INTRODUCTION

After the San Diego Association of Governments (SANDAG) certified an

environmental impact report (EIR) for its 2050 Regional Transportation Plan/Sustainable

Communities Strategy (transportation plan), CREED-21 and Affordable Housing

Coalition of San Diego filed a petition for writ of mandate challenging the EIR's

adequacy under the California Environmental Quality Act (CEQA) (Pub. Resources

Code, § 21000 et seq.).1 Cleveland National Forest Foundation and the Center for

Biological Diversity filed a similar petition, in which Sierra Club and the People later

joined.

The superior court granted the petitions in part, finding the EIR failed to carry out

its role as an informational document because it did not analyze the inconsistency

1 Further statutory references are also to the Public Resources Code unless otherwise stated.

2 between the state's policy goals reflected in Executive Order S-3-05 (Executive Order)

and the transportation plan's greenhouse gas emissions impacts after 2020. The court

also found the EIR failed to adequately address mitigation measures for the transportation

plan's greenhouse gas emissions impacts. Given these findings, the court declined to

decide any of the other challenges raised in the petitions.

SANDAG appeals, contending the EIR complied with CEQA in both respects.

Cleveland National Forest Foundation and Sierra Club (collectively, Cleveland) cross-

appeal, contending the EIR further violated CEQA by failing to analyze a reasonable

range of project alternatives, failing to adequately analyze and mitigate the transportation

plan's air quality impacts, and understating the transportation plan's impacts on

agricultural lands. The People separately cross-appeal, contending the EIR further

violated CEQA by failing to adequately analyze and mitigate the transportation plan's

impacts from particulate matter pollution. We conclude the EIR failed to comply with

CEQA in all identified respects. We, therefore, modify the judgment to incorporate our

decision on the cross-appeals and affirm. In doing so, we are upholding the right of the

public and our public officials to be well informed about the potential environmental

consequences of their planning decisions, which CEQA requires and the public deserves,

before approving long-term plans that may have irreversible environmental impacts.

3

DISCUSSION

I

A

General Role of an EIR

"The Legislature has made clear that an EIR is 'an informational document' and

that '[t]he purpose of an environmental impact report is to provide public agencies and

the public in general with detailed information about the effect which a proposed project

is likely to have on the environment; to list ways in which the significant effects of such a

project might be minimized; and to indicate alternatives to such a project.' " (Laurel

Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,

391 (Laurel Heights); Guidelines, § 15002.)2 "The EIR is the primary means of

achieving . . . the policy of this state to 'take all action necessary to protect, rehabilitate,

and enhance the environmental quality of the state.' [Citation.] The EIR is therefore 'the

heart of CEQA.' [Citations.] An EIR is an 'environmental "alarm bell" whose purpose it

is to alert the public and its responsible officials to environmental changes before they

have reached ecological points of no return.' [Citations.] The EIR is also intended 'to

demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and

considered the ecological implications of its action.' [Citations.] Because the EIR must

2 All references to Guidelines are to the CEQA Guidelines, which are located in title 14 of the California Code of Regulations beginning at section 15000. "In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous." (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 448, fn. 4 (Smart Rail).)

4 be certified or rejected by public officials, it is a document of accountability. If CEQA is

scrupulously followed, the public will know the basis on which its responsible officials

either approve or reject environmentally significant action, and the public, being duly

informed, can respond accordingly to action with which it disagrees. [Citations.] The

EIR process protects not only the environment but also informed self-government."

(Laurel Heights, supra, 47 Cal.3d at p. 392.)

B

Role of a Program EIR

The EIR at issue in this case is a program EIR. A "program EIR" is "an EIR

which may be prepared on a series of actions that can be characterized as one large

project" and are related in specified ways. (Guidelines, § 15168, subd. (a); Town of

Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 343

(Atherton).) The use of a program EIR can: "(1) Provide an occasion for a more

exhaustive consideration of effects and alternatives than would be practical in an EIR on

an individual action, [¶] (2) Ensure consideration of cumulative impacts that might be

slighted in a case-by-case analysis, [¶] (3) Avoid duplicative reconsideration of basic

policy considerations, [¶] (4) Allow the lead agency to consider broad policy alternatives

and program wide mitigation measures at an early time when the agency has greater

flexibility to deal with basic problems or cumulative impacts, [and] [¶] (5) Allow

reduction in paperwork." (Guidelines, § 15168, subd. (b); Atherton, supra, at pp. 343-

344.)

5 "[W]here an agency prepares a 'program EIR' for a broad policy document . . . ,

Guidelines section 15168, subdivision (c)(2) allows agencies to limit future

environmental review for later activities that are found to be 'within the scope' of the

program EIR." (Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192,

196; accord, Citizens Against Airport Pollution v. City of San Jose (2014) 227

Cal.App.4th 788, 801-802.) Further environmental review for such activities is required

only where "(a) Substantial changes are proposed in the project which will require major

revisions of the [EIR]. [¶] (b) Substantial changes occur with respect to the

circumstances under which the project is being undertaken which will require major

revisions in the [EIR]. [¶] (c) New information, which was not known or could not have

been known at the time the [EIR] was certified as complete, becomes available."

(§ 21166; May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1325-1326; accord,

Citizens Against Airport Pollution v. City of San Jose, supra, at p. 802.)

Because of these limitations, once an EIR is finally approved, a court generally

cannot compel an agency to perform further environmental review for any known or

knowable information about the project's impacts omitted from the EIR. (Citizens

Against Airport Pollution v. City of San Jose, supra, 227 Cal.App.4th at pp. 807-808;

Citizens for Responsible Equitable Environmental Development v. City of San Diego

(2011) 196 Cal.App.4th 515, 531-532.) A court also generally cannot compel an agency

to perform further environmental review if new regulations or guidelines for evaluating

the project's impacts are adopted in the future. (Concerned Dublin Citizens v. City of

6 Dublin (2013) 214 Cal.App.4th 1301, 1320; Fort Mojave Indian Tribe v. Department of

Health Services (1995) 38 Cal.App.4th 1574, 1605.)

Hence, "[d]esignating an EIR as a program EIR . . . does not by itself decrease the

level of analysis otherwise required in the EIR. 'All EIR's must cover the same general

content. [Citations.] The level of specificity of an EIR is determined by the nature of the

project and the "rule of reason" [citation], rather than any semantic label accorded to the

EIR.' " (Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000)

82 Cal.App.4th 511, 533.) Consequently, in considering a challenge to a program EIR,

"it is unconstructive to ask whether the EIR provided 'project-level' as opposed to

'program-level' detail and analysis. Instead, we focus on whether the EIR provided

'decision makers with sufficient analysis to intelligently consider the environmental

consequences of [the] project.' " (Citizens for a Sustainable Treasure Island v. City and

County of San Francisco (2014) 227 Cal.App.4th 1036, 1052.)

7 C

Standard of Review in CEQA Cases3

"[I]n a CEQA case, as in other mandamus cases, [our review] is the same as the

trial court's: [we review] the agency's action, not the trial court's decision; in that sense

[our review] is de novo. (Vineyard, supra, 40 Cal.4th at p. 427.) However, our inquiry

extends " 'only to whether there was a prejudicial abuse of discretion.' ([§ 21168.5].)"

(Vineyard, at p. 426.)

"[A]n agency may abuse its discretion under CEQA either by failing to proceed in

the manner CEQA provides or by reaching factual conclusions unsupported by

substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs

significantly: While we determine de novo whether the agency has employed the correct

procedures, 'scrupulously enforc[ing] all legislatively mandated CEQA requirements'

[citation], we accord greater deference to the agency's substantive factual conclusions."

(Vineyard, supra, 40 Cal.4th at p. 435.) "In evaluating an EIR for CEQA compliance,

then, [we] must adjust [our] scrutiny to the nature of the alleged defect, depending on

whether the claim is predominantly one of improper procedure or a dispute over the facts.

3 The California Supreme Court is currently reviewing the standard and scope of judicial review under CEQA. (Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704 [172 Cal.Rptr.3d 271], review granted Oct. 1, 2014, S219783.) Pending further guidance, we endeavor to apply the review dichotomy most recently articulated by the Supreme Court. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427, 435 (Vineyard); accord, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 131; In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1161-1162 (Bay-Delta); Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936, 944.)

8 For example, where an agency failed to require an applicant to provide certain

information mandated by CEQA and to include that information in its environmental

analysis, . . . the agency 'failed to proceed in the manner prescribed by CEQA.'

[Citations.] In contrast, in a factual dispute over 'whether adverse effects have been

mitigated or could be better mitigated' [citation], the agency's conclusion would be

reviewed only for substantial evidence." (Ibid.)

II

Appeal

A

Background

1

In 2005 then Governor Arnold Schwarzenegger issued the Executive Order

establishing greenhouse gas emissions reduction targets for California. Specifically, the

Executive Order required reduction of greenhouse gas emissions to 2000 levels by 2010,

to 1990 levels by 2020, and to 80 percent below 1990 levels by 2050.4

4 "[A]n executive order is generally regarded as 'a formal written directive of the Governor.' " (75 Ops.Cal.Atty.Gen. 263 (1992).) The Executive Order provided in relevant part: "I, ARNOLD SCHWARZENEGGER, Governor of the State of California, by virtue of the power invested in me by the Constitution and statutes of the State of California, do hereby order effective immediately . . . . That the following greenhouse gas emission reduction targets are hereby established for California: by 2010, reduce [greenhouse gas] emissions to 2000 levels; by 2020, reduce [greenhouse gas] emissions to 1990 levels; by 2050, reduce [greenhouse gas] emissions to 80 percent below 1990 levels . . . ." (http://gov.ca.gov/news.php?id=1861 [as of Nov. 21, 2014].)

9 The Legislature subsequently enacted the California Global Warming Solutions

Act of 2006 (Health & Saf. Code, § 38500 et seq.), referred to by the parties as Assembly

Bill No. 32 (AB 32). Among its provisions, AB 32 tasked the California Air Resources

Board (CARB) with determining the state's 1990 greenhouse gas emissions level and

approving an equivalent emissions level to be achieved by 2020. (Health & Saf. Code,

§ 38550.)

The Legislature intended for the emissions limit to "continue in existence and be

used to maintain and continue reductions in emissions of greenhouse gases beyond

2020." (Health & Saf. Code, § 38551, subd. (b).) The Legislature also intended for the

emissions limit to work in concert with other environmental protection laws, expressly

stating AB 32 does not "relieve any person, entity, or public agency of compliance with

other applicable federal, state, or local laws or regulations, including state air and water

quality requirements, and other requirements for protecting public health or the

environment." (Health & Saf. Code, § 38592, subd. (b).) The Legislature further

intended for "the Climate Action Team established by the Governor to coordinate the

efforts set forth under [the Executive Order] continue its role in coordinating overall

climate policy." (Health & Saf. Code, § 38501, subd. (i).) Thus, the Legislature, through

AB 32, effectively endorsed the Executive Order and its overarching goal of ongoing

greenhouse gas emissions reductions as state climate policy. (See, e.g., Professional

Engineers in California Government v. Schwarzenegger (2010) 50 Cal.4th 989, 1000,

1043-1044, 1051 [subsequent legislative endorsement operates to ratify and validate

provisions in Executive Order].)

10 Bolstering this conclusion, the Legislature also enacted the Sustainable

Communities and Climate Protection Act of 2008 (Stats. 2008, ch. 728; Stats. 2009,

ch. 354, § 5), referred to by the parties as Senate Bill No. 375 (SB 375). In enacting SB

375, the Legislature found automobiles and light trucks are responsible for 30 percent of

the state's greenhouse gas emissions. (Stats. 2008, ch. 728, § 1, subd. (a).) Accordingly,

SB 375 directed CARB to develop regional greenhouse gas emission reduction targets for

automobiles and light trucks for 2020 and 2035. (Gov. Code, § 65080, subd. (b)(2)(A).)

The targets established by CARB for the San Diego region require a 7 percent per capita

reduction in carbon dioxide emissions by 2020 and a 13 percent per capita reduction by

2035 (compared to a 2005 baseline).5 CARB must update these targets every eight years

until 2050, and may update the targets every four years based on changing factors. (Gov.

Code, § 65080, subd. (b)(2)(A)(iv).)

2

The transportation plan, which SANDAG must prepare every four years

(23 U.S.C. § 134, subd. (c); Gov. Code, § 65080, subds. (a) & (d)), "serves as the long-

range plan designed to coordinate and manage future regional transportation

improvements, services, and programs among the various agencies operating within the

San Diego region." In enacting SB 375, the Legislature found the state's emissions

reductions goals cannot be met without improved land use and transportation policy.

Consequently, SB 375 (Gov. Code, § 65080, subd. (b)(2)(B)) mandates the transportation

5 The transportation plan meets these limited scope targets (see part II.C.1, post).

11 plan include a sustainable communities strategy to, as the EIR states, "guide the San

Diego region toward a more sustainable future by integrating land use, housing, and

transportation planning to create more sustainable, walkable, transit-oriented, compact

development patterns and communities that meet [CARB's greenhouse gas] emissions

targets for passenger cars and light-duty trucks." Once the sustainable communities

strategy is approved, some transit priority projects consistent with the strategy are exempt

from CEQA requirements. Other transit priority projects, residential projects, and mixed-

use projects consistent with the strategy are subject to streamlined CEQA requirements.

(§§ 21155-21155.4, 21159.28; Guidelines, § 15183.3.)

B

Greenhouse Gas Emissions Impacts Analysis

The EIR acknowledged the transportation plan's implementation would lead to an

overall increase in greenhouse gas emissions levels; however, the EIR did not analyze

whether this consequence conflicted with the Executive Order, or would impair or

impede the achievement of the Executive Order's goals. As it did in the EIR and below,

SANDAG contends on appeal its decision to omit an analysis of the transportation plan's

consistency with the Executive Order (consistency analysis) did not violate CEQA

because CEQA does not require such a consistency analysis. Whether the EIR's analysis

complies with CEQA depends on whether the analysis reflects a reasonable, good faith

effort to disclose and evaluate the transportation plan's greenhouse gas emissions

impacts. We review the sufficiency of the analysis in light of what is reasonably

foreseeable. (Guidelines, § 15151; City of Maywood v. Los Angeles Unified School Dist.

12 (2012) 208 Cal.App.4th 362, 386 (City of Maywood); City of Long Beach v. Los Angeles

Unified School Dist. (2009) 176 Cal.App.4th 889, 897-898 (City of Long Beach).) As the

focus of SANDAG's contention is whether the EIR's analysis was reasonable and not

whether the EIR violated a specific statute or regulation, the contention presents a

predominately factual question and our review is for substantial evidence. (Vineyard,

supra, 40 Cal.4th at p. 435.)

Substantial evidence for CEQA purposes is "enough relevant information and

reasonable inferences from this information that a fair argument can be made to support a

conclusion, even though other conclusions might also be reached." (Guidelines, § 15384,

subd. (a).) Substantial evidence includes "facts, reasonable assumptions predicated upon

facts, and expert opinion supported by facts." (Id., subd. (b).) It does not include

argument, speculation, unsubstantiated opinion or narrative, clearly erroneous or

inaccurate evidence, or evidence of social or economic impacts which do not contribute

to or are not caused by physical impacts on the environment. (Id., subd. (a).)

