted in her comments on the EIR, while the 2050
Plan may result in near-term reductions in greenhouse gases, projected per
capita and total greenhouse gas emissions begin to rise after 2020. In light
of climate science and the State’s well-established policy to continually and
substantially reduce greenhouse gas emissions through midcentury in order
to achieve climate stabilization, the relevant question is, what is the
environmental significance of the region’s post-2020 rising emissions
trajectory? Should the public and decision makers be concerned? Can
current and future actions bend the curve downward, or are the decisions
being made today irreversibly committing the region, and the State, to
increasing emissions?
SANDAG’s response, then and now, is that neither the Legislature
nor the California Resources Agency has specifically directed SANDAG, in
3
carrying out its duties under CEQA, to consider the State’s long-term
statewide emissions reduction target—80 percent below 1990 emissions
level by 2050—that is set out in Executive Order S-3-05 (2005). In the
absence of such a directive, SANDAG argues, it was free to ignore these
questions. It is irrelevant, however, that Executive Order No. S-3-05 is not
directed at SANDAG. CEQA itself, apart from this executive order,
requires SANDAG as the lead agency to exercise its own careful judgment,
based to the extent possible on scientific and factual data, to determine
whether the greenhouse gas emissions resulting from its regional
transportation plan will be significant over the longer term, and to produce
a document that allows for public discussion and fully informed decision
making.
SANDAG failed to meet its obligation. The 2050 Plan EIR disclosed,
without any meaningful analysis or discussion, that greenhouse gas
emissions would be higher in 2050 than in 2010, but moved quickly to
minimize rather than highlight any concerns that might be raised by the
longer-term increase. The EIR asserted, for example, that in the year 2020,
the 2050 Plan will not conflict with the Air Resources Board’s Scoping
Plan—the framework document setting out how the State will meet the
2020 statewide greenhouse gas emissions limit established by the Global
Warming Solutions Act of 2006. The EIR failed to note, however, that the
2020 target is not an environmental end in itself, but rather an interim step
towards achieving substantial longer-term emissions reductions and climate
stabilization. The resulting EIR was not only incomplete—it was
misleading. In the words of the Court of Appeal, the EIR made it “falsely
appear as if the transportation plan is furthering state climate policy when,
in fact, the trajectory of the transportation plan’s post-2020 [greenhouse
gas] emissions directly contravenes it.” (Opinion (Nov. 24, 2014) (Opn.)
19.)
4
This court need not—and should not—prescribe precisely how
SANDAG must account for the environmental objective of long-term
climate stabilization in making its significance determination. A lead
agency has considerable discretion in this regard. Contrary to SANDAG’s
assertions, the People do not argue that CEQA requires SANDAG to
engage in a strict “consistency” analysis, under which any failure of its
regional transportation plan to follow in lockstep the statewide reductions
described in the Scoping Plan and Executive Order would render the
project’s greenhouse gas impacts necessarily significant. SANDAG could
comply with CEQA by, for example, discussing whether the 2050 Plan’s
projected increases in greenhouse gas emissions and vehicle miles traveled
over the longer-term may interfere with or make it more difficult to achieve
the continual and substantial statewide emissions reductions required to
meet the State’s longer-term climate objectives. Indeed, that appears to be
the approach that SANDAG is taking in the currently circulating draft EIR
for the 2050 Plan’s required four-year update. Had SANDAG included in
the 2011 EIR the discussion of significance for the project’s greenhouse
gas-related impacts that is contained in its current draft EIR, the People
likely would not be before this court on this particular issue. Since
SANDAG in its opening brief contends that it is not legally required to
provide this information to the public and decision makers, there is still a
need for this court to settle the question of SANDAG’s obligations under
CEQA, which could otherwise evade judicial review due to the relatively
short amendment cycle for regional transportation plans.
The court should hold that where a regional transportation plan—a
large-scale, long-term infrastructure and land use planning project—may
commit a region to substantial greenhouse gas emissions for decades to
come, the lead agency in its EIR must disclose not only the project’s nearterm emissions, but also whether early trends are sustainable over the
5
project’s lifespan. If the project’s near-term emissions reductions are not
expected to continue, the lead agency should make a reasonable effort to
analyze and discuss whether the project may conflict or interfere with the
State’s long-term climate stabilization objectives, or explain why it cannot,
supporting its explanation with substantial evidence. The court should hold
that SANDAG abused its discretion in determining that, for the 2050 Plan,
it had no legal obligation under CEQA to consider the environmental
objective of climate stabilization. It should further affirm the judgment of
the Court of Appeal that SANDAG’s error was prejudicial, provide that
SANDAG must decertify the deficient 2011 EIR, and remand the case for
further proceedings and the issuance of a writ consistent with this court’s
opinion.
STATEMENT OF THE CASE
I.
SANDAG’S REGIONAL TRANSPORTATION PLANNING
OBLIGATIONS
SANDAG is a Metropolitan Planning Organization, one of 18
regional transportation planning entities across the State. (See
Administrative Record (AR) 8a:2065, 218:17688-17689.) 2 The area under
SANDAG’s jurisdiction encompasses the County of San Diego and the
region’s 18 cities and covers more than 4,200 square miles. (AR 8a:1998,
2142.) By law, SANDAG is required to prepare a regional transportation
plan and to update it every four years. (Pub. Util. Code, §§ 120300,
132050, 132051; Gov. Code, § 65080 et seq.; 23 U.S.C. § 134; see also AR
8a:2065 [EIR].) “The purpose of the [regional transportation plan] is to
establish regional goals, identify present and future needs, deficiencies and
2
See also the website for the Institute for Local Government at
<http://www.ca-ilg.org/post/californias-18-metropolitan-planning­
organizations> [as of July 6, 2015].
6
constraints, analyze potential solutions, estimate available funding, and
propose investments.” (AR 218:17690 [Regional Transportation Plan
Guidelines].) The 2050 Plan is a planning and transportation expenditure
document that, in SANDAG’s words, “is the blueprint for a regional
transportation system, serving existing and projected residents and workers
within the San Diego region . . . over the next 40 years.” (AR 8a:1997
[EIR]; see also id. at 1998, 2066; Edna Valley Assn. v. San Luis Obispo
County and Cities APCC (1977) 67 Cal.App.3d 444, 447-448.)
The Sustainable Communities Strategy Law, SB 375, enacted in
September 2008, requires SANDAG and other regional transportation
planning entities throughout California to incorporate a “Sustainable
Communities Strategy” in each region’s regional transportation plan. (Gov.
Code, § 65080, subd. (b)(2).) Its purpose is to “align regional
transportation, housing, and land use plans to reduce the amount of vehicle
miles traveled to attain the regional GHG [greenhouse gas] reduction
target[s]” set by the Air Resources Board. (AR 8a:2071 [EIR].) 3
SANDAG began the process for the required 2011 update to its 2050
Regional Transportation Plan and Sustainable Communities Strategy in
2008, and released the draft 2050 Plan in April 2011. (See Appellants’
Opening Brief (AOB) 12-13.)
II. THE CEQA PROCESS FOR THE 2011 UPDATE TO SANDAG’S
2050 PLAN
Because a regional transportation plan is a project undertaken by a
public agency that may have significant effects on the environment, CEQA
requires the Metropolitan Planning Organization as “lead agency” to
prepare an Environmental Impact Report. (Edna Valley, supra, 67
3
SB 375 and the targets set for the SANDAG region are discussed in
greater detail at p. 20, below.
7
Cal.App.3d at pp. 448-449.) The purpose of an EIR is to identify for the
public (through the EIR process) and agency decision makers (presented
with a final EIR, including staff’s responses to public comments) the
project’s “significant” environmental effects, and to determine whether
there are feasible alternatives, design changes, or mitigation measures that
could reduce or eliminate those effects. (§§ 21002, 21002.1, subd. (a), (b),
21061.) If the identified impacts cannot be reduced to less-than-significant
levels, the lead agency may still approve the project, but its decision makers
must make specific findings that alternatives and further mitigation are not
feasible and that other “overriding” benefits—which may include economic
and social benefits—outweigh the project’s environmental harm.
(§§ 21002.1, subd. (c), 21081.)
SANDAG released its draft EIR for the 2050 Plan in June 2011.
(AR 7:227.) The Attorney General on behalf of the People, among a
number of other entities, individuals, and organizations, commented on the
draft EIR. (AR 8b:3763 [EIR Appendix G, Responses to Comments].)
Both the Attorney General and the Governor’s Office of Planning and
Research expressed concern that while the draft EIR stated that the Plan
meets the per capita emissions reduction targets set under SB 375 targets,
the Plan’s per capita emissions from passenger vehicles appear to rise after
2020, which would appear to run counter to SB 375’s purposes. (AR
311:25643 [Attorney General’s comment letter]; id. at 308:25004-25005
[OPR’s comment letter].) The Attorney General’s comment letter noted,
among other things, that the draft EIR showed that the Plan’s near-term
greenhouse gas-related benefits did not appear to be sustainable beyond
2020. (AR 311:25641-25642.) The Attorney General advised that under
these circumstances, in order to fully inform the public and decision makers
of the Plan’s greenhouse gas-related impacts, SANDAG must evaluate the
project over the longer term in relationship to the “overarching
8
environmental objective” of climate stabilization, which requires continual
and substantial emissions reductions through midcentury. (AR 311:25640­
25641.) The Attorney General cited relevant climate science, the objectives
of the Global Warming Solutions Act of 2006 and its implementing
Scoping Plan, and Executive Order No. S-3-05, which sets science-based
declining statewide greenhouse gas emissions reduction targets, including a
target of reducing total emissions to 80 percent below 1990 levels by the
year 2050. (AR 311:25640-25643; see also AR 319:27049-27050
[Executive Order].)
SANDAG declined to consider the Plan’s longer-term emissions as
they relate to the objective of climate stabilization, stating that “the
Legislature declined to include the Executive Order’s aspirational 2050
goal in AB 32[,]” and that the Executive Order is not specifically identified
in the CEQA Guidelines [Cal. Code Regs., tit. 14, § 15000 et seq.], and is
not directly binding on SANDAG as a regional entity. (AR 8b:4430-4433
[response to Attorney General’s comments].)
On October 28, 2011, SANDAG conducted a public hearing on the
proposed 2050 Plan and Final EIR. (AR 186:12709-13 [Board of Directors
meeting minutes].) On that day, the SANDAG Board of Directors adopted
resolutions certifying the Final EIR and approving the 2050 Plan, adopting
a statement of overriding considerations, and adopting the 2050 Plan. (AR
186:12713.) 4 The same day, SANDAG also filed a Notice of
Determination for the Final EIR and the 2050 Plan. (AR 1:2-3.)
4
A “statement of overriding considerations” reflects “the ultimate
balancing of competing public objectives when the agency decides to
approve a project that will cause one or more significant effects on the
environment.” (CEQA Guidelines, § 15021, subd. (d).)
9
III. THE ENSUING CEQA LITIGATION AND LOWER COURT
DECISIONS
In November 2011, Cleveland National Forest Foundation and Center
for Biological Diversity filed a petition for writ of mandate and complaint
for injunctive relief alleging numerous violations of CEQA (CNFF case).
(JA {2} 14-42.) At the same time, CREED-21 and the Affordable Housing
Coalition of San Diego County filed a separate action challenging the EIR.
(JA {1} 1-13.) In January 2012, the Sierra Club joined the CNFF case. (JA
{25}151-189.)
