On July 13, 2017, the California Supreme Court rendered a 6-1 decision holding that the San Diego Association of Governments’ (SANDAG) 2011 EIR for its Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) issued pursuant to SB 375 did not violate CEQA “by declining to explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals in [a 2005] executive order [the “2005 EO”].” (Cleveland National Forest Foundation, et al v. San Diego Association of Governments (2017) 3 Cal. 5th 497, Supreme Court Case No. 5223603.) This conclusion is not surprising, and it is undoubtedly correct. But it is disappointing that the majority’s opinion lacks significant practical or legal guidance for conducting CEQA-compliant GHG analysis for long term regional plans.

Maybe I expect too much. Maybe the nature of the opinion is just a result of the narrowly-framed issue on which the Court chose to grant review. Maybe the interrelationship between CEQA and SB 375 is so complex that hope for greater clarity and simplicity in this area is unrealistic. Perhaps, by its very nature, CEQA is inherently ill-suited to “analyzing” the global-scale environmental impacts of GHG emissions on a project-by-project basis. Or perhaps the case’s narrow holding flows from the strong flavor of mootness that permeates it. In this last vein, it seems somewhat odd for our Supreme Court to decide the legal validity of one discrete aspect of SANDAG’s 2011 EIR despite the facts that (1) the 2011 RTP/SCS which that EIR analyzed has now long been superseded by an updated 2015 RTP/SCS (“San Diego Forward: The Regional Plan”); (2) SANDAG did conduct a 2005 EO consistency analysis in connection with the updated plan; and (3) no one has challenged the updated plan or its EIR.

The Supreme Court explained its determination to decide the case, as not presenting a moot issue, as follows:

“None of the parties contends… that the question of whether CEQA requires such consistency analysis should be dismissed as moot. The parties recognize that this question may recur. SANDAG makes clear that it undertook the consistency analysis in 2015 because it “prudently reacted” to the Court of Appeal opinion below and that whether CEQA requires such analysis is still in dispute. The issue before us presents an important question of law that is likely to recur because of the relatively short [4- to 5- year] period [prescribed by federal regulation] between adoption of a RTP and adoption of a successor plan. Accordingly, we proceed to decide the issue even though SANDAG’s 2010 regional transportation plan has now been superseded. [citation]”

Ok, I get that the wheels of justice turn very slowly in appellate litigation, that GHG science and policy are evolving much more quickly, and that our state’s governors (both current and past) seem to be fond of issuing broad executive orders purporting to declare (or even “enact”) State environmental policy regarding climate change and regulation of GHG emissions. But given the Supreme Court’s above explanation and determination to go ahead and decide the case, CEQA practitioners might also reasonably expect that the Court’s decision would be useful – i.e., that it would serve as a vehicle to set forth or explain important legal principles about the role of executive orders addressing environmental policy issues in CEQA analysis generally, or more specifically their role in our state’s complex regulatory scheme concerning GHG emissions. They might also reasonably expect a “roadmap” or some practical legal guidance for agencies navigating in the difficult and complex area of long-term GHG emissions analysis. Unfortunately, however, for those having such expectations, the Supreme Court’s opinion proves to be a disappointment. Practical guidance will have to await another day and, perhaps, another case that provides a better vehicle for delivering it.

After outlining California’s “regulatory scheme “addressing GHG emissions (i.e., the substance of 2005 EO, AB 32, and SB 375, which is already quite familiar to CEQA land use practitioners), the Supreme Court’s opinion describes the challenged approach taken by SANDAG’s 2011 EIR. That DEIR analyzed the significance of the RTP’s regional GHG emissions over the 40-year plan horizon using three “thresholds” or “measures” of significance, which it labeled GHG-1, GHG-2, and GHG-3; it applied each measure to the years 2020, 2035 and 2050. GHG-1 compared projected total regional emissions in those years to 2010 baseline emissions and found decreased emissions in 2020, but increased emissions constituting significant impacts in both 2035 and 2050. GHG-2 compared projected regional emissions for cars and light trucks for the same years to projected regional emissions meeting SB 375’s mandated reduction targets for that narrower category of emissions, finding the CARB targets would be met in 2020 and 2035 (resulting in less-than-significant GHG emissions impacts for those years), while making no determination for year 2050 (because CARB has not yet set a 2050 target). GHG-3 employed a more qualitative measure – consistency of projected regional emissions with CARB’s Scoping Plan and SANDAG’s own Climate Action Strategy (CAS) – and concluded the RTP’s improvements were consistent with and would not impede the policies of the CAS or any established targets of the Scoping Plan (which did not have targets established beyond 2020).