"In reviewing for substantial evidence, [we] 'may not set aside an agency's

approval of an EIR on the ground that an opposite conclusion would have been equally or

more reasonable,' for, on factual questions, our task 'is not to weigh conflicting evidence

and determine who has the better argument.' " (Vineyard, supra, 40 Cal.4th at p. 435;

Laurel Heights, supra, 47 Cal.3d at p. 393.) Rather, we must resolve any reasonable

doubts and any conflicts in the evidence in favor of the agency's findings and decision.

(Laurel Heights, at p. 393; Citizens for Responsible Equitable Environmental

Development v. City of San Diego, supra, 196 Cal.App.4th at pp. 522-523.)

13 In this case, SANDAG's decision to omit an analysis of the transportation plan's

consistency with the Executive Order did not reflect a reasonable, good faith effort at full

disclosure and is not supported by substantial evidence because SANDAG's decision

ignored the Executive Order's role in shaping state climate policy. The Executive Order

underpins all of the state's current efforts to reduce greenhouse gas emissions. As

SANDAG itself noted in its Climate Action Strategy, the Executive Order's 2050

emissions reduction goal "is based on the scientifically-supported level of emissions

reduction needed to avoid significant disruption of the climate and is used as the long-

term driver for state climate change policy development." (Italics added.)

Indeed, the Executive Order led directly to the enactment of AB 32, which

validated and ratified the Executive Order's overarching goal of ongoing emissions

reductions, recognized the Governor's Climate Action Team as the coordinator of the

state's overall climate policy, and tasked CARB with establishing overall emissions

reduction targets for 2020 and beyond. The Executive Order also led directly to the

enactment of SB 375, which tasked CARB with establishing regional automobile and

light truck emissions reduction targets for 2020 and 2035. CARB is required to revisit

these targets every eight years through 2050, or sooner if warranted by changing

circumstances. (Gov. Code, § 65080, subd. (b)(2)(A)(iv).) Thus, the Executive Order,

with the Legislature's unqualified endorsement, will continue to underpin the state's

efforts to reduce greenhouse gas emissions throughout the life of the transportation plan.

The EIR's failure to analyze the transportation plan's consistency with the Executive

Order, or more particularly with the Executive Order's overarching goal of ongoing

14 greenhouse gas emissions reductions, was therefore a failure to analyze the transportation

plan's consistency with state climate policy. As evidence in the record indicates the

transportation plan would actually be inconsistent with state climate policy over the long

term, the omission deprived the public and decision makers of relevant information about

the transportation plan's environmental consequences. The omission was prejudicial

because it precluded informed decisionmaking and public participation. (Smart Rail,

supra, 57 Cal.4th at p. 463; City of Long Beach, supra, 176 Cal.App.4th at p. 898.)

SANDAG contends the EIR cannot analyze the transportation plan's consistency

with the Executive Order because there is no statute or regulation translating the

Executive Order's goals into comparable, scientifically based emissions reduction targets.

However, we do not agree the lack of such targets precludes the EIR from performing a

meaningful consistency analysis in this instance. "Drafting an EIR . . . necessarily

involves some degree of forecasting. While foreseeing the unforeseeable is not possible,

an agency must use its best efforts to find out and disclose all that it reasonably can."

(Guidelines, § 15144.) Although SANDAG may not know precisely what future

emissions reduction targets the transportation plan will be required to meet, it knows

from the information in its own Climate Action Strategy the theoretical emissions

reduction targets necessary for the region to meet its share of the Executive Order's goals.

It also knows state climate policy, as reflected in the Executive Order and AB 32,

requires a continual decrease in the state's greenhouse gas emissions and the

transportation plan after 2020 produces a continual increase in greenhouse gas emissions.

With this knowledge, SANDAG could have reasonably analyzed whether the

15 transportation plan was consistent with, or whether it would impair or impede, state

climate policy.6

SANDAG's attempts to disavow its responsibility for performing this analysis are

unavailing. The Legislature specifically found reducing greenhouse gas emissions cannot

be accomplished without improved land use and transportation policy. Accordingly, the

transportation plan plays both a necessary and important role in achieving state climate

policy. By failing to adequately inform the public and decision makers the transportation

plan is inconsistent with state climate policy, the EIR deterred the decision makers from

devising and considering changes to favorably alter the trajectory of the transportation

plan's post-2020 greenhouse gas emissions. When the decision makers are inevitably

faced with post-2020 requirements aligned with state climate policy, their task of

complying with these requirements will be more difficult and some opportunities for

compliance may be lost. As SANDAG explained in its Climate Action Strategy, "Once

in place, land use patterns and transportation infrastructure typically remain part of the

built environment and influence travel behavior and greenhouse gas emissions for several

decades, perhaps longer." In this regard, the EIR falls far short of being "an

6 We do not intend to suggest the transportation plan must achieve the Executive Order's 2050 goal or any other specific numerical goal. Our concern is with the EIR's failure to recognize, much less analyze and attempt to mitigate, the conflict between the transportation plan's long-term greenhouse gas emissions increase and the state climate policy goal, reflected in the Executive Order, of long-term emissions reductions. In fact, the EIR does not even discuss the transportation plan's failure to maintain emissions reductions after 2020, which is AB 32's minimum expectation. (See Health & Saf. Code, § 38551, subd. (b).)

16 'environmental "alarm bell" whose purpose it is to alert the public and its responsible

officials to environmental changes before they have reach ecological points of no

return.' " (Laurel Heights, supra, 47 Cal.3d at p. 392.) It also falls far short of

" 'demonstrat[ing] to an apprehensive citizenry that the agency has, in fact, analyzed and

considered the ecological implications of its actions.' " (Ibid.)

We are likewise unpersuaded by SANDAG's assertion the EIR's analysis of the

transportation plan's greenhouse gas emissions impacts fully complies with CEQA

because it utilized significance thresholds specified in Guidelines section 15064.4,

subdivision (b).7 This Guideline states in relevant part: "A lead agency should consider

the following factors, among others, when assessing the significance of impacts from

greenhouse gas emissions on the environment: [¶] (1) The extent to which the project

may increase or reduce greenhouse gas emissions as compared to the existing

environmental setting[.] [¶] (2) Whether the project emissions exceed a threshold of

significance that the lead agency determines applies to the project. [¶] (3) The extent to

which the project complies with regulations or requirements adopted to implement a

statewide, regional, or local plan for the reduction or mitigation of greenhouse gas

emissions. Such requirements must be adopted by the relevant public agency through a

public review process and must reduce or mitigate the project's incremental contribution

7 "A threshold of significance is an identifiable quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant." (Guidelines, § 15064.7.)

17 of greenhouse gas emissions. If there is substantial evidence that the possible effects of a

particular project are still cumulatively considerable notwithstanding compliance with the

adopted regulations or requirements, an EIR must be prepared for the project."

(Guidelines, § 15064.4, subd. (b), italics added.)

Although this Guideline specifies three means of determining whether a project's

greenhouse gas emissions impacts are significant, the "among others" qualifying

language indicates these means are not exclusive.8 Moreover, "the fact that a particular

environmental effect meets a particular threshold cannot be used as an automatic

determinant that the effect is or is not significant . . . a threshold of significance cannot be

applied in a way that would foreclose the consideration of other substantial evidence

tending to show the environmental effect to which the threshold relates might be

significant." (Protect The Historic Amador Waterways v. Amador Water Agency (2004)

116 Cal.App.4th 1099, 1109 (Amador).) Consequently, the use of the Guideline's

thresholds does not necessarily equate to compliance with CEQA, particularly where, as

here, the failure to consider the transportation plan's consistency with the state climate

policy of ongoing emissions reductions reflected in the Executive Order frustrates the

state climate policy and renders the EIR fundamentally misleading.

8 Indeed, in its statement of reasons for adopting the Guideline, the Natural Resources Agency explained the Guideline "reflects the existing CEQA principle that there is no iron-clad definition of 'significance.' [Citations.] Accordingly, lead agencies must use their best efforts to investigate and disclose all that they reasonably can regarding a project's potential adverse impacts." (California Natural Resources Agency, Final Statement of Reasons for Regulatory Action (Dec. 2009) p. 20 < http:// resources.ca.gov/ceqa/docs/Final_Statement_of_Reasons.pdf > (as of Nov. 21, 2014).)

18 We are also unpersuaded by SANDAG's assertion it was not required to analyze

the transportation plan's consistency with the state climate policy reflected in the

Executive Order because SANDAG has broad discretion to select the criteria it uses to

determine the significance of the transportation plan's impacts. While we agree

SANDAG has such discretion (North Coast Rivers Alliance v. Marin Municipal Water

Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 624), SANDAG abuses its discretion

if it exercises it in a manner that causes an EIR's analysis to be misleading or without

informational value. (See Smart Rail, supra, 57 Cal.4th at pp. 445, 457.) "A lead agency

cannot avoid finding a potentially significant effect on the environment by rotely

applying standards of significance that do not address that potential effect." (Rominger v.

County of Colusa (2014) 229 Cal.App.4th 690, 717, citing Amador, supra, 116

Cal.App.4th at p. 1111.)

By disregarding the Executive Order's overarching goal of ongoing emissions

reductions, the EIR's analysis of the transportation plan's greenhouse gas emissions

makes it falsely appear as if the transportation plan is furthering state climate policy

when, in fact, the trajectory of the transportation plan's post-2020 emissions directly

contravenes it. "[O]mitting material necessary to informed decisionmaking and informed

public participation" subverts the purposes of CEQA and "precludes both identification

of potential environmental consequences arising from the project and also thoughtful

analysis of the sufficiency of measures to mitigate those consequences." (Lotus v.

Department of Transportation (2014) 223 Cal.App.4th 645, 658.) Such an omission is

particularly troubling where, as here, the project under review involves long-term,

19 planned expenditures of billions of taxpayer dollars. No one can reasonably suggest it

would be prudent to go forward with planned expenditures of this magnitude before the

public and decision makers have been provided with all reasonably available information

bearing on the project's impacts to the health, safety, and welfare of the region's

inhabitants. We, therefore, conclude SANDAG prejudicially abused its discretion by

omitting from the EIR an analysis of the transportation plan's consistency with the state

climate policy, reflected in the Executive Order, of continual greenhouse gas emissions

reductions.9

C

Mitigation of Greenhouse Gas Emissions Impacts

1

Although the EIR did not analyze the transportation plan's consistency with the

state climate policy reflected in the Executive Order, the EIR nevertheless, analyzed the

transportation plan's greenhouse gas emissions impacts against three significance

thresholds for each of the planning years 2020, 2035, and 2050. Under the first

9 Our decision will not necessarily stop any project encompassed within the transportation plan. (See Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 286-289.) Our decision also will not procedurally or substantively expand CEQA requirements in violation of section 21083.1 because the EIR is required to analyze the transportation plan's potential "to degrade the quality of the environment, curtail the range of the environment, or to achieve short-term, to the disadvantage of long-term, environmental goals." (§ 21083, subd. (b)(1), italics added; Guidelines, § 15065, subd. (a)(2), (c).) Rather, our decision is consistent with the intent CEQA "be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. (Guidelines, § 15003, subd. (f).)

20 threshold, the EIR posited the transportation plan's impacts would be significant if the

transportation plan's implementation were to increase greenhouse gas emissions

compared to existing, or 2010, conditions. Under the second threshold, the EIR posited

the transportation plan's impacts would be significant if the transportation plan's

implementation conflicted with CARB's regional automobile and light truck emissions

reductions targets. Under the third threshold, the EIR stated the transportation plan's

impacts would be significant if the transportation plan's implementation conflicted with

either CARB's Climate Change Scoping Plan (Scoping Plan) or SANDAG's own Climate

Action Strategy.10

The EIR concluded the transportation plan's greenhouse gas emissions impacts

would be significant under the first significance threshold for the 2035 and 2050 planning

years because the emissions would be higher in those planning years than in 2010. The

EIR concluded the greenhouse gas emissions impacts would be less than significant in all

other respects analyzed.11

10 The Scoping Plan is CARB's roadmap for achieving greenhouse gas emissions reductions. The Climate Action Strategy is SANDAG's guide for addressing climate change. The Climate Action Strategy emphasizes the areas where the greatest impact can be made at the local level, including transportation infrastructure.

11 The People and Cleveland have not challenged these conclusions and their propriety is not before us. Nonetheless, regarding the third significance threshold, we note the Climate Action Strategy expresses far stronger views than the transportation plan on the steps necessary to achieve the state's long-term greenhouse gas emissions reductions goals. For example, the Climate Action Strategy maintains achieving the goals "will require fundamental changes in policy, technology, and behavior" and "[b]y 2030, the region must have met and gone below the 1990 [emissions] level and be well on its way to doing its share for achieving the 2050 greenhouse gas reduction level." 21 2

To mitigate the significant greenhouse gas emissions impacts found under the first

threshold, the EIR identified three mitigation measures it deemed feasible.12 The first

mitigation measure required SANDAG to update its future regional comprehensive plans,

regional transportation plans, and sustainable communities plans to incorporate policies

and measures leading to reduced greenhouse gas emissions. The second mitigation

measure encouraged the San Diego region cities and the County of San Diego (County)

to adopt and implement climate action plans for reducing greenhouse gas emissions to a

level the particular city or the County determined would not be cumulatively

considerable. The second mitigation measure also identified various provisions the plans

should include and stated SANDAG would assist in the preparation of the plans and other

climate strategies through the continued implementation of its own Climate Action

Strategy and Energy Roadmap Program.13 The third mitigation measure stated

SANDAG would and other agencies should require the use of best available control

technology to reduce greenhouse gas emissions during the construction and operation of

projects.

12 " 'Feasible' means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." (Guidelines, § 15364.)

13 According to the record, the Energy Roadmap Program "identifies energy-saving measures that can be integrated into local planning and permitting processes, ordinances, outreach and education efforts, and municipal operations."

22 According to the EIR, these mitigation measures encourage reduction in

greenhouse gas emissions, but they do not provide a mechanism guaranteeing such

reductions. Consequently, the EIR concluded the significant impacts found under the

first threshold would remain significant and unavoidable.

The EIR also considered and rejected three other mitigation measures deemed

infeasible. These mitigation measures were: (1) requiring all vehicles driven within the

region to be zero-emission vehicles or to be powered by renewable energy; (2) requiring

all future construction to be net-zero energy use; and (3) requiring all future construction

activity to include only equipment retrofitted to significantly reduce greenhouse gas

emissions.

