Cleveland Nat'l Forest Found. v. San Diego Ass'n of Gov'ts

231 Cal.App.4th 1056

180 Cal.Rptr.3d 548

CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants

v.SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants;

The People, Intervenor and Appellant.

CREED–21 et al., Plaintiffs and Appellants

v.San Diego Association of Governments et al., Defendants and Appellants;

The People, Intervenor and Appellant.

D063288

Court of Appeal, Fourth District, Division 1, California.

Filed November 24, 2014

As Modified on Denial of Rehearing December 16, 2014

The Sohagi Law Group, Los Angeles, Margaret M. Sohagi, Philip A. Seymour ; and Julie D. Wiley, San Diego, for Defendants and Appellants San Diego Association of Governments et al.

Kamala D. Harris, Attorney General, Timothy R. Patterson and Janill L. Richards, Deputy Attorneys General, for Intervenor and Appellant.

Shute, Mihaly & Weinberger, San Francisco, Rachel B. Hooper, Amy J. Bricker, Erin B. Chalmers ; Daniel P. Selmi, Los Angeles; Coast Law Group, Marco Gonzalez, Encinitas; Kevin P. Bundy, San Francisco; and Cory J. Briggs, Upland, for Plaintiffs and Appellants Cleveland National Forest et al.

McCONNELL, P.J.

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 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.

DISCUSSION

I

AGeneral 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, 253 Cal.Rptr. 426, 764 P.2d 278 (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 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, 253 Cal.Rptr. 426, 764 P.2d 278.)

BRole 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, 175 Cal.Rptr.3d 145 (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, 175 Cal.Rptr.3d 145.)

“[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, 164 Cal.Rptr.3d 274 ; accord, Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 801–802, 173 Cal.Rptr.3d 794.) 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, 159 Cal.Rptr.3d 310 ; accord, Citizens Against Airport Pollution v. City of San Jose, supra, at p. 802, 173 Cal.Rptr.3d 794.)

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, 173 Cal.Rptr.3d 794 ; Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 531–532, 129 Cal.Rptr.3d 512.) 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 Dublin (2013) 214 Cal.App.4th 1301, 1320, 154 Cal.Rptr.3d 682 ; Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, 1605, 45 Cal.Rptr.2d 822.)

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, 98 Cal.Rptr.2d 334.) 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, 174 Cal.Rptr.3d 363.)

CStandard 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, 53 Cal.Rptr.3d 821, 150 P.3d 709.) However, our inquiry extends “ ‘only to whether there was a prejudicial abuse of discretion.’ ( [§ 21168.5].)” (Vineyard, at p. 426, 53 Cal.Rptr.3d 821, 150 P.3d 709.)

“[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...