CLEVELAND NATIONAL FOREST FOUNDATION v. SAN DIEGO ASSOCIATION OF GOVERNMENTS (PEOPLE)Appellant, The People, Answer Brief on the MeritsCal.July 13, 2015 Au the Supreme Court of the State of California CLEVELAND NATIONAL FOREST FOUNDATION; SIERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; CREED-21; AFFORDABLE HOUSING COALITION OF SAN DIEGO; PEOPLE OF THE STATE OF CALIFORNIA, Case No. 8223603 Plaintiffs and Cross-Appellants, Vv. SAN DIEGO ASSOCIATION OF nae GOVERNMENTS; SAN DIEGO jUL 13 20% ASSOCIATION OF GOVERNMENTS BOARD OF DIRECTORS, Defendants and Appellants. necnanwaasarensvane en ect ® oe my : “ Fourth Appellate District, Div. Two, Case No. D063288 County Superior Court, Case No. 37-2011-00101593-CU-TT-CTL Timothy B. Taylor, Judge PEOPLE OF THE STATE OF CALIFORNIA’S ANSWER BRIEF ON THE MERITS KAMALA D. HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General Mark J. BRECKLER Chief Assistant Attorney General SALLY MAGNANI Senior Assistant Attorney General Copy TIMOTHY R. PATTERSON Supervising Deputy Attorney General State Bar No. 72209 *JANILL L. RICHARDS Principal Deputy Solicitor General State Bar No. 173817 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 (510) 622-2130 JanillRichards@doj.ca.gov Attorneysfor People ofthe State of California, ex rel. Kamala D. Harris, Attorney General Ju the Supreme Court of the State of Caltfornia CLEVELAND NATIONAL FOREST FOUNDATION; STERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; CREED-21; AFFORDABLE HOUSING COALITION OF SAN DIEGO; PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffs and Cross-Appellants, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS;SAN DIEGO ASSOCIATION OF GOVERNMENTS BOARD OF DIRECTORS, Defendants and Appellants. Case No. 8223603 Fourth Appellate District, Div. Two, Case No. D063288 County Superior Court, Case No. 37-2011-00101593-CU-TT-CTL Timothy B. Taylor, Judge PEOPLE OF THE STATE OF CALIFORNIA’S ANSWERBRIEF ON THE MERITS KAMALAD. HARRIS TIMOTHY R. PATTERSON Attorney General of California Supervising Deputy Attorney General EDWARD C. DUMONT State Bar No. 72209 Solicitor General *JANILL L. RICHARDS MARK J. BRECKLER Principal Deputy Solicitor General Chief Assistant Attorney General State Bar No. 173817 SALLY MAGNANI 1515 Clay Street, 20th Floor Senior Assistant Attorney General P.O. Box 70550 Oakland, CA 94612-0550 (510) 622-2130 Janill.Richards@doj.ca.gov Attorneysfor People ofthe State of California, ex rel. Kamala D. Harris, Attorney General TABLE OF CONTENTS Page Statement of the [ssule ...:.....:ccccecccseeeessceceseeessessscessenecsreesceeessrecseseeeeseeeensees 1 Short Answer to Statement of the Issue ........ eee cseeseeeeeeeeeseeeeeteeeseseseeeeeees 1 Introduction .......ccccsccssececessceseecsenecesseseeeeeeceseeeeeeeseseesesescueaseuscseessesescsseseesees 2 Statement of the Case......c.ccccccccsesseesereccesecseneecssneseeeeceeaeesessassssessseeeseeees 6 I. SANDAG’s Regional Transportation Planning Obigations .......c.ccesceceseceesesecsteteesececeeneresesesesesssesesseeseessseseeeses 6 I. The CEQAProcessfor the 2011 Update to SANDAG’S 2050 Plan.......cccccsecceeeeeeeeeereeesseescsessssessessearees 7 Il. The Ensuing CEQALitigation and Lower Court . DECISIONS.....cccsecesscesscceseececesceestececeseeceseesssseaeessaesseasonsesesees 10 Background: The Science, Law, and Policy of Climate Change.............. 12 A. Executive Order No. S-03-05 (2005)...eeeseeeeeees 13 B. TheGlobal Warming Solutions Act (AB 32) (2006) and the AB 32 Scoping Plan (2008).............. 14 C. Legislation Directing Amendmentsto the CEQA Guidelines to Address Greenhouse Gas Emissions (2007) and Resulting Amendments (2010) ..eecsccccccsccssesseseceeesesseceeeteesceeceeeeessssesstsssesneeeeese 17 D. SANDAG’s Climate Action Strategy (2010) ........... 19 E. The Sustainable Communities Strategies Law (2008) and SANDAG’sRegional Targets (2010) ..ececcccessessesseesesseceseeeeeseersereeceseseeessneecesesaseaseaes 20 Standard Of REVICW ......:cccccscscccceseceseesseeeeeceseeseeseeeseeesssaaeessessenseneeeenesneneas 21 ATQUMENEA...eeeceeeeceeseseesssseessesecseceeesesanecseseecaeeseeseeseeeseeneesasieasnesaetaetaeey 22 I. Summary of Argument secssvessusesaesesasssesssassassessueesseeeseeseeseees 22 Il. Summary of the 2050 Plan EIR 0...cececee seteeeeeseneneees 25 A. Project Description .......cesses rete ereeetenseeeaeeneees 25 B. Disclosure and Analysis of the 2050 Plan’s Greenhouse Gas EmisSions..............eesssseseeseeesseseeeees 25 C. Significance Determination 00.0... cece ceeeeeereeeees 27 TABLE OF CONTENTS (continued) Page D. Response to Comments Requesting Consideration of Climate Stabilization.........00.0.. 31 II. CEQA Requires SANDAGto Consider the Science and Policy of Climate Stabilization in Determining the Significance of the 2050 Plan’s Greenhouse Gas EMiSSiO0.........cccccessesseeseessceeeeceeeecseseeeeseeeeseeeesessessasseeseeasenees 31 IV. The 2050 Plan EIR’s Failure to Consider Climate Science and Policy Was Prejudicial............cssssseeseseeeeeees 35 V. SANDAG’s Additional Arguments Do Not Excuse the 2050 Plan EIR’s Substantial Deficiencies 0.0...eeeeeees 38 A. Deference to Agency Discretion Does Not Sanction a Document that Minimizes a Project’s Environmental Effects ........cceececceesssceereeeeereseeeeerenes 38 B. The 2009 Amendments to the CEQA Guidelines Did Not Excuse Lead Agencies From Exercising Careful Judgment and Making Their Best Efforts in Determining Significance....... 40 C. The EIR’s Disclosure of 2050 Gross Emissions and Bare Mention of the Executive Order Are Not a Substitute for Good Faith, Reasoned Analysis..........naeeeecssecueceseceeneeceeseeeeseeenseeeraetaneetenseeeees 46 D. SANDAG’sPost Hoc Attempts to Justify its Refusal to Consider the Science and State Policy Concerning Long-Term Climate Stabilization Should Be Rejected 0...eeeeeeseeees 49 VI. This Court Should Remandthe Matter and Allow SANDAGto Remedy the 2011 Environmental Impact Report’s Deficiencies in the Course of the Pending 2050 Plan Update 0...eeeeeescesssssseseseeeseseeeeseesseesseeeneesaee 52 COnCIUSION.......ccccccscccececccccccuceeecctceeecccsscecteceseccsuaeessvscessustecnesesecsceeseuseseeeeeaes 54 li TABLE OF AUTHORITIES CASES Assn. ofIrritated Residents v. California Air Resources Bd. Page (2012) 206 Cal.App.4th 1487 oo... eeeesseseereeeneessneeseereneneens 15, 36, 43 Berkeley Hillside Preservation v. City ofBerkeley (2015) 60 Cal.4th 1086 vccccccccssssssssssssssssssssssssssscssecesscccceeeeeeees 21, 39, 42 Berkeley Keep Jets Over the Bay v. Bd. ofPort Comrs. (2001) 91 CalApp4th 1344 .cccccsccsscssssssssssssssesssccssseccscsececeeceeeee 36, 46 Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263 scocscssessssessssesssesssestessssessnseseense_ California Charter Schools Assn. v. Los Angeles Unified SchoolDist. (2015) 60 Cal.4th 1221eeececseseereeneeesseeeneesseseseeeenaee Californiansfor Alternatives to Toxics v. Dept. ofFood & Agriculture (2005) 136 Cal.App.4th DL eeccsesssccccsssssssssssssssssesseccessssssssnnneenaen Citizens ofGoleta Valley v. Bd. ofSupervisors eeeeseeateee 4] seseeeaeeeses 53 seveeeneenaee 42 (1990) 52 Cal.3d 553 cecccsscssessssessssssssssseeessseeessscccccccssssssssnsssnsnneee 21, 32 City ofMarina v. Bd. ofTrustees ofthe California State University (2006) 39 Cal.4th 341 ccccccccccssssccsssssssssssssssssessssescesssssssnsnenunnneneeen 21, 39 Communitiesfor a Better Environmentv. California Resources Agency (2002) 103 CalApp.4th 98 oo. ccescesseereereseeeeenseeneesernees Communitiesfor a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310 cceccsccssssssessssssssssccsssssssussessessssseseeseesssen Concerned Citizens ofCosta Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929iccceececcessseeeseeneeeneecsseeneeeseeseeteeees ili eeseeeeaaees 42 seveevaeesaee 36 eceesesasens 35 TABLE OF AUTHORITIES (continued) Page Edna Valley Assn. v. San Luis Obispo County and Cities APCC (1977) 67 Cal.App.3d 444oeeseecsscresseseesensesecsseeseneesenessesseesenseeegs 7 Friends ofSierra Madrev. City ofSierra Madre (2001) 25 Cal.4th 165eeecceecesseseseseresesssesessseseeeseees vecseeaeeeaeeneeeeees 28 Kings County Farm Bur. v. City ofHanford (1990) 221 Cal.App.3d 692 ooo.cescsesssseseseesseseseseesseeeseseeneeness 35, 48 Laurel Heights Improvement Assn. v. Regents of University of California © (1988) 47 Cal.3d 376eeecessesceseccseeesessecesensessessessneeneeseseeesees 2, 22, 32 Massachusetts v. EPA (2007) 549 U.S. 497 oececeesceseeescetensesesecaresseesesessesesesessensessssseeeesseasenate 49 Neighborsfor Smart Rail v. Exposition Metro Line Construction (2013) 57 Cal.Ath 439 ..ccccscsscsssscssssssssssesssssesssssssesesisstisesenstesnsee 35 No Oil, Inc. v. City ofLos Angeles (1974) 13 Cal.3d 68 occ ceccececsceseeeteteeseeecesseaseecsseesessesseseessnsesseneeneenseens 28 Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 CalApp.4th 1099 ooccccsceccesseeseeessstsesseseseseeeseeeees 42 Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412eeecececeerereeteeteeenscneeeneeeeanes 21 et passim iv TABLE OF AUTHORITIES (continued) Page STATUTES 23 U.S.C. § 134 cvccccccccssessecsescecseeseeeesstecseeceesessesseeessscesesssesseeeseenenesessenseeasens 6 Government Code § 12600, Subd. (D) oo.eeeeeeseesesecsesseseseeecansassesseeeesesenseeeseesesseseeaeens 10 § 12606 oo..ecceccccseeescetececceeeeeeneeseseeeeseescneesssecseseesessecsesseesseseesaseserensentes 10 § 65080 et seq. (Sustainable Communities Strategy Law, SB 375)............ 6 et passim § 65080, subd. (0)(2) oe. eeecesessseeeesssceseeeerssseseeenesseesseaeeseeesessseesseeegs 7, 20 Health and Safety Code § 38500 et seq. (Global Warming Solutions Act of 2006, AB 32)............. 1 et passim § 38501, Sub. (1).ee eeeeecteeceeeseeeeesceasesesesessessssesecaseneeeessseseeaesesseesenees 1 § 38550 vecceccceesccesecceceecceseeesccseesesescsessssnsecsssesersesscsasateessenesseesssenscseeeenengs 14 § 3855] we.pesesaeeceseesaceceuseaeuseecsceesceedeseeceseeatenersessnesseeeesnsaseesseeses 1,14 § 38551, subd. (D) oo.eee eee ecseteeseesenesessaeseesecseenseseesesseneenseaesaeeseees 14, 15 § 38551, SUM.(C) oneee eeeeeeereeeeseeseesetscsensessecsssseesesesseceseseesesseeneeees 15 § BQ561 oe ccecceccceceeeceeeceseseeseseeeesesessseessssussnecseseessssassssesessessenesassenseneenees 15 Public Resources Code § 21000 et seq. (California Enviornmental Quality ACt) occcececeeeeeeeees 1 et passim § 21000, SUD. (8) neeeeetetsesecseereeceeteeeseseeeseseneseeeseeesensesseeeeensaeaes 33 § 21000, subd. (d) occeesreeeeeesseeeeteeseceeaeenas seeeeceeeeneeaeeenseessseees 17 TABLE OF AUTHORITIES (continued) Page § 21001, subd. (8) oo.eeeeeneeesesseesesseessessasenenseseeneassesnseessensseneessenaeees 33 § 21001, SUB. (C) .ceeececeecteeeeeteesceeeesseseesstssseesssesssseesesseneesesseeseneteeeeenes 33 § 21001, SUDA. () eeeeee eeeceeeeseseseneeteeeeeseseessnensenesneesereeneeneess 2, 17, 33 § 21002 cerceecccesesseesseeseeensessesstsesesuvessussssessecssuessussssusssstesseceseesaseesseeeesses.8 § 21002.1, subd. (4), (D)..eee eccceessesseescsseseeeseteesssesesesssesseeesesseesssens 8 - § 21002.1, SUDA. (C) eeeeesceeseeeesseessteetessseseessessseesecseessassseesessersrsaeens 8 S 21061 w.eecccccccsscssesseseteeceetseseseecseeeeseesecseaesseessseeseesessecssereseeeeaseeeaey 8, 28 S Q1OBL v.eccececeeescsceseeeeeeceseecseceeeseeesseessessaceasseseneneseeeesceseesesserseeeeens 8, 28 § 21083 v.eccccscsceseesceeceeeseeeesesesesersessesasseecsasecsecsssesssessesseseeneeseesesseenenes 39 § 21083, Subd.(b) oeeeeeececetetseseeeeseeeeesessesesessssesseseceessseeseessasersesesenees 18 § DLO83D oeecececeseeecsecececeseseseseseecsnesesevsusseusscssesesssseressesseaesaeseeseneeseneees 39 § 21083.05 oceececceccscccssesseseceseneesseeesseeseescsesensesseseserereseseseeseessneesenes 18, 44 SQLS vieccceccccscesesceescsceecceseceseseeesecseeecseesseessesaseseveuceeseceeseesseeesenseneeeses 28 § 211685 oc cccccccccssesesseseseeeeensceesseseceecsseecsessusstenseceesesesseseeseressaneseras 21 § 21168.9, SUD. (A) oeeeeceeetcsceeeeesceeeeesesseesessesscseensecseeeeessesseseeaeeanees 53 Public Utilities Code § 120300 w..eecccceceseesseeeseseeerseteeaeeseeecseseesecsessassnesseseesseseessessesseesseeesesieetes 6 § 132050 ccccscsceseeseccessssssscssssssssesssssssssevscssssssssensessessessseesescesssseeseeessssssnssen 6 § 132051 oo eecceseeseseeceeesereseeeeeeeeseeseessessenscsessasessseceesssseesecnessseesseeesseneetes 6 Stats. 1970, ch. 1433 oo. cececeseseseessesssseeseeceseesecaeesssssseesescsecseseesessessasecseees 17 Stats. 2007, ch. 185, § 1 .eeseeececseetecteseeeeeeseeestestesnesnscseereenenseseeeneeeceneny 18 vi TABLE OF AUTHORITIES (continued) Page Stats. 2012, ch. 548, § 5 ooo eeseeeccceseeeeeeeesseesssesessseceseseeessereressesceneenenees 18 REGULATIONS California Code of Regulations,title 14 § 15000 et seq. (CEQA Guidelines)...veccsssueessueessueesessesaetseen 9,17 § 15003, SUA.