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Newhall Ranch, a proposed mega-development in Los Angeles County, can’t seem to catch a break: besieged by setbacks since Newhall Land first filed an application to develop the land in 1994, the project has been the subject of over twenty-one public hearings and several law suits over its more than twenty year history. In Center …

In a long-awaited 2-1 decision, a court of appeal overturned the environmental impact report for the San Diego Association of Governments’ 2050 Regional Transportation Plan and Sustainable Communities Strategy. Cleveland National Forest Foundation v. San Diego Association of Governments (4th Dist., Div. 1, No. D063288, Nov. 24. 2014).   The most remarkable ruling, in what is likely to be viewed as a highly controversial decision, is the majority’s finding that the EIR was deficient because it did not assess the plan’s consistency with the 2050 greenhouse gas emissions reduction goal contained in an executive order issued by the Governor in 2005.

Background of the Plan and SB 375

The decision concerns SANDAG’s Regional Transportation Plan which contains the Sustainable Communities Strategy required by SB 375. When it enacted SB 375, the Legislature recognized that cars and light duty trucks emit 30% of the state’s greenhouse gases. Accordingly, SB 375 required the Air Resources Board to establish greenhouse gas emissions reduction targets applicable to cars and light duty trucks for each of the state’s metropolitan planning regions. The initial targets set goals for the years 2020 and 2035. SB 375 requires the Air Resources Board to consider new targets every eight years. The targets set for the San Diego area required a 7 percent CO2 reduction by 2020 and a 13 percent reduction by 2035.

In addition, the Legislature recognized that to achieve these targets, changes would need to be made to land use patterns and policies. For this reason, SB 375 also required Regional Transportation Plans to include land use-related strategies for achieving the targets, called Sustainable Communities Strategies. The SANDAG Regional Transportation Plan was the first in the state to be adopted with a Sustainable Communities Strategy.

The plan, however, drew fire. While it showed greenhouse gas emissions reductions through 2020, it also showed increases in greenhouse gas emissions after that date. Project opponents argued this was inconsistent with SB 375’s goals, the policy in AB 32 requiring that emissions reductions achieved by 2020 be maintained past that date, and an executive order targeting larger scale emissions reductions by 2050.

EIR’s Analysis of Greenhouse Gas Emissions

In 2005, Governor Schwarzenegger issued an executive order establishing statewide targets for greenhouse gas emissions reductions that included reducing emissions to 1990 levels by 2020 and to 80 percent below 1990 levels by 2050.  The EIR found that SANDAG’s plan would reduce greenhouse gas emissions until 2020, but would increase them in later years.  While it discussed the 2050 emissions reduction target in the executive order, it did not treat the order’s 2050 emissions reduction target as a standard for assessing the significance of the plan’s greenhouse gas impacts.

The court’s majority agreed with the plan opponents held that the EIR’s greenhouse gas impacts analysis was inadequate for failing to analyze the plan’s consistency with the executive order. While the executive order was not a legislative enactment, and established only statewide rather than regional emissions reduction targets, the majority reasoned that the executive order led to later legislation that  “validated and ratified the executive order’s overarching goal of ongoing emissions reductions,” and therefore the executive order continues to “underpin the state’s efforts to reduce greenhouse gas emissions throughout the life of the transportation plan.”  According to the majority, the absence of an analysis comparing the plan with the executive order’s 2050 emissions reduction target amounted to “a failure to analyze the Plan’s consistency with state climate policy.”…
Continue Reading EIR For SANDAG’s Regional Transportation Plan Rejected By Court Of Appeal

On May 6, 2014, the Government released its U.S. National Climate Assessment Report, “Climate Change Impacts in the United States.”  The evaluation of climate change impacts in the United States is 841 pages long, but is accompanied by a 148-page “Highlights” and an 11-page “Overview” that summarizes the findings.  The assessment is the product of…

The analysis of climate change impacts under CEQA has rapidly evolved over the last several years. For this reason and others, nearly every challenge to an environmental impact report today features an attack on the EIR’s analysis of greenhouse gas emissions.

Fortunately, amendments to the CEQA Guidelines and recent court decisions have provided environmental professionals…

Agencies promulgating regulations under a certified regulatory program may not bypass CEQA’s environmental review procedures by approving the regulations prior to completion of the environmental review.   POET LLC v. California Air Resources Board, 218 Cal. App. 4th 681 (2013).  However, the decision in POET demonstrates that a court has discretion to consider the regulations’ environmental…

Do environmental groups have standing to sue to force state agencies to regulate greenhouse gas emissions under the Clean Air Act?  In a case decided on October 17, the Ninth Circuit said no.  Washington Environmental Councilv. Bellon, No. 12-35323 (9th Cir. Oct. 17, 2013).

The plaintiffs argued that several governmental agencies in Washington State …

Every few years, with El Nino-like regularity, a wave of interest in CEQA reform sweeps through the business community, accompanied by pleas to the legislature to overhaul the statute.  In the end, few substantive changes are made.  This year is no exception. (See June 14th post).

Many of the recurring concerns involve the unpredictability of litigation challenging EIRs.  As is illustrated by the recent appellate court opinion in North Coast Rivers Alliance v Marin Municipal Water District, that unpredictability arises not from deficiencies in CEQA’s standard for judicial review, but from the failure of some courts to apply it.

The trial court in North Coast Rivers put the EIR a water district had prepared for a desalination project under a microscope, and found its treatment of eleven separate issues “inadequate.”  By contrast, in a straightforward application of CEQA’s standard of review — which requires judicial deference to agency findings of fact and policy determinations — the court of appeal reversed the lower court judgment and upheld the EIR.

Among other things, the court of appeal’s meticulous and carefully reasoned opinion addresses:

  • AB 32 standards and greenhouse gas significance thresholds
  •  Significance thresholds for aesthetic impacts
  •  Mitigation standards and deferred mitigation
  •  Description of the affected environment
  •  Use of pilot studies to assess potential impacts
  •  Treatment of regulatory agency protocols for analyzing impacts
  •  Analysis of inconsistencies with relevant plans
  •  Triggers for recirculation of an EIR

A detailed summary of the trial and appellate courts’ contrasting rulings follows.
Continue Reading Judicial Review of Environmental Impact Reports: Is There Really A Need for CEQA Reform?

The Association of Bay Area Governments and the Metropolitan Transportation Commission today released the Draft Environmental Impact Report on their “Plan Bay Area,” a long-range regional planning document proposed to better align future land use planning with the Bay Area’s transportation infrastructure.

Plan Bay Area implements SB 375, which was enacted in 2008 and requires…