The Attorney General on behalf of the People moved to intervene in
the CNFF case (see Gov. Code, §§ 12600, subd. (b), 12606), and the trial
court granted the People’s application two days later, on January 25, 2012.
(JA {22} 102-137, {29} 198-199.) The cases subsequently were
consolidated and briefed. (JA {34} 251; JA {38} 264-274.)
Following oral argument, the trial court issued its ruling (JA {75}
1046-59) and on December 20, 2012, its judgment and peremptory writ of
mandate. (JA {88} 1132-34; JA {89} 1135-37.)
The trial court held that “the EIR is impermissibly dismissive” of
Executive Order No. S-03-05 given that the order’s midcentury greenhouse
gas goal is official state policy, is integral to the Air Resources Board’s
AB 32 Scoping Plan, and was “designed to address an environmental
objective that is highly relevant under CEQA (climate stabilization).” (JA
{75} 1056-57.) The trial court concluded that the EIR’s failure to discuss
the increase in total emissions from 2020 through 2050 in light of “the
statewide policy of reducing same during the same three decades (2020­
2050) constitutes a legally defective failure of the EIR to provide the
SANDAG decision makers (and thus the public) with adequate information
about the environmental impacts of the [2050 Plan].” (Id. at 1057.) The
trial court did not reach any other issues presented, such as whether the EIR
10 adequately disclosed and analyzed the Plan’s impacts on public health from
particulate matter pollution. (Id. at 1058.)
On December 26, 2012, SANDAG timely appealed the trial
court’s judgment. (JA {92} 1140-1141.) The People, CNFF, and
CREED-21 filed cross-appeals on the issues that the trial court did not
reach. (JA {95} 1161-1163; JA {96} 1164-1168.)
The Court of Appeal issued its opinion on November 24, 2014, as
modified on denial of rehearing on December 16, 2014, concluding that
“the EIR failed to comply with CEQA in all identified respects.” (Opn. 3.)
For purposes of the current appeal, only the court’s decision as it relates to
the adequacy of the 2050 Plan’s disclosure and analysis of greenhouse gas
emissions is relevant, and on that issue, the decision was split. The
majority held that SANDAG “prejudicially abused its discretion by
omitting from the EIR an analysis of the transportation plan’s consistency
with the state climate policy, reflected in the Executive Order, of continual
greenhouse gas emissions reductions.” (Opn. 20.) The majority concluded
that “[t]he omission was prejudicial because it precluded informed
decisionmaking and public participation.” (Opn. 15.)
Justice Benke dissented, opining that the majority overstepped its
judicial review function by effectively mandating how SANDAG must
determine the significance of the 2050 Plan’s greenhouse gas emissions.
(See, e.g., Dis. Opn. 4, 8.)
SANDAG timely filed a petition for review on January 6, 2015, which
this court granted on March 11, 2015 on the single issue set out above.
11 BACKGROUND: THE SCIENCE, LAW, AND POLICY OF
CLIMATE CHANGE
Climate change is caused by emissions of greenhouse gases on the
planet’s surface from actions such as the burning of fossil fuels. (AR
8a:2553-2554 [EIR], 311:25640 [Attorney General’s comment letter].) 5
Greenhouse gases reach the atmosphere, where they accumulate and persist.
(Ibid.) Higher concentrations of atmospheric greenhouse gases in turn lead
to disruptions of our environment and climate, including increases in global
average temperatures. (AR 8a:2553-2554.) California already is
experiencing the effects of climate change, which include longer fire
seasons, longer and more frequent heat waves, rising sea levels, and
reductions in the Sierra snowpack, a substantial source of the State’s water.
(AR 311:25640, 320(5):27870.) The harms resulting from climate change
fall especially hard on our most vulnerable residents—“the urban poor, the
elderly, children, traditional societies, agricultural workers and rural
populations.” (AR 311:25640.)
The 2050 Plan EIR, the lower courts’ decisions, and the briefs in this
case discuss the relationship of a number of greenhouse gas- and climaterelated statues, regulations, and policy documents to SANDAG’s
obligations under CEQA. The People briefly summarize these authorities,
and the climate science that underlies them, for the court’s convenience.
5
The Attorney General’s comment letter discusses the causes and
effects of climate change and provides citations to authoritative sources.
(AR 311:25640-25641.) Since SANDAG does not dispute the mechanism
of climate change or its serious, adverse effects, the People in this brief
provide only an abbreviated discussion of these topics. For the court’s
reference, the Intergovernmental Panel on Climate Change’s 2007
“Frequently Asked Questions” document, cited in the Attorney General’s
comment letter, is a concise and authoritative summary, and is available at
https://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-faqs.pdf.
12 A.
Executive Order No. S-03-05 (2005)
Responding to California’s particular vulnerability to climate change,
in 2005, Governor Schwarzenegger issued Executive Order No. S-3-05.
The Executive Order sets out an overarching framework to guide
California’s climate efforts. It provides in relevant part “[t]hat the
following greenhouse gas emission reduction targets are hereby established
for California: by 2010, reduce GHG emissions to 2000 levels; by 2020,
reduce GHG emissions to 1990 levels; [and] by 2050, reduce GHG
emissions to 80 percent below 1990 levels . . . .”
As SANDAG acknowledges in its opening brief, the Executive
Order’s targets are “based on studies estimating that stabilization of
atmospheric CO2[-equivalent] levels at approximately 450 parts per million
(ppm) would stabilize [average] global temperature levels at approximately
2 degrees [Celsius] above pre-industrial levels.” (AOB 7.) More
specifically, they are grounded in work by the Intergovernmental Panel on
Climate Change (IPCC), the leading international scientific body for the
assessment of climate change, which acts under the auspices of the United
Nations. As SANDAG noted in its EIR, the IPCC constructed a number of
possible future global greenhouse gas “emission trajectories” to understand
what must be done “to stabilize global temperatures and climate change
impacts.” (AR 8a:2553-2554 [EIR].) 6 The “IPCC concluded that a
stabilization of GHGs at 400 to 450 parts per million (ppm) CO2 [carbon
dioxide] equivalent concentration is required to keep global mean warming
6
See IPCC 4th Assessment Report (2007),
<https://www.ipcc.ch/publications_and_data/ar4/syr/en/mains5­
4.html#table-5-1> [July 6, 2015]; see also IPCC 5th Assessment Report
(2014) <http://www.ipcc.ch/pdf/assessment­
report/ar5/wg3/ipcc_wg3_ar5_summary-for-policymakers.pdf> [as of July
6, 2015] at pp. 12-13.
13
below 3.6º F (2º Celsius), which is assumed to be necessary to avoid
dangerous climate change.” (AR 8a:2553-54 [EIR].) Stabilization at these
levels would require that global emissions peak sometime in the 2000-2015
period and show a substantial reduction by 2050. 7 Achieving stabilization
will require greater reductions in annual emissions from developed
countries. (See, e.g., AR 216:17623 [SANDAG’s Climate Action
Strategy].) 8
As SANDAG observes in its opening brief, meeting the greenhouse
gas emissions targets described in the Executive Order “could avoid more
extreme climate change scenarios.” (AOB 7.)
B.
The Global Warming Solutions Act (AB 32) (2006) and
the AB 32 Scoping Plan (2008)
The Legislature followed Executive Order No. S-03-5 with the Global
Warming Solutions Act of 2006, commonly known as AB 32. (Health &
Saf. Code, § 38500 et seq.) AB 32 mandates that by 2020, California must
reduce its total statewide annual greenhouse gas emissions to the level they
were in 1990. (Id., §§ 38550, 38551.) The Legislature stated its further
intent that “the statewide greenhouse gas emissions limit continue in
existence and be used to maintain and continue reductions of greenhouse
gases beyond 2020.” (Id., § 38551, subd. (b).) 9 The 2020 emissions limit
7
See previous footnote.
8
See, also, e.g., Union of Concerned Scientists, Avoiding Dangerous
Climate Change, A Target for U.S. Emissions Reductions (2007), available
at http://www.usclimatenetwork.org/resource­
database/WEB%20emissions-target-fact-sheet.pdf [as of July 6, 2015],
recommending that the U.S. reduce emissions by at least 80 percent below
2000 levels by 2050.
9
SANDAG asserts that “AB 32 did not ratify the Executive
Order[.]” (AOB 42.) While this statement is beside the point, the People
(continued…)
14 is not an end in itself, but “is but a step towards achieving” the “longer­
term climate goal” described in Executive Order No. S-3-05. (Assn. of
Irritated Residents v. California Air Resources Bd. (2012) 206 Cal.App.4th
1487, 1496, citing the Executive Order].)
AB 32 requires the Air Resources Board to develop a framework
plan—the Scoping Plan—outlining how California will achieve the
required 2020 greenhouse gas limit through such things as direct emission
regulations, “market-based compliance mechanisms,” incentives, and
voluntary actions. (Health & Saf. Code, § 38561.) The Air Resources
Board completed the initial AB 32 Scoping Plan in 2008. (AR
320(5):27842.) In the Scoping Plan, the Air Resources Board observed that
“[g]etting to the 2020 goal is not the end of the State’s effort.” (AR
320(5):27848; see also Health & Saf. Code, § 38551, subds. (b), (c).) “The
2020 goal was established to be an aggressive, but achievable, mid-term
target, and the 2050 greenhouse gas emissions reduction goal represents the
level scientists believe is necessary to reach levels that will stabilize
climate.” (AR 320(5):27864 [Scoping Plan]; see also 311:25641 [Attorney
General’s comment letter].) The Attorney General’s comment letter on the
2050 Plan draft EIR attached a chart from the Scoping Plan that describes
changes in the State’s total and per capita emissions over time—
California’s “emissions trajectory”—necessary to achieve the State’s
climate stabilization objective:
(…continued)
note that it is also wrong. The Legislature in fact did sanction the science and policy reflected in Executive Order No. S-3-05. (See, e.g., Health & Saf. Code, §§ 38501, subd. (i), 38551.)
15 (AR 311:25645.) 10
In the Scoping Plan, the Air Resources Board noted the important role
of better land use and transportation planning, and the need to begin action
in the near term. Looking beyond 2020, “it will be necessary to
significantly change California’s current land use and transportation
planning policies. Although these changes will take time, getting started
now will help put California on course to cut statewide greenhouse gas
emissions by 80 percent in 2050 as called for by Governor
Schwarzenegger.” (AR 320(5):27858-27859; see also id. at 320(5):27879­
27880.)
10
During this litigation, the Air Resources Board approved the first
update to the Scoping Plan on May 22, 2014. (See
<http://www.arb.ca.gov/cc/scopingplan/document/updatedscopingplan2013
.htm> [as of July 6, 2015].) The updated Scoping Plan contains a similar
figure at p. 33.
16 C.
Legislation Directing Amendments to the CEQA
Guidelines to Address Greenhouse Gas Emissions (2007)
and Resulting Amendments (2010)
From its outset, CEQA has required that “the long-term protection of
the environment” must be “the guiding criterion in public decisions.”
(§ 21001, subd. (d); see Stats. 1970, ch. 1433, p. 2781.) While concerns
about human-caused climate change were not yet part of the regular public
discourse in 1970, the statute was written to address environmental
problems as they might arise. The statute’s description of “tipping points”
is prescient:
The capacity of the environment is limited, and it is the intent of
the Legislature that the government of the state take immediate
steps to identify any critical thresholds for the health and safety
of the people of the state and take all coordinated actions
necessary to prevent such thresholds being reached.