(i) secccsccssssesssssevsssesessssestennesensessensssesetcesseeesseesseee 34 § 15003, subd. (A) oeeee eeeeeeeeceseeeeeeeteaeseseseeseesaceesesssesseeeneseesseesessseees 33 § 15021, SUDA. (A) cecsesecsssssseesssssstessssesssecsssessssseessseseseessseccsteceasseeseceseeeesen 9 § 15064 eeeceeseceeeseeeeeeetersseesssdveseereceeeseseeaseseseeceresseeeeees 18, 34, 38, 43 § 15064, SUbG. (a) cessecesssssssssssssseesssssssessssesssssssescessssesssssccesssseeeseensssseneess 28 § 15064, SUDA. (b) eecececssssesesscssseesssssecssecssecssssssssessesssesseceseesessseesesse 19, 34 § 15064, subd. (In)(L) ceeccssssessecsssessssscessessssssssssecesseseesecssscesssecessseceeesseases 28 § 15064, subd. (h)(3) ceccssssssssessssssevessessssssessssusecsssssessuesssueesssssenseeeesssnees 44 § 15064.4 weesseessccesessssucseseasscasaseesesesessseceeceneeseseseeeseseass 18 et passim § 15064.4, SUDA. (€) esceccescessesestessesssesseseeteseenes csecesssssssesseste 18, 19, 40 § 15064.4, subd. (b)(1) vessssseeecseee_senstutututatasatisntttaantantne 18 § 15064.4, Subd. (b)(2) cecscssssesessssssessssessssessssseessssseessseeesseessseeeseesson 41, 48 § 15064.4, subd. (b)(3) cecsscssseesscssseesssseessseessssseesssseessseeesseees 41, 42, 43, 44 § 15064.7 veeccccsscssssesesssesssssssssessssssesssussssesssecssssesesseesssesessecssecesseseessssneess 18 § 15064.7, SUDA. (a) coceeccsssseesssssseessssesssecssesesssesssssessseceseccasesessieseeessstees 41 § 15065 0... eeeseeeeeeeeeneceeeeeeeenspeeeeeeceeeeeceecesnscaaeeeeeeeeceeecesesesaeersenentees 43 § 15065, Subd. (a)(2).cesccsssssesecssssecssseessessseessssesssssesssessuessssesesssnesseessanees 33 vii TABLE OF AUTHORITIES (continued) Page § 15126.2, subd. (a)........sgeueenuscesaneneesceaesseeesanecerensanneneessescsscsonseeseeseseoaees 33 § 15126.2, SUbG. (C) vesssccccssscssssssscesssssssesesssssssessssssnsssneensseeessseseenseeseene 33 § 15126.2, Subd. (A)... eeeseeeeseerceseeeeeseeesesesessesasseeeeseensenneseesseensesene 35 § 15144ccccececcseceeetsetereeeeeseeeeeecsseaeeessenersesseenenseesseseeesesensneasenes 34, 41 SSS ccceceenetseceseeceseesecseeseeeeseeseesessecsseeseseereeseneseasenes 34, 35, 38, 43 § 15204 oo ecsccsesseessseescsssesnsnesssseseseecsssensessesessseeneessneneesessseneneaeeneneeess 34 § 15384, subd. (b) oo... eeceeeceseeeceeeeeeeeeceeeeseeeseseeesessesssaessecsensesaesaeans 22 OTHER AUTHORITIES Executive Order No. S-3-05 (2005) oo... eeeeeeesseeeeeseeeeesenseseeessaees 1 etpassim Executive Order No. B-30-15 (2015) oo... cccsceescccesssneeeeeeneeeeesseeeeteeeeeees 51, 52 Vill STATEMENTOF THE ISSUE “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?” SHORT ANSWER TO STATEMENT OF THE ISSUE To preserve our existing environment and reducetherisk of dangerous climate change, science instructs that we must continually and substantially reduce our greenhouse gas emissions through midcentury. The objective of climate stabilization is now firmly embedded in state law © and policy, including the State’s foundationalclimate law, the Global Warming Solutions Act of 2006, commonly referred to as AB 32 (Health & Saf. Code, § 38500 et seq.). Wherethe proposed update to a 40-year regional transportation plan showsnear-term reductions in greenhouse gas emissions, but the reductions are not projected to continue over the longer-term, the lead agency must make a goodfaith, reasonable effort to analyze and discussin its Environmental Impact Report whether the proposed project may conflict or interfere with the State’s climate stabilization objectives, or explain whyit cannot conduct such an analysis. To beclear, in the present case, this requirementarises not from any executive order, but from CEQA’s requirementthat a public agency exercise its careful judgmentin light of the available facts and science and discloseall that it reasonably can about a project’s short- and long-term environmentaleffects, including whether the project may undermine well-established, long-term environmentalgoals. INTRODUCTION Appellants, the San Diego Association of Governments (SANDAG) and its Board, contendthis case presents a thicket of thorny questions on such things as the proper standard of review, deference to agency decision making, separation of powers and the effect of executive orders, and interpretation of the CEQA Guidelines as applied to greenhouse-gas related impacts. But this case turns on a simpler and more fundamental question: Whether SANDAGin its Environmental Impact Report for the 2050 Regional Transportation Plan and Sustainable Communities Strategy (2050 Plan) could decline to consider the State’s long-term climate stabilization objectives, and the science that underlies those objectives, andstill produce a documentthat serves the basic informational purposes of CEQA. As both the trial court and Court of Appeal held, it could not. In enacting CEQA,the Legislature determined “that the long-term protection of the environment, consistent with the provision of a decent homeandsuitable living environment for every Californian, shall be the guiding criterion in public decisions.” (Pub. Resources Code, § 21001, subd.(d).)' This end is served by requiring an Environmental Impact Report for any project that may have a significant effect on the environment. In the seminal Laurel Heights decision, this court described the EIR as the “heart of CEQA” and an “environmental ‘alarm bell’ whose purposeit is to alert the public andits responsibleofficials to environmental changes before they have reached ecological points of no return.” (Laurel Heights Improvement Assn. v. Regents of University ofCalifornia (1988) 47 Cal.3d 376, 392 [internal quotations omitted].) The public agency’s charge in preparing an EIR thusis to make a reasonable, good faith effort to discloseall that it reasonably can about the project’s significant ' All cites are to the Public Resources Code unless otherwise noted. environmental effects. The agency is required to present the hard questions about the project’s potential impacts, and to endeavor to answer those questionsin light of available facts and science, and with short- and long- term environmental objectives in mind. When the agency meets its CEQA obligations, the EIR serves the law’s purposes by fostering informed public discussion and ensuring governmental accountability. In those circumstances, though a challenger may view the documentas imperfect, or the agency’s decision as unwise, the EIR and the agency’s decision to approve the project are legally sufficient and must stand as an exercise of the lead agency’s considerable discretion. This same deference cannot apply where,as in this case, the agency declines to present or attempt to answerthe hard environmental questions. In 2011, SANDAG,the Metropolitan Planning Organization for the 4,200- plus square mile San Diego region, prepared an EIR for its 2050 Plan, a planning and expenditure documentthat, in SANDAG’s words,will serve as the region’s transportation system “blueprint” for the next 40 years. As the Attorney General noted in her comments on the EIR, while the 2050 Plan mayresult in near-term reductions in greenhouse gases, projected per capita and total greenhouse gas emissions beginto rise after 2020. In light of climate science and the State’s well-established policy to continually and substantially reduce greenhouse gas emissions through midcentury in order to achieve climate stabilization, the relevant question is, what is the environmental significance of the region’s post-2020 rising emissions trajectory? Should the public and decision makers be concerned? Can current and future actions bend the curve downward, or are the decisions being madetoday irreversibly committing the region, andtheState, to increasing emissions? SANDAG’sresponse, then and now,is that neither the Legislature nor the California Resources Agencyhasspecifically directed SANDAG,in carrying out its duties under CEQA,to consider the State’s long-term statewide emissions reduction target—80 percent below 1990 emissions level by 2050—thatis set out in Executive Order S-3-05 (2005). In the absence of such a directive, SANDAGargues,it was free to ignore these questions. It is irrelevant, however, that Executive Order No. S-3-05 is not directed at SANDAG. CEQAitself, apart from this executive order, requires SANDAGasthe lead agency to exercise its own careful judgment, based to the extent possible on scientific and factual data, to determine whether the greenhouse gas emissionsresulting from its regional transportation plan will be significant over the longer term, and to produce a documentthat allows for public discussion and fully informed decision making. SANDAGfailed to meetits obligation. The 2050 Plan EIR disclosed, without any meaningful analysis or discussion, that greenhouse gas. emissions would be higher in 2050 than in 2010, but moved quickly to minimize rather than highlight any concerns that might be raised by the longer-term increase. The EIR asserted, for example, that in the year 2020, the 2050 Plan will not conflict with the Air Resources Board’s Scoping Plan—the framework documentsetting out how the State will meet the 2020 statewide greenhouse gas emissionslimit established by the Global Warming Solutions Act of 2006. The EIR failed to note, however, that the 2020 target is not an environmentalendin itself, but rather an interim step towards achieving substantial longer-term emissions reductions and climate stabilization. The resulting EIR was not only incomplete—it was misleading. In the words of the Court ofAppeal, the EIR madeit “falsely appear as if the transportation plan is furthering state climate policy when, in fact, the trajectory of the transportation plan’s post-2020 [greenhouse gas] emissions directly contravenesit.” (Opinion (Nov. 24, 2014) (Opn.) 19.) This court need not—and should not—prescribe precisely how SANDAGmust account for the environmental objective of long-term climate stabilization in making its significance determination. A lead agency has considerable discretion in this regard. Contrary to SANDAG’s assertions, the People do not argue that CEQA requires SANDAGto engage in strict “consistency” analysis, under which any failureofits regional transportation plan to follow in lockstep the statewide reductions described in the Scoping Plan and Executive Order would render the project’s greenhouse gas impacts necessarily significant. SANDAG could comply with CEQAby, for example, discussing whether the 2050 Plan’s projected increases in greenhouse gas emissions and vehicle miles traveled over the longer-term mayinterfere with or make it more difficult to achieve the continual and substantial statewide emissions reductions required to meet the State’s longer-term climate objectives. Indeed, that appears to be the approach that SANDAGistakingin the currently circulating draft EIR for the 2050 Plan’s required four-year update. Had SANDAGincludedin the 2011 EIR the discussion of significance for the project’s greenhouse gas-related impacts that is contained in its current draft EIR, the People likely would not be before this court on this particular issue. Since SANDAGinits opening brief contendsthat it is not legally required to provide this information to the public and decision makers,thereis still a need for this court to settle the question of SANDAG’s obligations under CEQA,which could otherwise evade judicial review dueto the relatively short amendment cycle for regional transportation plans. The court should hold that where a regional transportation plan—a large-scale, long-term infrastructure and land use planning project—may commit a region to substantial greenhouse gas emissions for decadesto come, the lead agency in its EIR mustdisclose not only the project’s near- term emissions, but also whether early trends are sustainable over the project’s lifespan. Ifthe project’s near-term emissions reductions are not expected to continue, the lead agency should make a reasonableeffort to analyze and discuss whether the project may conflict or interfere with the State’s long-term climate stabilization objectives, or explain whyit cannot, supporting its explanation with substantial evidence. The court should hold that SANDAGabusedits discretion in determining that, for the 2050 Plan, it had no legal obligation under CEQAto consider the environmental objective of climate stabilization. It should further affirm the judgment of the Court of Appeal thatSANDAG’serror wasprejudicial, provide that SANDAGmustdecertify the deficient 2011 EIR, and remandthe case for further proceedings and the issuance of a writ consistent with this court’s opinion. STATEMENT OF THE CASE I. SANDAG’S REGIONAL TRANSPORTATION PLANNING OBLIGATIONS SANDAGis a Metropolitan Planning Organization, one of18 regional transportation planning entities across the State. (See Administrative Record (AR) 8a:2065, 218: 17688-17689.)° The area under SANDAG’s jurisdiction encompasses the County of San Diego and the region’s 18 cities and covers more than 4,200 square miles. (AR 8a:1998, 2142.) By law, SANDAGis required to prepare a regional transportation plan and to update it every four years. (Pub. Util. Code, §§ 120300, 132050, 132051; Gov. Code, § 65080 et seq.; 23 U.S.C. § 134; see also AR 8a:2065 [EIR].) “The purpose ofthe [regional transportation plan] is to establish regional goals, identify present and future needs, deficiencies and * See also the website for the Institute for Local Governmentat [as of July 6, 2015]. constraints, analyze potential solutions, estimate available funding, and propose investments.” (AR 218:17690 [Regional Transportation Plan Guidelines].) The 2050 Planis a planning and transportation expenditure documentthat, in SANDAG’s words,“is the blueprint for a regional transportation system, serving existing and projected residents and workers within the San Diego region . .. over the next 40 years.” (AR 8a:1997 [EIR]; see also id. at 1998, 2066; Edna Valley Assn. v. San Luis Obispo County and Cities APCC (1977) 67 Cal.App.3d 444, 447-448.) The Sustainable Communities Strategy Law, SB 375, enacted in September 2008, requires SANDAGandother regional transportation planning entities throughout California to incorporate a “Sustainable Communities Strategy” in each region’s regional transportation plan. (Gov. Code, § 65080, subd. (b)(2).) Its purposeis to “align regional transportation, housing, and land use plans to reduce the amountofvehicle miles traveled to attain the regional GHG [greenhouse gas] reduction target[s]” set by the Air Resources Board. (AR 8a:2071 fEIR].)