3

SANDAG contends the EIR adequately addressed mitigation for the transportation

plan's significant greenhouse gas emissions impacts. Given our conclusion in part II.B,

ante, this challenge is at least partially moot as the additional analysis necessary to

properly address the transportation plan's consistency with the state climate policy

reflected in the Executive Order will likely require revisions to related sections of the

EIR, including the EIR's discussion of mitigation measures. (Communities for a Better

Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 91 [once a lead agency

recognizes an impact is significant, the agency must describe, evaluate, and adopt

23 feasible mitigation measures to mitigate or avoid the impact].)14 We, nonetheless,

briefly address SANDAG's contention. As this contention is predominately factual, our

review is for substantial evidence. (Vineyard, supra, 40 Cal.4th at p. 435.)

a

"The core of an EIR is the mitigation and alternatives sections." (Citizens of

Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564; Watsonville Pilots

Assn. v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1089.) "Section 21002

requires agencies to adopt feasible mitigation measures to substantially lessen or avoid

otherwise significant adverse environmental impacts. [¶] The CEQA guidelines state that

to be legally adequate mitigation measures must be capable of: '(a) Avoiding the impact

altogether by not taking a certain action or parts of an action. (b) Minimizing impacts by

limiting the degree or magnitude of the action and its implementation. (c) Rectifying the

impact by repairing, rehabilitating, or restoring the impacted environment. (d) Reducing

or eliminating the impact over time by preservation and maintenance operations during

the life of the action.' [Citation.]

"For each significant effect, the EIR must identify specific mitigation measures;

where several potential mitigation measures are available, each should be discussed

separately, and the reasons for choosing one over the others should be stated. If the

14 We do not express any view on precisely how SANDAG must remedy the analytical deficiencies identified in this opinion as we recognize a court may direct SANDAG to comply with CEQA, but a court may not direct SANDAG to exercise its discretion in a particular fashion or to produce a particular result. (§ 21168.9, subd. (c); Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245, 1266.) 24 inclusion of a mitigation measure would itself create new significant effects, these too,

must be discussed, though in less detail than required for those caused by the project

itself." (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027.)

For significant greenhouse gas emissions effects, feasible mitigation measures

may include: "(1) Measures in an existing plan or mitigation program for the reduction

of emissions that are required as part of the lead agency's decision; [¶] (2) Reductions in

emissions resulting from a project through implementation of project features, project

design, or other measures . . . ; [¶] (3) Off-site measures, including offsets that are not

otherwise required, to mitigate a project's emissions; [¶] (4) Measures that sequester

greenhouse gases; [¶] [and] (5) In the case of the adoption of a plan, such as a general

plan, long range development plan, or plans for the reduction of greenhouse gas

emissions, mitigation may include the identification of specific measures that may be

implemented on a project-by-project basis. Mitigation may also include the incorporation

of specific measures or policies found in an adopted ordinance or regulation that reduces

the cumulative effect of emissions." (Guidelines, § 15126.4, subd. (c).)

b

At one extreme, the EIR in this case considered and deemed feasible three

measures requiring little to no effort to implement and assuring little to no concrete steps

toward emissions reduction. In addition, according to the EIR, many of the suggestions

contained in these measures have already been incorporated into the transportation plan

and, by implication, the transportation plan's emissions estimates. "A 'mitigation

measure' is a suggestion or change that would reduce or minimize significant adverse

25 impacts on the environment caused by the project as proposed." (Lincoln Place Tenants

Association v. City of Los Angeles (2007) 155 Cal.App.4th 425, 445.) A mitigation

measure is not part of the project. (Lotus v. Department of Transportation, supra, 223

Cal.App.4th at p. 656 & fn. 8.) Thus, it is questionable whether these measures even

qualify as mitigation measures.

At the other extreme, the EIR considered and deemed infeasible three particularly

onerous measures. Each of the measures would be difficult, if not impossible, to enforce

and each requires implementation resources not readily available. Unrealistic mitigation

measures, similar to unrealistic project alternatives, do not contribute to a useful CEQA

analysis. (See Watsonville Pilots Assn. v. City of Watsonville, supra, 183 Cal.App.4th at

p. 1089; 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act

(Cont.Ed.Bar 2014) § 15.10, pp. 15-16.) As none of these measures had any probability

of implementation, their inclusion in the EIR was illusory.

Missing from the EIR is what CEQA requires: a discussion of mitigation

alternatives that could both substantially lessen the transportation plan's significant

greenhouse gas emissions impacts and feasibly be implemented. (Lincoln Place Tenants

Association v. City of Los Angeles, supra, 155 Cal.App.4th at p. 445.) A few examples of

potential alternatives identified in the Climate Action Strategy include: supporting the

planning and development of smart growth areas through transportation investments and

other funding decisions; offering incentives for transit-oriented developments in smart

growth areas; coordinating the funding of low carbon transportation with smart growth

development; and encouraging parking management measures that promote walking and

26 transit use in smart growth areas. Given the absence of any discussion of such mitigation

alternatives, we conclude there is not substantial evidence to support SANDAG's

determination the EIR adequately addressed mitigation for the transportation plan's

greenhouse gas emissions impacts. The error is prejudicial because it precluded informed

public participation and decisionmaking. (§ 21005, subd. (a); City of Maywood, supra,

208 Cal.App.4th at p. 386.)

III

Cross-Appeals

A

Forfeiture

The People's and Cleveland's pleadings and briefs below challenged many aspects

of the EIR in addition to the EIR's analysis and mitigation of greenhouse gas emissions

impacts. In its tentative ruling, the superior court acknowledged the other challenges, but

determined it could resolve the case solely on the greenhouse gas emissions impacts

analysis and mitigation issues and, consequently, it did not need to address the other

challenges. The People and Cleveland through their cross-appeals now seek rulings from

this court on many of the other challenges. SANDAG contends they forfeited these

challenges by failing to attempt to obtain rulings on them below.

Even if SANDAG's contention were correct, the application of the forfeiture rule

is not automatic and we may excuse forfeiture in cases presenting "an important legal

issue." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) We are persuaded the legal issues

raised in the cross-appeals are sufficiently important we should exercise our discretion to

27 excuse any forfeiture. Moreover, we are mindful of the Legislature's intent "that any

court, which finds, or, in the process of reviewing a previous court finding, finds, that a

public agency has taken an action without compliance with [CEQA], shall specifically

address each of the alleged grounds for noncompliance." (§ 21005, subd. (c).)

B

Project Alternatives

1

The EIR analyzed seven project alternatives. They were:

1. A no project alternative, which assumed the transportation plan would not

be adopted and only transportation improvements under construction or development

would be built (Alternative 1);

2. A modified funding strategy alternative, which deleted some highway

improvements, delayed other highway improvements, added some transit projects,

advanced other transit projects, and increased some transit service frequencies

(Alternative 2a);

3. The same modified funding strategy alternative coupled with a modified

"smart growth" land use pattern, which assumed added infill and redevelopment to

increase residential development density in urban and town center areas and increased

employment within job centers (Alternative 2b);

4. A transit emphasis alternative, which advanced the development of some

transit projects, but did not add any new transit projects (Alternative 3a);

28 5. The same transit emphasis alternative, but assuming the modified smart

growth land use pattern (Alternative 3b);

6. An alternative implementing the transportation plan's transportation

network, but assuming the modified smart growth land use pattern (Alternative 4); and

7. A slow growth alternative, which assumed the application of regulations

and/or economic disincentives to slow population and employment and delayed the

complete implementation of the transportation plan by five years (Alternative 5).

2

Cleveland contends the EIR fails to comply with CEQA because the EIR did not

analyze a reasonable range of project alternatives. As the focus of this contention is

whether the analysis was reasonable and not whether it occurred, the contention presents

a predominately factual question and our review is for substantial evidence. (Vineyard,

supra, 40 Cal.4th at p. 435.)

"CEQA requires that an EIR, in addition to analyzing the environmental effects of

a proposed project, also consider and analyze project alternatives that would reduce

adverse environmental impacts. [Citations.] The [Guidelines] state that an EIR must

'describe a range of reasonable alternatives to the project . . . which would feasibly attain

most of the basic objectives of the project but would avoid or substantially lessen any of

the significant effects of the project . . . .' [Citation.] An EIR need not consider every

conceivable alternative to a project or alternatives that are infeasible. [Citations.]

[¶] . . . [¶]

29 " 'There is no ironclad rule governing the nature or scope of the alternatives to be

discussed other than the rule of reason.' [Citation.] The rule of reason 'requires the EIR

to set forth only those alternatives necessary to permit a reasoned choice' and to 'examine

in detail only the ones that the lead agency determines could feasibly attain most of the

basic objectives of the project.' [Citations.] An EIR does not have to consider

alternatives 'whose effect cannot be reasonably ascertained and whose implementation is

remote and speculative.' " (Bay-Delta, supra, 43 Cal.4th at p. 1163, fn. omitted.) A court

will uphold the selection of project alternatives unless the challenger demonstrates " 'that

the alternatives are manifestly unreasonable and that they do not contribute to a

reasonable range of alternatives.' " (California Native Plant Society v. City of Santa Cruz

(2009) 177 Cal.App.4th 957, 988.)

In this case, the EIR's discussion of project alternatives is deficient because it does

not discuss an alternative which could significantly reduce total vehicle miles traveled.

Although Alternatives 3a and 3b are labeled "transit emphasis" alternatives, the labeling

is a misnomer. These alternatives mainly advance certain rapid bus projects, but leave

the planned rail and trolley projects largely unchanged. In addition, these alternatives do

not provide any new transit projects or significant service increases. In fact, the "transit

emphasis" alternatives include fewer transit projects than some of the other non-"transit-

emphasis" alternatives.

The omission of an alternative which could significantly reduce total vehicle miles

traveled is inexplicable given SANDAG's acknowledgment in its Climate Action

Strategy that the state's efforts to reduce greenhouse gas emissions from on-road

30 transportation will not succeed if the amount of driving, or vehicle miles traveled, is not

significantly reduced. The Climate Action Strategy explained, "Lowering vehicle miles

traveled means providing high-quality opportunities to make trips by alternative means to

driving alone such as walking, bicycling, ridesharing, and public transit, and by

shortening vehicle trips that are made. This can be accomplished through improved land

use and transportation planning and related measures, policies and investments that

increase the options people have when they travel." Accordingly, the Climate Action

Strategy recommended policy measures to increase and prioritize funding and system

investments for public transit and transit operations, increase the level of service on

existing routes and provide new public transit service through expanded investments, and

improve the performance of public transit with infrastructure upgrades. Given these

recommendations, their purpose, and their source, it is reasonable to expect at least one

project alternative to have been focused primarily on significantly reducing vehicle trips.

Instead, it appears the project alternatives focused primarily on congestion relief.

The Climate Action Strategy provides evidentiary support for the consideration of

congestion relief alternatives as it notes, "Eliminating or reducing congestion can lead to

more efficient travel conditions for vehicles and greenhouse gas savings." However, the

transportation plan is a long-term plan and congestion relief is not necessarily an

effective long-term strategy. As the Climate Action Strategy explains, "Measures to

relieve congestion also may induce additional vehicle travel during uncongested periods,

particularly over the long-term, which can partially or fully offset the greenhouse gas

reductions achieved in the short-term from congestion relief. Induced demand

31 (sometimes called the rebound effect) in transportation refers to the increase in travel that

can occur when the level of service on a roadway or other facility improves. Travelers

sometimes respond to faster travel times and decreased costs of travel by traveling more,

resulting in increased vehicle miles traveled." (Fns. omitted.) Given the acknowledged

long-term drawbacks of congestion relief alternatives, there is not substantial evidence to

support the EIR's exclusion of an alternative focused primarily on significantly reducing

vehicle trips. The error is prejudicial because it precluded informed public participation

and decisionmaking. (§ 21005, subd. (a); City of Maywood, supra, 208 Cal.App.4th at

p. 386.)

C

Air Quality Impacts

1

Eleven air quality monitoring stations throughout the region measure ambient air

pollutant concentrations to determine whether the region's air quality meets federal and

state standards. The region does not meet the state standards for emissions of respirable

particulate matter with an aerodynamic resistance diameter of 10 micrometers or less

(PM10) and fine particulate matter with an aerodynamic resistance diameter of 2.5

micrometers or less (PM2.5).15 The EIR forecasted the daily tonnage of on-road mobile

emissions of PM10 and PM2.5 from the transportation plan's transportation network

15 According to the EIR, "respirable" means the particulate matter can "avoid many of the human respiratory system defense mechanisms and enter deeply into the lung."

32 improvements would steadily and substantially increase from 2010 to 2050. The EIR did

not forecast whether there would be any increase in these emissions from regional growth

or land use changes associated with the transportation plan. Instead, the EIR indicated

such forecasting would be done during the next tier of environmental review.

Five of the region's air quality monitoring stations also sample toxic air

contaminants (TACs), which are contaminants known or suspected to cause cancer or

serious health problems, but for which there are no federal or state ambient air quality

standards. State law also requires facilities to report any emissions of TACs in order to

quantify the amount released, the location of the release, the concentrations to which the

public is exposed, and the resulting potential health risk. (Health & Saf. Code, § 44300

et seq.) In 2009, annual emissions of TACs in the region were estimated to be more than

64.9 million pounds.

According to the EIR, exposure to TACs can cause cancer and other serious health

problems. This is especially true of exposure to diesel particulate matter, which is

respirable (see fn. 15, ante). The EIR further explained, "The carcinogenic potential of

TACs is a particular public health concern because many scientists currently believe that

there is no 'safe' level of exposure to carcinogens. Any exposure to a carcinogen poses

some risk of contracting cancer."

One of the thresholds the EIR used to determine the significance of the

transportation plan's air quality impacts was whether sensitive receptors would be

exposed to substantial pollutant concentrations. For purposes of this threshold, "sensitive

33 receptors" included children, the elderly, and communities already experiencing high

levels of air pollution and related diseases.

As to PM10 and PM2.5 emissions, the EIR indicated sensitive receptors could be

significantly impacted if they were located near congested intersections. As to TACs, the

EIR indicated TACs emitted from highway vehicles and nonroad equipment tend to

impact those closest to the emission sources. The EIR explained, "[a] growing body of

scientific evidence shows that living or going to school near roadways with heavy traffic

volumes is associated with a number of adverse effects. These include increased

respiratory symptoms, increased risk of heart and lung disease, and elevated mortality

rates."

Although the EIR recognized regional growth and land use changes associated

with the transportation plan had the potential to expose sensitive receptors to substantial

localized pollutant concentrations, the EIR stated the level of exposure could not and

would not be determined until the next tier of environmental review when facility designs

of individual projects became available. The EIR made identical statements regarding

proposed transportation improvements associated with the transportation plan.

The EIR summarized several studies linking proximity to heavily traveled roads

and freeways to harmful health effects to children. The EIR also noted CARB had

estimated the region's health risk from diesel particulate matter in 2000 was 720 excess

cancer cases per million and had recommended sensitive land uses not be sited within

500 feet of a freeway, urban roads with 100,000 vehicles per day, and rural roads with

50,000 vehicles per day.

34 2

Cleveland contends the EIR's air quality impacts analysis violates CEQA because

the EIR's description of existing conditions does not adequately depict the public's

existing exposure to TACs. Cleveland contends the existing conditions description also

fails to identify the approximate number and location of sensitive receptors near planned

transportation projects. SANDAG, however, asserts its existing conditions description is

sufficiently detailed for a program level EIR. As these contentions focus on the

reasonableness of the EIR's analysis, they present predominately factual questions and

our review is for substantial evidence. (Vineyard, supra, 40 Cal.4th at p. 435; accord,

Smart Rail, supra, 57 Cal.4th at pp. 447-449; Communities for a Better Environment v.

