CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervener and Appellant. CREED-21 et al., Plaintiffs and Appellants, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervener and Appellant.
S223603
Supreme Court of California
July 13, 2017
Ct.App. 4/1 D063288; San Diego County Super. Ct. No. 37-2011-00101593-CU-TT-CTL; Super. Ct. No. 37-2011-00101660-CU-TT-CTL
The California Environmental Quality Act (CEQA;
In this case, the project is a regional development plan for the San Diego area intended to guide
We conclude that SANDAG did not abuse its discretion by declining to explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals in the executive order. The EIR sufficiently informed the public, based on the information available at the time, about the regional plan‘s greenhouse gas impacts and its potential inconsistency with state climate change goals. Nevertheless, we do not hold that the analysis of greenhouse gas impacts employed by SANDAG in this case will necessarily be sufficient going forward. CEQA requires public agencies like SANDAG to ensure that such analysis stay in step with evolving scientific knowledge and state regulatory schemes.
I.
We begin with an overview of the regulatory scheme by which this state seeks to address greenhouse gas emissions as part of a global effort to slow climate change.
In June 2005, Governor Schwarzenegger signed Executive Order No. S-3-05, which set overall greenhouse gas emissions reduction targets for California. (Governor‘s Executive Order No. S-3-05 (June 1, 2005) (hereafter Executive Order or EO).) The Executive Order established three general benchmarks: (1) reduce emissions to 2000 levels by 2010; (2) reduce emissions to 1990 levels by 2020; and (3) reduce emissions to 80 percent below 1990 levels by 2050. These targets were based on a scientific consensus that climate change was largely caused by human activity resulting in elevated levels of carbon dioxide and other heat-trapping gases in the atmosphere and that drastic reductions in greenhouse gas emissions were required to stabilize the climate.
As the California Air Resources Board (CARB), the agency charged with implementing the state‘s climate change policy, has explained: “The experts tell us that an additional increase in global average temperatures of just 2 degrees Celsius (3.6 degrees Fahrenheit) is very likely dangerous. With a 2 degree Celsius increase, disastrous effects become likely, including more extreme and more frequent severe weather, more wildfires, greater frequency of droughts and floods, rapid and higher sea level rise, and increased habitat
In 2006, shortly after the Executive Order was issued, the Legislature enacted the California Global Warming Solutions Act of 2006 (Stats. 2006, ch. 488, adding
The Legislature has also adopted the Sustainable Communities and Climate Protection Act (Stats. 2008, ch. 728, § 1; Stats. 2009, ch. 354, § 5), commonly known as SB 375. In enacting this law, the
In order to achieve these targets, SB 375 imposes additional requirements on regional transportation plans (RTPs) used by federally designated metropolitan planning organizations (MPOs), such as SANDAG. Every four to five years, MPOs are required to adopt a comprehensive RTP that addresses no less than a 20-year planning horizon. (
Importantly, for purposes of this case, the strategy must “set forth a forecasted development pattern for the region, which, when integrated with the transportation network, and other transportation measures and policies, will reduce the greenhouse gas emissions from automobiles and light trucks to achieve, if there is a feasible way to do so, the greenhouse gas emission reduction targets approved by the state board.” (
Once an MPO has adopted a sustainable communities strategy that CARB finds acceptable, some transit priority projects consistent with the strategy are exempt from CEQA
II.
CARB‘s 2008 scoping plan (Scoping Plan) “encourages local jurisdictions to develop ’ “climate action plans” ’ or greenhouse gas ’ “emissions reduction plans” ’ for their geographic areas, and several jurisdictions have adopted or proposed such plans as tools for CEQA streamlining.” (Center for Biological Diversity, supra, 62 Cal.4th at p. 230.) Pursuant to this directive, SANDAG in 2010 issued its “Climate Action Strategy,” (sometimes CAS) that said: “Achieving the near-term goal of reducing statewide greenhouse gas emissions to the 1990 level by the year 2020 is ambitious but likely achievable with available policy measures and technology options. However, 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.” (SANDAG, Climate Action Strategy (Mar. 2010) p. 11.) The Climate Action Strategy then recommended a number of land-use and transportation measures designed to reduce greenhouse gas emissions. (Id. at pp. 24–55.)
In 2011, SANDAG issued its RTP/SCS plan (Plan) pursuant to Government Code section 65080, subdivision (b). The Plan was adopted as a “blueprint for a regional transportation system, serving existing and projected residents and workers within the San Diego region . . . over the next 40 years, that further enhances quality of life and offers more mobility options for people and goods. The 2050 RTP/SCS looks 40 years ahead, accommodating another 1.2 million residents, half a million new jobs, and nearly 400,000 new homes. The Plan addressed a 40 year period ending in 2050.” In addition, SANDAG prepared a draft EIR (occasionally, DEIR) to analyze the Plan‘s environmental effects, including its projected impact on the region‘s greenhouse gas emissions.