° SANDAGbeganthe process for the required 2011 update to its 2050 Regional Transportation Plan and Sustainable Communities Strategy in 2008, and released the draft 2050 Plan in April 2011. (See Appellants’ Opening Brief (AOB) 12-13.) Il. THE CEQA PROCESS FOR THE 2011 UPDATE TO SANDAG’S 2050 PLAN Becausea regional transportation plan is a project undertaken by a public agency that may havesignificant effects on the environment, CEQA requires the Metropolitan Planning Organization as “lead agency”to prepare an Environmental Impact Report. (Edna Valley, supra, 67 > SB 375 andthe targets set for the SANDAGregion are discussed in greater detail at p. 20, below. Cal.App.3d at pp. 448-449.) The purpose of an EIR is to identify for the public (through the EIR process) and agency decision makers(presented with a final EIR, including staffs responses to public comments) the project’s “significant” environmental effects, and to determine whether there are feasible alternatives, design changes, or mitigation measuresthat _could reduce or eliminate those effects. (§§ 21002, 21002.1, subd. (a), (b), 21061.) Ifthe identified impacts cannot be reduced to less-than-significant levels, the lead agency maystill approve the project, but its decision makers must makespecific findings that alternatives and further mitigation are not feasible and that other “overriding” benefits—which may include economic and social benefits—outweigh the project’s environmental harm. (§§ 21002.1, subd. (c), 21081.) SANDAGreleasedits draft EIR for the 2050 Plan in June 2011. (AR 7:227.) The Attorney General on behalf of the People, among a numberofother entities, individuals, and organizations, commented on the draft EIR. (AR 8b:3763 [EIR Appendix G, Responses to Comments].) Both the Attorney General and the Governor’s Office of Planning and Research expressed concern that while the draft EIR stated that the Plan meets the per capita emissions reduction targets set under SB 375 targets, the Plan’s per capita emissions from passenger vehicles appearto rise after 2020, which would appear to run counter to SB 375’s purposes. (AR 311:25643 [Attorney General’s commentletter]; id. at 308:25004-25005 [OPR’s commentletter].) The Attorney General’s commentletter noted, amongother things, that the draft EIR showedthat the Plan’s near-term greenhouse gas-related benefits did not appear to be sustainable beyond 2020. (AR 311:25641-25642.) The Attorney General advised that under these circumstances, in order to fully inform the public and decision makers of the Plan’s greenhousegas-related impacts, SANDAG mustevaluate the project over the longer term in relationship to the “overarching environmental objective” of climate stabilization, which requires continual and substantial emissions reductions through midcentury. (AR 311:25640- 25641.) The Attorney General cited relevant climate science, the objectives of the Global Warming Solutions Act of 2006 and its implementing Scoping Plan, and Executive Order No. S-3-05, which sets science-based declining statewide greenhouse gas emissions reduction targets, including a target of reducing total emissions to 80 percent below 1990 levels by the year 2050. (AR 311:25640-25643; see also AR 319:27049-27050 [Executive Order].) SANDAGdeclined to consider the Plan’s longer-term emissions as they relate to the objective of climate stabilization, stating that “the Legislature declined to include the Executive Order’s aspirational 2050 goal in AB 32[,]” and that the Executive Orderis not specifically identified in the CEQA Guidelines [Cal. Code Regs., tit. 14, § 15000 et seq.], andis not directly binding on SANDAGasa regional entity. (AR 8b:4430-4433 [response to Attorney General’s comments].) On October 28, 2011, SANDAGconducted a public hearing on the proposed 2050 Plan and Final EIR. (AR 186: 12709-13 {Board of Directors meeting minutes].) On that day, the SANDAG Board of Directors adopted resolutions certifying the Final EIR and approving the 2050 Plan, adopting a statement of overriding considerations, and adopting the 2050 Plan. (AR 186:12713.)’ The same day, SANDAGalsofiled a Notice of Determination for the Final EIR and the 2050 Plan. (AR 1:2-3.) * A “statement of overriding considerations”reflects “the ultimate balancing of competing public objectives when the agency decides to approvea project that will cause one or moresignificant effects on the environment.” (CEQA Guidelines, § 15021, subd. (d).) Ill. THE ENSUING CEQALITIGATION AND LOWER COURT DECISIONS In November 2011, Cleveland National Forest Foundation and Center for Biological Diversity filed a petition for writ of mandate and complaint for injunctive relief alleging numerousviolations of CEQA (CNFF case). (JA {2} 14-42.) At the same time, CREED-21 and the Affordable Housing Coalition of San Diego County filed a separate action challenging the EIR. (JA {1} 1-13.) In January 2012,the Sierra Club joined the CNFF case. (JA {254151-189.) The Attorney General on behalf of the People movedto intervenein the CNFFcase (see Gov. Code, §§ 12600, subd. (b), 12606), and thetrial court granted the People’s application two days later, on January 25, 2012. (JA {22} 102-137, {29} 198-199.) The cases subsequently were consolidated and briefed. (JA {34} 251; JA {38} 264-274.) Following oral argument,the trial court issued its ruling (JA {75} 1046-59) and on December 20, 2012, its judgment and peremptory writ of mandate. (JA {88} 1132-34; JA {89} 1135-37.) Thetrial court held that “the EIR is impermissibly dismissive” of Executive Order No. S-03-05 given that the order’s midcentury greenhouse gas goalis official state policy, is integral to the Air Resources Board’s AB 32 Scoping Plan, and was “designed to address an environmental objective that is highly relevant under CEQA (climate stabilization).” (JA {75} 1056-57.) Thetrial court concluded that the EIR’s failure to discuss the increase in total emissions from 2020 through 2050in light of “the statewide policy of reducing same during the same three decades (2020- 2050) constitutes a legally defective failure of the EIR to provide the SANDAGdecision makers (and thus the public) with adequate information about the environmental impacts of the [2050 Plan].” Ud. at 1057.) The trial court did not reach any other issues presented, such as whether the EIR 10 adequately disclosed and analyzed the Plan’s impacts on public health from particulate matter pollution. (/d. at 1058.) On December 26, 2012, SANDAGtimely appealedthetrial court’s judgment. (JA {92} 1140-1141.) The People, CNFF, and CREED-21 filed cross-appeals on the issues that the trial court did not reach. (JA {95} 1161-1163; JA {96} 1164-1168.) The Court of Appeal issued its opinion on November 24, 2014, as modified on denial of rehearing on December 16, 2014, concluding that “the EIR failed to comply with CEQAinall identified respects.” (Opn.3.) For purposes of the current appeal, only the court’s decision as it relates to the adequacy of the 2050 Plan’s disclosure and analysis of greenhouse gas emissions is relevant, and on that issue, the decision wassplit. The majority held that 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.” (Opn. 20.) The majority concluded that “[t]he omission wasprejudicial because it precluded informed decisionmaking and public participation.” (Opn. 15.) Justice Benke dissented, opining that the majority oversteppedits judicial review function by effectively mandating how SANDAG must determine the significance of the 2050 Plan’s greenhouse gas emissions. (See, e.g., Dis. Opn. 4, 8.) SANDAGtimely filed a petition for review on January 6, 2015, which this court granted on March 11, 2015 on the single issue set out above. 11 BACKGROUND: THE SCIENCE, LAW, AND POLICY OF CLIMATE CHANGE Climate changeis caused by emissions of greenhouse gases on the planet’s surface from actions such as the burning of fossil fuels. (AR 8a:2553-2554 [EIR], 311:25640 [Attorney General’s comment letter].)° Greenhouse gases reach the atmosphere, where they accumulate andpersist. (Ibid.) Higher concentrations of atmospheric greenhousegasesin turn lead to disruptions of our environment and climate, including increases in global average temperatures. (AR 8a:2553-2554.) California alreadyis experiencing the effects of climate change, which include longerfire seasons, longer and more frequent heat waves,rising sea levels, and reductions in the Sierra snowpack, a substantial source of the State’s water. (AR 311:25640, 320(5):27870.) The harmsresulting from climate change fall especially hard on our most vulnerable residents—“the urban poor, the elderly, children, traditional societies, agricultural workers and rural populations.” (AR 311:25640.) The 2050 Plan EIR, the lower courts’ decisions, and the briefs in this case discuss the relationship of a numberofgreenhouse gas- and climate- related statues, regulations, and policy documents to SANDAG’s obligations under CEQA. The People briefly summarize these authorities, and the climate science that underlies them, for the court’s convenience. ° The Attorney General’s commentletter discusses the causes and effects of climate change and providescitations to authoritative sources. (AR 311:25640-25641.) Since SANDAGdoesnot dispute the mechanism of climate changeorits serious, adverse effects, the People in this brief provide only an abbreviated discussion of these topics. For the court’s reference, the Intergovernmental Panel on Climate Change’s 2007 ‘Frequently Asked Questions” document, cited in the Attorney General’s commentletter, is a concise and authoritative summary,andis available at https://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-faqs.pdf. 12 A. Executive Order No. S-03-05 (2005) Responding to California’s particular vulnerability to climate change, in 2005, Governor Schwarzenegger issued Executive Order No. S-3-05. The Executive Ordersets out an overarching framework to guide California’s climate efforts. It provides in relevant part “[t]hat the following greenhouse gas emission reduction targets are hereby established for California: by 2010, reduce GHG emissions to 2000 levels; by 2020, reduce GHG emissions to 1990 levels; [and] by 2050, reduce GHG emissions to 80 percent below 1990 levels... .” As SANDAGacknowledgesin its opening brief, the Executive Order’s targets are “based on studies estimating that stabilization of atmospheric CO,[-equivalent] levels at approximately 450 parts per million (ppm) would stabilize [average] global temperature levels at approximately 2 degrees [Celsius] above pre-industrial levels.” (AOB 7.) More specifically, they are grounded in work by the Intergovernmental Panel on Climate Change (IPCC), the leading internationalscientific body for the assessmentofclimate change, which acts under the auspices ofthe United Nations. As SANDAGnoted in its EIR, the IPCC constructed a number of possible future global greenhouse gas “emission trajectories” to understand _what must be done“to stabilize global temperatures and climate change impacts.” (AR 8a:2553-2554 [EIR].)° The “IPCC concludedthat a stabilization of GHGsat 400 to 450 parts per million (ppm) CO)[carbon dioxide] equivalent concentration is required to keep global mean warming © See IPCC 4th Assessment Report (2007), [July 6, 2015]; see also IPCC 5th Assessment Report (2014) [as of July 6, 2015] at pp. 12-13. 13 below 3.6° F (2° Celsius), which is assumedto be necessary to avoid dangerous climate change.” (AR 8a:2553-54 [EIR].) Stabilization at these levels would require that global emissions peak sometime in the 2000-2015 period and showa substantial reduction by 2050.’ Achieving stabilization will require greater reductions in annual emissions from developed countries. (See, e.g., AR 216:17623 [SANDAG’s Climate Action Strategy] YS As SANDAGobservesin its opening brief, meeting the greenhouse gas emissions targets described in the Executive Order “could avoid more extreme climate change scenarios.” (AOB 7.) B. The Global Warming Solutions Act (AB 32) (2006) and the AB 32 Scoping Plan (2008) The Legislature followed Executive Order No. S-03-5 with the Global Warming Solutions Act of 2006, commonly knownas AB 32. (Health & Saf. Code, § 38500 et seq.) AB 32 mandates that by 2020, California must reduceits total statewide annual greenhouse gas emissionsto the level they were in 1990. (/d., §§ 38550, 38551.) The Legislature stated its further intent that “the statewide greenhouse gas emissions limit continue in existence and be used to maintain and continue reductions of greenhouse gases beyond 2020.” Ud., § 38551, subd. (b).)? The 2020 emissions limit ’ See previous footnote. ® See, also, e.g., Union of Concerned Scientists, Avoiding Dangerous Climate Change, A Targetfor U.S. Emissions Reductions (2007), available at http://Awww.usclimatenetwork.org/resource- database/WEB%20emissions-target-fact-sheet.pdf [as of July 6, 2015], recommendingthat the U.S. reduce emissionsby at least 80 percent below 2000 levels by 2050. ° SANDAGasserts that “AB 32 did not ratify the Executive Order[.]’” (AOB 42.) While this statement is beside the point, the People (continued...) 