South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 328.)

To fulfill its information disclosure function, "an EIR must delineate

environmental conditions prevailing absent the project, defining a baseline against which

predicted effects can be described and quantified." (Smart Rail, supra, 57 Cal.4th at

p. 447; see County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th

931, 953 [without an adequate baseline description, "analysis of impacts, mitigation

measures and project alternatives becomes impossible"]; Guidelines, § 15125, subd.

(a).)16 If the description of the environmental setting " 'is inaccurate, incomplete or

16 Guidelines section 15125, subdivision (a), provides: "An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and 35 misleading, the EIR does not comply with CEQA. [Citation.] "Without accurate and

complete information pertaining to the setting of the project and surrounding uses, it

cannot be found that the [EIR] adequately investigated and discussed the environmental

impacts of the development project." ' " (Clover Valley Foundation v. City of Rocklin

(2011) 197 Cal.App.4th 200, 219.)

In this case, for TACs exposures, the record shows there was available data from

monitoring stations and mandatory reports with which SANDAG could have developed a

reasoned estimate of the region's existing TACs exposures. Likewise, for sensitive

receptors, the record shows SANDAG has data showing current population and land use

patterns and current transportation infrastructure from which it could have developed a

reasoned estimate of the number and location of sensitive receptors adjacent to highways

and heavily traveled roadways.

The fact more precise information may be available during the next tier of

environmental review does not excuse SANDAG from providing what information it

reasonably can now. (Guidelines, § 15144.) Moreover, if known impacts are not

analyzed and addressed in a program EIR, they may potentially escape analysis in a later

tier EIR. (§ 21166; Citizens Against Airport Pollution v. City of San Jose, supra, 227

Cal.App.4th at pp. 807-808; Concerned Dublin Citizens v. City of Dublin, supra, 214

Cal.App.4th at p. 1320; Citizens for Responsible Equitable Environmental Development

v. City of San Diego, supra, 196 Cal.App.4th at pp. 531-532; Fort Mojave Indian Tribe v.

regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant."

36 Department of Health Services, supra, 38 Cal.App.4th at p. 1605.) We, therefore,

conclude there is not substantial evidence to support SANDAG's determination it could

not reasonably provide additional baseline information in the EIR about TACs exposures

and the location of sensitive receptors. The error is prejudicial because it precluded

informed public participation and decisionmaking. (§ 21005, subd. (a); City of Maywood,

supra, 208 Cal.App.4th at p. 386.)

3

Both the People and Cleveland contend the EIR's analysis of air quality impacts

fails to comply with CEQA because it fails to correlate the transportation plan's adverse

air quality impacts to resulting adverse health impacts. SANDAG again contends its

disclosure efforts are adequate for the program level of environmental review and

producing additional information at this level is infeasible. As with the parties' other

contention, this contention is predominantly factual and our review is for substantial

evidence. (Vineyard, supra, 40 Cal.4th at p. 435.)

"Guidelines section 15126.2, subdivision (a) requires an EIR to discuss, inter alia,

'health and safety problems caused by the physical changes' that the proposed project will

precipitate." (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124

Cal.App.4th 1184, 1219 (Bakersfield Citizens).) Accordingly, an EIR must identify and

analyze the adverse health impacts likely to result from the project's air quality impacts.

(Id., at p. 1220; Berkeley Keep Jets Over the Bay Com. v. Board of Port Comrs., supra,

91 Cal.App.4th at pp. 1367-1371.)

37 Here, the EIR identified in a general manner the adverse health impacts that might

result from the transportation plan's air quality impacts. However, the EIR failed to

correlate the additional tons of annual transportation plan-related emissions to anticipated

adverse health impacts from the emissions. Although the public and decision makers

might infer from the EIR the transportation plan will make air quality and human health

worse, at least in some respects for some people, this is not sufficient information to

understand the adverse impact. (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1220

[EIR analysis of air quality impacts deficient where public would have no idea of the

health consequences of increased air pollution].)

While SANDAG contends it is not feasible to provide more definite information at

this juncture, we have not located nor has SANDAG identified any evidence in the record

supporting this contention. Instead, SANDAG impermissibly relies solely on its own

bald assertions of infeasibility contained in the EIR. (City of Maywood, supra, 208

Cal.App.4th at p. 385 [an EIR must contain facts and analysis, not just the agency's bare

conclusions].) Certainly, we recognize there are limitations to the precision of a

program-level analysis. SANDAG is nonetheless obliged to disclose what it reasonably

can about the correlation, it has not done so, and there is not substantial evidence

showing it could not do so. The error is prejudicial because it precluded informed public

38 participation and decisionmaking.17 (§ 21005, subd. (a); City of Maywood, supra, at

p. 386.)

4

a

To mitigate the transportation plan's air quality impacts, the EIR identified the

following mitigation measures:

1. Local jurisdictions should incorporate into their land use decisions certain

measures recommended by the California Attorney General for reducing greenhouse gas

emissions.

2. At the next tier of environmental review, SANDAG will and other

implementing agencies should incorporate certain dust control measures into project

specifications for transportation network improvements.

3. At the next tier of environmental review, SANDAG will and other

implementing agencies should require any heavy duty off-road vehicles used to construct

transportation network improvements to utilize all feasible measures to reduce specified

emissions to a less than significant level.

4. At the next tier of environmental review, SANDAG will and other

implementing agencies should evaluate potential impacts from carbon monoxide, PM10

17 Given this conclusion and its bases, we need not decide the People's conditional motion for judicial notice of examples of correlative information contained in comparable EIRs from other jurisdictions.

39 and PM2.5 emissions and their health risks and, if required, add one or more

recommended mitigation measures to reduce the emissions.

The EIR further concluded these were the only mitigation measures available at

the program-level of environmental review.

b

Both the People and Cleveland contend these measures, except for the second,

violate CEQA because they improperly defer mitigation of the transportation plan's

significant air quality impacts. SANDAG once more counters these measures are

adequate for the program level of environmental review.

This issue, like the issue involving the mitigation of greenhouse gas emissions

impacts, is at least partially moot given our conclusion in parts III.C.2 & 3, ante, as the

additional analysis necessary to correct the noted deficiencies will likely require revisions

to related sections of the EIR, including the discussion of mitigation measures.

(Communities for a Better Environment v. City of Richmond, supra, 184 Cal.App.4th at

p. 91.) However, we briefly address the People's and Cleveland's contentions. As these

contentions are predominantly factual, our review is for substantial evidence. (Vineyard,

supra, 40 Cal.4th at p. 435.)

"An EIR shall describe feasible measures which could minimize significant

adverse impacts. (Guidelines, § 15126.4, subd. (a)(1).) An EIR may not defer the

formulation of mitigation measures to a future time, but mitigation measures may specify

performance standards which would mitigate the project's significant effects and may be

accomplished in more than one specified way. (Id., subd. (a)(1)(B).)

40 "Thus, ' " 'for [the] kinds of impacts for which mitigation is known to be feasible,

but where practical considerations prohibit devising such measures early in the planning

process (e.g., at the general plan amendment or rezone stage), the agency can commit

itself to eventually devising measures that will satisfy specific performance criteria

articulated at the time of project approval. Where future action to carry a project forward

is contingent on devising means to satisfy such criteria, the agency should be able to rely

on its commitment as evidence that significant impacts will in fact be mitigated.' " '

[Citation.] Conversely, ' "[i]mpermissible deferral of mitigation measures occurs when

an EIR puts off analysis or orders a report without either setting standards or

demonstrating how the impact can be mitigated in the manner described in the EIR." ' "

(Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 280-281.)

In this case, with one exception, the EIR defers the analysis of appropriate

mitigation measures. It also fails to set performance standards and commit SANDAG to

complying with them. Although SANDAG contends no other mitigation is feasible at the

program level of environmental review, we have not located nor has SANDAG pointed to

any evidence in the record supporting this contention. Accordingly, we conclude there is

not substantial evidence to support SANDAG's determination the EIR adequately

addressed mitigation for the transportation plan's air quality impacts. The error is

prejudicial because it precluded informed public participation and decisionmaking.

(§ 21005, subd. (a); City of Maywood, supra, 208 Cal.App.4th at p. 386.)

41 D

Agricultural Impacts

1

The EIR evaluated the transportation plan's agricultural impacts under two

significance thresholds. Under the first threshold, the EIR evaluated the impacts to land

designated prime farmland, unique farmland or farmland of statewide significance under

the California Resources Agency's Farmland Mapping and Monitoring Program.18 The

EIR concluded implementation of the transportation plan would result in the conversion

of 3,485.09 acres of such farmland by 2050.

Under the second threshold, the EIR evaluated impacts to all land with existing

agricultural uses regardless of classification, lands subject to Williamson Act contracts,

and lands designated under the California Farmland Conservancy Program Act.19 The

EIR concluded implementation of the transportation plan would result in the conversion

18 According to the EIR, the Farmland Mapping and Monitoring Program is used to identify agricultural resources of 10-acres or more. "Farmlands are classified according to soil factors, including available water holding capacity, temperature regime, acidity, depth to the water table, electrical conductivity, flooding potential, erosion hazard, permeability, rock content, and rooting depth. The best quality land is identified as Prime Farmland and Farmland of Statewide Importance."

19 According to the EIR, "the Williamson Act [Gov. Code, § 51200 et seq.] enables local governments to enter into contracts with private landowners for the purpose of restricting specific parcels of land to agricultural or related open space use. In return, landowners receive property tax assessments that are much lower than normal because they are based upon farming and open space uses as opposed to full market value." The California Farmland Conservancy Program Act (§ 10200 et seq.) encourages "the long-term, private stewardship of agricultural lands through the voluntary use of agricultural conservation easements."

42 of 7,023.07 acres of such land by 2050. The conclusion was based on data from the

Farmland Mapping and Monitoring Program augmented with data from SANDAG's own

geographic information system.

2

a

Cleveland contends the EIR violates CEQA by understating the transportation

plan's growth-induced impacts on agricultural lands. As this contention is predominantly

factual, our review is for substantial evidence. (Vineyard, supra, 40 Cal.4th at p. 435.)

As we have previously indicated, when reviewing the adequacy of an EIR's

disclosures, we are chiefly concerned with whether the EIR reasonably fulfills its

function of facilitating informed decisionmaking. An analysis which understates the

severity of a project's impacts "impedes meaningful public discussion and skews the

decisionmaker's perspective concerning the environmental consequences of the project,

the necessity for mitigation measures, and the appropriateness of the project approval."

(Citizens to Pres. the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 431.)

In this case, both of the data sets used to analyze the transportation plan's

agricultural impacts have important limitations. The Farmland Mapping and Monitoring

Program does not capture information for farmland under 10 acres. In addition,

according to SANDAG, its own geographic information system's inventory of

agricultural land may not include any agricultural lands that went into production after

the mid-1990s. The combined effect of these limitations is that there is not substantial

evidence to show the EIR's analysis accounted for impacts to farmland of less than 10

43 acres put into production within the last 20 years. The error necessarily prejudiced

informed public participation and decisionmaking because 68 percent of the farmland in

the County is between one and nine acres, with the average farm size being four acres.

(§ 21005, subd. (a); City of Maywood, supra, 208 Cal.App.4th at p. 386.)

While SANDAG correctly points out CEQA permits the use of data from the

Farmland Mapping and Monitoring Program to analyze a project's agricultural impacts

(Guidelines, Exhibit G), CEQA does not mandate the use of such data nor does it insulate

an EIR from further scrutiny if the EIR relies on the data. Moreover, because the

transportation plan included the sustainable communities strategy, SANDAG was

required by statute to "gather and consider the best practically available scientific

information regarding resource areas and farmland in the region . . . ." (Gov. Code,

§ 65080, subd. (b)(2)(B)(v).) By choosing a methodology with known data gaps,

SANDAG produced unreliable estimates of the amount of existing farmland and,

consequently, unreliable estimates of the transportation plan's impacts to existing

farmland. Accordingly, SANDAG failed to comply with its statutory obligation as well

as CEQA's information disclosure requirements.

b

Finally, in addition to Cleveland's general contention that the EIR understated the

transportation plan's agricultural impacts, Cleveland raises two specific contentions: (1)

the EIR failed to disclose and analyze the transportation plan's impacts to small farms;

and (2) the EIR's discussion of impacts to agricultural land from growth inaccurately

assumed land converted to a rural residential designation would remain farmland.

44 SANDAG counters Cleveland is precluded under section 21177, subdivision (a), from

raising these two specific contentions because Cleveland never exhausted its

administrative remedies as to them.20 Except to the extent the specific contentions are

subsumed within the general contention, we agree.

"A CEQA challenge is not preserved 'unless the alleged grounds for

noncompliance with [CEQA] were presented to the public agency orally or in writing by

any person during the public comment period provided by this division or prior to the

close of the public hearing . . . .' [Citation.] 'Exhaustion of administrative remedies is a

jurisdictional prerequisite to maintenance of a CEQA action.' [Citation.]

" 'To advance the exhaustion doctrine's purpose "[t]he 'exact issue' must have been

presented to the administrative agency . . . ." [Citation.] While " 'less specificity is

required to preserve an issue for appeal in an administrative proceeding than in a judicial

proceeding' because, . . . parties in such proceedings generally are not represented by

counsel . . . ' [citation]" [citation], "generalized environmental comments at public

hearings," "relatively . . . bland and general references to environmental matters"

[citation], or "isolated and unelaborated comment[s]" [citation] will not suffice. The

same is true for " '[g]eneral objections to project approval . . . .' [Citations.]" [Citation.]

20 Section 21177, subdivision (a), provides: "An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." 45 " '[T]he objections must be sufficiently specific so that the agency has the opportunity to

evaluate and respond to them.' " ' [Citation.]

" ' "The petitioner bears the burden of demonstrating that the issues raised in the

judicial proceeding were first raised at the administrative level. [Citation.]" [Citation.]

An appellate court employs a de novo standard of review when determining whether the

exhaustion of administrative remedies doctrine applies.' " (Citizens for Responsible

Equitable Environmental Development v. City of San Diego, supra, 196 Cal.App.4th at

p. 527.)

Cleveland has not met its burden in this case. Before SANDAG approved the

EIR, Cleveland submitted a letter commenting on the EIR's analysis of agricultural

impacts from growth as follows: "[T]he [EIR] states that approximately 10,500[21] acres

of agricultural land will be impacted due to regional growth and land use change by the

year 2050. [Citations.] The [EIR] also acknowledges that its regional growth projections

are based on current planning assumptions for San Diego County and the jurisdictions

therein. [Citation.] However, the EIR for the County's current General Plan update,

which by definition reflects current planning assumptions (as of 2011), shows that the

General Plan expects 55,963 acres of agricultural land to convert to non-agricultural uses

by the year 2030. [Citation.] Even though they account for conditions expected to exist

20 years sooner, these impacts are more than five times greater than the impacts

identified in the [transportation plan's EIR].

