California Case May Add New Climate Obligations for Planners

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By Carolyn Whetzel

Regional planning agencies and developers may need to consider California’s climate goals as part of transportation and other long-range projects as the state’s highest court weighs whether environmental reviews must be consistent with the governor’s greenhouse gas targets.

The decision from the California Supreme Court, expected by August, could also prove to be a significant test of a governor’s ability to drive state climate policy through executive orders, an attorney tracking the case said.

At issue is a legal battle over how the San Diego Association of Governments (SANDAG) analyzed greenhouse gas emissions impacts in the first regional transportation plan as well as a strategy for sustainable communities developed under a state law that requires regional and local governments to link their transportation and land-use planning efforts. The plans must be designed to meet regional targets to reduce emissions from cars and trucks.

The Supreme Court is reviewing whether San Diego’s environmental analysis of its plan must be consistent with an executive orderissued by former Gov. Arnold Schwarzenegger (R) aimed at reducing greenhouse house gas emissions 80 percent from 1990 levels by 2050 ( Cleveland Nat’l Forest v. San Diego Ass’n of Gov’ts, Cal., No. S223603, 5/4/17 ).

A ruling that planning agencies’ environmental reviews must be consistent with the executive order would raise the question of whether other projects and developments would also need to consider the 2050 climate goal, Phillip H. Babich, an environmental litigator at Reed Smith LP in San Francisco, told Bloomberg BNA May 9. That ruling would also raise the question of whether the governor has the authority to set greenhouse gas emissions policy through executive orders, which are not codified in law and can be repealed, he said. However, the environmental groups driving the lawsuit argue cities need to do more to address climate change.

Forcing regional planners to incorporate the 2050 climate goal into their environmental reviews conflicts with California Environmental Quality Act rules. It also adds new uncertainties for projects with long lifespans, such as factories and power plants, Babich said.

The California Association of Councils of Government, League of California Cities, the Building Industry Legal Defense Foundation and Association General Contractors of California are among the dozens of organizations that filed briefs supporting San Diego’s argument that the California Environmental Quality Act doesn’t require consistency with gubernatorial executive orders.

Science Driving Policy

But Kevin Bundy, an attorney with the Center for Biological Diversity, called arguments about the governor’s ability to drive climate policy through executive orders “misplaced.” The center brought the lawsuit along with the Cleveland National Forest Foundation.

“It’s the physical facts of climate change that are driving the policy here,” said Bundy, who argued the case before the Supreme Court.

The San Diego plan being challenged by the environmental groups is designed to meet a 2035 target for reducing emissions from cars and trucks. But a longer-term analysis of the greenhouse gas emissions impacts of the elements of the plan is needed, Bundy said.

At the May 4 hearing, justices peppered Bundy with questions on what would make a satisfactory environmental impact report.

“You may be dissatisfied,” Justice Goodwin Liu told Bundy. “That’s a different issue if you’re dissatisfied with what SANDAG is doing in terms of policy. But the question is not whether the ultimate project has the right contours. It’s whether the [environmental impact report] was sufficiently informative to tell the public what the consequences would have been or would be.”

San Diego had argued its transportation plan had evaluated short-term, mid-term and long-term greenhouse gas reductions goals, but that the California Environmental Quality Act did not require the metropolitan region to consider the state’s 2050 target set out in the executive order.

To contact the reporter on this story: Carolyn Whetzel in Los Angeles at CWhetzel@bna.com

To contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com

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