14 is not an endinitself, but “is but a step towards achieving” the “longer- term climate goal” described in Executive Order No. S-3-05. (Assn. of Irritated Residents v. California Air Resources Bd. (2012) 206 Cal.App.4th 1487, 1496,citing the Executive Order].) AB 32 requires the Air Resources Board to develop a framework plan—the Scoping Plan—outlining how California will achieve the required 2020 greenhousegaslimit through such things as direct emission regulations, “market-based compliance mechanisms,” incentives, and voluntary actions. (Health & Saf. Code, § 38561.) The Air Resources Board completed the initial AB 32 Scoping Plan in 2008. (AR 320(5):27842.) In the Scoping Plan, the Air Resources Board observedthat “gletting to the 2020 goal is not the end of the State’s effort.” (AR 320(5):27848; see also Health & Saf. Code, § 38551, subds. (b), (c).) “The 2020 goal wasestablished to be an aggressive, but achievable, mid-term target, and the 2050 greenhouse gas emissions reduction goal represents the level scientists believe is necessary to reach levels that will stabilize climate.” (AR 320(5):27864 [Scoping Plan]; see also 311:25641 [Attorney General’s commentletter].) The Attorney General’s commentletter on the 2050 Plan draft EIR attached a chart from the Scoping Plan that describes changes in the State’s total and per capita emissions over time— California’s “emissions trajectory”—necessary to achieve the State’s climate stabilization objective: (...continued) note that it is also wrong. The Legislature in fact did sanction the science and policy reflected in Executive Order No. S-3-05. (See, e.g., Health & Saf. Code, §§ 38501, subd. (i), 38551.) 15 Figure 6: Emissions Trajectory Toward 2050 50 r 20.0 500.0 4 r 18.0 452 427 a b 16.0 400.0 40007 — \ | 14.0 — — ‘ ‘N 143 \ r 12.0 300.0 \eo 13.3 - 10.013.3 \ N N + 8.0 200.6 4 96 N& \ + 6.0 “N ‘J 58 b 4.0100.0 \, Bs 3.4 L 20 | 14] 0.0 t r t t T r 0.0 1990 2000 2010 2020 2030 2040 2050 [CJ Per-capita Emissions (MT/person/year) —= Emissions (MMTCO2E)| (AR 311:25645.)'° In the Scoping Plan, the Air Resources Board noted the importantrole of better land use and transportation planning, and the need to begin action in the near term. Looking beyond 2020, “it will be necessary to significantly change California’s current land use and transportation planning policies. Although these changes will take time, getting started now will help put California on course to cut statewide greenhouse gas emissions by 80 percent in 2050 as called for by Governor Schwarzenegger.” (AR 320(5):27858-27859;see also id. at 320(5):27879- 27880.) '° Duringthis litigation, the Air Resources Board approvedthefirst update to the Scoping Plan on May 22, 2014. (See [as of July 6, 2015].) The updated Scoping Plan contains a similar figure at p. 33. 16 C. Legislation Directing Amendments to the CEQA Guidelines to Address Greenhouse Gas Emissions (2007) and Resulting Amendments (2010) From its outset, CEQA has required that “the long-term protection of the environment” mustbe “the guiding criterion in public decisions.” (§ 21001, subd. (d); see Stats. 1970, ch. 1433, p. 2781.) While concerns about human-caused climate change were notyet part of the regular public discourse in 1970, the statute was written to address environmental problemsas they might arise. The statute’s description of “tipping points” is prescient: The capacity of the environmentis limited, andit is the intent of the Legislature that the governmentofthe state take immediate steps to identify any critical thresholds for the health and safety of the people of the state and take all coordinated actions necessary to prevent such thresholds being reached. (§ 21000, subd. (d), added by Stats. 1970, ch. 1433, p. 2780; see also AR 216:17623 [SANDAG’sClimate Action Strategy, noting risk of climate changetipping points].)"! Public agencies are guided in their compliance by the CEQA Guidelines, contained at California Code of Regulations, title 14, sections 15000 et seq.’* The CEQA Guidelines“includecriteria for public agencies to follow in determining whether or not a proposed project may have a 299‘significant effect on the environment’”—thetriggering condition for an 'l For the court’s reference, the People have providedthe original version of CEQA—asuccinct four pages—as enacted in September 1970 (Stats. 1970, ch. 1433, pp. 2780-2783). (People’s Motion for Judicial Notice, People’s Decl., Ex. 2.) 2 “Tn interpreting CEQA, [the courts] accord the Guidelines great weight except where they are clearly unauthorized or erroneous.” (Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412, 428, fn. 5.) 17 EIR. (§ 21083, subd. (b).) As greenhouse gases and climate change began to be discussed more routinely in CEQA commentletters and CEQA documents, there was a perceived need for the CEQA Guidelinesto offer guidance that was morespecific to this issue. In August 2007,with the passageof Senate Bill 97, the Legislature added section 21083.05, which directed the Governor’s Office of Planning and Research to prepare and the Resources Agency to adopt “guidelines for the mitigation of greenhouse gas emissionsorthe effects of greenhouse gas emissionsas required by this division,including, but not limited to, effects associated with transportation or energy consumption ....” (Stats. 2007, ch. 185, § 1 [SB 97].) Amendments to the CEQA Guidelines became effective in March 2010.'° Included in the amendmentsis new section 15064.4,entitled “Determining the Significance of Impacts from Greenhouse Gas Emissions.” The provision includes a non-exclusive list of three “factors” that a lead agency should consider: whetherthe project increases emissions over existing conditions; whether the project’s emissions exceed a “threshold of significance” the lead agency determines should apply to the project; and the extent to which the project complies with requirements in a plan to reduce greenhouse gas emissions. (CEQA Guidelines, § 15064.4, subd. (b)(1).)'* It furtherinstructs that “[t]he determination ofthe significance of greenhouse gas emissions calls for a careful judgment by the lead agency consistent with the provisions in section 15064[,]” the pre- existing and generally applicable provision outlining a lead agency’s obligations in determining significance. (CEQA Guidelines, § 15064.4, 3 Section 21083.05 was amendedin 2012to reflect that the guidelines had been issued. (Stats. 2012, ch. 548, § 5 [AB 2669].) 4 The conceptof “thresholds” is discussed at p. 42, below. (See also CEQA Guidelines, § 15064.7.) 18 subd. (a).) The SB 97 amendments “‘add[ed] no additional substantive requirements; rather, the Guidelines merely assist lead agencies in complying with CEQA’sexisting requirements.” (AR 319:25828 [Final Statement of Reasons (FSOR)].) The provision incorporates by reference the general provision addressing significance determinationsandreiterates the obligation of the agency to consider“scientific and factual data” and to make a “good-faith effort.” (§§ 15064.4, subd. (a), 15064, subd.(b).) D. SANDAG’s Climate Action Strategy (2010) In March 2010, SANDAGissued its own “Climate Action Strategy” to serve as a “guide to help policymakers address climate change as they makedecisions to meet the needs of our growing population, maintain and enhanceour quality oflife, and promote economicstability.” (AR 216:17618.) The documentsets out “theoretical emissions reduction[ ]” targets for total regional greenhouse emissions through 2050 on a declining trajectory. (/d. at p. 17628 [Figure 3-1].) In its Climate Action Strategy, SANDAGobservedthat the Executive Order’s 2050 reduction goal is based on climate science and “is used as the long-term driver for state climate change policy development.” (/d. at p. 17627.) Meeting “the long-term goalof reducing statewide greenhousegas emissions to 80 percent below the 1990 level by the year 2050 will require fundamental changesin policy, technology, and behavior.” (Jd. at p. 17628.) The Strategy states that “[b]y 2030,the region must have met and gone below the 1990level and be well on its way to doingits share for achieving the 2050 greenhouse gas reductionlevel.” (Id. at p. 17629.) SANDAG’s Climate Action Strategy notes that on-road transportation is the single largest source of greenhouse gas emissionsin the region. (AR 216:17641.) Thus, “reductionsin total miles vehicles travel are needed to help achieve the goals ofAB 32.” (/d. at p. 17644.) Further, “[t]he 19 Scoping Plan andotherstudies in a growing body ofevidencestrongly suggestthat the trend of vehicle miles traveled growth needsto be slowed, stopped, and soon reversed in order to successfully lower greenhouse gas emissions from the on[-]road transportation sector.” ([bid.) E. The Sustainable Communities Strategies Law (2008) and SANDAG’s Regional Targets (2010) As noted above, the Sustainable Communities Strategy Law, SB 375, enacted in September 2008, requires SANDAGandotherregional transportation planning entities to incorporate a Sustainable Communities Strategy in each regional transportation plan. The Sustainable Communities Strategy must demonstrate how the region would achieve greenhouse emissions reductions targets established by the Air Resources Board for emissions from passenger vehicles (cars and light-duty trucks). (Gov. Code, § 65080, subd.(b)(2); AR 8a:2080 [EIR]; see also AR 218:17776 [2010 California Regional Transportation Plan Guidelines].) In September 2010, the Air Resources Board established declining SB 375 greenhouse gas emissionstargets for the SANDAGregion, which require a 7 percent per capita emissions reduction by 2020, and a 13 percent per capita reduction by 2035, measured against emissions in 2005. (AR 8a:2076.) The Strategy’s purposeis to align regionaltransportation, housing,and land useplans to reduce vehicle miles traveled and thereby meetregional SB 375 targets. (AR 8a:2071 [EIR]; AR 218:17776 [2010 Regional Transportation Plan Guidelines].) While a regional planning entity such as SANDAGcannotrequire that cities and counties amendtheir general plans,it can create incentives for change, by, for example, “(p}rovid[ing] funds and technical assistance to local agencies”to implementregional planning. (AR 218:17912 [2010 Regional Transportation Plan Guidelines].) 20 STANDARD OF REVIEW This “[C]ourt’s review of the administrative record for legal error and substantial evidence in a CEQAcase, as in other mandamuscases, is the sameas thetrial court’s: the appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQAis de novo.” (Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412, 427.) Courts review an agency’s action under CEQAfora prejudicial abuse of discretion. (Pub. Resources Code, § 21168.5; Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1109.) An agency abusesits discretionif it either commits legalerror or fails to support its fact-based determinations with substantial evidence in the record. (Berkeley Hillside, supra, 60 Cal.4th at p. 1109-1110; Vineyard, supra, 40 Cal.4th at p. 427.) Asthis court noted in Vineyard, “a reviewing court must adjustits scrutiny to the nature of the alleged defect,” depending on whether the claimederror falls “predominately” into the factual or legal category. (Vineyard, supra, 40 Cal.4th at p. 435.) A court independently determines “whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements[.]’” (d., quoting Citizens ofGoleta Valley v. Bd. ofSupervisors (1990) 52 Cal.3d 553, 564.) Similarly, where an agency’s determination is not based on disputed facts, but rather on a disputed question of law, review is de novo. (City ofMarina v. Bd. ofTrustees ofthe California State University (2006) 39 Cal4th 341, 355-356 [rejecting agency’s determination that it lacked power to mitigate off-site impacts “based on [agency’s] erroneouslegal assumptions”’].) In contrast, a court “accord[s] greater deference to the agency’s substantive factual conclusions.” (Vineyard, supra, 40 Cal.4th at p. 435.) An agency’s factual findings will be upheld wheretheyare supported by substantial evidence, “even though other conclusions might be 21 reached.” (Laurel Heights, supra, 47 Cal.3d at p. 422.) “Substantial evidence . . . include[s] facts, reasonable assumptions predicated upon facts, and expert opinion supported byfacts.” (CEQA Guidelines, § 15384, subd. (b).) It does not, however, include “{a]rgument, speculation, unsubstantiated opinion ornarrative, [or] evidence whichis clearly erroneous or inaccurate... .” (/d., subd. (a).) In this case, SANDAG’sstated reason for refusing to disclose and analyze whether the 2050 Plan’s projected longer-term emissions are in line or instead mayinterfere with climate stabilization is the asserted lack of a legal mandate. (AR 8b:3766-3770 [Master Response #2], 4430-4433 [response to Attorney General’s comments].) Because SANDAG’s justification is predominantly legal, it is reviewed de novo. But even if SANDAG?’sjustification is considered to be in part factual—becauseofthe EIR’s summary assertion that “SANDAG’srole in achieving th{e] [2050] target is uncertain andlikely small” (see AR 8b:3769)—it mustfail as unsupported by the law or by any substantial evidencein the record. ARGUMENT I. SUMMARY OF ARGUMENT Asa lead agency under CEQA, SANDAGhasa duty to discuss whetherthe failure ofits large-scale, long-term infrastructure and planning project to continue early reductions in greenhouse gas emissions over the longer term would conflict or interfere with the State’s climate stabilization objectives. The duty doesnotarise from Executive Order No. S-3-05, but from CEQAitself. CEQA obliges SANDAGto prepare an EIR that puts a project’s significant environmental problems squarely before the public and decision makers, thereby allowing for informed public discussion and governmental accountability. Under CEQA, SANDAGhasa duty to consider whether the 2050 Plan may disadvantage long-term environmental 22 goals. And,of particular import in considering climate change, it must consider the relevant science anddata, exercising its own judgment and discretion, and making a goodfaith effort to disclose all that it reasonably can aboutthe 2050 Plan’s impact in the short and long term. SANDAG’s flat refusal to consider climate stabilization