21 This figure apparently represents the combined total of the impacts identified under both significance thresholds (see part III.D.1, ante). 46 "It is not clear how the [EIR] could use current planning assumptions for growth

and determine that there will be only 10,500 acres of agricultural land impacted, when the

current plans on which it bases its assumptions assume there will be more than five times

as many acres impacted. SANDAG must explain if there is a basis for this discrepancy.

Without any such explanation, the [EIR] appears to severely underestimate the amount of

agricultural land that will be impacted, in contravention of CEQA. [¶] In sum, the

[EIR's] failure to accurately account for impacts to agricultural land renders it inadequate

as a matter of law."

Even read liberally, Cleveland's comment letter did not fairly apprise SANDAG

that Cleveland had specific concerns about the EIR's handling of impacts to small farms

and lands redesignated rural residential. Instead, Cleveland's comment letter focused on

the discrepancy between SANDAG's estimate of overall growth-induced impacts and the

County's estimate of overall growth-induced impacts. Cleveland cites to no other place

in the record where any other person or organization raised specific concerns about the

EIR's handling of impacts to small farms and lands designated rural residential.

Consequently, Cleveland has not demonstrated exhaustion of administrative remedies as

to these concerns.

47

DISPOSITION

The matter is remanded to the superior court with directions to modify the

judgment and writ of mandate to incorporate our decision on the cross-appeals. The

judgment is affirmed as so modified. The People and Cleveland are awarded their appeal

and cross-appeal costs.

MCCONNELL, P. J.

I CONCUR:

IRION, J.

48 BENKE, J., Dissenting.

My colleagues and I have vastly different views on the extent to which this court

can and should control environmental review of the planning decisions of a regional

transportation agency such as the San Diego Association of Governments (SANDAG).

Where the majority, as a result of the alleged inadequacy of the environmental impact

report's (EIR) analysis of greenhouse gas (GHG) impacts, would strike down the EIR

implementing SANDAG's regional transportation plan (RTP) calling for investment of

about $214 billion over the next several decades in the San Diego region, I would not.

Where the majority purports to enforce the California Environmental Quality Act

(CEQA) and its Guidelines,1 I believe my colleagues weaken and confuse the law. Thus,

although I conclude that substantial evidence supports the finding SANDAG's GHG

impacts analysis is CEQA-compliant, I preface that substantial evidence analysis with the

following observations and concerns.

In order to understand the full impact of my colleagues' decision regarding the

adequacy of SANDAG's assessment of the GHG impacts of the project, it is first

necessary to define a "threshold of significance." CEQA requires "[a]ll public agencies

. . . adopt by ordinance, resolution, rule, or regulation, objectives, criteria, and procedures

for the evaluation of projects and the preparation of environmental impact reports." (Pub.

Resources Code, § 21082.)2 Such "objectives, criteria, and procedures" are also known

1 Citations to "Guidelines" refer to California Code of Regulations, title 14, section 15000 et seq., which are the guidelines for the application of CEQA. (Cal. Code Regs., tit. 14, §§ 15000, 15001.)

2 All further statutory citations refer to the Public Resources Code unless otherwise indicated. as "thresholds of significance" and are used by an agency as a benchmark in determining

the significance of environmental effects of a project. (Guidelines, § 15064.7, subd. (a).)

A threshold of significance for GHG impacts may be accompanied by a plan to achieve

the reduction or mitigation of GHG emissions, but the plan must be adopted through a

public review process. (Guidelines, § 15064.4, subd. (b)(3).)

Executive Order No. S-3-05, signed in 2005 by then Governor Arnold

Schwarzenegger (Executive Order), does not unilaterally qualify as a threshold of

significance. To reach this conclusion, one need go no further than our Supreme Court's

opinion of Professional Engineers in California Government v. Schwarzenegger (2010)

50 Cal.4th 989 (Professional Engineers). In Professional Engineers, the court concluded

that an executive order, which attempted to implement a mandatory furlough program

during our state's fiscal crisis, had no foundation in the state constitution or existing

statutes. In particular, the court noted "the Governor fails to cite any judicial decision or

other supporting authority holding or suggesting that the power under the California

Constitution to establish or revise the terms and conditions of state employment, even in

a fiscal emergency, resides in the Governor (or any other executive officer or entity)

rather than in the Legislature. To the contrary, the following is well established: (1)

Under the California Constitution it is the Legislature, rather than the Governor, that

generally possesses the ultimate authority to establish or revise the terms and conditions

of state employment through legislative enactments, and (2) any authority that the

Governor or an executive branch entity . . . is entitled to exercise in this area emanates

from the Legislature's delegation of a portion of its legislative authority to such executive

officials or entities through statutory enactments." (Id. at p. 1015.)

2 The court in Professional Engineers likewise rejected the Governor's argument

that his power to impose a mandatory work furlough program through an executive order

was supported by statutes, including several specific statutory provisions. Among the

factors noted contrary to this position, the court recognized that "the Legislature has

demonstrated a special interest in retaining . . . [the] ultimate control over the salary and

wages of such employees." (Professional Engineers, supra, 50 Cal.4th at p. 1024.) The

court held that the mandatory furlough program was valid only because the Legislature,

"through the exercise of its own legislative prerogative," independently adopted the

program. (Id. at p. 1047.)

Similarly, the Executive Order at issue in this case, which includes statewide GHG

reduction targets for 2020, 2035 and 2050, was at its inception merely a broad policy

statement of goals issued by the Governor. Like the order at issue in Professional

Engineers, it too does not have an identifiable foundation in the constitutional power of

the Governor or in statutory law.

The majority cites no judicial decision or other supporting authority holding or

even suggesting that the power to establish thresholds of significance, qualitative or

quantitative, resides in the Governor rather than in the Legislature. Nor is there any

authority supporting the view that the Legislature has delegated to the Governor any

power to enact or establish thresholds of significance, including with respect to GHG at

issue in this case.

To the contrary, as I discuss, the Legislature has clearly demonstrated it intends to

retain ultimate control over the regulation of environmental planning. It has vested in the

California Air Resources Board (CARB) the responsibility for coordinating efforts to

3 attain and maintain ambient air quality standards, to conduct research into the causes of

and solution to air pollution, and systematically attack the serious problem caused by

motor vehicles. (Health & Saf. Code, § 39003.) It also has limited by statute the ability

of courts to add substantive or procedural requirements to CEQA provisions. (Pub.

Resources Code, § 21083.)

The majority is either unable or unwilling to expressly declare its position on

whether the Executive Order is a threshold of significance as that term is employed in

CEQA analysis. I sympathize with their apparent uneasiness. If the majority declares the

Executive Order is a threshold of significance, it is faced with the reality that the

Executive Order simply does not meet the requirements necessary to have attained that

status. If it expressly acknowledges that the Executive Order is not a threshold of

significance, then it must also acknowledge that SANDAG is quite correct that it was not

required to employ it as a CEQA measuring stick in assessing compliance.

My colleagues attempt to avoid the dilemma altogether. They offer that the policy

underlying the Executive Order is of such overarching importance that it must be

included within the significance factors listed in Guidelines section 15064.4, subdivision

(b), and, therefore, SANDAG was required to consider that policy in what they

euphemistically refer to as a "consistency analysis" involving the GHG impacts of its

project and the Executive Order. Because SANDAG failed to provide such a policy

analysis in its EIR, my colleagues conclude SANDAG abused its discretion. By this

exercise in linguistics, the majority in contravention of Professional Engineers has

elevated the Executive Order to the status of a threshold of significance without ever

having to expressly declare they are doing so. Its action is judicial fiat, pure and simple.

4 The majority seeks support for its new formulation of the law by noting that

important legislation has sprung from the Executive Order, and they offer that the

Executive Order will continue to be the springboard for legislative action. Relying on

Professional Engineers, the majority also concludes the policy underlying the Executive

Order has been "ratified" by subsequent legislation. (Maj. opn. ante, at p. 14.) If, by this

reasoning, the majority implies that subsequent environmental legislation somehow

bestowed on the Executive Order a power it did not have, I believe it is mistaken. As

Profession Engineers recognizes, our Legislature acts independently. As I discuss, the

fact that the Legislature has enacted environmental legislation in recognition of the

Executive Order's goals does not bestow on the Executive Order any more power than it

had before the Legislature acted.

Moreover, although the Legislature has exercised its own independent prerogative

by tasking CARB with adopting regional GHG reduction targets for 2020 and 2035, it

has not done so for 2050. As I also discuss, the Legislature is currently considering a

comprehensive and complex plan for 2050 that tasks the CARB to establish regional

targets. It is possible the Legislature may alter the Executive Order's 2050 goals or reject

them altogether. Using the majority's own logic, the Legislature has not ratified the

Executive Order's qualitative or quantitative goals for 2050.

It is true, of course, that qualitative thresholds of significance are acceptable in

assessing significance. (See Guidelines, § 15064.7, subd. (a).) However, qualitatively

addressing the policy and sciences underlying the Executive Order—if this in fact is what

the majority means by a "consistency analysis"—adds little if any meaning to the

discussion of the significance of GHG impacts. SANDAG considered in its EIR the

5 important public policy of GHG emissions reduction in implementing its project. It

acknowledged the Executive Order and its goals. It concluded the 2050 goal in that order

was not at this time applicable. The purpose of remand is therefore unclear to me if the

majority merely requires additional, undefined consideration of the qualitative aspects of

the Executive Order.

Quantitatively speaking, as noted, SANDAG in its EIR considered, but did not

use, the 2050 GHG reduction targets set forth in the Executive Order. Until the

Legislature independently acts and tasks the CARB with adopting regional 2050 GHG

emissions reduction targets, SANDAG in my view was not required to consider in its EIR

the broad 2050 statewide goals set forth in the Executive Order. (See Professional

Engineers, supra, 50 Cal.4th at p. 1047.)

The majority states that it is not requiring SANDAG's project to "achieve the

Executive Order's 2050 goal or any other specific numerical goal" in undertaking the

now-required "consistency analysis." (Maj. opn. ante, at p. 15, fn. 6.) This comes as

little surprise, inasmuch as an EIR is merely an "informational document." (See

Guidelines, § 15003, subd. (i).)

Nonetheless, whether qualitative or quantitative, it is not clear to me how, in

assessing the significance of GHG impacts of the project—including for 2050—a lead

agency is supposed to adopt from the Executive Order regional GHG emissions reduction

targets. The majority appears to answer this question by stating SANDAG can determine

its "share" of GHG emissions reduction responsibility from theoretical targets. With

respect to SANDAG's share of responsibility, it is important to emphasize what the

majority has not acknowledged: SANDAG is responsible only for its "fair share" when

6 assessing significance. Establishing an agency's "fair share" is a complex and science-

based process. It begins by recognizing that the level of GHG emissions is a statewide

problem encompassing a diverse array of emitters. Included in the array is not only

transportation but also, for example, land use and development, agriculture, electricity

generation, forestry, and industrial sectors. The analysis of GHG impacts thus involves

emissions across sectors both within SANDAG's planning discretion (i.e., transportation

and land use) and outside SANDAG's planning discretion (i.e., heavy industry).

SANDAG is not empowered or equipped to offer and use analyses in statewide sectors

over which it has no control.

The point is SANDAG, unlike the CARB, is a regional and not a state agency.

Without a model addressing regional GHG emissions reduction targets between 2035 and

2050, it is impossible for SANDAG in its RTP to conduct a "consistency analysis" for

these years of study.

As the lack of substance in the now-required "consistency analysis" attests, there is

little to say except that, in the world of GHG emissions, "more of them are bad and less is

good." It is a reasonable conclusion here that the SANDAG Board of Directors,

comprised of locally elected officials from San Diego County and the 18 cities in the

region, are already well aware of this. The EIR in any event recognizes the important

policy goal of reducing GHG emissions.

As I discuss, there is legislation currently pending tasking the CARB with setting

state and regional targets for 2050. This pending legislation further demonstrates my

point that the Legislature has not yet independently adopted the Executive Order's 2050

statewide GHG emissions reduction goals. Once the CARB sets these regional targets,

7 which incidentally, may be different than the Executive Order's statewide goal,

SANDAG and the other 18 metropolitan planning agencies (MPO's) throughout the state

can then use them to determine their "fair share" of GHG emissions in analyzing the

significance of GHG impacts of their projects. I fear the majority's demand that

SANDAG "do more" now based on mere policy goals and/or theoretical targets, and

without providing any guidance as to what more should be done, will in effect require

SANDAG to set unilaterally 2050 regional GHG reduction targets in order to try to

satisfy, somehow, the majority's "consistency analysis." In doing so, it may take action

that ultimately conflicts with requirements set by CARB.

Perhaps the most profound harm arising from the majority's finesse of CEQA is

the lasting damage it does to Guidelines section 15064.4. This section gives a lead

agency substantial discretion to determine both the amount of GHG emissions from a

project and whether such emissions are significant. Subdivision (b) of Guidelines section

15064.4 in particular states that in assessing GHG impacts, the lead agency should

consider three factors, among others. One such factor expressly gives a lead agency the

discretion to determine the thresholds of significance that should apply to its project in

determining significance. (Guidelines, § 15064.4, subd. (b)(2).) To the extent thresholds

of significance other than the three expressly provided in subdivision (b) apply, that

should be a determination made by an agency in the proper exercise of its discretion.

It is apparent to me that identifying and selecting thresholds of significance is not

a judicial function. Despite the clear language of Guidelines section 15064.4, subdivision

(b) and the obvious intent of that section, the majority asserts a right to determine that a

gubernatorial policy statement, which does not qualify as a threshold of significance, is to

8 be included among the "other factors" and then orders SANDAG on remand to develop

an undefined "consistency analysis" between the lead agency's plan and the policy

statement.

This insinuation of judicial power into the environmental planning process and

usurping of legislative prerogative is breathtaking. Now we, the courts, without

institutional planning expertise or knowledge, get to tell a lead agency what it must use as

a threshold of significance. As a consequence of not being prescient enough to know

what a court might select, the EIR's of projects such as this RTP, which, as noted, calls

for investment of about $214 billion in the San Diego region over the next few decades,

are invalidated and sent back to the lead agency to anticipate what we, the court, might

next decide is or has become of such critical policy significance that the agency must use

it as a threshold of significance. There is no legal support for our action, which strips

lead agencies of the discretion vested in them by the Legislature and reposes that

discretion in the courts. To be clear, I do not believe our action expands Guidelines

section 15064.4; instead, I believe it destroys the integrity of that section. (See Maj. opn.

ante, at p. 20, fn. 9.)

The mischief caused by the majority would not be confined to the SANDAG

region. The majority would have each of our states' six appellate districts, and multiple

divisions within many of them, instructing the 18 MPO's regarding whether a

"consistency analysis" is required based on, for example, the Executive Order, and, if so,

what it should contain. It does not take much energy to foresee the permutations possible

as each MPO receives judicial instruction. Chaos in environmental planning comes to

mind.