The draft EIR proposed three different measures — labeled GHG-1, GHG-2, and GHG-3 — for determining whether the region‘s greenhouse gas emissions under the Plan would be significant, and it applied each measure to the years 2020, 2035, and 2050. GHG-1 compared the projected total regional GHG emissions to conditions existing in 2010. The draft EIR concluded that after taking into account the transportation and land use changes set forth in the Plan, regional greenhouse gas emissions in 2020 are expected to be lower than in 2010. Therefore, the draft EIR judged the emission impacts for 2020 to be insignificant.
The draft EIR further concluded that “[l]and-use and transportation-related GHG emissions in 2050 are expected to be greater than in 2010. The total emissions expected in 2050 would be 33.65 MMT CO2e, accounting for state measures. Compared with the estimated 2010 emissions of 28.845 MMT CO2e, this represents an increase over baseline conditions. Therefore, implementation of the 2050 RTP/SCS would lead to an overall increase in GHG emissions compared to baseline levels and constitutes a significant impact for which mitigation measures are described in Section 4.8.5.”
The draft EIR‘s second measure of significance, GHG-2, compared projected regional emissions with the reduction targets mandated by SB 375. The draft EIR explained: “GHG-2 analyzes a narrower range of GHG emissions than GHG-1. . . . SB 375 requires [CARB] to develop regional GHG emission reduction targets, compared to 2005 emissions, for cars and light trucks for 2020 and 2035 for each of the state‘s MPOs.” The draft EIR concluded that the plan would meet CARB‘s mandated targets of reducing per capita emissions 7 percent below 2005 levels by 2020 and 13 percent below 2005 levels by 2035 through a variety of measures, including denser residential development and increased use of mass transit. In applying GHG-2, the draft EIR made no determination of significant environmental effects with respect to the year 2050 because CARB has not yet established 2050 reduction targets.
The third measure of significance, GHG-3, compared projected regional emissions with applicable emission reduction plans, specifically CARB‘s Scoping Plan and SANDAG‘s own Climate Action Strategy. The draft EIR states that, consistent with the Climate Action Strategy, “land use changes and transportation improvements expected as a result of implementation of the 2050 RTP/SCS focus on transit and compact development near transit centers. These are aligned with the policies outlined in the CAS and therefore implementation of the 2050 RTP/SCS would not impede the CAS and would constitute a less than significant impact.” As for comparison with the Scoping
Several parties filed comments critical of the draft EIR‘s greenhouse gas emissions analysis. Typical of these comments, the Attorney General observed that the EIR “finds the impact of the RTP/SCS on GHG emissions to be not significant in 2020 . . . , significant in 2035 . . . , and significant in 2050 . . . . SANDAG must, however, make a determination whether the project as a whole has significant climate change impacts. We believe strongly that it does. What the DEIR shows is that the suite of strategies relied on by SANDAG, which include[s] a heavy reliance on roadway expansion projects, does not deliver GHG reductions that are sustainable in the long term. In fact, infrastructure and land use decisions made in the early years of the RTP/SCS may lock in transportation inefficiencies and preclude any realistic possibility of meeting the Executive Order‘s goal of an 80% reduction in GHG emissions.” The Attorney General faulted the draft EIR for rejecting any need to analyze the consistency between the Plan‘s long-term projections and the 2050 emission reduction objectives of the Executive Order. SANDAG‘s position, the Attorney General argued, failed to recognize that the Executive Order “is designed to meet the environmental objective that is relevant under CEQA (climate stabilization).”
In the final EIR, SANDAG maintained it had no obligation to analyze projected emissions against the Executive Order‘s goals: “The 2050 RTP/SCS complies with SANDAG‘s SB 375 emissions reductions targets, which in turn are based on AB 32 implementation. SANDAG recognizes the aspirational nature of the EO [Executive Order] S-3-05 2050 target, but the 2050 RTP/SCS emissions reductions are not legally required to be consistent with this target, and as explained below, this target is not an appropriate CEQA threshold of significance.” The EIR continued: “SANDAG chose not to use the 2050 EO emissions reduction target as a threshold of significance because the EO is not an adopted GHG reduction plan within the meaning of CEQA Guidelines [section] 15064.4(b)(2), and because SANDAG‘s role in achieving this target is uncertain and likely small. Although comments note the Attorney General . . . [has] advised that the EO 2050 target can inform CEQA analysis, there is no legal requirement to use it as a threshold of significance. Under the CEQA Guidelines and case law, SANDAG retains the discretion to select certain GHG emissions reduction thresholds and not select others. [¶] Furthermore, even if SANDAG had used the 2050 EO emissions reduction target as a threshold of significance, the Impact GHG-1 impact conclusions for 2035 and 2050 would not have changed. These impacts would be significant and unavoidable using either the net increase threshold used in Impact GHG-1, or an EO based threshold.”
The superior court issued a writ of mandate in plaintiffs’ favor, finding that the EIR failed to fulfill its role as an informational document because it did not analyze the consistency between the Plan‘s emission impacts and the Executive Order‘s emission reduction goals. The court also found that the EIR did not adequately address mitigation measures for significant emission impacts. In light of these findings, the court declined to decide any of the other challenges raised in the petitions. The writ of mandate directed SANDAG to set aside its certification of the EIR and to prepare and certify a revised EIR curing the identified deficiencies.