policy and science resulted in a documentthat was not only incomplete, but prejudicially misleading. In response, SANDAGappealsfirst to the substantial discretion afforded to lead agencies under CEQA. Courts do defer to agencies whose EIRs highlight difficult environmentalissues presented by a project and endeavorto confront and address those issues. Deference is not appropriate, however, where an agency instead minimizes an issue and effectively disclaims its responsibility to engage. SANDAGalso arguesthatit “scrupulously” complied with CEQA Guidelines section 15064.4, which provides guidance on determiningthe significance of a project’s | greenhouse gas emissions. But that provisionis nota rote checklist ensuring compliance. It sets out three non-exclusive factors that agencies should consider in evaluating the significance of a project’s greenhouse gas emissions, and incorporates the general proposition that there is no single, “ironclad” definition of significance. Accordingly, an agency must always exercise its judgment and consider other factors where required to meet CEQA’s purposes. Where the very authorities on which SANDAGrelies— including the Sustainable Communities Strategy Law andits declining targets, and the AB 32 Scoping Plan—are intended to create an emissions reduction path that continues beyondthe year 2020, the Plan’s upswingin emissions at the 2020 mark required additional discussion and analysis. SANDAGfurther suggests that a reader could have constructed an analysis of the 2050 Plan’s relationship to climate stabilization by engaging in some arithmetic and pulling together scattered references to the Executive Order. An examination of the record citations provided by SANDAGshowsthe 23 futility of any such effort, and, in any event, it is SANDAG’sjobto disclose and explain—notthepublic’s job to divine—teproject’s significant impacts. SANDAG?’s counsel’s statements about the purported difficulty. of considering climatestabilization science andpolicy are irrelevant, as SANDAG’s contemporaneousjustification for omitting this analysis was a legal one. Moreover,the currently circulating draft EIR for the 2050 Plan’s 2015 update establishes that SANDAGcan in fact take climate stabilization into account in determining whetherits long-term regional transportation plan will have significant impacts. Any question whether the pending process for the current update of the 2050 Plan will satisfy CEQA is outside the scopeofthis appeal. But, as discussed below, the current approach appears to havetriggered a morerobust exploration in the EIR of greenhouse gas-related mitigation and alternatives, which undoubtedly will be discussed and debated in the ensuing public process, and will better ensure governmental accountability for SANDAG’s ultimate decision. This court should makeclear that SANDAG erred as a matter of law in determining that, for this large-scale, long-term transportation infrastructure and land use planningproject, it had no legal obligation under CEQAto consider the scienceand state policy of long-term climate stabilization. It should further affirm the judgmentofthe Court of Appeal that SANDAG’serror wasprejudicial, provide that SANDAG must decertify its deficient 2011 EIR, and remandthe case for further proceedings consistent with this court’s opinion. 24 II. SUMMARYOF THE 2050 PLAN EIR A. Project Description SANDAG’s 2050 Plan, while it includestransit projects, places a significant emphasis on highway widening through 2020. (See, e.g., AR 8a:2583 [EIR].) Additional highway widening projects are scheduled to be in place by 2035. (AR 8a:2586 [EIR].) The 2050 Plan contemplates the construction of projects that will expand or extend hundreds of miles of freeways in the San Diego region. (See, e.g., AR 8a:2116-21 [EIR]; see also AR 190b:14214, 14217 [RTP].) Changesin land use follow these highway expansions. While, according to the EIR, land use patterns, types, and areas of development will be substantially the same in 2020 (AR 8a:2582), “the 2035 land use pattern would generally involve additional residential development in areas that were previously undeveloped open spaceor at some time in agricultural use... .” (AR 8a:2585; see also AR 190a:13156 [Sustainable Communities Strategy].) After 2035, “growth would continue in more eastern locations of the region[,]” which are currently less developed, and “by 2050, spaced rural residential development would have expanded... into areas with very minimal developmentat present.” (AR 8a:2587; see also AR 190a:13156 [noting future developmentpatterns will “likely result in an increased demandfordriving”].) B. Disclosure and Analysis of the 2050 Plan’s Greenhouse Gas Emissions In the San Diegoregion, transportation is responsible for nearly 50 percent of greenhouse gas emissions. (See AR 8a:2556-57 [Tables 4.8-4 (land use emissions) and 4.8-5 (transportation emissions)].) The total amount of driving expected under the 2050 Plan, termed “vehicle miles traveled” or VMT,will increase by more than 50 percent overthe life of the 25 Plan. (AR 8b:4436 [EIR].) The expected increase in driving is not due solely to increases in population in the San Diego area; under the 2050 Plan, people will drive more on a per capita basis in 2050 than they did in 2010. (AR 8b:4435 [Table 3].) In 2010, daily per capita vehicle miles traveled for all vehicle types was 24.2 miles per day. By 2020, the average under the Plan is projected to dip down to 23.6 miles per day, but by 2035,it is abovethe 2010 average at 24.3 miles, and by 2050,it has risen to 25.2 miles. (AR 8b:4435 [Table 3]; see also 8b:3753, 3755, 3757.)'> Whilethis is notillustrated in the EIR, the People haveplotted the trend below: Daily Per Capita Vehicle Miles Traveled (all vehicles) 25.2 | as be 24.8 ~- eee pe eeneeeceeeeo ene fe sunscreens 24.6 . eee wee see co eeceeeeeseeeeeeee ceceiae aoe secomsecssamencasneconesancstnameuenean groans 24.4 | 24.2 QAeeee 23.8 ~~ 2000 2010 2020 2030 2040 2050 2060 The 2050 Plan’s near-term reductions in per capita vehicle miles traveled thus do not appear to be sustainable in the longer term. Greenhouse gas emissions under the 2050 Plan reflect these driving patterns. There is a steady climb in transportation-related greenhouse gas 15 Der capita vehicle miles traveled for SB 375 vehicles only—cars and light-duty trucks—follow this same pattern. (AR 8b:4435 [Table 3].) 26 emissions overthelife ofthe project.'° After taking into accountthe effect of state laws requiring reductions in the carbon content of fuel and increased fuel efficiency—the Low Carbon Fuel and “Clean Car” standards—the region’s transportation emissionsdip a bit below existing levels by 2020, but begin to climb thereafter, exceeding their 2010 starting point by 2050.'” While these greenhousegas emissions data are not graphedin the EIR, the Peopleillustrate them below so that the upward trend in emissions overthe longer term can beseenclearly.'® Total 2050 Plan Transportation Emissions D, (in million metric tons CO2e) | 18 i -- | 16 : deeee neat gel mee s | =2050 Plan Only | t=With LCF and YO bene ne ee et nee ee ntti we aunts ns nee CC Standards 2010 2015 2020 2025 2030 2035 2040 2045 2050 C. Significance Determination In the 2011 EIR for the 2050 Plan, SANDAG employsthree separate “significance criteria” and, under each, makes a determination of significance for discrete future years. (AR 8a:2567[listing thecriteria].) '© AR 8a:2557, 2572, 2575, 2577 [Tables 4.8-5, 4.8-8, 4.8-10, 4.8-12]. "7 Ibid. '8 In million metric tons carbon dioxide equivalent. 27 Beforediscussing thesecriteria, the People briefly summarize the role of the significance determination in CEQA,for the court’s convenience. The lead agency’s determination of whether a proposed project’s effects on the environmentare significant—viewed in isolation or in light ofotherpast, present, and future projects—plays a “criticalrole in the CEQAprocess.” (CEQA Guidelines, § 15064, subd. (a); see also § 15064, subd. (h)(1) [discussing significance determination for cumulative effects].) The determination controls the nature of the environmental document,if any, that the agency mustprepare. If the project is subject to CEQA and may havea significant effect on the environment, an Environmental Impact Report instead of a more summary Negative Declaration is required. (Vo Oil, Inc. y. City ofLos Angeles (1974) 13 Cal.3d 68, 83-85; § 21151.) The EIR in turn mustidentify and focus on the project’s significant environmental effects. (See, e.g., Friends ofSierra Madrev. City ofSierra Madre (2001) 25 Cal.4th 165, 184-185; § 21061.) “If the EIR identifies _ Significant effects on the environment the lead agency may not approve the project unlessit finds that changes have been madein the project to avoid these effects, or, if the mitigation measuresor alternatives identified in the EIR arenotfeasible, there are overriding benefits that outweigh the impact on the environment.” (/d. at p. 185, citing § 21081.) SANDAGemploysthree separate “significance criteria” and, under each, makes a determination of significance for discrete future years. (AR 8a:2567[listing the criteria].) The EIR first considers whether the Plan’s total emissions would increase over 2010 levels. The EIR summarily states that the Plan’s impactwill be less than significant in the year 2020 because (with the help of the Low Carbon Fuel and Clean Carregulations) annual emissions are below 2010 levels in that year. (AR 8a:2571-2572.) Without placing these emissions into any meaningful context, the EIR summarily 28 concludesthat the impacts are “significant and unavoidable” in 2035 and 2050 because gross annual emissions will be above 2010 levels in these discrete years. (AR 8a:2027; see AR 8a:2567-2578, 3092, 3095-3096.) SANDAG’sother significance analyses suggest to the readerthat, even with the rising trend in total emissions, the region will be doingits part to address climate change. The EIRstates that the 2050 Plan’s impacts will be less than significant in 2020 and 2035 because the Plan will meet the SB 375 targets. (AR 8a:2030, 2578-2581, 3092, 3094-3095.) The EIR does not highlight that, while the Plan complies with the letter of SB 375 by meeting or exceeding the discrete targets for 2020 and 2035, per capita emissions from SB 375 vehicles (cars and light-duty trucks) begin to rise after 2020. (AR 8b:4435 [response to Attorney General’s comments,table 2].) Again, while this data is not plotted in the EIR, the People presentit in graphic form sothatthe trendis clear: 2050 Plan SB 375 Emissionsv. SB 375 Targets DAS (in lbs. COZe per capita) A 24 a ae ‘ < : 23.5 ss. < a 23 fecase ceerrnm cess cee cine cae een wa cee 22.5 | —_-_ . 2050Plan 22 Leena eects romenecectentn oe esta a —*—SB 375 Targets 21.5 covecs eueeeee cee eeueeaee ee neeeeeee tinea eee ee meee wees ce een nee ee rn ceeog eee eee 2010 2015 2020 2025 2030 2035 2040 2045 2050 Nordoes the EIR disclose that the California Air Resources Board staff found the increase in per capita emissions to be “unexpected” given the “expectation that the benefits of an SCS [Sustainable Communities Strategy] would increase with time given the nature of land use patterns and 29 transportation systems.” (SANDAG’sSupplementto the Administrative Record (AR Supp.) 344:30143.) Staff observed that the Air Resources Board “set regional targets with that expectation.” (Jbid.) The EIR contains no analysis or determination ofsignificance for any year beyond 2035 underthis criterion, on the ground that SB 375 has no post-2035 targets. (AR 8a:2581, 3096.) Finally, the EIR purports to examine whether the 2050 Plan’s greenhouse gas impacts are significantin light of the potential for the Plan to conflict with the AB 32 Scoping Plan (examined for year 2020 only) and SANDAG’s own Climate Action Strategy. (AR 8a:2030; 2581-2588.) In analyzingthe potential for the 2050 Plan to conflict with the Scoping Plan, the EIR concludesthat the 2050 Plan’s land use and transportation greenhousegas emissionsare less than significant in 2020. The EIR supports this assertion by stating summarily that the 2050 Plan “encourages its jurisdictionsto align with the Scoping Plan”andthat, taking into account the effect of the Low Carbon Fuel and Clean Car regulations, transportation emissions will more than 15 percent below 2005 levelsin 2020. (AR 8a:2583, 2583-84; see 320(5):27887.) The EIR states that SANDAGhasnoobligation to look beyond 2020 in applying this criterion because “[t]he Scoping Plan does not have targets established beyond 2020[.]” (AR 8a:2586.) Similarly, in analyzing compliance with SANDAG’s own Climate Action Strategy, the EIR summarily asserts that the 2050 Plan “would not impede”the Strategy because the 2050 Plan “encourage[es] compact development” and “promotes reduced VMT[.]” (AR 8a:2585-86, 2588.) The EIR does not acknowledge that SANDAG’s ownClimate Action Strategy observesthat “[b]y 2030, the region must have met and gone below the 1990 level and be well onits way to doing its share for achieving the 2050 greenhouse gas reduction level.” (AR 216:17629.) 