9 The Legislature, in its wisdom, has foreseen the kind of damage we do today, and

it has taken steps to forbid such judicial interference. First, the Legislature vested one

agency, CARB, with creating the targets and metrics in assessing, and ultimately

reducing, GHG emissions regionally and statewide. (Health & Saf. Code, § 39003.)

Second, it has, in CEQA itself, expressly prevented courts from selecting what "other

factors" an agency should consider in assessing significance of GHG impacts.

Indeed, section 21083.1 provides the legislative intent underlying CEQA and the

interpretation of its statutes and guidelines by our courts: "It is the intent of the

Legislature that courts, consistent with generally accepted rules of statutory

interpretation, shall not interpret this division or the state guidelines adopted pursuant to

Section 21083 in a manner which imposes procedural or substantive requirements beyond

those explicitly stated in this division or in the state guidelines." Judicial imposition of

significance thresholds does precisely what the statute prohibits.

As I discuss in more detail post, I conclude substantial evidence in the record

shows SANDAG made a good faith and reasonable effort to analyze in its EIR the GHG

impacts of its project. In its 39-page GHG impacts analysis, SANDAG, as noted,

analyzed the targets set by the CARB for 2020 and 2035 under three thresholds of

significance, in compliance with Guidelines section 15064.4. I thus would reverse the

trial court's order finding SANDAG's GHG impacts analysis of the project was

inadequate, including because SANDAG did not address the 2050 GHG statewide

reduction goals set forth in the Executive Order.

As to the cross-appeal, because the trial court declined to reach those issues and

because the majority in any event is remanding the matter with respect to the EIR's

10 treatment of GHG impacts and mitigation measures of the project, I would defer the

issues raised in the cross-appeal to the trial court for consideration in the first instance. I

do, however, note that our instructions on remand include what appears to be a directive

that SANDAG consider further analysis of mass transportation. This directive, coupled

with the vague requirement of a "consistency analysis," leaves me with an uncomfortable

feeling that some might believe that, in sending this case back, we are sub rosa directing

SANDAG to shift the emphasis in its plan to mass transportation. If that is a direction in

which we inadvertently venture, I would only comment that it is not a journey we are

empowered or equipped to undertake.

DISCUSSION

I

GHG Impacts

A. Regulation of GHG by the CARB

On June 1, 2005, at the United Nations World Environment Day in San Francisco,

Governor Schwarzenegger signed the Executive Order in front of hundreds of

international leaders. The Governor told his invited guests, which included mayors from

more than 70 cities from around the world, that the "debate" over global warming from

GHG emissions was "over." (Marshall, Schwarzenegger Issues Plan to Reduce

Greenhouse Gases (June 2, 2005) N.Y. Times

national/02arnold.html?_r=0> [as of November 2014].)

The Executive Order established the following statewide reduction targets for

greenhouse gas emissions: by 2010, to 2000 levels; by 2020, to 1990 levels; and by 2050,

to 80 percent below 1990 levels. It also directed the California Environmental Protection

11 Agency (Cal-EPA) to develop strategies to meet these targets. In response, the "Climate

Action Team," comprised of representatives from various agencies and commissions

including the Cal-EPA and the CARB, was created. (See Rialto Citizens for Responsible

Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 938; see also Comment,

Quantifying an Uncertain Future: The Demands of the California Environmental Quality

Act and the Challenge of Climate Change Analysis (2012) McGeorge L.Rev. 1065, 1068-

1069.)

Although the Executive Order provided the "power" for its issuance was derived

from "the Constitution and statutes of the State of California," that order did not identify

any article, section and/or statute as the source of this alleged authority. In any event, as

noted, I do not believe our Constitution, including article V, vested the Governor with the

authority to singlehandedly issue and enforce the Executive Order. (See, i.e.,

Professional Engineers, supra, 50 Cal.4th at p. 1015 [rejecting the argument the governor

had the unilateral authority to implement a mandatory furlough program].) I also do not

believe that our Legislature expressly granted that authority to the Governor. (See id. at

p. 1000.) Therefore, I believe the GHG statewide emission reduction targets set forth in

the Executive Order are nothing more than mere policy recommendations unless and until

our Legislature independently acts to adopt such targets, which, as I explain, it has done

for 2020 and 2035, but not for 2050. (See ibid.)

The Executive Order was by no means the first attempt in our state to address

GHG emissions. In 2002, our Legislature passed a law regulating GHG vehicle

emissions. (See Stats. 2002, ch. 200, enacting Assem. Bill No. 1493 (2001-2002 Reg.

Sess.) (AB 1493).) Under this law, the CARB was required to develop and adopt, by

12 January 1, 2005, "regulations that achieve the maximum feasible and cost-effective

reduction of greenhouse gas emissions from motor vehicles." (Health & Saf. Code,

§ 43018.5, subd. (a).) In enacting this law, our Legislature noted that the "control and

reduction of emissions of greenhouse gases are critical to slow the effects of global

warming." (Stats. 2002, ch. 200, § 1(c).) Thus, AB 1493 shows that our state policy of

reducing GHG emissions did not originate with the 2005 Executive Order, as the majority

appears to suggest, but rather was in existence before the Executive Order was issued.3

The California Global Warming Solutions Act of 2006 (Health & Saf. Code,

§ 38500 et seq., added by Stats. 2006, ch. 488, § 1, enacting Assem. Bill No. 32 (AB 32))

implemented the 2020 reduction target set forth in the Executive Order. (See Health &

Saf. Code, § 38550; see also Rialto Citizens for Responsible Growth v. City of Rialto,

supra, 208 Cal.App.4th at p. 939.) AB 32 directed the CARB to develop a "scoping plan

. . . for achieving the maximum technologically feasible and cost-effective reductions in

greenhouse gas emissions from sources or categories of sources of greenhouse

gases . . . ." (Health & Saf. Code, § 38561, subd. (a); see Health & Saf. Code, § 38562,

subd. (a) [requiring the CARB to "adopt greenhouse gas emission limits and emission

reduction measures by regulation . . . to become operative beginning on January 1,

2012"]; see also Association of Irritated Residents v. State Air Resources Bd. (2012) 206

Cal.App.4th 1487, 1490 [noting AB 32 designated the CARB as "'the state agency

3 Our Legislature as early as 1975 tasked the CARB with the responsibility of "coordinating efforts to attain and maintain ambient air quality standards, to conduct research into the causes of and solution to air pollution, and to systematically attack the serious problem caused by motor vehicles, which is the major source of air pollution in many areas of the state." (Health & Saf. Code, § 39003.)

13 charged with monitoring and regulating sources of emissions of greenhouse gases that

cause global warming in order to reduce emissions of greenhouse gases' . . . and imposes

numerous directives and timelines on the [CARB]"].)

To assist an agency in its analysis of GHG emissions in CEQA review, our

Legislature in 2007 enacted, among other provisions, section 21083.05 (added by Stats.

2007, ch. 185, § 1, enacting Sen. Bill No. 97 (SB 97)).4 SB 97 directed the Office of

Planning and Research (OPR) to prepare and submit to the Natural Resources Agency

(NRA) "guidelines for the mitigation of greenhouse gas emissions or the effects of

greenhouse gas emissions . . . including, but not limited to, effects associated with

transportation or energy consumption." (Former § 21083.05, subd. (a).) SB 97 further

provided that the OPR and NRA "shall periodically update the guidelines to incorporate

new information or criteria" established by the CARB pursuant to AB 32. (Id., subd. (c).)

The NRA adopted regulations on the significance of GHG emissions for CEQA,

which were then incorporated into the CEQA Guidelines including, as perhaps most

relevant here, Guidelines section 15064.4, discussed post.5

In 2008, our Legislature passed the Sustainable Communities and Climate

Protection Act of 2008 (Sen. Bill No. 375 (2007-2008 Reg. Sess.)). As the majority

recognizes, SB 375 supports the state's climate action goals to reduce GHG emissions

through coordinated transportation and land use planning. Under SB 375, the CARB—

4 SB 97 was amended effective January 1, 2013. (Stats. 2012, ch. 548, § 5.)

5 "In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428, fn. 5.)

14 once again—was directed to provide each region by no later than September 30, 2010

with GHG emission "reduction targets for the automobile and light truck sector for 2020

and 2035, respectively." (Gov. Code, § 65080, subd. (b)(2)(A).) Once these targets were

established by the CARB, each of the state's MPO's was required to prepare under

Government Code former section 65080, subdivision (b)(2) a "sustainable communities

strategy" (SCS) as part of the MPO's RTP. (See Gov. Code, former § 65080, subd.

(b)(2).)6

In developing the SCS, SB 375 required each MPO to "conduct at least two

informational meetings . . . within the region for members of the board of supervisors and

city councils" on the SCS. (Gov. Code, § 65080, subd. (b)(2)(E).) The purpose of the

meetings was to "discuss the [SCS] . . . , including the key land use and planning

assumptions to the members of the board of supervisors and the city council members in

that county and to solicit and consider their input and recommendations." The SCS, if

and when implemented, would allow the MPO to reach the GHG reduction targets

established by the CARB. If those targets were unmet, the MPO would be required to

prepare an alternative planning strategy to the SCS. (Gov. Code, § 65080, subd.

(b)(2)(E).)

As the agency responsible for "target-setting" GHG emissions reductions, the

CARB in 2010 created reduction targets for SANDAG's MPO region for 2020 and 2035.

6 Government Code section 65080 was amended effective January 1, 2010 (Stats. 2009, ch. 354, § 1) and again effective January 1, 2011 (Stats. 2010, ch. 328, § 95). The requirement of an SCS as part of an MPO's RTP remains in the current version of Government Code section 65080, subdivision (b).

15 SANDAG used these targets in addressing in its EIR the GHG impacts of the project.

However, as SANDAG properly recognized in its EIR impact analysis, the CARB has

not yet set 2050 GHG emissions reduction targets for the MPO's. As noted and as I

discuss, there is legislation currently pending, Assembly Bill No. 2050 (AB 2050), that

would require the CARB to do so.7

Thus, our Legislature has recognized the strong public policy of GHG emissions

reductions in our state and has fully occupied this enormously complex field by

delegating the "target-setting responsibility" of such reductions to the CARB through a

series of comprehensive legislative enactments, including in AB 32, SB 97 and SB 375.8

7 According to a recent summary prepared by the Senate Appropriations Committee, AB 2050 would amend SB 32 by requiring "the California Air Resources Board (CARB) to develop greenhouse gas (GHG) emissions reductions goals for 2050, including intermediate goals, and to perform a number of analyses of the strategies that would be required to reach those goals" for purposes of the next scoping plan update. (Sen. Appropriations. Com., analysis of Assem. Bill No. 2050 (2013-2014 Reg. Sess.) p. 1.)

8 This list is not exhaustive. For example, in 2010 legislation was enacted requiring the Department of Transportation to update the federally mandated California Transportation Plan (CTP) by December 31, 2015 and every five years thereafter. (Gov. Code, §§ 65070, subd. (a) & 65071.) The CTP requires identification of a "statewide integrated multimodal transportation system" that includes among other requirements the incorporation of all SCS and/or alternate planning strategies required by SB 375. (Gov. Code, § 65072.2) "In developing the [CTP] . . . , the department shall address how the state will achieve maximum feasible emissions reductions in order to attain a statewide reduction of [GHG] emissions to 1990 levels by 2020 as required by [AB 32] and 80 percent below 1990 levels by 2050." (Ibid.) The CTP must include: "(a) A policy element that describes the state's transportation policies and system performance objectives. These policies and objectives shall be consistent with legislative intent described in Sections 14000, 14000.5, 14000.6, and 65088. [¶] (b) A strategies element that shall incorporate the broad system concepts and strategies synthesized from the adopted regional transportation plans prepared pursuant to Section 65080. The California Transportation Plan shall not be project specific. [¶] (c) A recommendation element that includes economic forecasts and recommendations to the Legislature and the Governor to 16 The CARB in response has then set reduction targets for each of the 18 MPO's in our

state.

Against this backdrop, I disagree with the majority's conclusion that SANDAG

acted unreasonably in refusing to engage in a "consistency analysis" using the Executive

Order as a CEQA measuring stick when accessing the GHG impacts of its regional

project. (See Professional Engineers, supra, 50 Cal.4th at p. 1000.) Instead, in my view,

the record contains more than sufficient evidence showing SANDAG acted in good faith

and properly exercised its broad discretion under Guidelines section 15064.4 in assessing

the significance of GHG impacts of the project.

achieve the plan's broad system concepts, strategies, and performance objectives." (Id., § 65072.) The Legislature in the CTP directly (id., § 14000.6, subd. (b)) and indirectly (id., § 65072.2) referenced the Executive Order and its goal of reducing GHG emissions to 80 percent of 1990 levels by 2050. However, as noted, the Legislature has not yet tasked the CARB to set 2050 GHG regional reduction targets for the MPO's. 17 B. Guidelines Section 15064.49

As noted, CEQA requires that public agencies "adopt by ordinance, resolution,

rule, or regulation" criteria for the evaluation of a project and the preparation of an EIR

that are consistent with the statutory provisions of CEQA and its Guidelines. (§ 21082.)

Section 21083, subdivision (a) directs the OPR to "prepare and develop proposed

guidelines" for implementation by a public agency. Subdivision (b) of that statute states

the "guidelines shall specifically include criteria for public agencies to follow in

determining whether or not a proposed project may have a 'significant effect on the

environment.'" As noted ante, section 21083.5 was added by SB 97 to require the OPR to

9 Guideline section 15064.4 provides: "(a) The determination of the significance of greenhouse gas emissions calls for a careful judgment by the lead agency consistent with the provisions in section 15064. A lead agency should make a good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project. A lead agency shall have discretion to determine, in the context of a particular project, whether to: [¶] (1) Use a model or methodology to quantify greenhouse gas emissions resulting from a project, and which model or methodology to use. The lead agency has discretion to select the model or methodology it considers most appropriate provided it supports its decision with substantial evidence. The lead agency should explain the limitations of the particular model or methodology selected for use; and/or [¶] (2) Rely on a qualitative analysis or performance based standards. [¶] (b) A lead agency should consider the following factors, among others, when assessing the significance of impacts from greenhouse gas emissions on the environment: [¶] (1) The extent to which the project may increase or reduce greenhouse gas emissions as compared to the existing environmental setting; [¶] (2) Whether the project emissions exceed a threshold of significance that the lead agency determines applies to the project. [¶] (3) The extent to which the project complies with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of greenhouse gas emissions. Such requirements must be adopted by the relevant public agency through a public review process and must reduce or mitigate the project's incremental contribution of greenhouse gas emissions. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding compliance with the adopted regulations or requirements, an EIR must be prepared for the project." 18 prepare specific guidelines dealing with CEQA review of GHG.

Adopted after passage of SB 97, Guidelines section 15064.4, subdivision (a)

requires a lead agency to make a "good-faith effort" to determine the GHG emissions of a

project. In making this determination, a lead agency has the discretion to "[u]se a model

or methodology to quantify greenhouse gas emissions resulting from a project, and which

model or methodology to use" (Guidelines, § 15064.4, subd. (a)(1)) and/or to "[r]ely on a

qualitative analysis or performance based standards" (id., subd. (a)(2)). After choosing a

methodology and selecting significance thresholds, the lead agency next is required under

Guidelines section 15064.4 to assess the "significance of impacts" of GHG emissions.

