In an effort that has taken nearly two and a half years to resolve, the California Supreme Court upheld the greenhouse gas (GHG) analysis in the San Diego Association of Governments’ (SANDAG) Environmental Impact Report (EIR) for their Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) (the first such document of its kind initially adopted in 2011). The Supreme Court’s opinion, handed down on July 13, 2017 in the case of Cleveland National Forest Foundation v. San Diego Association of Governments, not only reinforces the general rule that lead agencies under the California Environmental Quality Act (CEQA) have discretion to determine how to evaluate environmental impacts and significant thresholds, but also that executive orders are not legal mandates having the same force of law as legislation that would force a lead agency’s hand in CEQA considerations. BILD appeared as a friend of the court, representing the interests of the building industry as a whole, at multiple levels of the litigation.
At the heart of the lawsuit was the consideration of then-Governor Schwarzenegger’s executive order announcing a goal of reducing GHG to 80% below 1990 levels by 2050. While SANDAG’s EIR included a discussion of the executive order in the EIR for the RTP/SCS, it did not consider adherence to its goal as a requirement, choosing instead to look to applicable legislation found in AB 32 (requiring GHG reductions to 1990 levels by 2020), as a significance threshold. After the case wound its way through the lower courts, the Supreme Court took review on the narrow issue of whether the EIR had to include analysis of the RTP/SCS consistency with the executive order’s GHG reduction goals.
In a very narrow ruling, the Supreme Court found that “based on information available at the time, about the [RTP/SCS’ GHG] impacts and its potential inconsistency with state climate change goals,” the EIR provided sufficient information to the public. However, the Court went on to state that lead agencies, moving forward, would be required in their GHG analyses to “stay in step with evolving scientific knowledge and state regulatory schemes.”
Given the amount of time that has passed since the case first was filed and the laws that have have been adopted to regulate GHG in the state since that time, including SB 32—requiring GHG reductions to 40% below 1990 levels by 2030—the ruling in the SANDAG case may appear to be too little too late. However, the check on executive power represented by the Court’s ruling, especially in the area of GHG regulation, should not go unnoticed.
As regulation of GHG in California continues to evolve and regulatory burdens on the building industry, especially the transportation/infrastructure sectors, grow, BILD will continue to lead the charge against overregulation and will challenge the imposition of unachievable/unrealistic goals for GHG reductions.
BILD would like to thank our outside counsel, Nancy Miller, with Renne Sloan Holtzman Sakai LLP, for her work on the amicus briefs filed on BILD’s behalf.