30 D. Response to Comments Requesting Consideration of Climate Stabilization The Attorney General, on behalf of the People, and other commenters requested that SANDAG,in discussing and determiningsignificance, take into account the long-term, downward emissions trajectory necessary to achieve climate stabilization, as set out in the Executive Order and the Scoping Plan, which appearedto be inconsistent with the 2050 Plan’s emissions trajectory over the longer term. (See, e.g., AR 311:25640-25642 [Attorney General’s commentletter].) SANDAGdidnotfind that such an analysis was infeasible or would be misleading under the circumstances. In responding to the Attorney General’s comments, SANDAG acknowledged that “the Executive Order target for 2050 can inform CEQAanalysis... .” (AR 8b:4432.) SANDAG,however, “chose not to” include any such analysis, emphasizingits discretion to select “thresholds of significance” and stating that the Executive Order was “not an adopted GHG [greenhouse gas] reduction plan within the meaning of CEQA Guidelines[.]” (bid.) It further opined that “SANDAGplays no formalrole in implementing the Executive Order, as an executive order has no binding legal effect on agencies and personneloutside of the Governor’s chain of command.” (AR 8b:4433; see also 8b:3768-3770, 8a:2581-2582.) SANDAGalso asserted— in a single sentence and without supporting evidence—that “SANDAG’s role in achieving” the 2050 “target is uncertain and likely small.” (AR 8b:3769.) III. CEQA REQUIRES SANDAG TO CONSIDER THE SCIENCE AND POLICY OF CLIMATE STABILIZATION IN DETERMINING THE SIGNIFICANCE OF THE 2050 PLAN’S GREENHOUSE GAS EMISSIONS The purposesofthe Environmental Impact Report—the “heart of CEQA”—andthe responsibilities that the EIR’s preparation place on a lead agency bear repeating. “Its purpose is to inform the public andits 31 responsibleofficials of the environmental consequencesoftheir decisions before they are made. Thus, the EIR ‘protects not only the environment but also informed self-government.’” (Citizens ofGoleta Valley v. Bd. of Supervisors (1990) 52 Cal.3d 553, 564[italics in Goleta], quoting Laurel Heights, supra, 47 Cal.3d at p. 392.) “Because the EIR must be certified or rejected by public officials, it is a document of accountability.” (Laurel Heights, supra, 47 Cal.3d at p. 392.) SANDAGjustifies limiting the information it provided to the public and decision makers about the 2050 Plan’s longer-term greenhouse gas- related impacts on the groundthat Executive Order No. S-3-05 is not directly binding on SANDAGasa regionalentity and does not purport to require any action by SANDAG.(See AOB4,7, 23, 38-42.) That argumentis beside the point. The People have never contendedthat this particular executive order by its own force imposes any obligation on SANDAG.Rather, fundamental CEQA requirements—to consider long- term environmental objectives, and to accountfor the science relevant to those objectives—combineto require SANDAGto make a good faith effort to disclose and analyze the 2050 Plan’s long-term emissionsin light of the objective of climate stabilization.” '9 In theory, SANDAGcould meet these requirements without specifically citing the Executive Order—providedit addresses the underlying science and state climate policy, as required by CEQA. 32 From the outset, the Legislature has made clear that CEQA requires lead agencies to look at the long-term impacts of the projects they approve or undertake directly. The concern for the longer term is seen in the statements of the Legislature’s intent, which include the finding that “[t]he maintenance of a quality environment for the peopleofthis state now and in thefuture is a matter of statewide concern.” (§ 21000, subd.(a)[italics added].) Further, the Legislature declared through CEQAthatit is “the policy of the state to[,]” among otherthings: Develop and maintain a high-quality environment now andin thefuture... .; [P]reserve forfuture generationsrepresentations ofall plant and animal communities... .; and Ensure that the long-term protection ofthe environment, consistent with the provision of a decent homeandsuitable living environmentfor every Californian,shall be the guiding criterion in public decisions. (§ 21001, subds.(a), (c), (d) [italics added].) These conceptsare reflected in the CEQA Guidelines, which provide that a lead agency may not focus only on the short term, but mustalso consider a project’s long-term environmental impacts, and whether the project will work “to the disadvantage of long-term environmental goals” (CEQA Guidelines, § 15065, subd. (a)(2); see also id. at § 15126.2, subds. (a), (c).) And there is no suggestion that an agency canelectto truncateits analysis before the end of a project’s acknowledgedlifespan. (See, e.g., CEQAGuidelines, §§ 15003, subd. (h) [lead agency “must consider the whole of an action”]; 15216 [“[a]ll phases of a project must be considered”].) Further, as the CEQA Guidelines provide, in general, and in the specific context of climate change, “[t]he determination of whether a project may havea significant effect on the environmentcalls for careful 33 judgmenton the part of the public agency involved, basedto the extent possible on scientific andfactual data.” (CEQA Guidelines, §§ 15064, subd.(b) [italics added]; 15064.4, subd. (a) [stating that determination of significance of greenhousegas-related impacts is made consistent with the provisions of section 15064].) These obligations are, of course, governed by CEQA’srule of reason—that lead agencies must makea reasonable, good-faith effort at full disclosure in their EIRs. (See, e.g., CEQA Guidelines, § 15003, subd. (i) [content of EIR]; see also id. at §§ 15151 [standards for adequacy of EIR], 15144 [forecasting], 15204 [adequacy of EIR determined by whatis “reasonably feasible”].) SANDAGthus must makea reasonable, good faith effort to consider the need to continually and substantially reduce emissions though midcentury not merely because certain targets are set out in Executive Order No. S-3-05, but because a declining emissionstrajectory is scientifically relevant to achieving the objective of long-term climate stabilization. Moreover,the objective of reducing emissions to achieve climate stabilization is now firmly embeddedin state law andpolicy, including AB 32, the AB 32 Scoping Plan, and SB 375. (See discussion at pp. 14-20, above.) As SANDAGnotedin its Climate Action Strategy, the 2050 target of 80 percent below 1990 levels “is used as the long-term driver for state climate change policy development.” (AR 216:17627.) The public and decision makers werethusentitled to know whether the 2050 Plan, by making long-term planning decisions and authorizing the funding and construction of durable transportation infrastructurewill lock the region into increased vehicle miles traveled and greenhouse gas emissions. They were entitled to this information before any decision was made, as such increases could cancel out improvements in vehicle and fuel efficiency and other statewide efforts, and makeit difficult or impossible to bendthe region’s and the State’s emissions curve downwardover the 34 longer term. (See AR 216:17642 [SANDAG?’sClimate ActionStrategy, noting that “continued growth in the rate of driving wouldlikely cancel out” fuel and vehicle improvements]; see also CEQA Guidelines, § 15126.2, subd. (d) [EIR should addresssignificant irreversible environmental changes,“such as highway improvement which providesaccess to a previously inaccessible area” and would “generally commit future generations to similar uses”].) SANDAG’s failure to providethis information waserror. IV. THE2050 PLAN EIR’S FAILURE TO CONSIDER CLIMATE SCIENCE AND POLICY WAS PREJUDICIAL CEQAdoesnot require perfection. “Insubstantial or merely technical omissions [from an EIR]are not groundsforrelief.” (Neighborsfor Smart Rail v. Exposition Metro Line Construction (2013) 57 Cal.4th 439, 463.) Onthe other hand, a lead agency commits a prejudicial abuse of discretion where, among other things,it “‘fail[s] to include relevant information[that] precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.’” (/bid. [brackets added], quoting Kings County Farm Bur. v. City ofHanford (1990) 221 Cal.App.3d 692, 712.) Where an EIRfails to “contain sufficient detail to help ensure the integrity of the process of decisionmaking”its fails in its central purpose—to “preclud[e] stubborn problemsorseriouscriticism from being swept underthe rug.” (Kings County Farm Bur., supra, 221 Cal.App.3d at p. 733, citing Concerned Citizens ofCosta Mesa,Inc.v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935; see also CEQA Guidelines, § 15151.) Here, the EIR’s failure to analyze the longer-term effects of the land use and transportation decisions madein the initial decades ofthe 2050 Plan onthe ability to achieve the State’s climate stabilization objectives wasnot a mere technical omission. As noted, the EIR emphasized the 35 Plan’s technical compliance with SB 375’s discrete 2020 and 2035 greenhouse gas emission targets (AR 8a:2579, 2581)—withoutconsidering the upwardincline of the region’s emissions between those years. Further, it asserted that the Plan will “not impede”and will “assist” and “align with” the Scoping Plan (AR 8a:2582-2585) and SANDAG’s Climate Action Strategy (AR 8a:2585-2588)—even though both documents acknowledge that nearer-term targets are interim steps towards achieving a midcentury stabilization goal. (See AR 320(5):27977 [Scoping Plan], 216:17628- 17629 [Climate Action Strategy]; see also Assn. ofIrritated Residents, supra, 206 Cal.App.4th at p. 1496.) As the Court of Appeal observed, the net effect of the EIR’s approach to determining the significance of the 2050 Plan’s greenhouse gas emissions wasaffirmatively misleading, obscuring the full impactofthe Plan’s effect on climate change, and undermining SANDAG’saccountability for the decision ultimately made. (Opn. 19.) A documentthat “mislead[s] the public as to the reality of the impacts and subvert[s] full consideration of the actual environmental impacts”is “at direct odds with CEQA’s intent.” (Communitiesfor a Better Environmentv. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 322 [internal quotation omitted].) SANDAGasserts that had the 2011 EIR included an analysis of the Executive Order and the science and policy that underlieit, this “would not havealtered the conclusion that impacts would be significant and unavoidable in 2035 and 2050” underthe gross emissions significance criterion. (AOB 2.) Thisis also beside the point. The agency’s obligation is not simply to make determinations, but to show its “analytic route,” which allows for full public discussion and “informed decision making.” (Vineyard, supra, 40 Cal.4th at p. 445, internal quotations omitted; see also Berkeley Keep Jets Over the Bay v. Bd. ofPort Comrs. (2001) 91 Cal.App.4th 1344, 1371 [holding that agency may not avoid “explorfing] 36 the significant environmental effects created by the project” by labeling the effects significant and unavoidable].) Thepractical effect of includingin the significance analysis some discussion of whether SANDAG’s Regional Transportation Planis generally consistent, or instead mayinterfere, with the State’s long-term climate stabilization objectives can be seen in the currently circulating draft EIR for the next update to the 2050 Plan. SANDAGhas now chosento approachthe question of long-term climate significance by plotting the 2050 Plan’s emissions overthe project’s full lifespan and comparing that emission trajectory to the statewide objectives, while correctly noting that “there is no requirement that the SANDAGregion’s emissions be reduced by the same percentage (‘equal share’) as the statewide percentage in order for the State to achieve the AB 32 target[.]” (See People’s Motion for Judicial Notice, People’s Decl., Ex. 1, p. 34.) This approach places squarely before the public and decision makers the greenhouse gas-related impacts of the 2050 Plan viewed overthe longerterm. It maytrigger substantial discussion aboutthe efficacy of SANDAG’sproposed project design features and mitigation measures—many of whichare new tothis draft EIR—and whetherotheralternatives might meet the project objectives with fewer impacts. While the question whether SANDAG’scurrent processwill satisfy CEQAis outside the scope of this appeal, the new approach to determining the significance of the 2050 Plan’s long-term greenhouse gas emissions would appear to foster accountability as CEQA intends and requires. The same cannotbe said ofthe deficient 2011 EIR. 37 V. SANDAG’S ADDITIONAL ARGUMENTS DO NOT EXCUSE THE 2050 PLAN EIR’S SUBSTANTIAL DEFICIENCIES A. Deference to Agency Discretion Does Not Sanction a Document that Minimizes a Project’s Environmental Effects SANDAGattempts to defend the contents of the 2011 EIR with general appeals to agencydiscretion. It notes that “lead agencies have discretion to design EIRs....” (AOB 3.) “[S]electing analytical criteria for assessing greenhouse gas emission impacts involves agency discretion, _ informedby relevant technical andscientific understanding.” (AOB 21.) And courts have “upheldthe discretion afforded to lead agencies by Guidelines section 15064[,]” and to choose “significance criteria to evaluate greenhouse gas emissions” and “how to analyze the significance of greenhouse gas emissions.” (AOB 33, 34.) All of these statements are true, as far as they go. But SANDAGfurtherasserts that “[b]ecause SANDAG ‘properly exercised its discretion’ under CEQA,its EIR fulfilledits function as an informational document and should be upheld.” (AOB 23, quoting Dis. Opn. at p. 24-30.) This is where SANDAGerrs. A lead agencyhas nodiscretion to produce an environmental documentthat obscures, rather than highlights, the difficult environmental questions and tradeoffs posed by a proposed project. CEQA requires that an EIR, regardless of the significancecriteria used by the lead agency, be “prepared with a sufficient degree of analysis to provide decision makers with information which enables them to make a decision whichintelligently takes account of environmental consequences.” (CEQA Guidelines, § 15151.) | Asthetrial court recognized, the record here establishes that SANDAG’streatment of the science andstate policy related