(Id., subd. (b).)

In assessing the significance of GHG impacts of a given project, Guidelines

section 15064.4 states a lead agency "should" consider among others the following

factors: (1) the extent to which the project may increase or reduce GHG "as compared to

the existing environmental setting"; (2) whether the project's GHG emissions "exceed a

threshold of significance that the lead agency determines applies to the project"; and (3)

the extent to which the project "complies with regulations or requirements adopted to

implement a statewide, regional, or local plan for the reduction or mitigation" of GHG.

(Guidelines, § 15064.4, subd. (b)(1), (2) & (3), italics added.) Subdivision (b)(3) of

Guidelines section 15064.4 further provides that "[s]uch requirements must be adopted

by the relevant public agency through a public review process and must reduce or

mitigate the project's incremental contribution of greenhouse gas emissions."

Guidelines section 15064.4 thus "'confirms that lead agencies retain the discretion

to determine the significance of greenhouse gas emissions and should "make a good-faith

19 effort, based to the extent possible on scientific and factual data, to describe, calculate or

estimate the amount of [GHG] emissions resulting from a project." [Citation.]'

[Citations.]" (Citizens Against Airport Pollution v. City of San Jose (2014) 227

Cal.App.4th 788, 807.)

I therefore disagree with the majority's interpretation of Guidelines section

15064.4: although subdivision (b) of this section clearly states the factors listed in

subdivisions (1), (2) and (3) are not exhaustive, that does not ipso facto mean the courts

may require an agency to consider additional "factors" (i.e., the Executive Order) in

evaluating the GHG impacts of a project, as the majority has done here. In my view, the

majority's reading of Guidelines section 15064.4 usurps the broad discretion afforded an

agency in analyzing significance and improperly puts courts in charge of determining

whether benchmarks other than those expressly provided in subdivisions (1), (2) and (3)

must be considered by an agency when undertaking such an analysis.

Here, as I have noted, the EIR used three separate GHG analyses utilizing two of

the specific significance criteria authorized by Guidelines section 15064.4. GHG-1, the

first analysis, is an "existing conditions" baseline analysis authorized by subdivision

(b)(1) of Guidelines section 15064.4.10 Under this analysis, any increase of GHG

emissions over existing conditions (i.e., 2010) was deemed to be a significant impact.

10 I note the existing environmental setting "normally constitute[s] the baseline physical conditions by which a lead agency determines whether an impact is significant." (Guidelines, § 15125, subd. (a); see Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 445 [holding that "[w]hile an agency has the discretion under some circumstances to omit environmental analysis of impacts on existing conditions and instead use only a baseline of projected future conditions, existing conditions 'will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant'"].) 20 The GHG-1 analysis concluded that, although regional GHG emissions would decrease

under the project from existing levels until after 2020, they would increase above existing

levels by 2035 and increase still further by 2050, largely as a result of population increase

and development. The EIR therefore determined the GHG impacts in 2020 would be a

less than significant impact but would be significant in 2035 and 2050.

The second analysis, GHG-2, used the GHG reduction targets set forth in SB 375

as a significance criteria. GHG-2 used a narrower range of GHG emissions than GHG-1.

GHG-2's approach, in my view, was also fully consistent with Guidelines section

15064.4.

Under SB 375, as I have noted, the CARB prepared regional GHG emission

reduction targets, compared to 2005 emissions, for cars and light trucks for 2020 and

2035 for each of the state's MPO's. In response, each of the MPO's, including SANDAG,

prepared an SCS as part of its RTP to "reduce GHGs by better aligning transportation,

land use, and housing. For SANDAG, the targets are to reduce per capita CO2 emissions

7 percent below 2005 levels by 2020 and 13 percent below 2005 levels by 2035. Because

CARB has not developed a target for 2050, no analysis is provided for that year."

Using this significance criteria, the EIR concluded the project would have less

than a significant impact because the project met SB 375's goals, as set by the CARB, for

lowered per capital vehicle-related GHG emissions in 2020 and 2035.

The third GHG impact analysis, GHG-3, analyzed whether regional GHG

emissions (from both transportation and land use/growth) would conflict with (1) the

scoping plan adopted by the CARB pursuant to AB 32, which plan functions as a

roadmap to achieve GHG reductions in our state, and (2) SANDAG's own adopted

21 Climate Action Strategy (CAS), which was created in 2010 under a partnership with the

California Energy Commission "as a guide for SANDAG and local governments and

policymakers in addressing climate change."

Because the scoping plan time horizon was limited to 2020, the EIR's analysis of

whether or not the project under GHG-3 would have a significant impact with respect to

GHG was limited to 2020, and no analysis was presented for 2035 and 2050. Although

recognizing 2035 and 2050 emission reduction targets for GHG's were established in the

Executive Order, the EIR in my view properly concluded the order was not a "'plan'"

adopted through a public review process as required in subdivision (b)(3) of Guidelines

section 15064.4. The EIR, however, analyzed transportation and land use/growth in 2035

and 2050 expected as a result of implementation of the project, with respect to the CAS.

The EIR analysis concluded that with respect to transportation, the estimated

emissions from transportation in 2020 would be less than required by AB 32 and would

constitute a less than significant impact under this threshold. The EIR also concluded

that the project would not impede the CAS and its policy of promoting the reduction of

vehicle miles traveled and minimization of GHG in transportation, inasmuch as the

project also sought to reduce GHG emissions in transportation through a series of

projects. Therefore, for transportation, the EIR found the implementation of the project

would constitute a less than significant impact under the CAS threshold for 2020, 2035

and 2050.

With respect to land use/growth, the EIR analysis concluded in GHG-3 that

emissions of GHG in 2020 were expected to exceed the scoping plan reduction goals.

However, it noted several other measures included in the scoping plan were not yet

22 adopted or implemented, including "cap-and-trade," and, therefore, were not included in

the GHG reduction calculations. Because the RTP was itself consistent with its role in

the overall scoping plan strategy, SANDAG concluded for land use/growth that for 2020

the impact would be less than significant under this threshold. The EIR further provided

for 2020, 2035 and 2050, implementation of the project would not impede the CAS but in

fact would promote it and the goals of increasing energy efficiency and reducing energy

consumption and, therefore, would constitute a less than significant impact.

C. Substantial Evidence Supports the Finding SANDAG's Assessment of

Significance of GHG Impacts in its EIR Satisfied CEQA

Unlike my colleagues, I do not believe SANDAG's failure to discuss the project's

consistency with the Executive Order shows a lack of a "good-faith effort" to assess in

the EIR the GHG impacts of the project.11 Rather, in my view, there is abundant

evidence in the record showing that SANDAG made a "good-faith effort, based to the

extent possible on scientific and factual data, to describe, calculate or estimate the

amount of greenhouse gas emissions [in the SANDAG MPO region] resulting from [the]

project" (Guidelines, § 15064.4, subd. (a)); and that it properly assessed the significance

of these emissions under applicable thresholds (id., subd. (b)), including those adopted by

the CARB (through enabling legislation) for 2020 and 2035. (See Citizens for

Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197

Cal.App.4th 327, 335-336 (City of Chula Vista).)

11 In finding an alleged lack of evidence in the record of a reasonable, good-faith effort by SANDAG to assess the GHG impacts, the majority, in my view, is in effect applying an independent standard of review, and its contention otherwise is one of form over substance. (Maj. opn. ante, at p. 14.) 23 Moreover, the record also contains substantial evidence showing SANDAG

properly exercised its discretion when it decided not to use the Executive Order's 2050

statewide emission reduction target as a CEQA measuring stick for its regional plan.

North Coast Rivers Alliance v. Marin Municipal Water Dist. Board of Directors (2013)

216 Cal.App.4th 614 (North Coast) informs my view on this issue.

There, the petitioners contended an EIR for a project to build a sea-water

desalination plant approved by a local water district was deficient because, among other

reasons, it contained an inadequate analysis of GHG emissions. Although the trial court

rejected this argument, it nonetheless found the EIR lacked substantial evidence to

support the water district's conclusion the plant's GHG emissions were not cumulatively

considerable. (North Coast, supra, 216 Cal.App.4th at p. 650.)

In reversing, the court concluded the EIR's use of AB 32, and its requirement that

the CARB "'adopt regulations that would require the reporting and verification of

statewide GHG emissions and limit statewide GHG emissions to 1990 levels by 2020,'"

was acceptable as a threshold of significance, inasmuch as the EIR properly noted "no

CEQA thresholds of significance have been established for GHG[]." (North Coast,

supra, 216 Cal.App.4th at p. 651.) The court also concluded the EIR used as a threshold

a program voluntarily adopted by Marin County, which the water district joined, where

GHG emissions would be reduced to 15 percent below 1990 levels by 2020. (Ibid.)

The North Coast court then reviewed the EIR in light of these thresholds, which

focused primarily on energy consumption for plant operations. (North Coast, supra, 216

Cal.App.4th at p. 652.) In concluding the EIR's analysis "more than satisfied the

requirements of CEQA" (id. at p. 652), the court recognized that the petitioners'

24 disagreement with the district's significance conclusion for GHG impacts was insufficient

under CEQA because a "'"reviewing court 'may not set aside an agency's approval of an

EIR on the ground that an opposite conclusion would have been equally or more

reasonable,' for, on factual questions, [the court's] 'task is not to weigh conflicting

evidence and determine who has the better argument.'"'" (Id. at p. 653.)

Similarly, this court in City of Chula Vista rejected the petitioner's contention the

lead agency (i.e., the city) was required to use three other well-recognized potential

thresholds of significance, instead of the goals set forth in AB 32, in analyzing the GHG

impacts of a store replacement project. Citing to then-newly enacted Guidelines section

15064.4, this court concluded that this regulation "confirms that lead agencies retain the

discretion to determine the significance of greenhouse gas emissions." (City of Chula

Vista, supra, 197 Cal.App.4th at p. 336.) This court also concluded the lead agency

"properly exercised its discretion to utilize compliance with [AB 32] as the threshold"

and, as such, rejected the petitioner' contention the lead agency erred by not applying

different thresholds. (Ibid.; see Citizens Against Airport Pollution v. City of San Jose,

supra, 227 Cal.App.4th at p. 807 [recognizing that Guidelines, § 15064.4 gives a lead

agency discretion to determine the significance of GHG emissions based to the extent

possible on available scientific and factual data].)

North Coast and City of Chula Vista, in my view, provide guidance in the instant

case and support the conclusion that SANDAG properly exercised its discretion under

Guidelines section 15064.4, subdivision (b)(1), (2) and (3), including when it used the

regional target numbers established by the CARB (developed in response to AB 32 and

SB 375) in analyzing the impacts of GHG of the project. (See Citizens for a Sustainable

25 Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036,

1060-1061 [noting the "core principle" that an EIR is not required to engage in

"speculative analysis," and, thus, a lead agency is not required to "'forsee[] the

unforeseeable,'" "predict[] the unpredictable or quantify[] the unquantifiable"] (Treasure

Island).) North Coast and City of Chula Vista also support the conclusion that, subject to

the requirements of Guidelines section 15064.4, lead agencies and not the courts have the

discretion to determine the benchmarks to be used for determining the GHG impacts of a

project.

Indeed, as I previously noted, there is legislation currently pending, Assembly Bill

No. 2050 (AB 2050), that among other purposes would delegate to the CARB the

authority to set specific GHG emission reduction targets for the MPO's, including in the

SANDAG region, but in this instance, the targets would be for 2050. Regardless of

whether AB 2050 ultimately passes, the bill is significant because it shows our

Legislature has not yet acted to set 2050 reduction targets (through the CARB). AB 2050

also demonstrates, yet again, the intent of the Legislature to fully occupy the field of

regulating GHG emissions in our state. I believe the majority ignores this intent by

requiring SANDAG, based on a strained interpretation of Guidelines section 15064.4, to

do a "consistency analysis" using the Executive Order as a CEQA measuring stick. I also

believe doing so has far-reaching, negative consequences.

By imposing a requirement on SANDAG that does not exist under CEQA,

including in the applicable GHG Guidelines, the majority is contravening section

21083.1, as I have already discussed. In addition, as I have noted, the regulation of GHG

emissions is better left to our Legislature and government agencies like the CARB in

26 what is clearly an area that "involves numerous highly technical and novel scientific,

technical and economic issues" that will span many decades. (Association of Irritated

Residents v. State Air Resources Bd., supra, 206 Cal.App.4th at pp. 1502, 1505 [noting

the CARB has been "assigned the responsibility of designating and overseeing the

implementation of measures" to achieve the "challenging" goals of reducing GHG

emissions in our state].)

The complexity of the issues addressed by SANDAG's RTP, the first of its kind to

be approved in this state, cannot be overstated. The sheer volume of the record in this

case pays homage to the difficult issues facing a lead agency like SANDAG in preparing

a RTP with an SCS component, where transportation planning and land use are linked to

regional GHG emissions reduction goals for the next several decades. In contrast, judges

"have neither the resources nor scientific expertise to engage in such analysis." (Laurel

Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,

393.)

Until our Legislature directs the CARB to set regional goals for 2050, I do not

believe SANDAG was required to use the Executive Order and/or its 2050 GHG

statewide reduction goal as a threshold to assess the significance of the GHG impacts of

the project. (See Treasure Island, supra, 227 Cal.App.4th at p. 1054 [refusing to "fault"

an EIR for a project to redevelop a former naval station into a new, mixed-use

community because there were many project features that were subject to future revision,

and, thus, the EIR "cannot be faulted for not providing detail that, due to the nature of the

[p]roject, simply does not now exist"].)

27 Finally, the majority in my view is unnecessarily interfering with SANDAG's

program EIR and tiering, which frustrates the goal of good planning: "Where a lead

agency is using the tiering process in connection with an EIR for a large-scale planning

approval, such as a general plan or component thereof . . . , the development of detailed,

site-specific information may not be feasible but can be deferred, in many instances, until

such time as the lead agency prepares a future environmental document in connection

with a project of a more limited geographic scale, as long as deferral does not prevent

adequate identification of significant effects of the planning approval at hand."

(Guidelines, § 15152, subd. (c).)

Our high court in In re Bay-Delta etc. (2008) 43 Cal.4th 1143 rejected a challenge

to a program EIR on the basis it lacked sufficient detail regarding water sources to

implement a project to restore the ecological health and improve the management of the

Bay-Delta region. In so doing, the court noted that the Bay-Delta project was a "broad,

general, multiobjective, policy-setting, geographically dispersed" plan (id. at p 1171);

that at the first-tier program level, the "environmental effects of obtaining water from

potential sources may be analyzed in general terms, without the level of detail appropriate

for second-tier, site-specific review" (id. at p. 1169); that the advantage of a program EIR

is it allows a lead agency "'to consider broad policy alternatives and program wide

mitigation measures at an early time when the agency has greater flexibility to deal with

basic problems or cumulative impacts'" (ibid., citing Guidelines, § 15168, subd. (b)(4));

and that because the Bay-Delta project "is to be implemented over a 30-year period[,] . . .

