Friday, July 14, 2017
California Supreme Court splits the baby in landmark Cleveland National Forest climate change / land use and transportation planning decision
In the much anticipated Cleveland National Forest v. SANDAG decision, the California Supreme Court split the baby yesterday on major planning issues including the adequacy of climate change analysis in state environmental impact reports and, more importantly, the underlying question of how seriously the state will take efforts to integrate land use and transportation planning. For the uninitiated, California's SB375 was a landmark piece of legislation that required the integration of land use and transportation planning...at least on paper. What was never certain was whether SB375 had an enforcement remedy for failure to take the process seriously. In this vein, an important question was whether the state's environmental review law, CEQA, could act as a de facto enforcement mechanism even if SB375 provided no remedy. That is what made the Cleveland National Forest case such a big deal: it would answer that remedy question on what to do if land use and transportation proceeded apace without considering one another.
But the California Supreme Court, after over a year of deliberation, appeared to wilt under the potential reach of the decision. They split the baby, instead, giving a win to the local government--technically, San Diego's regional planning body charged with the land use/transportation plan--but only in this instance, and only on the narrow question of the viability of the climate analysis. In light of that narrow win, the Court expressly noted that future environmental review would face an evolving, scientific standard:
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 impactsof 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.” (Guidelines, § 15064, subd. (b).) As more and better data become available, analysis of the impact of regional transportation plans on greenhouse gas emissions will likely improve. Indeed, SANDAG explains that its EIR, in analyzing its 2015 regional transportation plan, “was able to account for many factors in the GHG inventories that were not accounted for in 2011, reflecting ‘additional certainty regarding the regulatory environment, including future projections of renewable energy, building energy efficiency, water conservation programs, and solid waste diversion.” A regional planning agency like SANDAG, charged with assisting the implementation of the state's climate goals, must straightforwardly address in the relevant environmental review documents whether its regional transportation plan as a whole is in accord with those goals. Its capacity to do so will likely improve over time.*11 Furthermore, after briefing was submitted in this case, the Legislature in 2016 enacted Senate Bill No. 32 (SB 32) (2015–2016 Reg. Sess.), adding Health and Safety Code section 38566, which adopts a goal of reducing greenhouse gas emissions by 40 percent below 1990 levels by the year 2030. This 40 percent reduction is widely acknowledged as a necessary interim target to ensure that California meets its longer-range goal of reducing greenhouse gas emissions to 80 percent below 1990 levels by the year 2050. (See Governor's Executive Order No. B–30–15 (Apr. 29, 2015) [explaining the significance of the 40 percent reduction].) SB 32 thus reaffirms California's commitment to being on the forefront of the dramatic greenhouse gas emission reductions needed to stabilize the global climate. The legislation directs CARB to craft regulations to implement its goal. (Health & Saf. Code, § 38566.) These regulations may further clarify the way forward for public agencies to meet the state's 2050 climate goals. This regulatory clarification, together with improved methods of analysis, may well change the manner in which CEQA analysis of long-term greenhouse gas emission impacts is conducted.
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.