The California Supreme Court heard argument today in a case that has big implications for regional transportation planning in California’s cities (Cleveland National Forest Foundation et al. v. San Diego Association of Governments et al. [People, Intervener and Appellant], S223603). Those transportation investments in turn have big effects on where housing can go.
The case involves San Diego’s horrible regional transportation plan, developed back in 2011 by the San Diego Association of Governments (SANDAG). The plan happened to be the first in the state to have to comply with SB 375, a law linking transportation investments with land use policies to reduce greenhouse gas emissions. But while the plan reduced short-term greenhouse gas emissions, it projected them to rise out through 2050. Since SB 375 only required reductions through 2035, SANDAG thought it could get away with slacking in later years, contrary to state policy on long-term (2050) climate goals.
Environmental groups, along with the California Attorney General’s Office, sued SANDAG under the California Environmental Quality Act (CEQA), arguing that San Diego’s agency inadequately considered the plan’s effects on greenhouse gas emissions by 2050. SANDAG lost in the trial court and then in the appellate court.
Despite the losses in the lower courts and the “bad facts” for SANDAG, some of the justices today were surprisingly skeptical of the argument that the CEQA environmental review documentation was done poorly. Justice Goodwin Liu in particular seemed to indicate that he thought the environmental review was up front about the inability of the plan to meet the 2050 goals and that it may have done sufficient work disclosing to the public that impact.
But Janill Richards, arguing for the Attorney General’s office, did a nice job explaining that the document is not just about SANDAG being able to shrug off a bad impact but requiring reasonable (feasible) mitigation, such as alternative fuel charging and local climate action plans.
The other justices were silent, except for Justice Mariano-Florentino Cuéllar, who also asked a lot of questions along the lines of Justice Liu.
Given the silence of the other justices and the “bad facts” for SANDAG in this case, I’d still guess that the Supreme Court will affirm the lower courts’ decision and require SANDAG and other agencies to do a better job evaluating impacts out to 2050 in their CEQA documentation.
But it may be a closer decision than I expected, given some of the concerns expressed about burdening agencies with too much oversight from the courts on these long-term issues.
I continue to be encouraged by the reaction of San Diego leaders to our report last month grading California’s rail transit station neighborhoods. San Diego overall did not perform well, and now major media outlets like the NBC affiliate there are focused on the problem. Here’s a recent story they aired, including a short profile of Gillespie Field, the worst-performing station neighborhood in the state:
This educational effort couldn’t come at a better time. The region is now contemplating a new transportation plan and at the same time is battling with local environmental groups and the state attorney general in the state Supreme Court over their last super-crappy plan. So we need more information about the transit-oriented development opportunities there to enter the public discourse, through stories like this one.
As my Legal Planet colleague Rick Frank blogged, the California Supreme Court on Wednesday granted review of San Diego’s really bad regional transportation plan. I detail the history here, but basically San Diego’s regional transportation agency delivered a plan in 2011 that was supposed to comply with SB 375 (Steinberg, 2008), a landmark law linking transportation spending with long-term greenhouse gas emission reductions.
Instead, San Diego’s agency issued a plan that projected reductions in vehicle miles traveled only in the short run, via accounting gimmicks like more telecommuting and estimated smoother traffic flows from highway widening. And then the plan actually showed backsliding on emissions going out to 2050.
Petitioners argued successfully at the trial and appellate court level that this backsliding contravened California’s long-term policy on greenhouse gases, specifically Governor Schwarzenegger’s 2005 executive order calling for an 80% reduction in greenhouse gas emissions from 1990 levels by 2050. Notably, the state’s 2006 climate legislation, AB 32, only discussed a 2020 greenhouse gas target.
But will this case already be moot by the time the court decides it? There are two reasons to think so:
First, San Diego is already well into its second transportation plan in the post-SB 375 world, which presumably will be much stronger than its 2011 version. That version was already in process when SB 375 was enacted and was the first out of the gate in California to have to comply with the new law.
Second, the California Legislature is currently debating a series of bills that could solidify California’s long-term greenhouse gas emissions reduction goals. If those goals get legislated, particularly ones out to 2050, then a debate over whether the 2005 executive order is legally enforceable in this instance becomes moot.
Of course, a win for the plan’s opponents will only strengthen the hand of advocates for better, more sustainable transportation and land use planning. It will force SB 375 plans to contemplate real, meaningful changes in land use and transportation decision-making, because these greenhouse gas reductions will have to be permanent and cumulative. And it will bolster efforts by public officials in other contexts to reduce long-term greenhouse gas emissions in order to comply with the California Environmental Quality Act, which this case is based on.
So in the end, I hope the court upholds the lower court decision. But I also hope the case becomes moot with legislative action this year.
Back in 2011, the San Diego Association of Governments issued a really bad regional transportation plan. These plans must prioritize transportation investments across the metropolitan region for the coming decades and are the basis for receiving state and federal infrastructure dollars. And while most regional transportation plans are usually pretty bad (i.e. favoring highway expansion over core maintenance and transit/biking/walking infrastructure), SANDAG’s happened to be the first in the state to have to comply with SB 375, a law linking transportation investments with land use policies to reduce greenhouse gas emissions. So it held even more significance.
Environmental groups, along with the California Attorney General’s Office, sued SANDAG under the California Environmental Quality Act (CEQA), alleging that SANDAG inadequately considered the plan’s effects on greenhouse gas emissions by 2050. They argued that the agency should have taken those impacts into account given a 2005 executive order to reduce emissions by that year.
They had a strong case. To comply with SB 375, SANDAG essentially fudged the short-term numbers, relying on highway expansion and more telecommuting to reduce greenhouse gases through 2035. But by 2050, the plan actually showed increasing greenhouse gas emissions, out to a time when we need to be reducing emissions significantly. As a result, SANDAG lost in the trial court.
And today they lost the appeal. Judge McConnell of the Fourth Appellate District wrote the decision affirming [PDF] the trial court decision, sending the case back to the trial court for SANDAG to beef up its analysis of the 2050 goals and the range of options the agency has available to comply:
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.
Judge Benke wrote a fiery dissent, calling the court’s decision “breathtaking” in its judicial overstepping into local planning matters. But the reality is that SANDAG needs to own up to the backsliding in emissions by 2050 and provide the public with a reasonable range of options to avoid this outcome. It fundamentally failed to do so in the first round. Even if some of those options might seem politically difficult (like asking rural or exurban areas to take a backseat on highway expansion in favor of investing in the populated core areas), SANDAG should lay it out there for people to understand.
Regardless, SANDAG’s next transportation plan (already well underway) should be a vast improvement. In fairness to the agency, they did not have much time to incorporate SB 375 goals into the original plan, which was already being written at the time SB 375 passed. But the agency has now had four years to do so for the next plan. So SANDAG has no excuse to avoid improving the CEQA document on the old plan and coming up with a decent new plan.
Perhaps more importantly, the case has served an important political role in letting other regions know that they need to do a solid job complying with SB 375. Nothing wakes an agency up like a lawsuit, and advocates have been able to leverage the threat of a lawsuit to encourage meaningful changes in transportation plans across the state since the SANDAG plan. So in that sense, the case was already a victory for advocates even before today’s ruling.