[i]t is therefore impracticable to foresee with certainty specific sources of water and their

impacts" (id. at p. 1172).

28 Much like the Bay-Delta project, the project here is a "broad, general,

multiobjective, policy-setting" plan. (See In re Bay-Delta etc., supra, 43 Cal.4th at p.

1171.) As such, I believe substantial evidence in the record shows SANDAG in its EIR

engaged in a "good-faith effort" to analyze the GHG impacts of the project for purposes

of the first-tier stage of what is clearly a long-term planning process that will be

implemented over decades, "with the understanding that additional detail will be

forthcoming when specific second-tier projects are under consideration." (See id. at p.

1172; see also Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th

351, 372 [upholding program EIR against a challenge it was vague and insufficiently

described potential future facilities of a county's hazardous waste management plan

because the plan, much like SANDAG's project at issue here, served only as an

"assessment and overview, with any separate future projects, when identified, to be

accompanied by additional EIR's"].)

According to SANDAG, implementation of the project will involve "literally

hundreds of individual freeway, highway, local road, public transit, bikeway and other

transportation projects, as well as ongoing development of various mitigation, planning

and transportation management programs." In addition, many of these projects will occur

10, 20 or 30 years into the future and will be carried out by others including local

governments and/or agencies, where baseline conditions may have substantially changed

and after the project itself will have gone through multiple mandatory updates on a four-

year cycle as currently required under Government Code section 65080, subdivision (d).

Because most, if not all, of these individual future transportation projects and/or

land use decisions will be subject to its own project-level review under CEQA, and

29 because, in any event, SANDAG's EIR considered the public policy of GHG emission

reduction and the CARB has not yet established 2050 GHG reduction target numbers for

the SANDAG MPO region, I believe there is absolutely no reason to send the EIR back

to the trial court for further consideration of GHG impacts utilizing the Executive Order

as a threshold. Rather, I believe this is a waste of precious resources and will amount to

"endless rounds of revision and recirculation of EIR's" that the Legislature did not intend.

(See Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6

Cal.4th 1112, 1132; see also Guidelines, § 15151 [stating that the "sufficiency of an EIR

is to be reviewed in the light of what is reasonably feasible" and that "courts have looked

not for perfection but for adequacy, completeness, and a good faith effort at full

disclosure" in analyzing the adequacy of an EIR]; Treasure Island, supra, 227

Cal.App.4th at p. 1061 [noting it "has long been recognized that premature attempts to

evaluate effects that are uncertain to occur or whose severity cannot reliably be measured

is 'a needlessly wasteful drain of the public fisc'"].)

In sum, I conclude there is substantial evidence in the record showing SANDAG

acted reasonably and in good faith when it addressed the GHG impacts of its project and

properly exercised its discretion under Guidelines section 15064.4. I thus would reverse

the trial court order finding SANDAG's GHG impacts analysis insufficient under CEQA.

II

Mitigation Measures

Initially, because I conclude the EIR adequately addressed the GHG impacts of the

project, unlike the majority I do not deem moot (or partially moot) (Maj. opn. ante, at p.

23) SANDAG's contention that the EIR also adequately addressed mitigation measures

30 for the project's significant GHG impacts. Also unlike the majority, I conclude the EIR

adequately considered reasonable mitigation measures for GHG impacts.

A. Additional Background

As noted, the EIR under the "existing conditions" baseline, GHG-1, concluded that

the GHG impacts in 2020 would be a less than significant impact but would be

significant in 2035 and 2050. Based on this analysis, the EIR proposed three mitigation

measures to reduce impacts related to GHG emissions to less than significant levels.

The first mitigation measure, GHG-A, provided: "SANDAG shall update future

Regional Comprehensive Plans and Regional Transportation Plans/Sustainable

Community Plans to incorporate polices and measures that lead to reduced GHG

emissions. Such policies and measures may be derived from the General Plans, local

jurisdictions' Climate Action Plans, and other adopted policies and plans of its member

agencies that include GHG mitigation and adaptation measures or other sources."

The second, GHG-B, encouraged the "San Diego region cities and the County

government" to "adopt and implement Climate Actions Plans" (CAP's) and other climate

strategies by: a) quantifying GHG emissions, "both existing and projected over a

specified time period, resulting from activities within their respective jurisdictions"; b)

establishing a "level . . . below which the contribution to GHG emissions from activities

covered by the plan would not be cumulatively considerable"; c) identifying and

analyzing GHG emissions "resulting for specific actions . . . anticipated within their

respective jurisdictions"; d) specifying measures, "including performance standards, that

. . . if implemented on a project-by-project basis, would collectively achieve the specified

emissions level"; e) establishing a mechanism to monitor the "progress toward achieving

31 that level" of specified emissions and requiring an amendment if such levels are not

achieved; and f) adopting such plans "in a public process following environmental

review."

GHG-B further provided that, when appropriate, CAP's should "incorporate

planning and land use measures from the California Attorney General's latest list of

example policies to address climate change at both the plan and project level." At the

plan level, GHG-B identified various policies to be considered and, if appropriate,

implemented, from the website of the California Attorney General providing examples to

address climate change, including "[s]mart growth, jobs/housing balance, transit-oriented

development, and infill development through land use designations, incentives and fees,

zoning, and public-private partnerships"; "[c]reate transit, bicycle, and pedestrian

connections through planning, funding, development requirements, incentives and

regional cooperation, and create disincentives for auto use"; [and] "[e]nergy and water-

efficient buildings and landscaping through ordinances, development fees . . . and other

implementing tools."

GHG-B also identified project-specific mitigation measures available on the

website that, if appropriate, should be implemented at the plan level in a CAP's planning

and land use measures, including adopting a "comprehensive parking policy" that

encourages use of alternate transportation and discourages use of private vehicles;

building or funding a "major transit stop within or near development"; providing public

transit incentives, such as free or low-cost monthly transit passes to the public;

incorporating bicycle lanes and routes into new development; and requiring facilities and

amenities for non-motorized transportation, such as secure bicycle parking.

32 SANDAG in connection with GHG-B stated it would assist local governments in

preparing CAP's and other climate strategies plans through implementation of its own

CAS, which, as noted, was created in 2010 "as a guide for SANDAG and local

governments and policymakers in addressing climate change." The CAS "provides a

toolbox of land use, transportation, and related policy measures and investments that help

implement the 2050 RTP/SCS [i.e., the project] through reducing GHG emissions.

Policy measures also are identified for buildings and energy use, protecting transportation

and energy infrastructure from climate impacts, and to help SANDAG and local

jurisdictions reduce GHGs from their operations."

The third mitigation measure discussed in the EIR, GHG-C, provided SANDAG

and local governments should require "Best Available Control Technology" (BACT) in

constructing and operating projects.

SANDAG also considered additional mitigation measures that were found to be

infeasible. One such measure was requiring all vehicles in the San Diego region to be

either zero-emission vehicles or to be powered by renewable energy. SANDAG found

this measure infeasible because of the "rate of turnover of vehicles on the roadway" and

because of the limited number of such vehicles available. Another measure found to be

infeasible was requiring all future construction to be net-zero energy use. Although

renewable energy is available and is an option for a portion of a project's energy needs,

SANDAG concluded it was infeasible for all projects to have net-zero emissions (i.e.,

hospitals).

Finally, SANDAG also found infeasible the requirement that all future

construction activity include only "retrofitted equipment." Because certain equipment

33 does not have "retrofit components," SANDAG concluded this mitigation measure was

infeasible.

SANDAG in the EIR noted that implementation of mitigation measures GHG-A

through GHG-C "would reduce GHG emissions through adoption of measures and

policies that encourage GHG emissions reduction in regional plans, adoption of Climate

Action Plans by member agencies, and using BACT during construction and operation of

implemented projects." Because of the growth in population, housing, and employment,

the EIR concluded implementation of the project "would result in an increase in GHG

emissions" and, as such, even with the mitigation measures, GHG-1, the existing

conditions baseline, "would remain a significant and unavoidable impact in 2035 and

2050."

B. Governing Law and Analysis

It is axiomatic that an EIR must describe feasible measures that could minimize

significant adverse impacts. (Guidelines, § 15126.4, subd. (a)(1).) Feasible means

"capable of being accomplished in a successful manner within a reasonable period of

time, taking into account economic, environmental, legal, social, and technological

factors." (Id., § 15364.)

However, a lead agency may find that "particular economic, social, or other

considerations make the alternatives and mitigation measures infeasible and that

particular project benefits outweigh the adverse environmental effects. (Pub. Resources

Code, § 21081, subds. (a)(3), (b); Guidelines, § 15091, subd. (a)(3).) Specifically, an

agency cannot approve a project that will have significant environmental effects unless it

finds as to each significant effect, based on substantial evidence in the administrative

34 record, that (1) mitigation measures required in or incorporated into the project will avoid

or substantially lessen the significant effect; (2) those measures are within the jurisdiction

of another public agency and have been adopted, or can and should be adopted, by that

agency; or (3) specific economic, legal, social, technological, or other considerations

make the mitigation measures or alternatives identified in the EIR infeasible, and specific

overriding economic, legal, social, technological, or other benefits outweigh the

significant environmental effects. (Pub. Resources Code, §§ 21081, 21081.5; Guidelines,

§ 15091, subds. (a), (b).)" (Federation of Hillside & Canyon Assns. v. City of Los

Angeles (2004) 126 Cal.App.4th 1180, 1198; see South County Citizens for Smart

Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 336 [noting that "'CEQA

requires the appropriate public agency "to find, based on substantial evidence, that the

mitigation measures are 'required in, or incorporated into, the project'; or that the

measures are the responsibility of another agency and have been, or can and should be,

adopted by the other agency; or that mitigation is infeasible and overriding considerations

outweigh the significant environmental effects"'"].)

Claims concerning the feasibility or effectiveness of mitigation measures are

reviewed for substantial evidence, which is defined as "'enough relevant information and

reasonable inferences from this information that a fair argument can be made to support a

conclusion, even though other conclusions might also be reached.'" (Mira Mar Mobile

Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 486.) In reviewing an

agency's decision for substantial evidence, courts "'must indulge all reasonable inferences

from the evidence that would support the agency's determinations and resolve all

conflicts in the evidence in favor of the agency's decision.'" (California Native Plant

35 Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 985.) This standard of review

flows from the fact that an "agency has the discretion to resolve factual issues and to

make policy decisions." (Save Our Peninsula Committee v. Monterey County Bd. of

Supervisors (2001) 87 Cal.App.4th 99, 120.)

"'"As with all substantial evidence challenges, an appellant challenging an EIR for

insufficient evidence must lay out the evidence favorable to the other side and show why

it is lacking. Failure to do so is fatal. A reviewing court will not independently review

the record to make up for appellant's failure to carry his [or her] burden."'" (Pfeiffer v.

City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1572.)

Here, I conclude petitioners have not met their burden of showing the mitigation

measures for GHG emissions described by SANDAG in its program EIR were

inadequate. As noted, the EIR discussed three separate mitigation measures in

connection with impact analysis GHG-1. Each such measure complies with Guidelines

section 15126.4, subdivision (c)(5), which was adopted in response to SB 97 and which

provides the GHG mitigation measures proposed in connection with adoption of a long-

range plan, such as the instant project, "may include the identification of specific

measures that may be implemented on a project-by-project basis."12

12 Subdivision (c) of Guideline section 15126.4 provides in part: "[L]ead agencies shall consider feasible means, supported by substantial evidence and subject to monitoring or reporting, of mitigating the significant effects of greenhouse gas emissions. Measures to mitigate the significant effects of greenhouse gas emissions may include, among others: [¶] (1) Measures in an existing plan or mitigation program for the reduction of emissions that are required as part of the lead agency's decision; [¶] (2) Reductions in emissions resulting from a project through implementation of project features, project design, or other measures, such as those described in Appendix F; [¶] (3) Off-site measures, including offsets that are not otherwise required, to mitigate a project's emissions; [¶] (4) Measures that sequester greenhouse gases; [¶] (5) In the case of the 36 Moreover, the record shows SANDAG considered additional mitigation measures

to reduce GHG emissions and found them infeasible. (See Clover Valley Foundation v.

City of Rocklin (2011) 197 Cal.App.4th 200, 245 [noting that CEQA does not require "an

EIR to explain why certain mitigation measures are infeasible"]; see also Cherry Valley

Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 351 [noting

CEQA does not require an EIR to analyze in detail mitigation measures deemed

infeasible].)

At the conclusion of the CEQA review process, the record shows SANDAG

adopted both the mitigation measures within its power to implement and a mitigation

monitoring program (MMRP) for compliance. (See §§ 21081 & 21081.6.) The

mitigation measures and MMRP confirm SANDAG's commitment to implementing GHG

mitigation measures described in the EIR.

I do not agree with petitioners that the mitigation measures were insufficiently

unenforceable because, particularly with respect to GHG-A and GHG-B, they depended

on the cooperation of multiple other agencies. As noted, CEQA allows a lead agency to

approve or carry out a project with potential adverse impacts if "[c]hanges or alterations

have been . . . incorporated into[] the project" and "[t]hose changes or alterations are

within the responsibility and jurisdiction of another public agency and have been, or can

and should be, adopted by that other agency." (§ 21081, subd. (a)(1) & (2).)

adoption of a plan, such as a general plan, long range development plan, or plans for the reduction of greenhouse gas emissions, mitigation may include the identification of specific measures that may be implemented on a project-by-project basis. Mitigation may also include the incorporation of specific measures or policies found in an adopted ordinance or regulation that reduces the cumulative effect of emissions." 37 Finally, because SANDAG in my view satisfied its initial burden to consider a

range of reasonable mitigation measures in its EIR, I would conclude the burden then

switched to petitioners to establish from the record what petitioners describe as other

"effective" mitigation measures that allegedly were omitted from consideration in the EIR

and to show, again from the record, that such "effective" measures 1) were not only

legally feasible but also suitable for discussion in a program EIR involving a project

incorporating a broad range of planning measures and policies over the next several

decades, and 2) would avoid or substantially lessen the project's GHG impacts. (See San

Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 14-17

[rejecting the petitioners' contention that unspecified, additional mitigation measures

should have been considered in "meaningful detail" in an EIR and noting the general rule

that "CEQA does not . . . require discussion of every mitigation measure the agency

rejected as infeasible"].) I would conclude petitioners have not met, and cannot meet,

this burden in this case. (See id. at p. 17 [noting that "[f]easibility under CEQA

encompasses desirability to the extent that desirability is based on a reasonable balancing

of the relevant economic, environmental, social, and technological factors"].)13

BENKE, J.

13 Because the trial court never reached the issues raised in the cross-appeal and because the majority in any event is remanding the matter with respect to the EIR's treatment of GHG impacts and mitigation measures of the project, as I have noted, I would defer the issues raised in the cross-appeal to the trial court for consideration. Nonetheless, I feel compelled to state my objection to the majority's conclusion that SANDAG failed to consider a reasonable range of project alternatives. 38