to long-term climate stabilization, as reflected in the Executive Order, was improperly 38 “dismissive.” (JA {75} 1056.) While a lead agency has substantial discretion that will not be lightly disturbed by the courts whenit is exercised, that protection does not extend where the lead agencyrefusesto engagein the hard questionspresented by the project before it. Similarly, SANDAGcontendsthatit “is entitled to the “safe harbor’ provided by Public Resources Code section 21083.1” because it has complied with “all of CEQA’s and the Guidelines’ explicit requirements[.]” (AOB 28,citing Berkeley Hillside, supra, 60 Cal.4th at p. 1107.) Section 21083.1 “directs courts ‘not [to] interpret [the CEQAstatutes] or the state guidelines adopted pursuantto Section 21083 ina manner which imposes procedural or substantive requirements beyond those explicitly stated in [CEQA]orin the state guidelines.’” (Jd. at p. 1107, quoting § 21083.1 [brackets in Berkeley Hillside; italics omitted].) One purpose ofsection Ooo | 21083.1 is to provide a “‘safe harbor’”to local entities” that ““comply with the explicit requirements of the law.’” (/bid., quoting Assem. Com. on Natural Resources, Analysis of Sen. Bill No. 722 (1993-1994 Reg. Sess.) July 12, 1993, p. 2.) | The People agree that if SANDAGhadactually exercised its careful judgmentin determining significance, making a goodfaith effort to account for climate science and the State’s policy to work toward long-term climate stabilization, and supportedits analysis and conclusion with substantial evidence, then there would be no legal basis to require more. But the conceptof a safe harbor hasno application where a lead agency “disclaims [its] power and duty” under CEQA “based on erroneouslegal assumptions... .” (See City ofMarina, supra, 39 Cal.4th at p. 365 [holding that university trustees abused their discretion in refusing to take action to mitigate off-site impacts based on erroneouslegal assumptions].) That is the situation here. 39 B. The 2009 Amendments to the CEQA Guidelines Did Not Excuse Lead Agencies From Exercising Careful Judgment and Making Their Best Efforts in Determining Significance SANDAGcontendsthatit “scrupulously followed”section 15064.4 of the CEQA Guidelines because it employed significance criteria describedin that provision and because the Resources Agency could have, but did not, specifically list the Executive Order in section 15064.4 as relevant to determining the significance of a project’s greenhouse gas emissions. (AOB30;see alsoid. 22, 24.29.)° In essence, SANDAGcharacterizes section 15064.4 as a rote exercise: if a lead agency checkscertain boxes,it is excused from considering whether, in the specific context of the project before it, some additional discussion of climate science and California’s policy to work toward climate stabilization is relevant and necessary to a fully informed significance determination. This reading of section 15064.4 is unsupported. The preamble language ofsection 15064.4 stresses that whileitis intended to provide guidance to lead agencies, the agency remains responsible for conducting an adequate analysis and preparing an adequate informational document. The provision directs agenciesto exercisetheir own “careful judgment”in making the significance determination. (CEQA Guideline, § 15064.4, subd. (a).) In its statement of reasons for adopting this provision, the Resources Agency explained that the provision “reflects the existing CEQAprinciple that there is no iron-clad definition of 20 SANDAGdevotes several pages to discussing the legal effect of executive orders generally. (AOB 39-41.) That discussion misses the mark, as the People do notcontend that Executive Order No. S-3-05is the source of the legal requirement to consider the State’s long-term climate objectives. (See p. 32, above.) Whether or not the Governor,through an executive order, could impose such requirementsis therefore not at issue in this case. 40 ‘significance’” and that, “[a]ccordingly, lead agencies mustuse their best efforts to investigate and discloseall that they reasonably can regarding a project’s potential adverse impacts.” (AR 319:25846; see also CEQA Guidelines, § 15144; Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 279, fn. 21.) Further, the part of section 15064.4 on which SANDAGrelies—subdivision (b)—expressly is written as a non-exclusive list of considerations relevant to the significance determination. Asthe Resources Agency explained in the supporting Statement of Reasons, “while subdivision (b) provides list of factors that should be considered by public agenciesin determining the significance of a projects GHG emissions, other factors can and should be considered as appropriate.” (AR 319:25850.) Moreover, the listed factors themselves reflect the need for the agency to exercise judgmentandbestefforts in order to meet CEQA’s public disclosure and informational purposes. Section 15064.4, subdivision (b)(2), states that an agency should consider “[w]hether the project emissions exceed a threshold of significancethat the lead agency determines applies to the project.” SANDAG’s consideration of whether the 2050 Plan would “[cJonflict with SB 375 GHG emission reduction targets” appears to fall into this category. (AR 8a:2567; see AOB 27.)* Butthe factthat the 2050 Plan technically complies with the discrete per capita greenhouse gas emission targets for passenger vehicles in the years 2020 and 2035 does not *I To clarify, the Resources Agency does not develop and adopt thresholds of significance for use by local and regional governments. (See AOB25[erroneously referring to “thresholds adopted by the Resources Agency under SB 97]; CEQA Guidelines, § 15064.7, subd. (a); AR 319:25851 [SB 97 FSOR].) 22 SANDAGstates that SB 375 mayalso constitute a greenhouse gas emissions reduction “plan”as defined in section 15064.4, subdivision (b)(3). (AOB 27.) 41 automatically end SANDAG’sinquiry. A threshold is in essence a working presumptionof significance—‘“an identifiable quantitative, qualitative or performancelevelof a particular environmental effect, non-compliance with which meansthe effect will normally be determinedto be significant by the agency and compliance with which meansthe effect normally will be determinedto beless than significant.” (CEQA Guidelines, § 15064.7, subd.(a)[italics added].) While compliance with laws and regulations, including those designed to meet environmental objectives, may be highly relevant to determining significance (see Communitiesfor a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 112-114, disapproved on other grounds in Berkeley Hillside, supra, 60 Cal.4th at p. 1109, fn. 3), such compliance, standing alone, cannot always support a conclusion that the project’s impacts will be less than significant. (Ibid., see also, e.g., Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1108-1111 [reduction in stream flow maybea significant environmental effect despite water pipeline project’s compliance with environmental requirements]; Californiansfor Alternatives to Toxics v. Dept. ofFood & Agriculture (2005) 136 Cal.App.4th 1, 16 [lead agency’s sole reliance on state agency’s registration of pesticides andits regulatory program was inadequateto address environmental concerns of CEQA].) Here, where per capita emissions from cars andlight trucks rise between 2020 and 2035, contrary to SB 375’s objective of declining emissions (see AR Supp. 344:30143 [Air Resources Boardstaff report]), SANDAG had an obligation to go beyond a recitation of the 2050 Plan’s compliance with a SB 375-based threshold. Similarly, section 15064.4, subdivision (b)(3) states that an agency should consider“[t]he extent to which the project complies with regulations or requirements adopted to implementa statewide, regional, or local plan for the reduction or mitigation of greenhouse gas emissions.” In its EIR, 42 however, SANDAGidentified only those discrete, shorter term objectives and policies set out in the Scoping Plan andits Climate Action Strategy that, in SANDAG’sview,the 2050 Plan would not impede.” A project’s ostensible short-term consistency with specific aspects of climate policies or plans does not excuse the agency from determining whether that apparentconsistency dissipates when viewed overthe longer term. Thisis particularly true wherethe very authorities and documents on which SANDAGrelies—the region’s SB 375 targets, the AB 32 Scoping Plan, and SANDAG’s own Climate Action Strategy—are groundedin the need to continually reduce emissions over the long term to achieve climate stabilization. (See, e.g., AR Supp. 344:30143 [SB 375 staff report]; AR 320(5):379977, 27848 [Scoping Plan]; Assn. ofIrritated Residents, supra, 206 Cal.App.4th at p. 1496 [noting that 2020 limit is an interim goal]; AR 216:17627-17628, 17644 [Climate Action Strategy]; see also Opn. 21, fn. 11 [questioning SANDAG’sconclusionthat the 2050 Plan will not conflict with SANDAG’s Climate Action Strategy].) As section 15064.4, subdivision (b)(3) itself states, an agency’s analysis is not at an end where 3 SANDAGcontendsthat its discussion of whether the 2050 Plan “conflicts with” the 2008 Scoping Plan for the year 2020 or with SANDAG’s own 2010 Climate Action Strategy follows the letter of CEQA Guidelines section 15064.4, subdivision (b)(3). (AOB 27-28; see AR 8a:2567, 2581-2588.) It is not clear that the Scoping Plan,as applied to SANDAG,or SANDAG’s Climate Action Strategy, are the types of binding regulatory plans contemplated by section 15064.4, subdivision (b)(3). (See AR 319: 25852-26853 [SB 97 FSOR]; see also CEQA Guidelines, § 15183.5, subd. (b).) Still, an approach to determining significance that considers statewide, regional, or local climate policies and objectives is a reasonable and accepted approach fully consistent with the CEQA Guidelines. (See, e.g., CEQA Guidelines, §§ 15064, 15064.4, 15065.) And,in the circumstancesofthis case, discussion and consideration of the Scoping Plan and SANDAG’s Climate Action Strategy are integral to a fully informed public process and decision. 43 “there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding compliance with the adopted regulations or requirements ... .” (CEQA Guidelines, § 15064.4, subd. (b)(3); see also id, § 15064, subd. (h)(3) [general provision authorizing lead agencyto rely on plans that address cumulative environmental impacts in making significance determination].) SANDAG’sother arguments related to CEQA Guidelines section 15064.4 must be rejected. SANDAGstates that the fact that section. 15064.4 does not mention the Executive Orderreflects an intent to exclude it. SANDAGpoints to Public Resources Code section 21083.05, which, while it provides that the Guidelines must be updated periodically to incorporate either new information or criteria established by the State Air Resources Board pursuant to Division 25.5 (AB 32) “does not require the Guidelines to include information or criteria from the [Executive] Order specifically or from the Governor generally.” (AOB 24.) SANDAG’s observation, while correct, is once again beside the point. The sectionis designed to ensure that the Guidelines continueto reflect evolving science and any regulations or requirements adopted by the Air Resources Board that could assist lead agencies in carrying out their CEQA obligations. (See AR 319:25836, 25917, 25930 [SB 97 FSOR].) Section 21083.05 cannot be read to suggest that the Legislature considered the science and state policy concemingclimate stabilization to be irrelevant under CEQA. SANDAGalsostates that “[t]hrough Guidelines section 15064.4, subdivision (b)(3), the Resources Agency implicitly rejected use of the Executive Order’s broad, statewide targets as being technically sound for CEQAanalysis.” (AOB 31.) It is true that the section does not mention the Executive Order. Neither does it mention the Global Warming Solutions 44 Act (AB 32), the AB 32 Scoping Plan,or the Sustainable Communities Strategy law (SB 375). Of necessity, there are numerousfactors and considerations that may be relevant to a particular project that are not expressly listed in this provision. The Resources Agency did not attempt in section 15064.4 to set out an exhaustivelist of considerations that could be relevant in analyzing the impacts for the wide variety ofprojects undertaken or permitted by the wide variety of entities that are lead agencies under CEQA. And SANDAG’ssuggestion that the California Air Resources Board has “rejected use of the Executive Order” in conducting a significance determination under CEQA is wrong. (AOB 31-32.) Toclarify, the Air Resources Board does not promulgate CEQA regulations that apply generally to lead agenciesor set thresholdsof significance. Thatis not in the Air Resources Board’s mandate. In 2008, Air Resources Boardstaff commenceda project that was intended to lead to Board-issued recommendationsto local governments for greenhouse gas emissions thresholds they might choose to adoptfor use in consideringa limited subset of projects, specifically, “industrial, residential, and commercial projects.” (AR 320(3):27789 [2008 Preliminary Draft Staff Proposal].) This project ended without a formal recommendation bystaffto the Air Resources Board, and without Board action. The preliminary staff report cited by SANDAGisthusoflittle assistance in determining SANDAG’s obligations under CEQA. Moreover, contrary to SANDAG’sassertions, *“ The People note, however, that the Resources Agencyin its Statement of Reasons cited the Executive Order and AB 32, and the findings they contain, for the proposition that “the Governor, Legislature and private sector have concludedthat action to reduce greenhouse gas emissions is necessary and beneficial for the State.” (AR 319:25834 [SB 97 FSOR].) 