(§ 21000, subd. (d), added by Stats. 1970, ch. 1433, p. 2780; see also AR
216:17623 [SANDAG’s Climate Action Strategy, noting risk of climate
change tipping points].) 11
Public agencies are guided in their compliance by the CEQA
Guidelines, contained at California Code of Regulations, title 14, sections
15000 et seq. 12 The CEQA Guidelines “include criteria for public agencies
to follow in determining whether or not a proposed project may have a
‘significant effect on the environment’”—the triggering condition for an
11
For the court’s reference, the People have provided the original
version of CEQA—a succinct four pages—as enacted in September 1970
(Stats. 1970, ch. 1433, pp. 2780-2783). (People’s Motion for Judicial
Notice, People’s Decl., Ex. 2.)
12
“In interpreting CEQA, [the courts] accord the Guidelines great
weight except where they are clearly unauthorized or erroneous.”
(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal.4th 412, 428, fn. 5.)
17
EIR. (§ 21083, subd. (b).) As greenhouse gases and climate change began
to be discussed more routinely in CEQA comment letters and CEQA
documents, there was a perceived need for the CEQA Guidelines to offer
guidance that was more specific to this issue. In August 2007, with the
passage of Senate Bill 97, the Legislature added section 21083.05, which
directed the Governor’s Office of Planning and Research to prepare and the
Resources Agency to adopt “guidelines for the mitigation of greenhouse
gas emissions or the effects of greenhouse gas emissions as required by this
division, including, but not limited to, effects associated with transportation
or energy consumption . . . .” (Stats. 2007, ch. 185, § 1 [SB 97].)
Amendments to the CEQA Guidelines became effective in March
2010. 13 Included in the amendments is new section 15064.4, entitled
“Determining the Significance of Impacts from Greenhouse Gas
Emissions.” The provision includes a non-exclusive list of three “factors”
that a lead agency should consider: whether the project increases emissions
over existing conditions; whether the project’s emissions exceed a
“threshold of significance” the lead agency determines should apply to the
project; and the extent to which the project complies with requirements in a
plan to reduce greenhouse gas emissions. (CEQA Guidelines, § 15064.4,
subd. (b)(1).) 14 It further instructs that “[t]he determination of the
significance of greenhouse gas emissions calls for a careful judgment by
the lead agency consistent with the provisions in section 15064[,]” the pre­
existing and generally applicable provision outlining a lead agency’s
obligations in determining significance. (CEQA Guidelines, § 15064.4,
13
Section 21083.05 was amended in 2012 to reflect that the
guidelines had been issued. (Stats. 2012, ch. 548, § 5 [AB 2669].)
14
The concept of “thresholds” is discussed at p. 42, below. (See
also CEQA Guidelines, § 15064.7.)
18
subd. (a).) The SB 97 amendments “add[ed] no additional substantive
requirements; rather, the Guidelines merely assist lead agencies in
complying with CEQA’s existing requirements.” (AR 319:25828 [Final
Statement of Reasons (FSOR)].) The provision incorporates by reference
the general provision addressing significance determinations and reiterates
the obligation of the agency to consider “scientific and factual data” and to
make a “good-faith effort.” (§§ 15064.4, subd. (a), 15064, subd. (b).)
D.
SANDAG’s Climate Action Strategy (2010)
In March 2010, SANDAG issued its own “Climate Action Strategy”
to serve as a “guide to help policymakers address climate change as they
make decisions to meet the needs of our growing population, maintain and
enhance our quality of life, and promote economic stability.”
(AR 216:17618.) The document sets out “theoretical emissions
reduction[ ]” targets for total regional greenhouse emissions through 2050
on a declining trajectory. (Id. at p. 17628 [Figure 3-1].) In its Climate
Action Strategy, SANDAG observed that the Executive Order’s 2050
reduction goal is based on climate science and “is used as the long-term
driver for state climate change policy development.” (Id. at p. 17627.)
Meeting “the long-term goal of reducing statewide greenhouse gas
emissions to 80 percent below the 1990 level by the year 2050 will require
fundamental changes in policy, technology, and behavior.” (Id. at
p. 17628.) The Strategy states that “[b]y 2030, the region must have met
and gone below the 1990 level and be well on its way to doing its share for
achieving the 2050 greenhouse gas reduction level.” (Id. at p. 17629.)
SANDAG’s Climate Action Strategy notes that on-road transportation
is the single largest source of greenhouse gas emissions in the region. (AR
216:17641.) Thus, “reductions in total miles vehicles travel are needed to
help achieve the goals of AB 32.” (Id. at p. 17644.) Further, “[t]he
19 Scoping Plan and other studies in a growing body of evidence strongly
suggest that the trend of vehicle miles traveled growth needs to be slowed,
stopped, and soon reversed in order to successfully lower greenhouse gas
emissions from the on[-]road transportation sector.” (Ibid.)
E.
The Sustainable Communities Strategies Law (2008)
and SANDAG’s Regional Targets (2010)
As noted above, the Sustainable Communities Strategy Law, SB 375,
enacted in September 2008, requires SANDAG and other regional
transportation planning entities to incorporate a Sustainable Communities
Strategy in each regional transportation plan. The Sustainable
Communities Strategy must demonstrate how the region would achieve
greenhouse emissions reductions targets established by the Air Resources
Board for emissions from passenger vehicles (cars and light-duty trucks).
(Gov. Code, § 65080, subd. (b)(2); AR 8a:2080 [EIR]; see also AR
218:17776 [2010 California Regional Transportation Plan Guidelines].) In
September 2010, the Air Resources Board established declining SB 375
greenhouse gas emissions targets for the SANDAG region, which require a
7 percent per capita emissions reduction by 2020, and a 13 percent per
capita reduction by 2035, measured against emissions in 2005. (AR
8a:2076.) The Strategy’s purpose is to align regional transportation,
housing, and land use plans to reduce vehicle miles traveled and thereby
meet regional SB 375 targets. (AR 8a:2071 [EIR]; AR 218:17776 [2010
Regional Transportation Plan Guidelines].) While a regional planning
entity such as SANDAG cannot require that cities and counties amend their
general plans, it can create incentives for change, by, for example,
“[p]rovid[ing] funds and technical assistance to local agencies” to
implement regional planning. (AR 218:17912 [2010 Regional
Transportation Plan Guidelines].)
20 STANDARD OF REVIEW
This “[C]ourt’s review of the administrative record for legal error and
substantial evidence in a CEQA case, as in other mandamus cases, is the
same as the trial court’s: the appellate court reviews the agency’s action,
not the trial court’s decision; in that sense appellate judicial review under
CEQA is de novo.” (Vineyard Area Citizens for Responsible Growth, Inc.
v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427.) Courts review an
agency’s action under CEQA for a prejudicial abuse of discretion. (Pub.
Resources Code, § 21168.5; Berkeley Hillside Preservation v. City of
Berkeley (2015) 60 Cal.4th 1086, 1109.) An agency abuses its discretion if
it either commits legal error or fails to support its fact-based determinations
with substantial evidence in the record. (Berkeley Hillside, supra, 60
Cal.4th at p. 1109-1110; Vineyard, supra, 40 Cal.4th at p. 427.)
As this court noted in Vineyard, “a reviewing court must adjust its
scrutiny to the nature of the alleged defect,” depending on whether the
claimed error falls “predominately” into the factual or legal category.
(Vineyard, supra, 40 Cal.4th at p. 435.) A court independently determines
“whether the agency has employed the correct procedures, ‘scrupulously
enforc[ing] all legislatively mandated CEQA requirements[.]’” (Id.,
quoting Citizens of Goleta Valley v. Bd. of Supervisors (1990) 52 Cal.3d
553, 564.) Similarly, where an agency’s determination is not based on
disputed facts, but rather on a disputed question of law, review is de novo.
(City of Marina v. Bd. of Trustees of the California State University (2006)
39 Cal.4th 341, 355-356 [rejecting agency’s determination that it lacked
power to mitigate off-site impacts “based on [agency’s] erroneous legal
assumptions”].) In contrast, a court “accord[s] greater deference to the
agency’s substantive factual conclusions.” (Vineyard, supra, 40 Cal.4th at
p. 435.) An agency’s factual findings will be upheld where they are
supported by substantial evidence, “even though other conclusions might be
21 reached.” (Laurel Heights, supra, 47 Cal.3d at p. 422.) “Substantial
evidence . . . include[s] facts, reasonable assumptions predicated upon facts,
and expert opinion supported by facts.” (CEQA Guidelines, § 15384, subd.
(b).) It does not, however, include “[a]rgument, speculation,
unsubstantiated opinion or narrative, [or] evidence which is clearly
erroneous or inaccurate . . . .” (Id., subd. (a).)
In this case, SANDAG’s stated reason for refusing to disclose and
analyze whether the 2050 Plan’s projected longer-term emissions are in line
or instead may interfere with climate stabilization is the asserted lack of a
legal mandate. (AR 8b:3766-3770 [Master Response #2], 4430-4433
[response to Attorney General’s comments].) Because SANDAG’s
justification is predominantly legal, it is reviewed de novo. But even if
SANDAG’s justification is considered to be in part factual—because of the
EIR’s summary assertion that “SANDAG’s role in achieving th[e] [2050]
target is uncertain and likely small” (see AR 8b:3769)—it must fail as
unsupported by the law or by any substantial evidence in the record.
ARGUMENT
I.
SUMMARY OF ARGUMENT
As a lead agency under CEQA, SANDAG has a duty to discuss
whether the failure of its large-scale, long-term infrastructure and planning
project to continue early reductions in greenhouse gas emissions over the
longer term would conflict or interfere with the State’s climate stabilization
objectives. The duty does not arise from Executive Order No. S-3-05, but
from CEQA itself. CEQA obliges SANDAG to prepare an EIR that puts a
project’s significant environmental problems squarely before the public and
decision makers, thereby allowing for informed public discussion and
governmental accountability. Under CEQA, SANDAG has a duty to
consider whether the 2050 Plan may disadvantage long-term environmental
22 goals. And, of particular import in considering climate change, it must
consider the relevant science and data, exercising its own judgment and
discretion, and making a good faith effort to disclose all that it reasonably
can about the 2050 Plan’s impact in the short and long term. SANDAG’s
flat refusal to consider climate stabilization policy and science resulted in a
document that was not only incomplete, but prejudicially misleading.
In response, SANDAG appeals first to the substantial discretion
afforded to lead agencies under CEQA. Courts do defer to agencies whose
EIRs highlight difficult environmental issues presented by a project and
endeavor to confront and address those issues. Deference is not appropriate,
however, where an agency instead minimizes an issue and effectively
disclaims its responsibility to engage. SANDAG also argues that it
“scrupulously” complied with CEQA Guidelines section 15064.4, which
provides guidance on determining the significance of a project’s
greenhouse gas emissions. But that provision is not a rote check list
ensuring compliance. It sets out three non-exclusive factors that agencies
should consider in evaluating the significance of a project’s greenhouse gas
emissions, and incorporates the general proposition that there is no single,
“ironclad” definition of significance. Accordingly, an agency must always
exercise its judgment and consider other factors where required to meet
CEQA’s purposes. Where the very authorities on which SANDAG relies—
including the Sustainable Communities Strategy Law and its declining
targets, and the AB 32 Scoping Plan—are intended to create an emissions
reduction path that continues beyond the year 2020, the Plan’s upswing in
emissions at the 2020 mark required additional discussion and analysis.
