In a 58-page published opinion filed June 30, 2016, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment upholding the Metropolitan Transportation Commission’s (MTC) and Association of Bay Area Government’s (ABAG) EIR for and approval of “Plan Bay Area,” the agencies’ first Sustainable Communities Strategy (SCS) prepared pursuant to California’s landmark “Sustainable Communities and Climate Protection Act of 2008” (SB 375).  Bay Area Citizens v. Association of Bay Area Governments, et al (2016) 248 Cal.App.4th 966.

SB 375 requires the California Air Resources Board (CARB), after considering prior statewide mandates for greenhouse gas (GHG) emissions reductions and consulting with experts and regional planning bodies, to set auto and light truck GHG emissions reduction targets for each of California’s regional planning agencies, to be achieved through regional land use and transportation planning strategies.  The regional planning bodies – in this case, MTC and ABAG, through shared responsibilities, comprised the regional “body” – in turn are required to develop a SCS to achieve CARB’s targets, and the SCS process is subject to CEQA review.  Here, CARB set per capita GHG emissions reductions targets for the Bay Area region of 7 percent by 2020 and 15 percent by 2035, compared to a baseline of 2005 emissions, and further determined that the SCS of MTC/ABAG – Plan Bay Area – would meet those targets.

Citizens sued under CEQA claiming the Plan Bay Area EIR failed to adequately disclose and describe the Plan’s basic objectives, failed to adequately consider and analyze alternatives (including the “No Project” alternative and an alternative plan proposed by Citizens), failed to adequately consider and respond to its comments on the DEIR, and generally failed to provide the lead agencies and public with sufficient information on the Plan’s GHG emissions impacts.  Citizens asserted that MTC/ABAG should have adopted, or at least considered, its alternative plan so as to avoid what it viewed as Plan Bay Area’s “draconian” and unnecessary land use and transportation strategies.

In affirming the trial court’s judgment upholding Plan Bay Area and the related EIR, the Court of Appeal rejected all of Citizens’ arguments as premised on one overarching legal flaw:  the mistaken position that SB 375 requires regional agencies to include GHG emission reductions expected to occur from legally mandated statewide vehicle technology improvements and the low carbon fuel standard (LCFS) (together, the “statewide mandates”) in developing their plans to meet CARB’s regional targets.  In support of this dispositive central point, the opinion contains an extremely detailed and lengthy discussion of the background of California’s GHG emissions reductions laws and regulations (including, but not limited to, SB 375); the development, CEQA review, and adoption of Plan Bay Area; the trial court litigation and rulings; analysis of the meaning and proper interpretation and construction of SB 375; and analysis and disposition of Citizens’ CEQA claims.  Environmental and land use attorneys, and those interested in State GHG/climate change law and policy, are encouraged to read the entire opinion, but the gist of the Court’s analysis is best summed up in its following introductory passage:

Citizens relies on the premise that the Legislature, via SB 375, launched a major new climate protection initiative requiring regional agencies to develop regional land use and transportation strategies through an elaborate planning process that in the end would be superfluous because the agencies could meet [CARB’s] regional emissions reduction targets simply by invoking reductions already expected from pre-existing statewide mandates.  This interpretation makes no sense.  And it is contradicted by SB 375’s emphasis on regional innovations, the Legislature’s declarations and findings, and the Board’s contemporaneous construction of the statute.  Further, even apart from the regional focus of SB 375 and the Legislature’s declarations and findings, the Legislature conferred on the Board broad discretion to develop targets and require regional agencies to meet them through regional planning.  It was within the Board’s discretion to require regional agencies to achieve emissions reductions entirely through regional planning strategies so as to produce regional emissions reductions beyond those produced by statewide mandates.  We also agree with the Attorney General, appearing as amicus curiae, that the Agencies’ environmental review was sufficient under CEQA regardless of what SB 375 and the Board required of the Agencies.  For these reasons, we affirm the trial court’s denial of Citizens’ petition.

