In December 2012, San Diego Superior Court Judge Timothy Taylor ruled that the San Diego Association of Governments (SANDAG) had violated the California Environmental Quality Act (CEQA), in part because the Environmental Impact Report (EIR) that SANDAG prepared for its 2050 Regional Transportation Plan (RTP) failed to analyze the greenhouse gas (GHG) targets set by Governor Schwarzenegger’s 2005 Executive Order, S-3-05.  Cleveland Nat’l Forest Foundation v. SANDAG, No. 2011-00101593 (Dec. 3, 2012) (SANDAG).

By way of background, Exec. Order, S-3-05 set three state-wide GHG reductions targets for California: (1) a return to 2000 levels by 2010, (2) a return to 1990 levels by 2020, and (3) a reduction of 80% below 1990 levels by 2050. In 2006, the California Legislature passed the Global Warming Solutions Act (otherwise known as AB 32), but AB 32 only incorporated the second target—reducing the state’s GHG emissions to 1990 levels by 2020. Governor Brown has not revoked S-3-05 since he took office in 2011.

According to the California Air Resources Board (CARB), achieving AB 32's 2020 threshold requires a state-wide reduction to 427 million metric tons of carbon dioxide-equivalent emissions (MMTCO2E) and meeting S-3-05’s 2050 target requires a reduction to 85 MMTCO2E.  CARB Climate Change Scoping Plan at 117 (May 2009).

SANDAG's 2050 RTP (adopted in 2011) set forth a transportation plan for the San Diego region that covers the period 2010 to 2050 and includes a list of transportation projects to be funded in that time period.  Importantly, SANDAG's RTP was the first RTP to be issued after the state passed another GHG reduction measure, SB 375, which requires metropolitan planning organizations like SANDAG to design their RTPs to achieve GHG targets set by CARB region-by-region.  CARB's targets for SANDAG were a 7% reduction from 2005 GHG emissions by 2020, and a 13% reduction by 2035.  On November 18, 2011, CARB found that SANDAG’s RTP would meet or exceed the GHG emissions reduction targets it had set for the San Diego region.  CARB Executive Order G-11-114 (Nov. 2011).

In his decision, however, Judge Taylor found fault with SANDAG's 2050 RTP EIR because it did not consider the RTP's failure to meet Executive Order S-3-05's 2050 target to reduce GHG emissions to 80% below 1990 levels to be a significant environmental impact.  Judge Taylor wrote, "This position fails to recognize that Executive Order S-3-05 is an official policy of the State of California, established by a gubernatorial order in 2005, and not withdrawn or modified by a subsequent (and predecessor) governor. Quite obviously it was designed to address an environmental objective that is highly relevant under CEQA (climate stabilization). SANDAG thus cannot simply ignore it." SANDAG at 11-12 (citation omitted).

Although SANDAG announced that it would work to settle the case with the plaintiffs in early December, it has also filed an appeal with the Fourth Appellate District. Cleveland Nat’l Forest v. SANDAG, Case No. D063288 (filed Dec. 26, 2012).

Judge Taylor's decision appears to be the first time a California court has held that an agency’s failure to comply with Executive Order S-3-05 is legal error under CEQA.  The decision raises a host of interesting questions that many jurisdictions may soon—or may already—be wrestling with, including:  What thresholds of significance should be applied to projects that will be built or operate beyond AB 32's 2020 deadline, or SB 375's 2035 target? Is it within each jurisdiction’s discretion to establish its own thresholds, or are they subject to Executive Order S-3-05's 2050 target?

These, and many other questions, will be considered and addressed at the California Climate Action Planning Conference to be held in San Luis Obispo on January 31 and February 1, 2013. If these questions interest you, be sure to attend the presentation by Honey Walters (Ascent Environmental), Christopher Calfee (CA Office of Planning & Research), Ron Milam (Fehr & Peers), and Ryan Waterman (Stoel Rives LLP) on February 1 at 2:30 pm!