“And all this science, I don’t understand
It’s just my job, five days a week”
— Elton John/Bernard Taupin,
Having seen years of their lofty regional planning efforts come crashing back to Earth, San Diego government entities have had little to be thankful about so far this holiday season on the CEQA front. In an October 29 decision later ordered published on November 24, 2014, the Fourth District Court of Appeal affirmed the San Diego County Superior Court’s judgment setting aside San Diego County’s 2011 general plan update and related program EIR (PEIR). Sierra Club v. County of San Diego (4th Dist., Div. 1, 2014) 231 Cal.App.4th 1152.
The decision was ordered published by Presiding Justice McConnell just before Thanksgiving – on the same day another Fourth District published opinion she authored affirmed by a 2-1 vote a judgment by the same trial judge (Timothy Taylor) setting aside the San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy and related EIR. (Regarding that decision, see “Analysis of GHGs Under CEQA Just Got More Complex: Fourth District’s Split Decision Invalidates Program EIR for SANDAG’s 2050 Regional Transportation Plan/Sustainable Communities Strategy” by Arthur F. Coon, posted December 1, 2014.) Both decisions found program-level EIRs for governmental planning documents fatally flawed for – among other things – their failures to analyze and mitigate for projected GHG emissions allowed under the plans after the year 2020 in accordance with the statewide goals for GHG emissions reductions expressed in then-Governor Schwarzenegger’s 2005 Executive Order No. 5-3-05. Both decisions involve complex, cutting-edge issues at the intersection of State law, public policy, and GHG/climate change science. SANDAG announced its December 5 vote to seek Supreme Court review of the decision adverse to it. As it is widely acknowledged that courts lack the institutional expertise and resources to “do science” well, the nature and practical importance of the Fourth District’s recent decisions – be they right or wrong – invite further scrutiny.
In Sierra Club, plaintiff’s writ petition sought to enforce a Climate Change Mitigation Measure (MM CC-1.2) adopted by San Diego County as part of the CEQA mitigation for impacts of County’s general plan update. MM CC-1.2 required the County to prepare a climate change action plan with “more detailed greenhouse gas [GHG] emissions reduction [GHG] targets and deadlines” and “comprehensive and enforceable GHG emissions reductions measures that will achieve” specified quantities of GHG reductions by 2020. The trial court granted the petition. It found the County’s subsequently prepared climate action plan (CAP) did not contain enforceable GHG measures that would achieve the specified reductions, nor detailed deadlines for reductions, thus failing to comply with MM CC-1.2 and therefore violating CEQA.
In affirming, the Court of Appeal rejected County’s arguments that the petition was time barred (because the Sierra Club sought to enforce, not challenge the adequacy of, a mitigation measure); that the CAP satisfied MM CC-1.2; and that the trial court erred in requiring a supplemental EIR.
The most interesting and important part of the Sierra Club opinion – like the SANDAG opinion – was its treatment of the 2005 Executive Order, which set forth statewide GHG reductions targets of year 2000 levels by 2010, 1990 levels by 2020, and 80% below 1990 levels by 2050. The Court of Appeal asserted the 2005 Executive Order “was based on then-available climate science and represented California’s share of worldwide GHG reductions necessary to stabilize climate.” It quoted the Attorney General (from an uncited source) as “explain[ing]” that the “Order . . . is an official policy of the State of California, established by gubernatorial order in 2005, and designed to meet the environmental objective that is relevant under CEQA (climate stabilization).” The Court further noted AB 32 (the Global Warming Solutions Act of 2006) required the California Air Resources Board (CARB) to determine the 1990 GHG level and establish a statewide GHG emissions limit to achieve that level by 2020, and – crucial to this centrally important issue – also required CARB’s limit to “remain in effect [after 2020] unless otherwise amended or repealed.” Significantly, the court’s opinion does not assert that the Legislature or CARB has yet set any numerical targets for GHG emissions reductions after 2020, nor does it specify or clarify the numerical limit that it expresses must “remain in effect” under AB 32 after 2020. (The court does note that CARB’s post-AB 32 scoping plan recommended local governments set a GHG reduction target of 15% below 2005-2008 levels by 2020, and indicates that CARB viewed this as an acceptable proxy for the AB 32 2020 target.)
The Sierra Club case’s peculiar facts may muddy the legal waters on these issues. The County’s general plan update PEIR acknowledged it needed to reduce GHG emissions to 1990 levels by 2020, and, in accordance with the AG’s comments, committed to a number of climate-change related mitigation measures, including MM CC-1.2. Included in the PEIR’s mitigation monitoring and reporting program (MMRP) were, according to the court, commitments to the 2020 target and “to compliance with the  Executive Order . . . trajectory [of GHG emissions reductions].” Reference to the 2005 Executive Order’s “trajectory” of GHG emissions reductions also figures prominently in the Fourth District’s decision invalidating SANDAG’s RTP and related EIR, and suggests (at least to the non-scientist writer of this post) that the court is either: (1) assuming that AB 32 legally requires all regional agencies to ensure that their GHG emissions to continue to decline by some unquantified amount after 2020; or (2) regional agencies must implement further reductions based on some required calculation that extrapolates their “share” based on the 2005 Executive Order’s 2050 statewide goal – 80% below 1990 levels. Whatever the court’s view of the legally-required “trajectory” of GHG reductions with which agencies must comply, they should be more explicitly set forth to provide regulated agencies with clear legal guidance – particularly given the current lack of express direction from either the Legislature or CARB regarding required post-2020 regional reduction targets.