SANDAG appealed, arguing that the EIR complied with CEQA, and the Cleveland National Forest Foundation and other environmental organizations (collectively, Cleveland) cross-appealed, arguing that the EIR further violated CEQA by failing to analyze a reasonable range of project alternatives, by failing to adequately analyze and mitigate the Plan‘s air quality impacts, and by understating the transportation plan‘s impacts on agricultural lands. The Attorney General separately cross-appealed, contending that the EIR further violated CEQA by failing to adequately analyze and mitigate the transportation plan‘s impacts from particulate matter pollution. The Court of Appeal, largely agreeing with plaintiffs, affirmed the trial court‘s judgment setting aside the EIR certification but modified the judgment to require that a subsequent EIR fix most of the defects identified in the cross-appeals. Justice Benke dissented from the court‘s holding that SANDAG was required to analyze the consistency of projected emissions with the goals of the Executive Order and concluded that SANDAG‘s analysis was supported by substantial evidence.
We granted review on the following question: “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 (
III.
We granted the Attorney General‘s request to judicially notice the fact that SANDAG updated its RTP/SCS in 2015 in accordance with its statutory mandate and, in doing so, included some analysis of the Plan‘s consistency
A.
“The EIR is the primary means of achieving the Legislature‘s considered declaration that it is the policy of this state to ‘take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.’ ([
At the same time, courts must proceed with caution when determining the adequacy of EIRs. “In reviewing an agency‘s compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion.’ (
We have also recognized that the analysis of greenhouse gas emissions in an EIR poses particular challenges. “First, because of the global scale of climate change, any one project‘s contribution is unlikely to be significant by itself. The challenge for CEQA purposes is to determine whether the impact of the project‘s emissions of greenhouse gases is cumulatively considerable, in the sense that ‘the incremental effects of [the] individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.’ (
“Second, the global scope of climate change and the fact that carbon dioxide and other greenhouse gases, once released into the atmosphere, are not contained in the local area of their emission means that the impacts to be evaluated are also global rather than local. For many air pollutants, the significance of their environmental impact may depend greatly on where they are emitted; for greenhouse gases, it does not.” (Center for Biological Diversity, supra, 62 Cal.4th at pp. 219–220.)
In 2010, the Natural Resources Agency promulgated a guideline for assessing the significance of greenhouse gas emissions impacts under CEQA. Guidelines section 15064.4, subdivision (a) provides in part that “[a] lead agency should make a good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project.” Subdivision (b) states that “[a] lead agency should consider the following factors, among others,
B.
In addressing the controversy between the parties, we begin by noting three points not in dispute. First, the parties agree that the EIR should consider the Plan‘s long-range greenhouse gas emission impacts for the year 2050. As noted, SANDAG explained in its Climate Action Strategy that “[o]nce in place, land use patterns and transportation infrastructure typically remain part of the built environment and influence travel behavior and greenhouse gas emissions for several decades, perhaps longer.” (SANDAG, Climate Action Strategy, supra, at p. 25.) The EIR must reasonably evaluate these downstream impacts.
Second, neither party disputes that the Executive Order lacks the force of a legal mandate binding on SANDAG in the preparation of its EIR. What plaintiffs and the Attorney General argue here is that the Executive Order‘s significance for purposes of CEQA analysis is its scientific basis, i.e., its expression of what scientific research has determined to be the level of emissions reductions necessary to stabilize the climate by midcentury and thereby avoid catastrophic effects of climate change. Nor does any party dispute that the Executive Order‘s 2050 emissions reduction target is grounded in sound science. In its Climate Action Strategy, SANDAG observed that the 2050 target “is based on the scientifically-supported level of emissions reduction needed to avoid significant disruption of the climate and is used as the long-term driver for state climate change policy development.” (SANDAG, Climate Action Strategy, supra, at p. 10.)
Third, the parties do not dispute that the projected increase in greenhouse gas emissions under the Plan from 2020 through 2050 is a significant environmental effect. As noted, SANDAG stated in the EIR that implementation of the 2050 RTP/SCS would lead to an overall increase in greenhouse gas emissions in 2050 and that this impact is “significant and unavoidable.”
What the parties dispute is whether CEQA required SANDAG to analyze the consistency between the Plan and the Executive Order in assessing the significance of the Plan‘s impact on greenhouse gas emissions in 2050. The
In light of this projected trend, the Attorney General argues that the EIR‘s analysis of emission impacts is misleading: “Without placing these emissions into any meaningful context, the EIR summarily 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.” According to the Attorney General, this understates and obscures the extent to which the Plan‘s emission impacts run counter to the state‘s climate change goals; analyzing the consistency of the Plan with the Executive Order‘s 2050 emissions reduction target would supply the missing context.
In response to this concern, the final EIR said that “SANDAG chose not to use the 2050 EO 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(b)(2), and because SANDAG‘s role in achieving this target is uncertain and likely small. Although the comments note the Attorney General . . . [has] advised that the EO 2050 target can inform CEQA analysis, there is no legal requirement to use it as a threshold of significance. Under the CEQA Guidelines and case law, SANDAG retains the discretion to select certain GHG emissions reduction thresholds and not select others.”