The crux of the case is the 2011 EIR’s treatment of the 2005 EO issued by then-Governor Arnold Schwarzenegger, which spurred the passage of AB 32 (the “Global Warming Solutions Act of 2006”) and in pertinent part stated an ambitious goal of reducing GHG emissions in California to 80% below 1990 levels by year 2050. In this particular litigation, brought by various non-profit NGOs joined by the Attorney General (“AG”), the Court of Appeal, in a 2-1 decision (over a vigorous and persuasive dissent) rendered on November 24, 2014, had held SANDAG’s EIR was inadequate as an informational document because it failed to analyze the RTP/SCS’s GHG emissions impacts for “consistency” with the 2005 EO’s goal, and due to various other analytical flaws. (My prior analysis of the Court of Appeal’s opinion can be found here.) The Supreme Court thereafter granted review on March 11, 2015 – nearly two-and-one-half years ago – on this single issue: “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?” To me, at the time, the case seemed fairly “cut-and-dried,” teed up for a quick reversal based on basic separation-of-powers type legal principles. But, perhaps, a California Supreme Court newly reshaped by a number of Governor Brown appointees, with largely academic backgrounds and no prior judicial experience, had other ideas. (Justice Cuéllar’s passionate but wrong-headed dissent in this case, which is destined to become known as the “elephant in the room” dissent for its ubiquitous use of that phrase and which so conflates the requirements of CEQA and SB 375 as to make them virtually indistinguishable, certainly bears out this point.)

In any event, in finally answering the discrete issue under review in the negative, the Supreme Court majority prefaced its analysis with a recitation of established CEQA principles, punctuated by some other observations. Acknowledging the value of EIRs in CEQA’s scheme, the Court also noted that “courts must proceed with caution in determining the adequacy of EIRs” under the applicable “prejudicial abuse of discretion” standard and “substantial evidence” review, and that “CEQA gives lead agencies discretion to design an EIR.” (Quoting Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 937, quoting 2 Kostka & Zischke, Practice Under the CEQA (CEB 2011), § 20.81D, p. 1030.) For a Court largely new to CEQA, these observations and references, while basic, are nonetheless somewhat comforting to longtime CEQA practitioners. In one masterful understatement, the Court further observed: “We have also recognized that the analysis of greenhouse gas emissions in an EIR poses particular challenges[,]” referring to and subsequently quoting from its recent opinion in Center for Biological Diversity v. California Dept. of Fish & Wildlife (2015) 62 Cal.4th 204, 219-220. Indeed.

Importantly, the Court noted that the parties (1) do not dispute that SANDAG’s long-range RTP was required to analyze GHG emissions impacts for year 2050; (2) do not dispute “that the [2005 EO] lacks the force of a legal mandate binding on SANDBAG in the preparation of its EIR” (although it noted plaintiffs and the AG do argue that EO’s underlying “scientific basis” does compel certain CEQA analysis); and (3) do not dispute that the 2011 RTP’s projected GHG emissions increases from 2020 through 2050 constitute significant (and, in SANDAG’s analysis, unavoidable) environmental impacts. The parties’ agreement on the second point seems strangely tantamount to a concession that SANDAG was correct and necessarily had to win on the narrow issue as to which review was originally granted; it also seems likely that plaintiffs’ and the AG’s CEQA arguments were “fuzzy” and may also have “morphed” considerably during the litigation. (Which is all the more reason for increasing certainty in the CEQA process, and reducing the opportunities for meritless and abusive CEQA litigation exploiting its uncertainties – but the current need for CEQA litigation reform is a topic for another post.)