SANDAG further suggests that a reader could have constructed an analysis
of the 2050 Plan’s relationship to climate stabilization by engaging in some
arithmetic and pulling together scattered references to the Executive Order.
An examination of the record citations provided by SANDAG shows the
23 futility of any such effort, and, in any event, it is SANDAG’s job to
disclose and explain—not the public’s job to divine—the project’s
significant impacts.
SANDAG’s counsel’s statements about the purported difficulty of
considering climate stabilization science and policy are irrelevant, as
SANDAG’s contemporaneous justification for omitting this analysis was a
legal one. Moreover, the currently circulating draft EIR for the 2050 Plan’s
2015 update establishes that SANDAG can in fact take climate stabilization
into account in determining whether its long-term regional transportation
plan will have significant impacts. Any question whether the pending
process for the current update of the 2050 Plan will satisfy CEQA is outside
the scope of this appeal. But, as discussed below, the current approach
appears to have triggered a more robust exploration in the EIR of
greenhouse gas-related mitigation and alternatives, which undoubtedly will
be discussed and debated in the ensuing public process, and will better
ensure governmental accountability for SANDAG’s ultimate decision.
This court should make clear that SANDAG erred as a matter of law
in determining that, for this large-scale, long-term transportation
infrastructure and land use planning project, it had no legal obligation under
CEQA to consider the science and state policy of long-term climate
stabilization. It should further affirm the judgment of the Court of Appeal
that SANDAG’s error was prejudicial, provide that SANDAG must
decertify its deficient 2011 EIR, and remand the case for further
proceedings consistent with this court’s opinion.
24 II. SUMMARY OF THE 2050 PLAN EIR
A.
Project Description
SANDAG’s 2050 Plan, while it includes transit projects, places a
significant emphasis on highway widening through 2020. (See, e.g., AR
8a:2583 [EIR].) Additional highway widening projects are scheduled to be
in place by 2035. (AR 8a:2586 [EIR].) The 2050 Plan contemplates the
construction of projects that will expand or extend hundreds of miles of
freeways in the San Diego region. (See, e.g., AR 8a:2116-21 [EIR]; see
also AR 190b:14214, 14217 [RTP].)
Changes in land use follow these highway expansions. While,
according to the EIR, land use patterns, types, and areas of development
will be substantially the same in 2020 (AR 8a:2582), “the 2035 land use
pattern would generally involve additional residential development in areas
that were previously undeveloped open space or at some time in
agricultural use . . . .” (AR 8a:2585; see also AR 190a:13156 [Sustainable
Communities Strategy].) After 2035, “growth would continue in more
eastern locations of the region[,]” which are currently less developed, and
“by 2050, spaced rural residential development would have expanded . . .
into areas with very minimal development at present.” (AR 8a:2587; see
also AR 190a:13156 [noting future development patterns will “likely result
in an increased demand for driving”].)
B.
Disclosure and Analysis of the 2050 Plan’s Greenhouse
Gas Emissions
In the San Diego region, transportation is responsible for nearly 50
percent of greenhouse gas emissions. (See AR 8a:2556-57 [Tables 4.8-4
(land use emissions) and 4.8-5 (transportation emissions)].) The total
amount of driving expected under the 2050 Plan, termed “vehicle miles
traveled” or VMT, will increase by more than 50 percent over the life of the
25 Plan. (AR 8b:4436 [EIR].) The expected increase in driving is not due
solely to increases in population in the San Diego area; under the 2050 Plan,
people will drive more on a per capita basis in 2050 than they did in 2010.
(AR 8b:4435 [Table 3].) In 2010, daily per capita vehicle miles traveled
for all vehicle types was 24.2 miles per day. By 2020, the average under
the Plan is projected to dip down to 23.6 miles per day, but by 2035, it is
above the 2010 average at 24.3 miles, and by 2050, it has risen to 25.2
miles. (AR 8b:4435 [Table 3]; see also 8b:3753, 3755, 3757.) 15 While this
is not illustrated in the EIR, the People have plotted the trend below:
The 2050 Plan’s near-term reductions in per capita vehicle miles traveled
thus do not appear to be sustainable in the longer term.
Greenhouse gas emissions under the 2050 Plan reflect these driving
patterns. There is a steady climb in transportation-related greenhouse gas
15
Per capita vehicle miles traveled for SB 375 vehicles only—cars
and light-duty trucks—follow this same pattern. (AR 8b:4435 [Table 3].)
26 emissions over the life of the project. 16 After taking into account the effect
of state laws requiring reductions in the carbon content of fuel and
increased fuel efficiency—the Low Carbon Fuel and “Clean Car”
standards—the region’s transportation emissions dip a bit below existing
levels by 2020, but begin to climb thereafter, exceeding their 2010 starting
point by 2050. 17 While these greenhouse gas emissions data are not
graphed in the EIR, the People illustrate them below so that the upward
trend in emissions over the longer term can be seen clearly. 18
C.
Significance Determination
In the 2011 EIR for the 2050 Plan, SANDAG employs three separate
“significance criteria” and, under each, makes a determination of
significance for discrete future years. (AR 8a:2567 [listing the criteria].)
16
AR 8a:2557, 2572, 2575, 2577 [Tables 4.8-5, 4.8-8, 4.8-10,
4.8-12].
17
Ibid.
18
In million metric tons carbon dioxide equivalent.
27
Before discussing these criteria, the People briefly summarize the role of
the significance determination in CEQA, for the court’s convenience.
The lead agency’s determination of whether a proposed project’s
effects on the environment are significant—viewed in isolation or in light
of other past, present, and future projects—plays a “critical role in the
CEQA process.” (CEQA Guidelines, § 15064, subd. (a); see also § 15064,
subd. (h)(1) [discussing significance determination for cumulative effects].)
The determination controls the nature of the environmental document, if
any, that the agency must prepare. If the project is subject to CEQA and
may have a significant effect on the environment, an Environmental Impact
Report instead of a more summary Negative Declaration is required. (No
Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 83-85; § 21151.) The
EIR in turn must identify and focus on the project’s significant
environmental effects. (See, e.g., Friends of Sierra Madre v. City of Sierra
Madre (2001) 25 Cal.4th 165, 184-185; § 21061.) “If the EIR identifies
significant effects on the environment the lead agency may not approve the
project unless it finds that changes have been made in the project to avoid
these effects, or, if the mitigation measures or alternatives identified in the
EIR are not feasible, there are overriding benefits that outweigh the impact
on the environment.” (Id. at p. 185, citing § 21081.)
SANDAG employs three separate “significance criteria” and, under
each, makes a determination of significance for discrete future years. (AR
8a:2567 [listing the criteria].) The EIR first considers whether the Plan’s
total emissions would increase over 2010 levels. The EIR summarily states
that the Plan’s impact will be less than significant in the year 2020 because
(with the help of the Low Carbon Fuel and Clean Car regulations) annual
emissions are below 2010 levels in that year. (AR 8a:2571-2572.) Without
placing these emissions into any meaningful context, the EIR summarily
28 concludes that the impacts are “significant and unavoidable” in 2035 and
2050 because gross annual emissions will be above 2010 levels in these
discrete years. (AR 8a:2027; see AR 8a:2567-2578, 3092, 3095-3096.)
SANDAG’s other significance analyses suggest to the reader that,
even with the rising trend in total emissions, the region will be doing its
part to address climate change. The EIR states that the 2050 Plan’s impacts
will be less than significant in 2020 and 2035 because the Plan will meet
the SB 375 targets. (AR 8a:2030, 2578-2581, 3092, 3094-3095.) The EIR
does not highlight that, while the Plan complies with the letter of SB 375 by
meeting or exceeding the discrete targets for 2020 and 2035, per capita
emissions from SB 375 vehicles (cars and light-duty trucks) begin to rise
after 2020. (AR 8b:4435 [response to Attorney General’s comments, table
2].) Again, while this data is not plotted in the EIR, the People present it in
graphic form so that the trend is clear:
Nor does the EIR disclose that the California Air Resources Board staff
found the increase in per capita emissions to be “unexpected” given the
“expectation that the benefits of an SCS [Sustainable Communities Strategy]
would increase with time given the nature of land use patterns and
29
transportation systems.” (SANDAG’s Supplement to the Administrative
Record (AR Supp.) 344:30143.) Staff observed that the Air Resources
Board “set regional targets with that expectation.” (Ibid.) The EIR
contains no analysis or determination of significance for any year beyond
2035 under this criterion, on the ground that SB 375 has no post-2035
targets. (AR 8a:2581, 3096.)
Finally, the EIR purports to examine whether the 2050 Plan’s
greenhouse gas impacts are significant in light of the potential for the Plan
to conflict with the AB 32 Scoping Plan (examined for year 2020 only) and
SANDAG’s own Climate Action Strategy. (AR 8a:2030; 2581-2588.) In
analyzing the potential for the 2050 Plan to conflict with the Scoping Plan,
the EIR concludes that the 2050 Plan’s land use and transportation
greenhouse gas emissions are less than significant in 2020. The EIR
supports this assertion by stating summarily that the 2050 Plan “encourages
its jurisdictions to align with the Scoping Plan” and that, taking into
account the effect of the Low Carbon Fuel and Clean Car regulations,
transportation emissions will more than 15 percent below 2005 levels in
2020. (AR 8a:2583, 2583-84; see 320(5):27887.) The EIR states that
SANDAG has no obligation to look beyond 2020 in applying this criterion
because “[t]he Scoping Plan does not have targets established beyond
2020[.]” (AR 8a:2586.)
Similarly, in analyzing compliance with SANDAG’s own Climate
Action Strategy, the EIR summarily asserts that the 2050 Plan “would not
impede” the Strategy because the 2050 Plan “encourage[es] compact
development” and “promotes reduced VMT[.]” (AR 8a:2585-86, 2588.)
The EIR does not acknowledge that SANDAG’s own Climate Action
Strategy observes that “[b]y 2030, the region must have met and gone
below the 1990 level and be well on its way to doing its share for achieving
the 2050 greenhouse gas reduction level.” (AR 216:17629.)
30
D.
Response to Comments Requesting Consideration of
Climate Stabilization
The Attorney General, on behalf of the People, and other commenters
requested that SANDAG, in discussing and determining significance, take
into account the long-term, downward emissions trajectory necessary to
achieve climate stabilization, as set out in the Executive Order and the
Scoping Plan, which appeared to be inconsistent with the 2050 Plan’s
emissions trajectory over the longer term. (See, e.g., AR 311:25640-25642
[Attorney General’s comment letter].) SANDAG did not find that such an
analysis was infeasible or would be misleading under the circumstances. In
responding to the Attorney General’s comments, SANDAG acknowledged
that “the Executive Order target for 2050 can inform CEQA analysis . . . .”
(AR 8b:4432.) SANDAG, however, “chose not to” include any such
analysis, emphasizing its discretion to select “thresholds of significance”
and stating that the Executive Order was “not an adopted GHG [greenhouse
gas] reduction plan within the meaning of CEQA Guidelines[.]” (Ibid.) It
further opined that “SANDAG plays no formal role in implementing the
Executive Order, as an executive order has no binding legal effect on
agencies and personnel outside of the Governor’s chain of command.” (AR
8b:4433; see also 8b:3768-3770, 8a:2581-2582.) SANDAG also asserted—
in a single sentence and without supporting evidence—that “SANDAG’s
role in achieving” the 2050 “target is uncertain and likely small.” (AR
8b:3769.)