In evaluating these arguments, we begin with three points. First, an EIR‘s designation of a particular adverse environmental effect as “significant” does not excuse the EIR‘s failure to reasonably describe the nature and magnitude of the adverse effect. (See Berkeley Keep Jets Over the Bay Committee v. Board of Port Comrs. (2001) 91 Cal.App.4th 1344, 1371 [“The EIR‘s approach of simply labeling the effect ‘significant’ without
Second, SANDAG‘s conclusory statement that its role in achieving the Executive Order‘s 2050 emission reduction target is “likely small” is not a valid reason for rejecting the target as a measure of significance. As noted, “because of the global scale of climate change, any one project‘s contribution is unlikely to be significant by itself.” (Center for Biological Diversity, supra, 62 Cal.4th at p. 219.) The solution to climate change requires the aggregation of many small reductions in greenhouse gas emissions by public and private actors at all levels. (See United Nations Framework Convention on Climate Change, Paris Agreement (Dec. 12, 2015, ___ U.N.T.S. ___ [English text, p. 52; Annex, p. 21] [” [recognizing] the importance of the engagement of all levels of government and various actors, in accordance with respective national legislation of Parties, in addressing climate change“].) The fact that a regional plan‘s contribution to reducing greenhouse gas emissions is likely to be small on a statewide level is not necessarily a basis for concluding that its impact will be insignificant in the context of a statewide goal.
Third, we agree with plaintiffs that SANDAG‘s response in the final EIR that the Executive Order “is not an adopted GHG reduction plan” and that “there is no legal requirement to use it as a threshold of significance” is not dispositive of the issue before us. Although lead agencies have discretion in designing an EIR, the exercise of that discretion must be “based to the extent possible on scientific and factual data.” (Guidelines, § 15064, subd. (b).) The Executive Order‘s 2050 goal of reducing California‘s greenhouse gas emissions to 80 percent below 1990 levels expresses the pace and magnitude of reduction efforts that the scientific community believes necessary to stabilize the climate. This scientific information has important value to policymakers and citizens in considering the emission impacts of a project like SANDAG‘s regional transportation plan.
Nonetheless, contrary to what plaintiffs and our dissenting colleague contend, the EIR does not obscure the existence or contextual significance of the Executive Order‘s 2050 emissions reduction target. The EIR makes clear that the 2050 target is part of the regulatory setting in which the Plan will
Although there were perhaps clearer or more graphic ways the EIR could have facilitated a comparison between 2050 projected emissions and the Executive Order‘s 2050 emissions reduction target, we find that the EIR presented the information enabling that comparison “in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project.” (Vineyard, supra, 40 Cal.4th at p. 442; see Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1046 [” [A]n EIR must be upheld if it ‘reasonably sets forth sufficient information to foster informed public participation and to enable the decision makers to consider the environmental factors necessary to make a reasoned decision.’ “].) We have made clear, and recently reiterated, that ” ‘information “scattered here and there in EIR appendices” or a report “buried in an appendix,” is not a substitute for “a good faith reasoned analysis.” ’ ” (Vineyard, at p. 442; see Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 941.) Here, however, it was not difficult for the public, reading the EIR, to compare the upward trajectory of projected greenhouse gas
emissions under the Plan from 2020 through 2050 with the Executive Order‘s goal of reducing emissions to 80 percent below 1990 levels by 2050. The fact that part of the discussion of greenhouse gas impacts and the Executive Order occurs in the ―Response to Comments‖ section of the EIR rather than the original draft (see dis. opn., post, at p. 8) is not an infirmity. Because a lead agency‘s response to
Moreover, SANDAG did not abuse its discretion in declining to adopt the 2050 goal as a measure of significance in light of the fact that the Executive Order does not specify any plan or implementation measures to achieve its goal. In its response to comments, the EIR said: ―It is uncertain what role regional land use and transportation strategies can or should play in achieving the EO‘s 2050 emissions reduction target. A recent California Energy Commission report concludes, however, that the primary strategies to achieve this target should be major ‗decarbonization‘ of electricity supplies and fuels, and major improvements in energy efficiency [citation].‖ We cannot say that SANDAG abused its discretion by refusing, on these grounds, to say more in the EIR about whether the projected emissions were consistent with the 2050 goal. Neither the Attorney General nor the other plaintiffs point to any guidance as to how the 2050 goal translates into specific reduction targets broken down by region or sector of emission-producing activity. Further, as SANDAG notes, ―there are presently no reliable means of forecasting how future technological developments or state legislative actions to reduce greenhouse gas emissions may affect future emissions in any one planning jurisdiction. . . . Lead agencies can only guess how future technical developments or state (or federal or international) actions may affect emissions from the myriad of sources beyond their control.‖ (See Marin Mun. Water Dist. v. KG Land California Corp (1991) 235 Cal.App.3d 1652, 1663 [CEQA does not require analysis of potential impacts from possible future development that are too speculative to evaluate].) It is not clear what additional information SANDAG should have conveyed to the public beyond the general point that the upward trajectory of emissions under the Plan may conflict with the 2050 emissions reduction goal. (Cf. Center for Biological Diversity, supra, 62 Cal.4th at pp. 225–228 [discussing difficulty of inferring required level of emissions reduction for an individual project from a statewide emissions reduction goal].)