Here, the issue before the Supreme Court ultimately boiled down to whether SANDAG’S 2011 EIR adequately discussed the “nature and magnitude” of its RTP’s acknowledged significant adverse GHG emissions impacts for CEQA purposes absent an explicit analysis of the “consistency” of the 2011 RTP with the 2005 EO. In concluding that the 2011 EIR passed CEQA muster on this narrow point, the Supreme Court stated: “[C]ontrary to what plaintiffs and our dissenting colleague contend, the EIR does not obscure the existence or contextual significance of the [2005 EO’s] 2050 emissions reduction target. The EIR makes clear that the 2050 target is part of the regulatory setting in which the plan will operate. Further, the EIR straightforwardly mentions the 2050 target in the course of explaining why SANDAG chose not to use the target as a measure of significance. … [I]n its responses to comments, the EIR repeatedly mentions the 2050 target in the course of restating its [significance] conclusion[s]. … In sum, the basis of plaintiffs’ and the dissent’s critique of the EIR – i.e., divergence between projected 2050 emissions and the [2005 EO’s policy] goals – is apparent in the EIR itself.” In so finding, the Court’s six-member majority at least struck a blow for common sense in judicial review of EIRs (including, Justice Cuéllar should take note, their responses to comments sections) for informational adequacy. (The truly frightening thing is that Justice Cuéllar, despite his academic brilliance, vehemently disagreed – perhaps he will only be happy when CEQA’s required analysis becomes so abstruse and unfathomable that only Stanford legal scholars can understand it.)

In general, the Supreme Court’s majority opinion underscores the complexity and challenges of CEQA GHG analysis, but it pointedly emphasizes the narrowness of its own holding, and thus ultimately provides disappointingly little guidance to agencies and their consultants on how an EIR should analyze a regional plan’s long-term GHG emissions impacts in order to comply with CEQA. In the concluding paragraphs of its 25-page opinion, just to make sure that no one reads too much into its reversal of the Court of Appeal’s erroneous holding, the majority offers the following caveats:

  • “We emphasize the narrowness of today’s holding. Our decision is not a general endorsement of the adequacy of SANDAG’s EIR, much less an endorsement of the adequacy of the regional plan that the EIR analyzes.”
  • “[W]e do not address whether SANDAG’s responses to the indisputably significant greenhouse gas impacts of the 2011 regional plan were adequate. The Court of Appeal concluded that the EIR failed to sufficiently consider feasible mitigation measures and project alternatives that would reduce vehicle miles traveled and curb the rise in greenhouse gas emissions. These issues are not before us, and we express no view on them.”
  • “We hold only that SANDAG, in analyzing greenhouse gas impacts at the time of the EIR, did not abuse its discretion by declining to adopt the Executive Order as a measure of significance or to discuss the Executive Order more than it did.” (Emph. added.)
  • “[W]e caution that our conclusion that SANDAG did not abuse its discretion in its analysis of greenhouse gas emission impacts in the 2011 EIR does not mean that this analysis can serve as a template for future EIRs. …. As more and better data become available, analysis of the impact of regional transportation plans on greenhouse gas emissions will likely improve.”
  • Post-briefing 2016 legislation (SB 32) “adopts a goal of reducing greenhouse gas emissions by 40 percent below 1990 levels by year 2030” – a “reduction … widely acknowledged as a necessary interim target to ensure that California meets its longer-range goal of reducing [GHG] emissions to 80 percent below 1990 levels by the year 2050” – and also “directs CARB to craft regulations to implement its goal.” (Citing Health & Saf. Code, § 38566.) “These regulations may further clarify the way forward for public agencies to meet the state’s 2050 climate goals. This regulatory clarification, together with improved methods of analysis, may well change the manner in which CEQA analysis of long-term [GHG] emission impacts is conducted. [¶] …. [W]e affirm that planning agencies like SANDAG must ensure that CEQA analysis stays in step with evolving scientific knowledge and state regulatory schemes.”
  • While reversing the Court of Appeal on the narrow point considered and thus upholding the 2011 EIR’s GHG informational analysis, the Supreme Court reiterates that “the Court of Appeal also affirmed the trial court’s judgment that the 2011 EIR’s analysis of [GHG] emission mitigation measures was inadequate, identified other deficiencies in the EIR, and affirmed the issuance of a writ of mandate setting aside the EIR’s certification on these grounds. We did not grant review on these issues and express no view on how, if at all, today’s opinion affects their disposition. We remand to the Court of Appeal for proceedings consistent with this opinion.” (Emph. added.)

