Cleveland National Forest Foundation v. San Diego Association of Governments (November 24, 2014, D063288) ___ Cal.App.4th ___.

By William W. Abbott

In the first published decision to review a metropolitan planning organization’s Sustainable Communities Strategy, the Fourth Appellate District invalidated the EIR. This is a decision with potentially significant ramifications for many other EIRs as well. 

The facts involve the actions of the San Diego Association of Governments (SANDAG) to certify a program EIR and approve the 2050 Regional Transportation Plan/Sustainable Communities Plan. Two CEQA challenges were filed, and in those proceedings the trial court found two CEQA errors. First, the EIR failed to address inconsistency with the state policy goals reflected in Executive Order S-3-05, and second, the EIR failed to address mitigation measures for the transportation plan’s greenhouse gas emissions. The trial court declined to address the other CEQA claims. SANDAG appealed as did certain petitioners. On appeal, the court of appeal affirmed the trial court and then addressed a number of CEQA issues not resolved by the trial court. The court’s principal holdings, many of which will be unsettling to CEQA practitioners, are as follows.

First, the court downplayed the distinction between a program EIR and project EIR, phrasing the appropriate issue as whether or not the EIR provided the decision makers “with sufficient analysis to intelligently consider the environmental consequences of [the] project.”

Next, after reviewing the history of Executive Order S-3-05, the court found fault with the EIR’s failure to evaluate consistency of the Plan against the Executive Order. In terms of the Plan, the Plan acknowledged that emissions would rise after 2020, although the direction of the policy reflected in S-3-05 would be for continued downward reductions in emissions. The fact that the order had never been implemented by statute or regulation was not a barrier to its consideration in the view of the court of appeal. The court did not view the provisions of Guidelines section 15064.4 (which provide three analytical pathways for evaluating greenhouse gas emissions) as being as dispositive, or apparently, sufficient. (This leaves CEQA practitioners in the untenable position of having to guess when it is safe to rely upon the state CEQA Guidelines as satisfying CEQA.)

The court then addressed the issue of whether the Plan included appropriate mitigation measures. The EIR included three mitigation measures, but due to uncertainty of the efficacy in implementation, SANDAG concluded the impacts would remain unmitigated. SANDAG also listed but rejected three additional mitigation measures as infeasible. The appellate court noted that aspects of this issue were moot given that SANDAG would be obligated to analyze the potential for inconsistency with S-3-05 (thereby potentially expanding the mitigation measures to be considered.) The court then observed that the adopted mitigation measures effectively lacked weight and that the EIR required more substantive measures. It pointed to SANDAGs own Climate Action Strategy as possible “mitigation alternatives” for more meaningful mitigation measures.

The court then considered the issues not addressed by the trial court, turning aside SANDAG’s argument that these issues could not be appealed on the basis that the appellants had failed to secure a trial court ruling. These issues included alternatives, air quality impacts, mitigation of air quality impacts, and agricultural impacts. Addressing first the issue of alternatives, the court noted that the EIR included seven alternatives but found fault that the lead agency had not analyzed an alternative which included reduced vehicles miles travelled. The court’s analysis focused on how a VMT reducing alternative was responsive to the potentially significant impacts (implying that it more responsive when compared to the other alternatives). This is a different way of testing the question of whether or not the EIR includes a reasonable range of alternatives.

Turning to air quality, the court noted that there were eleven air quality monitoring stations, five of which included sampling for toxic air contaminants (TACs). Despite the EIR’s acknowledgement of air contaminants and various studies, the petitioners/cross-appellants challenged the failure of the EIR to describe the existing baseline conditions of approximate numbers and location of sensitive receptors near planned transportation projects. Although SANDAG counted on the next round of environmental review on individual transportation projects to provide the additional detailed analysis, that was not sufficient. The court concluded that SANDAG erred by failing to create reasoned estimates of the region’s existing TAC exposures. Effectively, the court’s analysis puts SANDAG (and other lead agencies) on the defensive to prove, based upon substantial evidence, why it didn’t do more in terms of studies. CEQA practitioners will recognize this for its practical significance: this effectively means that the goal post on an adequate EIR is always moving down field and away.

The court of appeal also took exception with the air quality mitigation measures, the majority of which were linked to the next round of project specific environmental review. This was improper deferral of mitigation measures, lacked performance standards, and failed to commit SANDAG to enforcing the mitigation measures.

The final substantive issue pertained to loss of agricultural lands. The EIR followed the CEQA Guidelines, and concluded that the conversion impacts would include over 7000 acres of land. This conclusion was based upon the state Farmland Mapping and Monitoring Program as supplemented by SANDAG’s own geographic information system. The cross appellants asserted two claims. First, the state’s data base did not include parcels less than 10 acres in size and SANDAG’s data base did not include agricultural lands put into production within the last 20 years. The court noted that much of the area’s agricultural land involves parcels less than 9 acres is size. Implicitly, the court concluded that the additional data (smaller acreage) was readily available and it was an abuse of discretion for the lead agency to not include it although the appellate opinion lacks any discussion as to the actual availability of this data.

This decision includes a robust dissent, worthy of reading, critiquing both the legal weight of the governor’s executive order and whether or not the majority opinion crosses the line by substituting the court’s thinking for that of the duly elected or appointed decision makers.

Additional commentary: This decision is troubling on several fronts: there is less judicial deference than that historically found in reported decisions, inviting future courts to undertake the responsibility of deciding the scope the CEQA document, a function which lies in the discretion of the public agency. It shifts the burden to public agencies to prove why they did not do more studies, a scenario particularly challenging when trying to resolve the question of how much study is enough when working on a programmatic document. Finally, it undercuts reliance upon the CEQA Guidelines as a safe harbor for compliance. I encourage readers to review how other professionals are viewing this decision. I anticipate that there will be a chorus of voices in the planning and legal profession setting forth the proposition that the court of appeal may have gone too far in its review of the EIR. SANDAG has filed a petition for review with the California Supreme Court.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.