Nor can we say it was unreasonable for SANDAG to use its threefold approach in the EIR: (1) Where statute and regulation provide specific regional emissions reduction targets, as for cars and light trucks for 2020 and 2035, the EIR analyzes consistency of projected emissions with those targets (GHG-2). (2) For longer-term emissions through 2050, for which no statute or regulation provides regional or sector targets, the EIR analyzes projected emissions against a baseline of current emissions (GHG-1). This is one of the approaches specified in
We emphasize the narrowness of today‘s holding. Our decision is not a general endorsement of the adequacy of SANDAG‘s EIR, much less an endorsement of the adequacy of the regional plan that the EIR analyzes. Specifically, we do not address whether SANDAG‘s responses to the indisputably significant greenhouse gas impacts of the 2011 regional plan were adequate. The Court of Appeal concluded that the EIR failed to sufficiently consider feasible mitigation measures and project alternatives that would reduce vehicle miles traveled and curb the rise in greenhouse gas emissions. These issues are not before us, and we express no view on them. We hold only that SANDAG, in analyzing greenhouse gas impacts at the time of the EIR, did not abuse its discretion by declining to adopt the Executive Order as a measure of significance or to discuss the Executive Order more than it did.
Moreover, we caution that our conclusion that SANDAG did not abuse its discretion in its analysis of greenhouse gas emission impacts in the 2011 EIR does not mean that this analysis can serve as a template for future EIRs. Under CEQA, ―[t]he determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data.‖ (
Furthermore, after briefing was submitted in this case, the Legislature in 2016 enacted Senate Bill No. 32 (SB 32) (2015–2016 Reg. Sess.), adding
In sum, nothing we say today invites regional planners to ―shirk their responsibilities‖ under CEQA or other environmental statutes. (Dis. opn., ante, at p. 16.) To the contrary, we affirm that planning agencies like SANDAG must ensure that CEQA analysis stays in step with evolving scientific knowledge and state regulatory schemes.
CONCLUSION
We reverse the judgment of the Court of Appeal insofar as it determined that the 2011 EIR‘s analysis of greenhouse gas emission impacts rendered the EIR inadequate and required revision. As noted, the Court of Appeal also affirmed the trial court‘s judgment that the 2011 EIR‘s analysis of greenhouse gas emission mitigation measures was inadequate, identified other deficiencies in the EIR, and affirmed the issuance of a writ of mandate setting aside the EIR‘s certification on these grounds. We did not grant review on these issues and express no view on how, if at all, today‘s opinion affects their disposition. We remand to the Court of Appeal for proceedings consistent with this opinion.
LIU, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
KRUGER, J.
Cleveland National Forest Foundation v. San Diego Association of Governments
S223603
Supreme Court of California
July 13, 2017
DISSENTING OPINION BY CUÉLLAR, J.
Through statutes enacted by its elected representatives, the State of California recognizes climate change spurred by greenhouse gases to be a staggering threat to California and the world. The state‘s response to this challenge reflects not only the projected harm to California but also the state‘s own contribution to the problem. (See
The question in the case is whether the San Diego Association of Governments (SANDAG) violated CEQA when it issued an environmental impact report (EIR) for a long-term transportation development plan that failed to explain the plan‘s divergence from long-term greenhouse gas emissions reduction targets first set out in a 2005 executive order. There is no dispute that those targets are relevant to this case regardless of the executive order‘s legal force, to the extent the targets reflect sound scientific consensus about the steps necessary to stabilize the climate. Likewise, no one disputes that SANDAG has flexibility in designing its regional transportation plan and framing the plan‘s environmental impact report. Instead, the critical issue in the case is whether the EIR is clear enough about the environmental harm of SANDAG‘s plan, which reshapes the region‘s transportation infrastructure in a manner that will increase per capita greenhouse gas emissions and per capita vehicle use in the long term. The answer is no, because among other things the EIR manages to occlude the elephant in the room — that the plan was associated with a major projected increase in greenhouse gas emissions, diverging sharply from emission reduction targets reflecting scientific consensus. This issue matters not only because CEQA aims to facilitate public deliberation and limit the risk that policymakers ignore the environmental consequences of their choices but also because the precise contours of an EIR‘s impact analysis dictate what mitigation measures and alternative options public officials must consider. Because I believe SANDAG did not fulfill its CEQA obligations, I dissent.
I.
In June 2005, Governor Arnold Schwarzenegger issued Executive Order No. S-3-05, which announced statewide greenhouse gas reduction targets for 2010, 2020, and 2050. The 2050 target proposed to reduce statewide emissions to 80 percent below 1990 levels by that year. This target reflects
Next came the Sustainable Communities and Climate Protection Act, enacted as SB 375. This act focuses on the role that regional planners will play in reversing climate change. In particular, the Legislature observed that the transportation sector produces a significant share of the state‘s greenhouse gas emissions. (See Stats. 2008, ch. 728 § 1(a), p. 5065 [―The transportation sector contributes over 40 percent of the greenhouse gas emissions in the State of California; automobiles and light trucks alone contribute almost 30 percent. The transportation sector is the single largest contributor of greenhouse gases of any sector.‖].) Though new fuel and vehicle technology would help reduce those emissions, the Legislature recognized that those advances would not be enough; instead, the state would also need to reshape its transportation infrastructure to reduce vehicle use. (See id., § 1(c), p. 5065 [―Greenhouse gas emissions from automobiles and light trucks can be substantially reduced by new vehicle technology and by the increased use of low carbon fuel. However, even taking these measures into account, it will be necessary to achieve significant additional greenhouse gas reductions from changed land use patterns and improved transportation.‖].)