The Supreme Court’s explicit language thus cabining its “narrow” holding quite clearly signals that the case is not intended to serve as a broadly applicable precedent providing substantive legal guidance to future EIR preparers who must analyze a regional plan’s long term GHG emissions impacts. Nor may it even be taken by SANDAG as an endorsement of its particular (now superseded and ostensibly moot) 2011 EIR on points other than the narrow issue of its discussion of its GHG emissions impacts as they relate to the 2050 goal stated in the 2005 EO. Given the major concession by SANDAG’s opponents that the 2005 EO lacked the force of a legal mandate binding on SANDAG in the preparation of its EIR – an issue ostensibly at the heart of the case – it seems the Supreme Court might have written a very brief opinion explaining that concession, the relevant law compelling it, and the Court of Appeal’s error in giving controlling legal effect to the 2005 EO, and then reversing on the narrow issue on which it granted review. Such an opinion might helpfully have emphasized that governors’ EOs should not overstep their proper legal bounds, that they are not legislation or evidence-supported and duly adopted greenhouse gas regulation plans, and that they cannot simply compel or command regional agencies like SANDAG to adopt and employ CEQA thresholds of significance, which are matters within the lead agency’s discretion under well-established CEQA law. But it didn’t do so. Or the Supreme Court might simply have “bailed out” of deciding the case at all on the grounds that it was moot, dismissed its review as improvidently granted, and ordered the erroneous Court of Appeal decision depublished. But it didn’t go that route, either.

While who prevailed on which issues probably matters a lot to the parties here (who, after all, have to worry about hefty post-judgment attorneys’ fees motions by prevailing parties), it is unclear why the Supreme Court’s opinion in this case matters much to the rest of us. Its even unclear to me how the Court of Appeal will conduct the “further proceedings” on remand, given that SANDAG’s 2011 EIR and RTP/SCS have been superseded by a 2015 RTP/SCS and a related EIR (containing a 2005 EO “consistency” analysis of some type) that has never been challenged. Will the parties still be fighting over the adequacy of the 2011 EIR years hence, when even the 2015 RTP is superseded by yet another regional plan? I sincerely hope not.

So what does it all mean? The new California Supreme Court, with its decidedly academic bent, seems to have a penchant for granting review in CEQA (and other) cases on very specific and narrow legal issues that it wants to reach out to decide – a proclivity which can (as here) lead to very narrow and rather esoteric opinions. As relevant here, when such opinions actually serve to resolve important legal issues in a way that provides useful and practical guidance to CEQA practitioners and the regulated community, they are certainly a worthwhile use of the high court’s valuable resources. But I’m not sure the opinion here serves that salutary function. The only “takeaways” in terms of practical guidance regarding CEQA GHG analysis that I’m able to glean from it are that agencies and their consultants should (1) exercise careful judgment, (2) use the best available and most current scientific and factual data, (3) stay abreast of the most current statutes and CARB regulations on the topic, (4) not obscure a project’s significant GHG emissions impacts in their CEQA documents, and (5) not attempt to avoid substantive informational analysis of the nature and magnitude of an impact by simply labeling it “significant” and moving on. But the current case law, statutes, CEQA Guidelines, and common sense already tell us all of those things. We probably didn’t need another Supreme Court CEQA opinion just to reiterate them.


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 more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, 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, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.