III. CEQA REQUIRES SANDAG TO CONSIDER THE SCIENCE AND
POLICY OF CLIMATE STABILIZATION IN DETERMINING THE
SIGNIFICANCE OF THE 2050 PLAN’S GREENHOUSE GAS
EMISSIONS
The purposes of the Environmental Impact Report—the “heart of
CEQA”—and the responsibilities that the EIR’s preparation place on a lead
agency bear repeating. “Its purpose is to inform the public and its
31
responsible officials of the environmental consequences of their decisions
before they are made. Thus, the EIR ‘protects not only the environment but
also informed self-government.’” (Citizens of Goleta Valley v. Bd. of
Supervisors (1990) 52 Cal.3d 553, 564 [italics in Goleta], quoting Laurel
Heights, supra, 47 Cal.3d at p. 392.) “Because the EIR must be certified or
rejected by public officials, it is a document of accountability.” (Laurel
Heights, supra, 47 Cal.3d at p. 392.)
SANDAG justifies limiting the information it provided to the public
and decision makers about the 2050 Plan’s longer-term greenhouse gasrelated impacts on the ground that Executive Order No. S-3-05 is not
directly binding on SANDAG as a regional entity and does not purport to
require any action by SANDAG. (See AOB 4, 7, 23, 38-42.) That
argument is beside the point. The People have never contended that this
particular executive order by its own force imposes any obligation on
SANDAG. Rather, fundamental CEQA requirements—to consider long­
term environmental objectives, and to account for the science relevant to
those objectives—combine to require SANDAG to make a good faith effort
to disclose and analyze the 2050 Plan’s long-term emissions in light of the
objective of climate stabilization. 19
19
In theory, SANDAG could meet these requirements without
specifically citing the Executive Order—provided it addresses the
underlying science and state climate policy, as required by CEQA.
32
From the outset, the Legislature has made clear that CEQA requires
lead agencies to look at the long-term impacts of the projects they approve
or undertake directly. The concern for the longer term is seen in the
statements of the Legislature’s intent, which include the finding that “[t]he
maintenance of a quality environment for the people of this state now and
in the future is a matter of statewide concern.” (§ 21000, subd. (a) [italics
added].) Further, the Legislature declared through CEQA that it is “the
policy of the state to[,]” among other things:
Develop and maintain a high-quality environment now and in
the future . . . .;
[P]reserve for future generations representations of all plant and
animal communities . . . .; and
Ensure that the long-term protection of the environment,
consistent with the provision of a decent home and suitable
living environment for every Californian, shall be the guiding
criterion in public decisions.
(§ 21001, subds. (a), (c), (d) [italics added].)
These concepts are reflected in the CEQA Guidelines, which provide
that a lead agency may not focus only on the short term, but must also
consider a project’s long-term environmental impacts, and whether the
project will work “to the disadvantage of long-term environmental goals”
(CEQA Guidelines, § 15065, subd. (a)(2); see also id. at § 15126.2, subds.
(a), (c).) And there is no suggestion that an agency can elect to truncate its
analysis before the end of a project’s acknowledged lifespan. (See, e.g.,
CEQA Guidelines, §§ 15003, subd. (h) [lead agency “must consider the
whole of an action”]; 15216 [“[a]ll phases of a project must be
considered”].) Further, as the CEQA Guidelines provide, in general, and in
the specific context of climate change, “[t]he determination of whether a
project may have a significant effect on the environment calls for careful
33 judgment on the part of the public agency involved, based to the extent
possible on scientific and factual data.” (CEQA Guidelines, §§ 15064,
subd. (b) [italics added]; 15064.4, subd. (a) [stating that determination of
significance of greenhouse gas-related impacts is made consistent with the
provisions of section 15064].) These obligations are, of course, governed
by CEQA’s rule of reason—that lead agencies must make a reasonable,
good-faith effort at full disclosure in their EIRs. (See, e.g., CEQA
Guidelines, § 15003, subd. (i) [content of EIR]; see also id. at §§ 15151
[standards for adequacy of EIR], 15144 [forecasting], 15204 [adequacy of
EIR determined by what is “reasonably feasible”].)
SANDAG thus must make a reasonable, good faith effort to consider
the need to continually and substantially reduce emissions though
midcentury not merely because certain targets are set out in Executive
Order No. S-3-05, but because a declining emissions trajectory is
scientifically relevant to achieving the objective of long-term climate
stabilization. Moreover, the objective of reducing emissions to achieve
climate stabilization is now firmly embedded in state law and policy,
including AB 32, the AB 32 Scoping Plan, and SB 375. (See discussion at
pp. 14-20, above.) As SANDAG noted in its Climate Action Strategy, the
2050 target of 80 percent below 1990 levels “is used as the long-term driver
for state climate change policy development.” (AR 216:17627.)
The public and decision makers were thus entitled to know whether
the 2050 Plan, by making long-term planning decisions and authorizing the
funding and construction of durable transportation infrastructure will lock
the region into increased vehicle miles traveled and greenhouse gas
emissions. They were entitled to this information before any decision was
made, as such increases could cancel out improvements in vehicle and fuel
efficiency and other statewide efforts, and make it difficult or impossible to
bend the region’s and the State’s emissions curve downward over the
34 longer term. (See AR 216:17642 [SANDAG’s Climate Action Strategy,
noting that “continued growth in the rate of driving would likely cancel
out” fuel and vehicle improvements]; see also CEQA Guidelines, § 15126.2,
subd. (d) [EIR should address significant irreversible environmental
changes, “such as highway improvement which provides access to a
previously inaccessible area” and would “generally commit future
generations to similar uses”].) SANDAG’s failure to provide this
information was error.
IV. THE 2050 PLAN EIR’S FAILURE TO CONSIDER CLIMATE
SCIENCE AND POLICY WAS PREJUDICIAL
CEQA does not require perfection. “Insubstantial or merely technical
omissions [from an EIR] are not grounds for relief.” (Neighbors for Smart
Rail v. Exposition Metro Line Construction (2013) 57 Cal.4th 439, 463.)
On the other hand, a lead agency commits a prejudicial abuse of discretion
where, among other things, it “‘fail[s] to include relevant information [that]
precludes informed decisionmaking and informed public participation,
thereby thwarting the statutory goals of the EIR process.’” (Ibid. [brackets
added], quoting Kings County Farm Bur. v. City of Hanford (1990) 221
Cal.App.3d 692, 712.) Where an EIR fails to “contain sufficient detail to
help ensure the integrity of the process of decisionmaking” its fails in its
central purpose—to “preclud[e] stubborn problems or serious criticism
from being swept under the rug.” (Kings County Farm Bur., supra, 221
Cal.App.3d at p. 733, citing Concerned Citizens of Costa Mesa, Inc. v.
32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935; see also CEQA
Guidelines, § 15151.)
Here, the EIR’s failure to analyze the longer-term effects of the land
use and transportation decisions made in the initial decades of the 2050
Plan on the ability to achieve the State’s climate stabilization objectives
was not a mere technical omission. As noted, the EIR emphasized the
35 Plan’s technical compliance with SB 375’s discrete 2020 and 2035
greenhouse gas emission targets (AR 8a:2579, 2581)—without considering
the upward incline of the region’s emissions between those years. Further,
it asserted that the Plan will “not impede” and will “assist” and “align with”
the Scoping Plan (AR 8a:2582-2585) and SANDAG’s Climate Action
Strategy (AR 8a:2585-2588)—even though both documents acknowledge
that nearer-term targets are interim steps towards achieving a midcentury
stabilization goal. (See AR 320(5):27977 [Scoping Plan], 216:17628­
17629 [Climate Action Strategy]; see also Assn. of Irritated Residents,
supra, 206 Cal.App.4th at p. 1496.) As the Court of Appeal observed, the
net effect of the EIR’s approach to determining the significance of the 2050
Plan’s greenhouse gas emissions was affirmatively misleading, obscuring
the full impact of the Plan’s effect on climate change, and undermining
SANDAG’s accountability for the decision ultimately made. (Opn. 19.) A
document that “mislead[s] the public as to the reality of the impacts and
subvert[s] full consideration of the actual environmental impacts” is “at
direct odds with CEQA’s intent.” (Communities for a Better Environment v.
South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 322
[internal quotation omitted].)
SANDAG asserts that had the 2011 EIR included an analysis of the
Executive Order and the science and policy that underlie it, this “would not
have altered the conclusion that impacts would be significant and
unavoidable in 2035 and 2050” under the gross emissions significance
criterion. (AOB 2.) This is also beside the point. The agency’s obligation
is not simply to make determinations, but to show its “analytic route,”
which allows for full public discussion and “informed decision making.”
(Vineyard, supra, 40 Cal.4th at p. 445, internal quotations omitted; see also
Berkeley Keep Jets Over the Bay v. Bd. of Port Comrs. (2001) 91
Cal.App.4th 1344, 1371 [holding that agency may not avoid “explor[ing]
36 the significant environmental effects created by the project” by labeling the
effects significant and unavoidable].)
The practical effect of including in the significance analysis some
discussion of whether SANDAG’s Regional Transportation Plan is
generally consistent, or instead may interfere, with the State’s long-term
climate stabilization objectives can be seen in the currently circulating draft
EIR for the next update to the 2050 Plan. SANDAG has now chosen to
approach the question of long-term climate significance by plotting the
2050 Plan’s emissions over the project’s full lifespan and comparing that
emission trajectory to the statewide objectives, while correctly noting that
“there is no requirement that the SANDAG region’s emissions be reduced
by the same percentage (‘equal share’) as the statewide percentage in order
for the State to achieve the AB 32 target[.]” (See People’s Motion for
Judicial Notice, People’s Decl., Ex. 1, p. 34.) This approach places
squarely before the public and decision makers the greenhouse gas-related
impacts of the 2050 Plan viewed over the longer term. It may trigger
substantial discussion about the efficacy of SANDAG’s proposed project
design features and mitigation measures—many of which are new to this
draft EIR—and whether other alternatives might meet the project objectives
with fewer impacts. While the question whether SANDAG’s current
process will satisfy CEQA is outside the scope of this appeal, the new
approach to determining the significance of the 2050 Plan’s long-term
greenhouse gas emissions would appear to foster accountability as CEQA
intends and requires. The same cannot be said of the deficient 2011 EIR.
37 V.
SANDAG’S ADDITIONAL ARGUMENTS DO NOT EXCUSE THE
2050 PLAN EIR’S SUBSTANTIAL DEFICIENCIES
A.
Deference to Agency Discretion Does Not Sanction a
Document that Minimizes a Project’s Environmental
Effects
SANDAG attempts to defend the contents of the 2011 EIR with
general appeals to agency discretion. It notes that “lead agencies have
discretion to design EIRs . . . .” (AOB 3.) “[S]electing analytical criteria
for assessing greenhouse gas emission impacts involves agency discretion,
informed by relevant technical and scientific understanding.” (AOB 21.)
