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On Remand, Fourth District Finds SANDAG’s Transportation Plan EIR Inadequate Despite Supreme Court Holding that SANDAG Did Not Abuse its Discretion Regarding GHG Emission Reduction Goals

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.

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