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By: Joshua Davids, J.D. Candidate, 2018, The University of Chicago Law School
On July 13, 2017, Judge Timothy Taylor of the Supreme Court of California issued an opinion in the case of Cleveland National Forest Foundation v. San Diego Association of Governments, no. S223603, ruling that the San Diego Association of Governments (SANDAG) did not abuse its discretion by issuing an Environmental Impact Report (EIR) for a new regional transportation infrastructure development plan (RTP) that failed to explicitly analyze whether the RTP will be consistent with an executive order issued by then-Governor Arnold Schwarzenegger. This executive order, issued on June 1, 2005 (Exec. Order No. S-3-05) and partially adopted by the California Legislature (although not legally binding itself), set greenhouse gas (GHG) emissions reduction targets for California, aiming to reduce emissions to eighty percent below 1990 emissions levels by the year 2050.
SANDAG issued the RTP (also extending through 2050) for the San Diego region in 2011 and, as required, released a draft of an EIR analyzing this plan’s environmental effects. The California Environmental Quality Act (CEQA) requires that public agencies assess (in an EIR) the environmental impacts of projects requiring government permits, including, specifically, whether each project will significantly increase GHG emissions. This draft EIR found that GHG emissions would decrease slightly in 2020, but would increase significantly by 2050. However, it did not analyze whether or not these projections were consistent with the goals set by the governor’s executive order, an omission that opened SANDAG up to criticism from parties including the California Attorney General. The Attorney General argued that without this explicit analysis, the report was inadequate.
Despite this criticism, in the final version of the EIR, SANDAG maintained that it had the discretion to select the emissions reduction thresholds with which to compare the projected emissions, and had no obligation to use the “aspirational” ones from the executive order. In response, several groups, the Cleveland National Forest Foundation among them, filed a petition for a writ of mandate challenging the EIR’s adequacy. The Cleveland National Forest Foundation succeeded in both the superior court (the trial court in California) and the Court of Appeal, and the case was then taken up by the Supreme Court of California.
The Supreme Court of California reversed the previous decision, ruling that despite the fact that SANDAG never explicitly addressed the discrepancies between the executive order’s goals and the RTP’s projected emissions, SANDAG did enough analysis of the projected emissions to make it easy for members of the public to make the comparison themselves. The court wrote, “[i]f the long-term rise in projected emissions was ‘the elephant in the room’… then a fair reading of the EIR confirms that an elephant is hard to hide.” No. S223603, slip op. at 20 (Cal. July 13, 2017). While an EIR that fails to present the true picture of the potential negative environmental impact of a project to the public in a clear manner would have been inadequate, the court was able to cite several places in SANDAG’s EIR which spelled out the negative aspects of the projections. “It is not clear,” the court added, “what additional information SANDAG should have conveyed to the public beyond the general point that the upward trajectory of emissions… may conflict with the 2050 emissions reduction goal.” Id. at 22. The court held that this omission itself was not enough to make the EIR inadequate.
However, the court emphasized the narrowness of the holding. It stated that its holding should not be taken as a “general endorsement” of the EIR or the RTP. Id. at 23. The court took no view on whether or not SANDAG failed to consider “sufficiently feasible mitigation measures” that would have reduced greenhouse gas emissions (and notes that the Court of Appeals did in fact conclude such a failure). Id. The court limited its opinion to the holding that “SANDAG… 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.” Id. The court made it clear that another set of circumstances, and a less complete EIR, would have resulted in a different ruling.