Apart from any other practical impact they had, these laws also affected CEQA –– a statute as ubiquitous in disputes about land and infrastructure as it is important to California‘s protection of its environment. For 47 years, CEQA has required for ―the long-term protection of the environment‖ to serve as ―the guiding criterion in public decisions.‖ (
When it comes to climate change, the state‘s long-term environmental goals are clear. SB 375 and other statutes have codified into California law the scientific consensus that the state must reduce greenhouse gas emissions over the next few decades. (See, e.g., Center for Biological Diversity, supra, 62 Cal.4th at p. 215;
II.
Throughout our CEQA jurisprudence, we have recognized how statutes enacted after CEQA may train attention on certain environmental impacts in ways that limit an agency‘s discretion about whether and how to depict those particular impacts. For example, we recently explained that the California Coastal Act of 1976‘s (Coastal Act) ―enhanced protection‖ for sensitive coastal habitats requires heightened CEQA concern for harm to those areas. (Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 936 (Banning Ranch).) In this way, the Coastal Act answers questions that might otherwise have been left to local discretion, and an agency cannot pretend those answers are too speculative for it to incorporate into analysis of potential environmental impact. (Banning Ranch, at pp. 936-937.) SB 375 is another statute that changed how public officials must measure environmental impact. Crucially, this change does not have the same effect on every EIR. Instead, SB 375 took aim at the precise type of public actor whose EIR is under scrutiny in this case: a large regional planner. And it told that actor to do the very thing
SB 375‘s particularized focus sets today‘s case apart from a typical development project or permit application. In fact, that legislation established that the EIR in this case will preclude certain environmental analysis for various future projects. Part of the political bargain behind SB 375 was a tradeoff between centralized coordination and individual action. Once a regional transportation plan is final, SB 375 provides that any future ―mixed-use and transit priority projects that are consistent with the limits and policies specified in [the plan] need not additionally analyze greenhouse gas emissions from cars and light trucks.‖ (Center for Biological Diversity, supra, 62 Cal.4th at p. 230.) This is another reason why SANDAG was required by both SB 375 and CEQA to elaborate on why the plan‘s long-term emissions increases are harmful. When a regional planner‘s EIR fails to sufficiently depict long-term impact, the problem trickles down into other projects over the years, further compounding the harm to the Legislature‘s climate stabilization goals.
Because this case is our court‘s first effort to address the relationship between SB 375 and CEQA, it‘s worth emphasizing what is at stake in mapping the intersection of these two statutes. SB 375 is part of a new generation of California law that deals with the complex threat of greenhouse gas emissions. And the parts of the statute at issue in this case specifically confront the role that actors such as SANDAG — the regional planner for a sprawling metropolitan area that millions of Californians call home — play in the generation of greenhouse gases. To the extent climate change is the starkest environmental threat of our time, SB 375 is one of this era‘s most important environmental statutes. CEQA, meanwhile, has long stood as one of the state‘s most important classic environmental statutes. Today‘s majority opinion is the first statement from this court about how the duties created by each of these statutes relate to one another.
By ruling that the EIR in this case passes CEQA muster, the majority does harm not only to CEQA but to SB 375 as well.
III.
The fundamental problem with SANDAG‘s plan is that it fails the exact long-term environmental goal SB 375 was enacted to further. Climate change is distinct from certain other types of environmental harm in that individual contributions to the overall problem are both small and widespread. But rather than simply accepting the widespread responsibility for greenhouse gas emissions as a structural constraint limiting California‘s
Though the EIR carefully occludes this problem, it nonetheless appears SANDAG largely ignored SB 375‘s call. As is true statewide, vehicle emissions comprise nearly half of the San Diego region‘s output of greenhouse gas. But rather than confronting that problem in the manner SB 375 prescribes — reductions in overall vehicle use — SANDAG proposes to increase vehicle emissions in the long run. Crucially, this increase goes well beyond the effect of population growth. SANDAG‘s regional transportation plan proposed to increase both per capita greenhouse gas emissions and per capita daily vehicle miles traveled between 2010 and 2050. Once SANDAG‘s plan is implemented, each person in the San Diego region will on average be driving more every day and generating more greenhouse gas than the region‘s inhabitants today. Needless to say, the entire region will be producing far more greenhouse gas from transportation in 2050 than today as well.
Increasing per capita greenhouse gas emissions and vehicle miles traveled over the next 40 years cuts precisely against SB 375‘s mandate to dramatically reduce greenhouse gas emissions and vehicle use in the long run. But because this is a CEQA case, the ultimate question is not whether SANDAG‘s plan will achieve some particular measure of environmental preservation. Rather, the question is whether SANDAG explained the plan‘s environmental impact in enough detail and with enough clarity that the public can make an informed decision that the proposed changes are worth the long-term cost to the planet‘s health, as well as understand the urgency of mitigating the harm. (See In re Bay–Delta etc. (2008) 43 Cal.4th 1143, 1162 (Bay–Delta) [―The purpose of an EIR is to give the public and government agencies the information needed to make informed decisions, thus protecting ‗ ―not only the environment but also informed self-government.‖ ‘ ‖].) SANDAG‘s EIR fails on that score.