As Citizens conceded, all of its CEQA claims challenging the EIR were premised on the proper interpretation of SB 375 and whether it allowed the regional agencies to take credit for GHG emissions reductions expected from the statewide mandates in developing their regional plans and determining whether they met CARB’s regional targets.  Accordingly, the EIR’s description of Plan Bay Area’s basic objectives adequately disclosed its goals – including its limitation to considering GHG emissions reductions achieved through the plan’s combined land use and transportation pattern, not the statewide mandates – to the public.  Citizens proposed alternative was simply not feasible under SB 375 and CARB’s correct and authorized interpretation of it.

The “No Project” alternative did not include consideration of reductions from the statewide mandates, and did not need to, although other of the EIR’s analyses – of potential impacts under “Criterion 2” (whether the plan will cause a net increase in direct and indirect GHG emissions in 2040 compared to existing conditions) and “Criterion 3” (whether the plan would substantially impede attaining GHG goals under specified executive orders) – did include consideration of the statewide mandates.  Per the Court:  “The Agencies’ consideration of the statewide mandates [in this manner] was entirely appropriate, given the requirements of SB 375 and [CARB].”  The EIR’s failure to incorporate updated modeling to account for more recent technical changes in the state mandates was not feasible and did not implicate “a core aspect of Plan Bay Area,” but, rather, “was legally irrelevant to meeting the Board’s SB 375 targets.”

As to Citizen’s proposed alternative plan, the Court observed that:  “An EIR need not examine “alternatives that are so speculative, contrary to law, or economically catastrophic as to exceed the realm of feasibility.”  (Citing Save San Francisco Bay Assn. v. San Francisco Bay Conservation etc. Com. (1992) 10 Cal.App.4th 908, 922.)  Statutory requirements for considering alternatives are judged against a rule of reason, and the EIR’s analysis of the “No Project” and three other alternatives was sufficient.  Because Citizens’ proposed alternative – the “Bay Area Citizens Transportation and Housing Alternative” – “relied heavily on greenhouse gas emissions expected from the statewide mandates” and “this means of meeting [CARB’s] SB 375 targets does not comply with SB 375 nor [CARB’s] requirements,” it was infeasible and MTC/ABAG were not required to consider it.  Per the Court:  “An agency’s selection of alternatives must be upheld unless “’the alternatives are manifestly unreasonable’” or inclusion of an alternative does not “contribute to a reasonable range of alternatives.”” (Citing California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 988.)   For the same reasons, Citizens failed to establish the Agencies abused their discretion in responding to its comments that were likewise based on a misinterpretation of SB 375.

Finally, as a separate and independent general matter, the Court concurred with amicus Attorney General’s position that the EIR sufficiently disclosed its methodologies, where it did and did not consider the statewide mandates (which it did not “entirely ignore” as Citizens claimed), Plan Bay Area’s environmental impacts, and project alternatives, inter alia.  Ultimately, Citizens’ arguments did not form the basis of a CEQA challenge, and “amount[ed] to a [noncognizable] substantive attack on the wisdom of Plan Bay Area itself.”

My own perspective on this case is that Citizens’ policy concerns are understandable:  SB 375 erects a complex legal edifice that commits vast resources to fundamentally reshaping and transforming land use development and transportation patterns, even though the GHG emissions savings it thus achieves are dwarfed by those achieved by advancements in mandated vehicle technologies and the Low Carbon Fuel Standard.  In a future era of zero emissions vehicles, our descendants may look back on SB 375 and its focus on reduced VMTs through altered land use development and transportation patterns and conclude it was all unnecessary and even unwise.  But the Court’s well-taken point – and the fatal problem with Citizens’ legal theories – is that CEQA litigation isn’t the solution to these policy concerns. CEQA is a full disclosure and environmental review statute that simply wasn’t designed or intended to address matters such as the wisdom of legislative policy.


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