On January 6, 2015, the San Diego Association of Governments (SANDAG) filed a petition asking the California Supreme Court to review the decision in Cleveland National Forest Foundation, et al. v. San Diego Association at Governments, et al. (4th Dist. 2014) __ Cal.App.4th __, Case No. D063288, Supreme Court Case No. S223603.  (For a discussion of the Court of Appeal’s 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.)

SANDAG’s 33-page petition for review raises numerous important issues regarding the legal standards governing challenges to an EIR’s GHG mitigation measures, waiver of issues in CEQA litigation, tiering of analysis in the context of program level EIRs, and the adequacy of alternatives analysis.  However, it asserts “[t]he gravest error in the majority decision is its holding that an EIR must utilize “consistency” with former Governor Schwarzenegger’s Executive Order 5-03-05 … as a baseline or standard for evaluating the significance of GHG impacts.”  SANDAG’s petition calls this decision “far-reaching,” and asserts that it “may well preclude the use of negative declarations or mitigated negative declarations even for projects that have minimal GHG impacts” and that it “effectively overrules the existing state CEQA Guidelines governing analysis of GHG impacts and creates hopeless inconsistency in existing case law.”  (Petition, at p. 5.)

CEQA practitioners will await further developments in this significant case with interest.

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.