And courts have “upheld the discretion afforded to lead agencies by
Guidelines section 15064[,]” and to choose “significance criteria to
evaluate greenhouse gas emissions” and “how to analyze the significance of
greenhouse gas emissions.” (AOB 33, 34.) All of these statements are true,
as far as they go. But SANDAG further asserts that “[b]ecause SANDAG
‘properly exercised its discretion’ under CEQA, its EIR fulfilled its
function as an informational document and should be upheld.” (AOB 23,
quoting Dis. Opn. at p. 24-30.) This is where SANDAG errs. A lead
agency has no discretion to produce an environmental document that
obscures, rather than highlights, the difficult environmental questions and
tradeoffs posed by a proposed project. CEQA requires that an EIR,
regardless of the significance criteria used by the lead agency, be “prepared
with a sufficient degree of analysis to provide decision makers with
information which enables them to make a decision which intelligently
takes account of environmental consequences.” (CEQA Guidelines,
§ 15151.)
As the trial court recognized, the record here establishes that
SANDAG’s treatment of the science and state policy related to long-term
climate stabilization, as reflected in the Executive Order, was improperly
38 “dismissive.” (JA {75} 1056.) While a lead agency has substantial
discretion that will not be lightly disturbed by the courts when it is
exercised, that protection does not extend where the lead agency refuses to
engage in the hard questions presented by the project before it.
Similarly, SANDAG contends that it “is entitled to the ‘safe harbor’
provided by Public Resources Code section 21083.1” because it has
complied with “all of CEQA’s and the Guidelines’ explicit requirements[.]”
(AOB 28, citing Berkeley Hillside, supra, 60 Cal.4th at p. 1107.) Section
21083.1 “directs courts ‘not [to] interpret [the CEQA statutes] or the state
guidelines adopted pursuant to Section 21083 in a manner which imposes
procedural or substantive requirements beyond those explicitly stated in
[CEQA] or in the state guidelines.’” (Id. at p. 1107, quoting § 21083.1
[brackets in Berkeley Hillside; italics omitted].) One purpose of section
21083.1 is to provide a “‘safe harbor’” to local entities” that “‘comply with
the explicit requirements of the law.’” (Ibid., quoting Assem. Com. on
Natural Resources, Analysis of Sen. Bill No. 722 (1993-1994 Reg. Sess.)
July 12, 1993, p. 2.)
The People agree that if SANDAG had actually exercised its careful
judgment in determining significance, making a good faith effort to account
for climate science and the State’s policy to work toward long-term climate
stabilization, and supported its analysis and conclusion with substantial
evidence, then there would be no legal basis to require more. But the
concept of a safe harbor has no application where a lead agency “disclaims
[its] power and duty” under CEQA “based on erroneous legal
assumptions . . . .” (See City of Marina, supra, 39 Cal.4th at p. 365
[holding that university trustees abused their discretion in refusing to take
action to mitigate off-site impacts based on erroneous legal assumptions].)
That is the situation here.
39 B.
The 2009 Amendments to the CEQA Guidelines Did
Not Excuse Lead Agencies From Exercising Careful
Judgment and Making Their Best Efforts in
Determining Significance
SANDAG contends that it “scrupulously followed” section 15064.4 of
the CEQA Guidelines because it employed significance criteria described in
that provision and because the Resources Agency could have, but did not,
specifically list the Executive Order in section 15064.4 as relevant to
determining the significance of a project’s greenhouse gas emissions.
(AOB 30; see also id. 22, 24-29.) 20 In essence, SANDAG characterizes
section 15064.4 as a rote exercise: if a lead agency checks certain boxes, it
is excused from considering whether, in the specific context of the project
before it, some additional discussion of climate science and California’s
policy to work toward climate stabilization is relevant and necessary to a
fully informed significance determination. This reading of section 15064.4
is unsupported.
The preamble language of section 15064.4 stresses that while it is
intended to provide guidance to lead agencies, the agency remains
responsible for conducting an adequate analysis and preparing an adequate
informational document. The provision directs agencies to exercise their
own “careful judgment” in making the significance determination. (CEQA
Guideline, § 15064.4, subd. (a).) In its statement of reasons for adopting
this provision, the Resources Agency explained that the provision “reflects
the existing CEQA principle that there is no iron-clad definition of
20
SANDAG devotes several pages to discussing the legal effect of
executive orders generally. (AOB 39-41.) That discussion misses the
mark, as the People do not contend that Executive Order No. S-3-05 is the
source of the legal requirement to consider the State’s long-term climate
objectives. (See p. 32, above.) Whether or not the Governor, through an
executive order, could impose such requirements is therefore not at issue in
this case.
40 ‘significance’” and that, “[a]ccordingly, lead agencies must use their best
efforts to investigate and disclose all that they reasonably can regarding a
project’s potential adverse impacts.” (AR 319:25846; see also CEQA
Guidelines, § 15144; Bozung v. Local Agency Formation Com. (1975) 13
Cal.3d 263, 279, fn. 21.) Further, the part of section 15064.4 on which
SANDAG relies—subdivision (b)—expressly is written as a non-exclusive
list of considerations relevant to the significance determination. As the
Resources Agency explained in the supporting Statement of Reasons,
“while subdivision (b) provides a list of factors that should be considered
by public agencies in determining the significance of a project‘s GHG
emissions, other factors can and should be considered as appropriate.” (AR
319:25850.)
Moreover, the listed factors themselves reflect the need for the agency
to exercise judgment and best efforts in order to meet CEQA’s public
disclosure and informational purposes. Section 15064.4, subdivision (b)(2),
states that an agency should consider “[w]hether the project emissions
exceed a threshold of significance that the lead agency determines applies
to the project.” 21 SANDAG’s consideration of whether the 2050 Plan
would “[c]onflict with SB 375 GHG emission reduction targets” appears to
fall into this category. (AR 8a:2567; see AOB 27.) 22 But the fact that the
2050 Plan technically complies with the discrete per capita greenhouse gas
emission targets for passenger vehicles in the years 2020 and 2035 does not
21
To clarify, the Resources Agency does not develop and adopt
thresholds of significance for use by local and regional governments. (See
AOB 25 [erroneously referring to “thresholds adopted by the Resources
Agency under SB 97”]; CEQA Guidelines, § 15064.7, subd. (a); AR
319:25851 [SB 97 FSOR].)
22
SANDAG states that SB 375 may also constitute a greenhouse gas
emissions reduction “plan” as defined in section 15064.4, subdivision
(b)(3). (AOB 27.)
41
automatically end SANDAG’s inquiry. A threshold is in essence a working
presumption of significance—“an identifiable quantitative, qualitative or
performance level of a particular environmental effect, non-compliance
with which means the effect will normally be determined to be significant
by the agency and compliance with which means the effect normally will
be determined to be less than significant.” (CEQA Guidelines, § 15064.7,
subd. (a) [italics added].) While compliance with laws and regulations,
including those designed to meet environmental objectives, may be highly
relevant to determining significance (see Communities for a Better
Environment v. California Resources Agency (2002) 103 Cal.App.4th 98,
112-114, disapproved on other grounds in Berkeley Hillside, supra, 60
Cal.4th at p. 1109, fn. 3), such compliance, standing alone, cannot always
support a conclusion that the project’s impacts will be less than significant.
(Ibid., see also, e.g., Protect the Historic Amador Waterways v. Amador
Water Agency (2004) 116 Cal.App.4th 1099, 1108-1111 [reduction in
stream flow may be a significant environmental effect despite water
pipeline project’s compliance with environmental requirements];
Californians for Alternatives to Toxics v. Dept. of Food & Agriculture
(2005) 136 Cal.App.4th 1, 16 [lead agency’s sole reliance on state agency’s
registration of pesticides and its regulatory program was inadequate to
address environmental concerns of CEQA].) Here, where per capita
emissions from cars and light trucks rise between 2020 and 2035, contrary
to SB 375’s objective of declining emissions (see AR Supp. 344:30143 [Air
Resources Board staff report]), SANDAG had an obligation to go beyond a
recitation of the 2050 Plan’s compliance with a SB 375-based threshold.
Similarly, section 15064.4, subdivision (b)(3) states that an agency
should consider “[t]he extent to which the project complies with regulations
or requirements adopted to implement a statewide, regional, or local plan
for the reduction or mitigation of greenhouse gas emissions.” In its EIR,
42 however, SANDAG identified only those discrete, shorter term objectives
and policies set out in the Scoping Plan and its Climate Action Strategy
that, in SANDAG’s view, the 2050 Plan would not impede. 23 A project’s
ostensible short-term consistency with specific aspects of climate policies
or plans does not excuse the agency from determining whether that
apparent consistency dissipates when viewed over the longer term. This is
particularly true where the very authorities and documents on which
SANDAG relies—the region’s SB 375 targets, the AB 32 Scoping Plan,
and SANDAG’s own Climate Action Strategy—are grounded in the need to
continually reduce emissions over the long term to achieve climate
stabilization. (See, e.g., AR Supp. 344:30143 [SB 375 staff report]; AR
320(5):379977, 27848 [Scoping Plan]; Assn. of Irritated Residents, supra,
206 Cal.App.4th at p. 1496 [noting that 2020 limit is an interim goal]; AR
216:17627-17628, 17644 [Climate Action Strategy]; see also Opn. 21, fn.
11 [questioning SANDAG’s conclusion that the 2050 Plan will not conflict
with SANDAG’s Climate Action Strategy].) As section 15064.4,
subdivision (b)(3) itself states, an agency’s analysis is not at an end where
23
SANDAG contends that its discussion of whether the 2050 Plan
“conflicts with” the 2008 Scoping Plan for the year 2020 or with
SANDAG’s own 2010 Climate Action Strategy follows the letter of CEQA
Guidelines section 15064.4, subdivision (b)(3). (AOB 27-28; see AR
8a:2567, 2581-2588.) It is not clear that the Scoping Plan, as applied to
SANDAG, or SANDAG’s Climate Action Strategy, are the types of
binding regulatory plans contemplated by section 15064.4, subdivision
(b)(3). (See AR 319: 25852-26853 [SB 97 FSOR]; see also CEQA
Guidelines, § 15183.5, subd. (b).) Still, an approach to determining
significance that considers statewide, regional, or local climate policies and
objectives is a reasonable and accepted approach fully consistent with the
CEQA Guidelines. (See, e.g., CEQA Guidelines, §§ 15064, 15064.4,
15065.) And, in the circumstances of this case, discussion and
consideration of the Scoping Plan and SANDAG’s Climate Action Strategy
are integral to a fully informed public process and decision.
43 “there is substantial evidence that the possible effects of a particular project
are still cumulatively considerable notwithstanding compliance with the
adopted regulations or requirements . . . .” (CEQA Guidelines, § 15064.4,
subd. (b)(3); see also id., § 15064, subd. (h)(3) [general provision
authorizing lead agency to rely on plans that address cumulative
environmental impacts in making significance determination].)
SANDAG’s other arguments related to CEQA Guidelines section
15064.4 must be rejected. SANDAG states that the fact that section
15064.4 does not mention the Executive Order reflects an intent to exclude
it. SANDAG points to Public Resources Code section 21083.05, which,
while it provides that the Guidelines must be updated periodically to
incorporate either new information or criteria established by the State Air
Resources Board pursuant to Division 25.5 (AB 32) “does not require the
Guidelines to include information or criteria from the [Executive] Order
specifically or from the Governor generally.” (AOB 24.) SANDAG’s
observation, while correct, is once again beside the point. The section is
designed to ensure that the Guidelines continue to reflect evolving science
and any regulations or requirements adopted by the Air Resources Board
that could assist lead agencies in carrying out their CEQA obligations. (See
AR 319:25836, 25917, 25930 [SB 97 FSOR].) Section 21083.05 cannot be
read to suggest that the Legislature considered the science and state policy
concerning climate stabilization to be irrelevant under CEQA.