Even as SANDAG‘s plan contemplate, on careful inspection, four decades of increased emission of greenhouse gases, its EIR obscures this problem in several ways. For starters, the crucial fact that the plan will increase per capita vehicle miles driven throughout the next 40 years does not appear to
But the problem with SANDAG‘s EIR is not simply that the agency failed to mention the projected increases to per capita vehicle use until it responded to outside comments. Even if this information were part of the impact analysis, the EIR would still obscure the plan‘s long-term environmental harm. SANDAG‘s EIR uses three significance criteria to depict greenhouse gas emissions under the plan. Only two of these three criteria actually measure emissions levels. The third, labeled GHG-3, addresses the Air Resources Board‘s statewide ―Scoping Plan‖ and SANDAG‘s own ―Climate Action Strategy.‖ Neither of these documents establishes specific emissions targets. Instead, they both focus on the general strategies and policies that will be needed to reverse climate change. But even for these strategies and policies, SANDAG‘s EIR misleads the public. First, the statewide Scoping Plan specifically calls on regional planners to ―implement sound land use and transportation policies to lower VMT [vehicle miles traveled] and shift travel modes.‖ The plan also predicts that over the next few decades ―[r]egional land use and transportation strategies would grow in importance and reverse the trend of per-capita vehicle miles traveled.‖ Nowhere does the Scoping Plan support SANDAG‘s implicit assumptions that others will conveniently make up for emissions increases from increased driving. To the contrary: the Scoping Plan expects regional planners to reduce vehicle traffic.
SANDAG‘s Climate Action Strategy — issued in the same year as the EIR challenged here — similarly lists ―Reduce Total Miles of Vehicle Travel‖ as ―Goal 1‖ in a list of ―land use and transportation-related policy options available to help SANDAG‖ ―achieve short-term (2020) and longer-term (2035 and 2050) goals for greenhouse emissions.‖ The Climate Action Strategy further observed that ―[s]tate-level efforts to reduce greenhouse gas emissions . . . will not succeed if the amount of driving — also known as vehicle miles traveled — continues to follow past trends and rates of increase‖ and warned that improvements in fuel technology alone ―will not achieve the long-term 2050 goal for greenhouse gas reduction unless per capita vehicle
Which brings us to the elephant in the room –– one SANDAG‘s EIR manages to leave remarkably occluded. Given the relative clarity of statewide statutory goals for greenhouse gas emissions and the nature of SANDAG‘s responsibilities under CEQA, there is a jarring disconnect between the projected impact of SANDAG‘s plan and the reference points that GHG-3 uses to measure the plan‘s harm. Whereas the Air Resource Board‘s Scoping Plan and SANDAG‘s Climate Action Strategy both recognize that the San Diego region needs to reduce vehicle use and shift travel modes in the long run, SANDAG‘s plan projects decades of per capita increases. But instead of acknowledging this problem –– the elephant in the room –– the EIR states the ―[t]he Scoping Plan does not have targets established beyond 2020‖ and claims that the regional transportation plan ―would be aligned with‖ and ―help to implement the goals and policies‖ of the Climate Action Strategy. SANDAG‘s attempt to ignore what it recognized just months earlier in its Climate Action Strategy is troubling, since it lets SANDAG make reassuring promises in an aspirational strategy document while at the same time investing billions in contrary policies whose impact the EIR in this case obscured. An EIR that ignores the authoring agency‘s own promises to the public does not contribute to ―informed self-government‖ in the way CEQA contemplates. (Bay–Delta, supra, 43 Cal.4th at p. 1162.)
Just as misleading is SANDAG‘s presentation of the two significance criteria in the EIR that quantify emissions increases. GHG-2 is the only one of those two criteria that analyzes greenhouse gas impact for the plan‘s entire lifetime, rather than just a short-term window before the real harm sets in. This is a problem because SANDAG‘s plan deviates from the state‘s long-term goals even as the plan technically meets short-term emissions targets. According to the Attorney General and other challengers, even this short-term good news is not due to anything SANDAG is doing or building. Rather, it comes from the success of the state‘s new vehicle efficiency regulations as well as the lingering effects of the economic recession. And sure enough, as construction under SANDAG‘s plan sets in, emissions will increase. Because GHG-2 ends real analysis at 2035 though, it does not depict the harm of the plan‘s later phases. Instead, SANDAG presents a rosy picture of limited immediate harm, even while it marches the region toward a much worse future. SANDAG needed to communicate this problem better. A future in which the San Diego region‘s transportation sector emits more greenhouse gas than today — both per capita and cumulatively — is at odds
As for GHG-1, the sole criteria that measures long-term impact in more detail, it too fails to depict the extent of the plan‘s harm. GHG-1 compares 2010 emissions levels with projections for 2020, 2035, and 2050. The plan first notes that 2020 emissions will be lower than 2010 levels and thus notes that the plan will not be harmful in that timeframe. Again, this may have more to do with statewide vehicle regulations than any of SANDAG‘s choices. And more to the point, the state‘s climate plan is not to reduce transportation emissions for a few years and then give up and begin to increase them again. But that is exactly what SANDAG is proposing. By 2035, as the infrastructure changes take hold, the region‘s transportation emissions will begin to surpass 2010 levels. That increase becomes more dramatic by 2050, once, in the EIR‘s words, ―most of the highway, transit, and . . . other infrastructure projects, [will] be in place and operational in accordance with the [plan].‖ The EIR thus notes that the plan will have ―a significant impact‖ by that year.