The Fourth District went on to hold “the [County’s subsequently adopted] CAP did not mitigate climate change impacts consistent with [AB] 32 and Executive Order No. 5-3-05, did not satisfy the plan-level requirements of CEQA Guidelines [§] 15183.5, and it did not meet the requirements of [MM] CC-1.2.” Specifically, per the court, it failed because “the CAP “does not ensure [GHG] reductions [,]” . . . did not include a meaningful analysis of “measures that extend beyond the year 2020”” and because “County documented that instead of continuing to reduce GHG emissions after 2020, GHG emissions allowed as a result of the general plan update were anticipated to increase after 2020.” Thresholds of significance adopted by County together with the CAP “purport to expressly facilitate post-2020 development that would have significant adverse climate change impacts, without any consideration of post-2020 climate science as required by [AB] 32 and the  Executive Order . . . .” While acknowledging the CAP wouldn’t achieve County’s 2035 target and that GHGs were anticipated to increase after 2020, the County’s staff at its board’s hearing on these measures explained: “County would not comply with Executive Order No. 5-3-05 because “the State’s plan right now goes out to 2020.””
There are two aspects to the Court of Appeal’s decision that appear critically important to understand, and to distinguish from one another, although the court itself tends to blur them together in its opinion’s analysis. One basis for the Court of Appeal’s holding is fairly straightforward: the County failed to comply with the specific terms of a CEQA mitigation measure (MM CC-1.2) to which it, itself, committed; that measure bound it to adopt a CAP achieving specific GHG reductions by 2020, which it did not do.
The second basis is that the CAP (and hence the County’s general plan update PEIR) failed because it didn’t go farther and ensure post-2020 regional GHG reductions – to some degree that is never clearly stated, but is allegedly required by existing state law as embodied in the 2005 Executive Order. As noted, the court tends to obscure the distinction between these two issues in its analysis, as shown in the following passage of its opinion:
“The County agreed to the mitigating requirement of a CAP containing “comprehensive and enforceable GHG emissions reduction measures that will achieve” the specified GHG reductions by 2020. This is because, as the County acknowledges, Executive Order No. 5-03-05 requires consistent emissions reductions each year from 2010 through 2020 and then a greater quantity of emissions reductions each year from 2020 through 2050.”
(Slip. Opn. at 19-20, emph. added.) While the court proceeds with a detailed discussion about whether the County’s MMRP and CAP measures are specific or effective enough to meet EIR requirements and 2020 GHG reduction limits set by the County, whether the County improperly treated the CAP and related significance thresholds it adopted as part of the same project as the general plan update in violation of CEQA and its tiering provisions, and whether the CAP failed to incorporate required mitigating policies pursuant to a required supplemental EIR, all of this analysis seems a mere sideshow to a legal main event that is, unfortunately, never squarely addressed.
The “main event” – as pointed out by Justice Benke’s dissent in the SANDAG case – is, of course, whether the 2005 Executive Order has substantive legal force and, if so, exactly what it requires regional governmental agencies to do to mitigate GHG impacts of their planning actions beyond the year 2020. The Fourth District’s Sierra Club decision, like its decision in the SANDAG case, essentially holds that the 2005 Executive Order has the force of law and requires the agencies’ plans to “maintain[ ] a constant rate of GHG emissions reductions after 2020.” Whether that is so, however, is far from pellucid, particularly given the current absence of express legislative endorsement of any quantified post-2020 regional GHG emission targets, either by CARB or the Legislature itself.
While it is, of course, the judiciary’s function to “say what the law is,” it seems to me it should tread lightly if its interpretation is based on a presumed scientific expertise which it lacks. Given the differing nature of emissions sources and emissions quantities in different regions throughout the state, and other scientific and policy issues, it seems to me (admittedly, a non-scientist) that it is no simple matter to translate statewide GHG emissions reductions goals into specific, quantified regional targets, which is presumably why the Legislature tasked CARB – the agency possessing the relevant expertise – to do so. Neither CARB nor the Legislature have yet directly spoken regarding the “trajectory” of GHG reductions that must occur after the year 2020, whether statewide or on a regional basis. In attempting to fill their roles in the current legal and regulatory void, the Fourth District may have ventured beyond its institutional orbit of interpreting existing law and into the judicially alien realms of science and policy making. While undoubtedly well-intended, any such odyssey seems destined not to end well. As Elton John aptly observed, “It’s lonely out in space.”
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.