SANDAG also states that “[t]hrough Guidelines section 15064.4,
subdivision (b)(3), the Resources Agency implicitly rejected use of the
Executive Order’s broad, statewide targets as being technically sound for
CEQA analysis.” (AOB 31.) It is true that the section does not mention the
Executive Order. Neither does it mention the Global Warming Solutions
44 Act (AB 32), the AB 32 Scoping Plan, or the Sustainable Communities
Strategy law (SB 375). 24 Of necessity, there are numerous factors and
considerations that may be relevant to a particular project that are not
expressly listed in this provision. The Resources Agency did not attempt in
section 15064.4 to set out an exhaustive list of considerations that could be
relevant in analyzing the impacts for the wide variety of projects
undertaken or permitted by the wide variety of entities that are lead
agencies under CEQA.
And SANDAG’s suggestion that the California Air Resources Board
has “rejected use of the Executive Order” in conducting a significance
determination under CEQA is wrong. (AOB 31-32.) To clarify, the Air
Resources Board does not promulgate CEQA regulations that apply
generally to lead agencies or set thresholds of significance. That is not in
the Air Resources Board’s mandate. In 2008, Air Resources Board staff
commenced a project that was intended to lead to Board-issued
recommendations to local governments for greenhouse gas emissions
thresholds they might choose to adopt for use in considering a limited
subset of projects, specifically, “industrial, residential, and commercial
projects.” (AR 320(3):27789 [2008 Preliminary Draft Staff Proposal].)
This project ended without a formal recommendation by staff to the Air
Resources Board, and without Board action. The preliminary staff report
cited by SANDAG is thus of little assistance in determining SANDAG’s
obligations under CEQA. Moreover, contrary to SANDAG’s assertions,
24
The People note, however, that the Resources Agency in its
Statement of Reasons cited the Executive Order and AB 32, and the
findings they contain, for the proposition that “the Governor, Legislature
and private sector have concluded that action to reduce greenhouse gas
emissions is necessary and beneficial for the State.” (AR 319:25834 [SB
97 FSOR].)
45 the preliminary staff report does cite the scientific basis of the declining
emissions trajectory in the Executive Order (AR 320(3):27791-27792), and
provides that its 2050 target may in some circumstances be relevant to
determining significance (id. at 27799).
C.
The EIR’s Disclosure of 2050 Gross Emissions and
Bare Mention of the Executive Order Are Not a
Substitute for Good Faith, Reasoned Analysis
SANDAG suggests that the EIR was sufficiently forthcoming about
long-term climate impacts because (1) the EIR provided that “greenhouse
gas impacts for 2035 and 2050 would be significant, as emissions would
increase due to regional population, housing, and employment growth”
(AOB 2; id. at 26-27, 46); (2) a careful reader could figure out that the 2050
Plan was perhaps not wholly consistent with the State’s 2050 emission
reduction objectives (AOB 46-47); and (3) the EIR “did not neglect
discussion of the Executive Order or its role in state climate strategy”
(AOB 47). These arguments do not withstand scrutiny.
“[S]imply labeling the impact ‘significant’ without accompanying
analysis” violates “the environmental assessment requirements of CEQA.”
(Berkeley Keep Jets, supra, 91 Cal.App.4th at p. 1371 [italics added].)
SANDAG thus cannot rely on a “significant and unavoidable”
determination to skip over the required step of explaining how and why the
impact is significant. Moreover, quantification of greenhouse gas
emissions in the context of this project is not an end in itself, but should
serve to “inform[] the qualitative factors” in section 15064.4. (AR
319:25847 [SB 97 FSOR].) The effect of SANDAG’s failure to put this
long-term project’s emissions into a long-term environmental context was
to undermine the importance of the EIR’s determination that the Plan’s
2035 and 2050 gross emissions were significant. Any concern that might
be engendered in the public or decision makers about the 2050 Plan’s
46 increases in emissions over time is quickly assuaged by the EIR’s
discussion and findings under the two other significance criteria. The EIR
assures the public and decision makers that the 2050 Plan complies with SB
375’s emissions reduction targets and greenhouse gas reduction plans, and
that the 2050 Plan’s impacts under these apparently more informative
standards are less than significant. (AR 8a:2030, 2567-2588.) And, as the
Court of Appeal noted, the end result is misleading.
SANDAG’s argument that a reader of the EIR could have constructed
an analysis of whether the 2050 Plan’s emissions are consistent or instead
might interfere with the State’s long-term climate stabilization objectives is
wrong on two counts. This is not a matter of mere “arithmetic” (see AOB
at p. 46) but requires some considered discussion, at least as detailed and as
analytical as what SANDAG provided in examining whether the 2050 Plan
conflicted with the 2008 Scoping Plan and its Climate Action Strategy.
(See AR 8a:2581-2588.) Moreover, “[t]he data in an EIR must not only be
sufficient in quantity, it must be presented in a manner calculated to
adequately inform the public and decision makers . . . .” (Vineyard, supra,
40 Cal.4th at p. 442.) “[I]nformation scattered here and there in EIR
appendices or a report buried in an appendix, is not a substitute for a good
faith reasoned analysis.” (Ibid., internal quotations omitted.)
Finally, SANDAG’s assertion that the EIR discussed the Executive
Order “at length” is not supported by its record citations. (AOB 47.) At
the pages cited, the EIR:
•
Includes a one-sentence summary of the Executive Order among
other instances of state action related to climate change (AR
8a:2651);
•
States that SANDAG will not consider whether the 2050 Plan
would conflict with the AB 32 Scoping Plan for any year beyond
2020, and that while Executive Order No. S-3-05 “sets a goal
that statewide GHG emissions be reduced to 80 percent below
47
1990 levels by 2050,” it “does not constitute a ‘plan’ for GHG
reduction, and no state plan has been adopted to achieve the
2050 goal” (AR 8a:2581-2582);
•
Opines that, for example, “[t]he Legislature declined to include
the Executive Order’s aspirational 2050 goal in AB 32” and that
“SB 375 legislative findings do not mention achievement of the
ambitious 2050 EO S-3-05 GHG emissions reductions target”
(AR 8b:3766-3768 [master response to comment]; see also
8b:4436 [response to Attorney General’s comments]);
•
States that “SANDAG chose not to use the 2050 EO [Executive
Order] emissions reduction target as a threshold of significance
because the EO is not an adopted GHG reduction plan within the
meaning of” CEQA Guidelines, § 15064.4, subd. (b)(2), and
because “there is no legal requirement to use it as a threshold of
significance” (AR 8b:3768-3770); and
•
Summarily asserts, as an additional reason that it will not
consider the longer-term reduction target, that “SANDAG’s role
in achieving this target is uncertain and likely small.” (AR
8b:3769.)
On the last point, not only is the statement not supported by any
citation or discussion, it misses the point of a cumulative impact analysis.
As the 2008 Scoping Plan stated, “[i]n order to achieve the deep cuts in
greenhouse gas emissions we will need beyond 2020 it will be necessary to
significantly change California’s current land use and transportation
planning policies.” (AR 320(5):27858.) The relevant question is not
whether the SANDAG region is a relatively small contributor of
greenhouse gases as judged against the scale of the problem, or whether
SANDAG can “singlehandedly meet the Executive Order’s long-term
greenhouse gas reduction goals” (AOB 47), but whether the region’s non­
trivial and long-term contribution is cumulatively considerable given the
state of the climate and the State’s long-term climate stabilization
objectives. (See Kings County Farm Bur., supra, 221 Cal.App.3d at p. 718
48 [“relevant question to be addressed in the EIR is not the relative amount of
[pollution] emitted by the project when compared with preexisting
emissions” but whether project’s “emissions should be considered
significant in light of the serious nature” of the air pollution problems in the
air basin]; see also Massachusetts v. EPA (2007) 549 U.S. 497, 524
[observing that “[a]gencies, like legislatures, do not generally resolve
massive problems in one fell swoop”].)
In addition, SANDAG cites a SANDAG staff memorandum dated
October 28, 2011, the day the EIR was certified and approved by SANDAG.
(AOB 47.) The report informed the SANDAG Board that the Executive
Order’s 2050 target, if applied directly to SANDAG, would require the
region’s total emissions to be 5.02 million metric tons in 2050, and that the
EIR identified total emissions in that year to be 33.65 million metric tons.
(AR 14:4514.) This disclosure, if made earlier in the EIR process, could
have formed part of a larger, informative discussion about the project’s
impacts, serving as a counterpoint to the assertions of compliance with
applicable greenhouse gas emissions reductions plans. But this post-EIR
document came too late and was too summary to serve any useful purpose
in the CEQA process.
D.
SANDAG’s Post Hoc Attempts to Justify its Refusal to
Consider the Science and State Policy Concerning
Long-Term Climate Stabilization Should Be Rejected
As noted, SANDAG’s contemporaneous justifications for refusing to
consider the science and state policy concerning long-term climate
stabilization were legal ones. Before this court, SANDAG attempts to
assert additional justifications for its truncated analysis. Those reasons are
not persuasive. SANDAG’s assertions that the Resources Agency and the
California Air Resources Board “rejected” any use of the Executive Order
in determining significance as not “technically or legally sound”
49
mischaracterize the relevant documents, as discussed above. (AOB 31-32;
see discussion above at pp. 44-45.) And while SANDAG is correct that the
California Air Pollution Control Officers Association (CAPCOA), in its
2008 white paper, “CEQA and Climate Change,” suggested that it may not
be appropriate simply to apply the Executive Order’s statewide 2050 target
to sub-parts of the state or to individual development projects (AOB 32; see
AR 319:26322, 26324-26325), CAPCOA did not suggest that the State’s
long-term climate stabilization objectives are irrelevant to the significance
determination. (See, e.g., AR 319:26292 [stating that “[t]he first approach
[explored in the white paper] is grounded in statute (AB 32) and executive
order (EO S-3-05)”].)
SANDAG also asserts that “[i]t would be practically impossible for
agencies to be accountable for accomplishing the Order’s statewide goal for
2050 when the state has not figured out how to allocate that responsibility
among its regions and the various emitters in those regions” and that
discussing the Executive Order would be “speculative and potentially
misleading . . . .” (AOB 36; see also id. at 23, 37-38, 47.) This assumes
that the only way to consider climate science and long-term climate policy
is to adopt the Executive Order’s 2050 statewide reduction target as a
regional target. But the People have never so argued. The point is that
consideration of the need to reduce statewide greenhouse gas emissions
over the longer term can inform that analysis, serving as a counterweight to
assertions that the 2050 Plan complies with SB 375 and purportedly does
not conflict with the Scoping Plan in 2020. (See AR 8b:4432 [SANDAG
acknowledging that 2050 target “can inform the CEQA analysis”].)