While SANDAG is correct to note that 2050 greenhouse gas output will be ―significant,‖ the EIR never explains the extent and impact of the plan‘s steep emissions increase. After all, SANDAG‘s plan does more than simply fall short of statewide emissions reduction goals. Rather, the plan trends in the opposite direction and thus makes those goals difficult to achieve, with no analysis in the EIR of just how difficult. The majority observes that ―the basis of the plaintiffs‘ . . . critique of the EIR . . . is apparent in the EIR itself.‖ (Maj. opn., supra, at p. 20.) Yet CEQA‘s provisions and purpose are designed to facilitate deliberation by empowering the public to understand environmental consequences, and not simply to ensure that an expert reading an EIR could conceivably connect the dots. (See California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 388.) In the absence of additional explanation and context, the public simply has no way to understand what it means for a raw emissions quantity (in this case, 33.65 million metric tons of carbon dioxide equivalent for 2050 compared to 28.85 for 2010) to be ―significant.‖ The EIR never compares the plan‘s increased greenhouse gas output with the emissions reductions that both scientific consensus and state policy have deemed necessary to stabilize the climate. And it never explains whether or to what extent long-term emissions reduction goals will remain feasible if SANDAG builds what it has proposed. The EIR‘s cursory treatment of 2050 impact — with no meaningful effort to explain how the emissions increase is significant — fails to depict the plan‘s incompatibility with the goals recognized in SB 375 and in SANDAG‘s own Climate Action Strategy.
IV.
California law makes greenhouse gas emission reduction a priority and embraces an understanding of metropolitan governance that places regional planners in a pivotal position to support that long-term goal. Now that SB 375 and other statutes clearly establish both the statewide goal of reducing greenhouse gas emissions and place regional planners in such a crucial role, SANDAG and other regional planning agencies have a duty under CEQA to explain where and how the regional transportation plans they issue pursuant to SB 375 disadvantage that goal. The first problem with SANDAG failing that duty in this case is that the public was left with little sense of how harmful the region‘s continual emissions increases will be in the long run. A second, related problem is that this shortsighted discussion of environmental impact limited the EIR‘s analysis of potential alternatives and mitigation. The majority and I seem to agree that SANDAG and other regional planning authorities have a responsibility to ―ensure that CEQA analysis stays in step with evolving scientific knowledge and state regulatory schemes.‖ (Maj. opn., supra, at p. 24.) The crux of my concern here is that it is precisely this responsibility SANDAG failed to fulfill. This failure distorts both the public‘s deliberation about the plan and the agency‘s proposed efforts to mitigate the harm of the projected emissions increases.
CEQA‘s environmental protection comes not only from requiring public officials to disclose environmental impact but also from analysis of how harmful impact can be mitigated or avoided. This ―mitigation and alternatives discussion forms the core of an EIR.‖ (Bay–Delta, supra, 43 Cal.4th at p. 1162.) While the validity of SANDAG‘s mitigation and alternatives analysis was not the question we granted review on, that issue is not fully
SANDAG was required under CEQA to explain feasible measures for mitigating or avoiding the steep emissions increases (both per capita and cumulative) that its plan proposed. (See
V.
Together, CEQA and the state‘s greenhouse gas emission statutes establish the legal structure for how the state is to contend with climate change, and how it may balance the considerable benefits of development with the costs to the planet‘s health. In providing that framework, the statutes leave regional planners an important measure of discretion. But there are limits on that discretion. Where statutes establish environmental goals as clearly as SB 375 and the rest of the state‘s climate change legislation, CEQA requires
No one is asking SANDAG to singlehandedly prevent California from blowing through its greenhouse gas emissions limits. But the agency was given a specific role in the state‘s coordinated climate change agenda: to reduce transportation emissions from the San Diego region. Under SANDAG‘s plan and according to its projections, the opposite will occur. While the agency is for the most part entitled to make that choice, it does not have discretion to downplay the consequence — one requiring blunter acknowledgement as the elephant in the room that it is. If SANDAG plans to permit hundreds of billions of dollars to be spent in pursuit of a plan that departs so starkly from scientific and political consensus about the emissions decreases needed to avert climate catastrophe, it must explain this divergence in sufficient detail for the public to recognize the long-term harm that will unfold in its name. SANDAG‘s EIR is too vague and shortsighted to fulfill that duty. In excusing this failure, the majority heightens the risk that other regional planners will shirk their responsibilities, too.
CUÉLLAR, J.