Tuesday, November 25, 2014

California appellate court strikes down EIR for San Diego's land use-transportation plan under SB 375

In 2008, California enacted the Sustainable Communities and Climate Protection Act, typically referred to as SB 375.  SB 375 required regional planning agencies to draft plans that would, in effect, reduce GHG emissions by linking land use and transportation planning.  At the time of passage, many wondered whether SB 375 would have any real effect on land use patterns because there was no legal hook in SB 375 to mandate compliance for regions that didn't meet the strictures of the law.  The question remained, though, whether California's environmental review statute, the California Environmental Quality Act, might still prove a means of enforcement for SB 375 through its mandated environmental impact report (EIR) process. 

Yesterday, in Cleveland Nat'l Forest Found. v. San Diego Ass'n of Governments, No. D063288, 2014 WL 6614394 (Cal. Ct. App. Nov. 24, 2014), the California Court of Appeal held that the EIR for the San Diego region's SB 375 plan was inadequate under CEQA.  Although the case will almost certainly head to the California Supreme Court, the decision is huge for the future of SB 375.  If the case is appealed and the California Supreme Court upholds the Court of Appeal's decision, CEQA will seemingly provide a legal remedy for failure to comply with SB 375.  If that is the case, the country may have its first, enforceable land use law that links land use and transportation planning to reduce GHG emissions.  Ultimately, we will have to wait for the inevitable appeal to the California Supreme Court.  In the meantime, here is a link to the decision and the court's summary of its decision is below:

After the San Diego Association of Governments (SANDAG) certified an environmental impact report (EIR) for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (transportation plan), CREED–21 and Affordable Housing Coalition of San Diego filed a petition for writ of mandate challenging the EIR's adequacy under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). Cleveland National Forest Foundation and the Center for Biological Diversity filed a similar petition, in which Sierra Club and the People later joined.
The superior court granted the petitions in part, finding the EIR failed to carry out its role as an informational document because it did not analyze the inconsistency between the state's policy goals reflected in Executive Order S–3–05 (Executive Order) and the transportation plan's greenhouse gas emissions impacts after 2020. The court also found the EIR failed to adequately address mitigation measures for the transportation plan's greenhouse gas emissions impacts. Given these findings, the court declined to decide any of the other challenges raised in the petitions.
SANDAG appeals, contending the EIR complied with CEQA in both respects. Cleveland National Forest Foundation and Sierra Club (collectively, Cleveland) cross-appeal, contending the EIR further violated CEQA by failing to analyze a reasonable range of project alternatives, failing to adequately analyze and mitigate the transportation plan's air quality impacts, and understating the transportation plan's impacts on agricultural lands. The People separately cross-appeal, contending the EIR further violated CEQA by failing to adequately analyze and mitigate the transportation plan's impacts from particulate matter pollution. We conclude the EIR failed to comply with CEQA in all identified respects. We, therefore, modify the judgment to incorporate our decision on the cross-appeals and affirm. In doing so, we are upholding the right of the public and our public officials to be well informed about the potential environmental consequences of their planning decisions, which CEQA requires and the public deserves, before approving long-term plans that may have irreversible environmental impacts.
Cleveland Nat'l Forest Found. v. San Diego Ass'n of Governments, No. D063288, 2014 WL 6614394, at *1 (Cal. Ct. App. Nov. 24, 2014).
Stephen R. Miller




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