More fundamentally, SANDAG never relied on any discussion of the
Executive Order by the Resources Agency, Air Resources Board staff, or
CAPCOA in declining to consider the science and the State’s long-term
climate objectives. SANDAG’s cites are to the these entities’ documents,
50 not to its own analysis, or anything in the EIR that purports to rely on these
documents. (See AOB 31-32, 47.) And SANDAG never contended in the
EIR that accounting for the longer term was impossible or would result in a
misleading document, but only that neither the Legislature nor the
Resources Agency had expressly directed such an analysis. SANDAG’s
counsel’s post hoc attempts to shore up the 2011 EIR should be rejected as
contrary to CEQA’s purposes. As this court has explained, “[t]he audience
to whom an EIR must communicate is not the reviewing court but the
public and the government officials deciding on the project.” (Vineyard,
supra, 40 Cal.4th at p. 443.) A lead agency’s arguments in its briefs are
irrelevant, because the public and decision makers did not have
the briefs available at the time the project was reviewed and
approved. The question is therefore not whether the project’s
significant environmental effects can be clearly explained, but
whether they were.
(Ibid., italics in original) The 2050 Plan EIR, like the EIR at issue in
Vineyard, “fails that test.” (See ibid. [declining to supplement deficient
EIR with counsel’s arguments].)
If the court is nevertheless inclined to consider SANDAG’s extrarecord assertions that the requested analysis is impossible or ill-advised, the
People ask the court to take judicial notice of the fact that SANDAG, in the
draft EIR for its current 2050 Plan update, has added the following query to
its list of “significance criteria”: Whether the proposed Plan would be “[b]e
inconsistent with the State’s ability to achieve the Executive Order [Nos.]
B-30-15 and S-3-05 goals of reducing California’s GHG emissions to 40
percent below 1990 levels by 2030 and 80 percent below 1990 levels by
2050.” (People’s Decl., Ex. 1, p. 20; see also id. at p. 34.) This not only
marks progress, but establishes that a remand to the agency, requiring it to
make a good faith effort to disclose and analyze the impacts of the 2050
Plan in the context of state policy relating to long-term climate change will
51 assist in serving the public disclosure and informed decision making
purposes of CEQA.
VI. THIS COURT SHOULD REMAND THE MATTER AND ALLOW
SANDAG TO REMEDY THE 2011 ENVIRONMENTAL IMPACT
REPORT’S DEFICIENCIES IN THE COURSE OF THE PENDING
2050 PLAN UPDATE
In the nearly four years since the Attorney General submitted her
comment letter to SANDAG, science, law, and policy related to climate
change have continued to evolve. The International Panel on Climate
Change has issued another report informing the public and policy makers of
the need for decisive action. 25 The Air Resources Board adopted an
updated Scoping Plan. 26 The Governor recently issued a new Executive
Order (No. B-30-15) setting a statewide 2030 emissions target marking the
State’s path toward 2050. 27 The state Senate is considering updates to AB
32 to guide the Air Resources Board in setting post-2020 targets. 28 And
SANDAG, as it is required to do every four years, has moved on to its next
regional transportation plan update and is circulating a new draft EIR for an
updated 2050 Plan. (See SANDAG’s regional transportation plan webpage
at http://sandiegoforward.org/regionalplan.)
The fact that SANDAG is voluntarily analyzing long-term climate
stabilization in the draft EIR for its pending 2050 Plan update does not
25
Available at <http://www.ipcc.ch/report/ar5/wg1/> [as of July 6,
2015].
26
Available at
<http://www.arb.ca.gov/cc/scopingplan/scopingplan.htm> [as of July 6,
2015].
27
Available at <http://gov.ca.gov/news.php?id=18938>.
28
See Senate Bill 32, available at http://www.leginfo.ca.gov/cgi­
bin/postquery?bill_number=sb_32&sess=CUR&house=B&author=pavley_
<pavley> [as of July 6, 2015].
52 render this case moot. As evidenced by SANDAG’s opening brief, there
remains a substantial need for this court to clarify for SANDAG, and
potentially for other regional planning entities, that in the circumstances of
a large-scale infrastructure and planning project with substantial long-term
greenhouse gas emissions, a lead agency has a responsibility under CEQA
either to address the science and state policy relating to long-term climate
stabilization or explain why it cannot, supporting any such explanation with
substantial evidence. The question presented in this case might otherwise
evade review, given the relatively short period between regional
transportation plan updates. (See California Charter Schools Assn. v. Los
Angeles Unified School Dist. (2015) 60 Cal.4th 1221, 1233-1234 [case
relating to allocation of facilities to charter schools for past school year not
moot where issue is “likely to recur yet evade review because of the
relatively short duration of the academic year”].)
In light of these developments and the time that has elapsed, rather
than requiring SANDAG to revise or supplement the 2011 EIR to correct
the deficiencies identified in this litigation, it would appear to be most
efficient to focus the remedy on the pending EIR process—a result that is
not precluded by CEQA’s remedy provisions. (See § 21168.9, subd. (a).)
Accordingly, the People request that SANDAG be ordered, in the course of
preparing the pending 2050 Plan EIR, to take the corrective actions
identified by this court should the People prevail, and, in addition, the
specific corrective actions identified by the Court of Appeal (see Opn. at
pp. 26-27 [greenhouse gas-related mitigation], 30 [project alternatives], 41
[air quality impacts and mitigation], 44 [agricultural impacts]). 29
29
The trial court did not order that specific activities approved under
the 2050 Plan be suspended, and the People do not request any change to
that aspect of the remedy.
53 CONCLUSION The People respectfully request that the court hold that SANDAG
abused its discretion in determining that in the EIR for the 2050 Plan-a
large-scale, long-term transportation infrastructure and land use planning
project-SANDAG had no obligation under CEQA to consider the science
and state policy of long-term climate stabilization. It should further affirm
the decision of the Court of Appeal that SANDAG's error was prejudicial,
provide that SANDAG must decertify the deficient 2011 EIR, and remand
the case for further proceedings consistent with this court's opinion.
Dated: July 10, 2015
Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
EDWARD C. DUMONT
Solicitor General
MARK J. BRECKLER
Chief Assistant Attorney General
SALLY MAGNANI
Senior Assistant Attorney General
TIMOTHY R. PATTERSON
Supervising Deputy Attorney General
I
';)
c~,vL)4c~
/
L. RICHARDS
Principal Deputy Solicitor General
Attorneys for People ofthe State of
California, ex rel. Kamala D. Harris,
Attorney General
JA"W-t
54 CERTIFICATE OF COMPLIANCE
I certify that the attached PEOPLE OF THE STATE OF
CALIFORNIA'S ANSWER BRIEF ON THE MERITS uses a 13 point
Times New Roman font and contains 13,984 words.
Dated: July 10, 2015 KAMALA D. HARRIS
Attorney General of California
·-;)
~i~L
F-dA-
J
. RICHARDS
Principal Deputy Solicitor General
People ofthe State ofCalifornia, ex rel.
Kamala D. Harris, Attorney General
DECLARATION OF SERVICE BY FIRST CLASS AND ELECTRONIC MAIL Case Name: Cleveland National Forest Foundation; Sierra Club; Center for
Biological Diversity; CREED-21; Affordable Housing Coalition ofSan
Diego; People ofthe State ofCalifornia v. San Diego Association of
Governments; San Diego Association ofGovernments Board ofDirectors
Case No.:
S223603
(California Court of Appeal, Fourth Appellate District,
Division One, Case No. D063288;
San Diego County Superior Court,
Case No. 37-2011-00101593-CU-TT-CTL
[Consolidated with Case No. 37-2011-0010 1660-CU-TT-CTL])
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of
the California State Bar at which member's direction this service is made. I am 18 years
of age or older and not a party to this matter. I am familiar with the business practice at
the Office of the Attorney General for collection and processing of correspondence for
mailing with the United States Postal Service. In accordance with that practice,
correspondence placed in the internal mail collection system at the Office of the Attorney
General is deposited with the United States Postal Service with postage thereon fully
prepaid that same day in the ordinary course of business.
On July 10, 2015, I served the attached PEOPLE OF THE STATE OF
CALIFORNIA'S ANSWER BRIEF ON THE MERITS by placing a true copy of this
document enclosed in a sealed envelope as first class mail in the internal mail collection
system at the Office of the Attorney General at [ fill in address] , and by sending an
electronic version of the same document, addressed as set out in the attachment.
I declare under penalty of perjury under the laws of the State of California the foregoing
is true and correct and that this declaration was executed on July 10, 2015, at Oakland,
California.
Debra Baldwin
Declarant
SERVICE LIST
Cleveland National Forest Foundation, et al.
v. San Diego Association of Governments, et al.
(Case No. S223603)
Attorney or Recipient
Margaret M. Sohagi
Philip A. Seymour
The Sohagi Law Group, PLC
11999 San Vicente Boulevard, Suite 150
Los Angeles, CA 90049-5136
Telephone: (310) 475-5700
Facsimile: (310) 475-5707
[email protected]
[email protected]
Julie D. Wiley, Special Counsel
San Diego Association of Governments
401 B Street, Suite 800
San Diego, CA 92101
Telephone: (619) 699-6966
Facsimile: (619) 699-1995
[email protected]
Michael H. Zischke
Andrew B. Sabey
Linda C. Klein
Cox, Castle & Nicholson LLP
555 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 262-5100
Facsimile: (415) 262-5199
[email protected]
[email protected]
[email protected]
Rachel B. Hooper
Amy J. Bricker
Erin B. Chalmers
Shute, Mihaly & Weinberger LLP
396 Hayes Street
San Francisco, CA 94102
Telephone: (415) 552-7272
Facsimile: (415) 552-5816
[email protected]
[email protected]
[email protected]
Party
Attorneys for San Diego Association of
Governments and San Diego Association
of Governments Board of Directors
Attorney for San Diego Association of
Governments
Attorneys for San Diego Association of
Governments and San Diego Association
of Governments Board of Directors
Attorneys for Cleveland National Forest
Foundation and Sierra Club
Daniel P. Selmi
919 South Albany Street
Los Angeles, CA 90015
Telephone: (213) 736-1098
Facsimile: (949) 675-9861
[email protected]
Marco Gonzalez
Coast Law Group LLP
1140 South Coast Highway 101
Encinitas, CA 92024
Telephone: (760) 942-8505
Facsimile: (760) 942-8515
[email protected]
Kevin P. Bundy
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612
Telephone: (510) 844-7100 x313
Facsimile: (510) 844-7150
[email protected]
Cory J. Briggs
Mekaela M. Gladden
Briggs Law Corporation
99 East “C” Street, Suite 111
Upland, CA 91786
Telephone: (909) 949-7115
[email protected]
[email protected]
Clerk of the Court
California Court of Appeal
Fourth District, Division One
Symphony Towers
750 B Street, Suite 300
San Diego, CA 92101
Telephone: (619) 744-0760
Attorney for Cleveland National Forest
Foundation and Sierra Club
Attorney for Cleveland National Forest
Foundation and Sierra Club
Attorney for Center for Biological
Diversity
Attorneys for CREED-21 and Affordable
Housing Coalition of San Diego County
California Court of Appeal
Fourth Appellate District, Division One,
Case No. D063288
SERVICE LIST – Contd.
Cleveland National Forest Foundation, et al.
v. San Diego Association of Governments, et al.
(Case No. S223603)
Attorney or Recipient
The Honorable Timothy B. Taylor
San Diego County Superior Court
Hall of Justice – Dept. 72
330 West Broadway
San Diego, CA 92101
Telephone: (619) 450-7072
Party
San Diego County Superior Court, Case
No. 37-2011-00101593-CU-TT-CTL
[Consolidated with Case No. 37-2011­
00101660-CU-TT-CTL]
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