In Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 297, the California Supreme Court granted review of the Fourth District Court of Appeal’s upholding the trial court’s grant of a Petition for Writ of Mandate. The trial court invalidated the San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (Transportation Plan) which is “a long-range plan designed to coordinate and manage future regional transportation improvements, services, and programs….” The Supreme Court concluded that SANDAG did not abuse its discretion by declining to analyze the consistency of SANDAG’s transportation plan’s projected 2050 greenhouse gas emissions with the goals set forth in Governor Schwarzenegger’s 2005 Executive Order No. S-3-05, which declared a goal of reducing greenhouse gas emissions in California to 80 percent below 1990 levels by the year 2050. The Supreme Court did not grant review of any other issues and remanded the matter back to the Fourth District for further proceedings. On remand, the Court of Appeal found in favor of the plaintiffs. Cleveland National Forest Foundation v. San Diego Assn. of Governments D063288 (Fourth District, November 16, 2017)
As a threshold matter, the Fourth District found that the case was not moot despite the fact that the transportation plan had been updated, because there was no evidence that the program environmental impact report (EIR) at issue had been decertified and could no longer be relied upon. The Court explained that correcting the defects in the EIR may inform the current or future versions of the transportation plan, which would provide the plaintiffs with effective relief. In addition, the Court found that the case fell within the exception for cases that are capable of repetition, yet evading review due to the frequency with which SANDAG must update its transportation plan.
Utilizing the substantial evidence test, the court held that the EIR’s mitigation measures were inadequate. The court found that including infeasible mitigation measures which had no likelihood of being implemented rendered such measures “illusory.” Due to the absence of any discussion of mitigation measures that could both substantially lessen the project’s significant greenhouse gas emissions and feasibly be implemented, the court concluded that there is no substantial evidence to support SANDAG’s finding that the EIR adequately addressed mitigation of the transportation plan’s greenhouse gas emissions impact.
Similarly, the court found the EIR’s discussion of alternatives deficient, because it did not discuss an alternative project which could significantly reduce total vehicle miles traveled. This deficiency was further pronounced by SANDAG’s own Climate Action Strategy document which acknowledged that lowering of vehicle miles traveled is paramount to the state’s efforts to reduce greenhouse gas emissions.
The plaintiffs also prevailed on their argument that the EIR’s baseline analysis was inadequate. The plaintiffs contended that the EIR’s air quality impacts analysis did not adequately depict the public’s existing exposure to toxic air contaminants (TACs). The Court of Appeal found that there was available data from monitoring stations with which SANDAG could have developed a baseline of the region’s existing exposure to TACs. The fact that more precise information may be available during the next tier of environmental review did not excuse SANDAG from providing a proper baseline in the EIR at issue.
The First District Court of Appeal upheld the trial court’s grant of a writ petition to set aside the Upper Truckee River Restoration and Golf Course Reconfiguration Project based upon the Environmental Impact Report’s failure to designate a finite project description among five alternatives. Washoe Meadows Community v. Department of Parks and Recreation, et al., A145576 (1st District, Nov. 15, 2017).
The Project in this case involved both the Lake Valley State Recreation Area and the Washoe Meadows State Park, which were separated in 1984 to allow for the continued existence of a golf course, a prohibited use in a state park. A 2003 study indicated that the portion of the Truckee River running through the State Park and Recreation Area was one of the greatest contributors of sediment to Lake Tahoe due to the river being rerouted to accommodate the golf course. The California Department of Parks and Recreation (Department) prepared and circulated a draft environmental impact report (DEIR) for a project to address erosion of the river bed of the Upper Truckee River. The project’s purpose was “to improve geomorphic processes, ecological functions, and habitat values of the Upper Truckee River within the study area, helping to reduce the river’s discharge of nutrients and sediment that Diminish Lake Tahoe’s clarity while providing access to the public recreation opportunities in the State Park and [Recreation Area].”
The DEIR described five alternative projects, each evaluated with comparable detail. However, the DIER did not identify a preferred alternative, stating that the preferred alternative would be defined following receipt and evaluation of public comments on the DEIR. The final environmental impact report (FEIR) identified the preferred alternative as a refined version of Alternative 2, involving river restoration with a reconfigured 18-hole golf course. Washoe Meadows Community filed a petition for writ of mandate to set aside the approval of the project based on several CEQA violations, including that the DEIR did not contain an “accurate, finite and stable” project description. The trial court granted the petition. The First District reviewed the Department’s decision de novo without deference to the agency’s determination, because it is an issue of law whether a DEIR is adequate “to apprise all interested parties of the true scope of the project.”
The First District upheld the trial court’s decision that the project description was not “accurate, stable and finite” and agreed with the reasoning that “[a] range of alternatives simply cannot be a stable proposed project.” The Department’s failure to identify a proposed project in its project description “impair[ed] the public’s right and ability to participate in the environmental review project” and turned the project description into a “moving target.” Furthermore, the DEIR was unclear about which mitigation measures would be implemented, since each alternative would have created a different footprint on public land and would have resulted in differing impacts. The Department’s shortcoming in meeting CEQA’s informational requirements amounted to a prejudicial abuse of discretion under CEQA because “the failure to include relevant information preclude[d] informed decision making and informed public participation, thereby thwarting the goals of the EIR process.” The failure to designate a stable project was an “obstacle to informed public participation” even if it would not have changed the project ultimately selected and approved.
This case reinforces longstanding precedent that “an accurate, stable, and finite project description is the sine qua non of an informative and legally sufficient EIR.” When the DEIR’s project description does not meet this standard, the public is prejudicially excluded from meaningful participation in the CEQA process.