45 the preliminary staff report does cite the scientific basis of the declining emissionstrajectory in the Executive Order (AR 320(3):27791-27792), and providesthat its 2050 target may in some circumstancesbe relevant to determining significance (id. at 27799). C. The EIR’s Disclosure of 2050 Gross Emissions and Bare Mention of the Executive Order Are Not a Substitute for Good Faith, Reasoned Analysis SANDAGsuggeststhat the EIR was sufficiently forthcoming about long-term climate impacts because (1) the EIR provided that “greenhouse gas impacts for 2035 and 2050 would be significant, as emissions would increase due to regional population, housing, and employment growth” (AOB 2;id. at 26-27, 46); (2) a careful reader could figure out that the 2050 Plan wasperhapsnot wholly consistent with the State’s 2050 emission reduction objectives (AOB 46-47); and (3) the EIR “did not neglect discussion of the Executive Orderorits role in state climate strategy” (AOB 47). These arguments do not withstand scrutiny. “[S]imply labeling the impact‘significant’ without accompanying analysis” violates “the environmental assessment requirements of CEQA.” (Berkeley Keep Jets, supra, 91 Cal.App.4th at p. 1371 [italics added].) SANDAGthus cannotrely on a “significant and unavoidable” determination to skip over the required step of explaining how and whythe impactis significant. Moreover, quantification of greenhouse gas emissionsin the contextofthis project is not an endin itself, but should serve to “inform|[] the qualitative factors” in section 15064.4. (AR 319:25847 [SB 97 FSOR].) The effect of SANDAG’sfailure to putthis long-term project’s emissions into a long-term environmental context was to undermine the importance of the EIR’s determination that the Plan’s 2035 and 2050 gross emissions were significant. Any concern that might be engenderedin the public or decision makers about the 2050 Plan’s 46 increases in emissions over time is quickly assuaged by the EIR’s discussion and findings under the two othersignificance criteria. The EIR assures the public and decision makers that the 2050 Plan complies with SB 375’s emissions reduction targets and greenhousegas reduction plans, and that the 2050 Plan’s impacts under these apparently more informative standardsare less than significant. (AR 8a:2030, 2567-2588.) And, as the Court of Appeal noted, the end result is misleading. SANDAG?’s argumentthat a reader of the EIR could have constructed an analysis of whether the 2050 Plan’s emissionsare consistentor instead might interfere with the State’s long-term climatestabilization objectivesis wrong on two counts. This is not a matter of mere “arithmetic” (see AOB at p. 46) but requires some considereddiscussion,at least as detailed and as analytical as what SANDAGprovided in examining whether the 2050 Plan conflicted with the 2008 Scoping Plan and its Climate Action Strategy. (See AR 8a:2581-2588.) Moreover, “[t]he data in an EIR mustnot only be sufficient in quantity, it must be presented in a mannercalculated to adequately inform the public and decision makers ....” (Vineyard, supra, 40 Cal.4th at p. 442.) “[{I]nformation scattered here and there in EIR appendicesor a report buried in an appendix,is not a substitute for a good faith reasoned analysis.” ([bid., internal quotations omitted.) Finally, SANDAG?’sassertion that the EIR discussed the Executive Order “at length” is not supported byits record citations. (AOB 47.) At the pagescited, the EIR: e Includes a one-sentence summary of the Executive Order among other instancesofstate action related to climate change (AR 8a:2651); e States that SANDAGwill not consider whether the 2050 Plan would conflict with the AB 32 Scoping Plan for any year beyond 2020, and that while Executive Order No. S-3-05 “sets a goal that statewide GHG emissions be reduced to 80 percent below 47 1990 levels by 2050,” it “does not constitute a ‘plan’ for GHG reduction, and nostate plan has been adopted to achieve the 2050 goal” (AR 84a:2581-2582); e Opinesthat, for example, “[t]he Legislature declined to include the Executive Order’s aspirational 2050 goal in AB 32”and that “SB 375 legislative findings do not mention achievementofthe ambitious 2050 EO S-3-05 GHG emissions reductionstarget” (AR 8b:3766-3768 [master response to comment]; see also 8b:4436 [response to Attorney General’s comments]); e States that “SANDAGchosenot to use the 2050 EO [Executive Order] emissions reduction target as a thresholdof significance because the EOis not an adopted GHGreduction plan within the meaning of CEQA Guidelines, § 15064.4, subd. (b)(2), and because “there is no legal requirementto use it as a threshold of significance” (AR 8b:3768-3770); and e Summarilyasserts, as an additional reason thatit will not consider the Jonger-term reduction target, that “SANDAG’srole in achieving this target is uncertain andlikely small.” (AR 8b:3769.) Onthe last point, not only is the statement not supported by any citation or discussion, it misses the point of a cumulative impact analysis. Asthe 2008 ScopingPlanstated, “[iJn order to achieve the deep cuts in greenhouse gas emissions wewill need beyond 2020 it will be necessary to significantly change California’s current land use andtransportation planningpolicies.” (AR 320(5):27858.) The relevant questionis not whether the SANDAGregionis a relatively small contributor of greenhouse gasesas judged against the scale of the problem, or whether SANDAGcan“singlehandedly meet the Executive Order’s long-term greenhouse gasreduction goals” (AOB 47), but whetherthe region’s non- trivial and long-term contribution is cumulatively considerable given the ~ state of the climate and the State’s long-term climate stabilization objectives. (See Kings County Farm Bur., supra, 221 Cal.App.3d at p. 718 48 (“relevant question to be addressedin the EIRis not the relative amount of [pollution] emitted by the project when compared with preexisting emissions” but whether project’s “emissions should be considered significant in light of the serious nature”of the air pollution problems in the air basin]; see also Massachusetts v. EPA (2007) 549 U.S. 497, 524 [observingthat “[a]gencies, like legislatures, do not generally resolve massive problemsin onefell swoop”].) In addition, SANDAGcites a SANDAGstaffmemorandum dated October 28, 2011, the day the EIR wascertified and approved by SANDAG. (AOB 47.) The report informed the SANDAGBoardthat the Executive Order’s 2050target, if applied directly to SANDAG,would require the region’s total emissionsto be 5.02 million metric tons in 2050, and that the EIR identified total emissions in that year to be 33.65 million metric tons. (AR 14:4514.) This disclosure, if made earlier in the EIR process, could have formedpart of a larger, informative discussion about the project’s impacts, serving as a counterpoint to the assertions of compliance with applicable greenhouse gas emissions reductionsplans. Butthis post-EIR document cametoo late and was too summary to serve any useful purpose in the CEQAprocess. D. SANDAG’sPost Hoc Attempts to Justify its Refusal to Considerthe Science and State Policy Concerning Long-Term Climate Stabilization Should Be Rejected Asnoted, SANDAG’s contemporaneousjustifications for refusing to considerthe science andstate policy concerning long-term climate stabilization were legal ones. Before this court, SANDAGattempts to assert additionaljustifications for its truncated analysis. Those reasons are not persuasive. SANDAG’s assertions that the Resources Agency andthe California Air Resources Board “rejected” any use of the Executive Order in determining significance as not “technically or legally sound” 49 mischaracterize the relevant documents, as discussed above. (AOB 31-32; see discussion aboveat pp. 44-45.) And while SANDAGis correct that the California Air Pollution Control Officers Association (CAPCOA), in its 2008 white paper, “CEQAand Climate Change,” suggested that it may not be appropriate simply to apply the Executive Order’s statewide 2050 target to sub-parts of the state or to individual development projects (AOB 32;see AR 319:26322, 26324-26325), CAPCOA did not suggest that the State’s long-term climate stabilization objectives are irrelevant to the significance determination. (See, e.g., AR 319:26292 [stating that “[t]he first approach fexplored in the white paper] is groundedin statute (AB 32) and executive order (EO S-3-05)”].) SANDAGalso asserts that “[i]t would be practically impossible for agencies to be accountable for accomplishing the Order’s statewide goal for 2050 whenthe state has not figured out how to allocate that responsibility amongits regions and the various emitters in those regions” andthat discussing the Executive Order would be “speculative and potentially misleading . .. .” (AOB 36;see alsoid. at 23, 37-38, 47.) This assumes that the only way to consider climate science and long-term climate policy is to adopt the Executive Order’s 2050 statewide reduction target as a regional target. But the People have never so argued. Thepointis that consideration of the need to reduce statewide greenhouse gas emissions over the longer term can inform that analysis, serving as a counterweightto assertions that the 2050 Plan complies with SB 375 and purportedly does not conflict with the Scoping Plan in 2020. (See AR 8b:4432 [SANDAG acknowledging that 2050 target “can inform the CEQA analysis”].) More fundamentally, SANDAG never relied on any discussion of the Executive Order by the Resources Agency, Air Resources Board staff, or CAPCOAin declining to consider the science and the State’s long-term climate objectives. SANDAG’scites are to the these entities’ documents, 50 not to its own analysis, or anything in the EIR that purports to rely on these documents. (See AOB 31-32, 47.) And SANDAG nevercontendedin the EIR that accounting for the longer term was impossible or would result in a misleading document, butonly that neither the Legislature nor the Resources Agency had expressly directed such an analysis. SANDAG’s counsel’s post hoc attempts to shore up the 2011 EIR should berejected as contrary to CEQA’s purposes. Asthis court has explained, “[t]he audience to whom an EIR must communicate is not the reviewing court but the public and the governmentofficials deciding on the project.” (Vineyard, supra, 40 Cal.4th at p. 443.) A lead agency’s argumentsinits briefs are irrelevant, because the public and decision makers did not have the briefs available at the time the project was reviewed and approved. The question is therefore not whetherthe project’s significant environmentaleffects can be clearly explained, but whether they were. (Ibid., italics in original) The 2050 Plan EIR,like the EIR at issue in Vineyard, “fails that test.” (See ibid. [declining to supplementdeficient EIR with counsel’s arguments].) If the court is nevertheless inclined to consider SANDAG’sextra- record assertions that the requested analysisis impossible orill-advised, the People ask the court to take judicial notice of the fact that SANDAG,in the draft EIR for its current 2050 Plan update, has added the following query to its list of “significance criteria”: Whether the proposed Plan would be “[b]e inconsistent with the State’s ability to achieve the Executive Order [Nos.] B-30-15 and S-3-05 goals of reducing California’s GHG emissionsto 40 percent below 1990levels by 2030 and 80 percent below 1990levels by 2050.” (People’s Decl., Ex. 1, p. 20; see also id. at p. 34.) This not only marksprogress, but establishes that a remandto the agency,requiring it to makea goodfaith effort to disclose and analyze the impacts of the 2050 Plan in the context ofstate policy relating to long-term climate change will 51 assist in serving the public disclosure and informed decision making purposes of CEQA. VI. THIS COURT SHOULD REMAND THE MATTER AND ALLOW SANDAGTOREMEDY THE 2011 ENVIRONMENTAL IMPACT REPORT’S DEFICIENCIES IN THE COURSE OF THE PENDING 2050 PLAN UPDATE In the nearly four years since the Attorney General submitted her commentletter to SANDAG,science,law, and policy related to climate change have continued to evolve. The International Panel on Climate Change has issued another report informing the public and policy makers of the needfor decisive action.*> The Air Resources Board adopted an, updated Scoping Plan.”° The Governorrecently issued a new Executive Order (No. B-30-15) setting a statewide 2030 emissions target marking the State’s path toward 2050. 27 The state Senate is considering updates to AB 32 to guide the Air Resources Board insetting post-2020 targets.? And SANDAG,asit is required to do every four years, has movedon to its next regional transportation plan update andis circulating a new draft EIR for an updated 2050 Plan. (See SANDAG’sregional transportation plan webpage at http://sandiegoforward.org/regionalplan.) The fact that SANDAGis voluntarily analyzing long-term climate stabilization in the draft EIR for its pending 2050 Plan update does not 5 Available at [as ofJuly6, 2015]. 6 Available at [as of July 6, 2015}. 27 Available at . 28 See Senate Bill 32, available at http://www.leginfo.ca.gov/cgi- bin/postquery?bill number=sb 32&sess=CUR&house=B&author=pavley [as of July 6, 2015]. 52 render this case moot. As evidenced by SANDAG’sopeningbrief, there remains a substantial need for this court to clarify for SANDAG,and potentially for other regional planningentities, that in the circumstances of a large-scale infrastructure and planning project with substantial long-term greenhouse gas emissions, a lead agency has a responsibility under CEQA either to address the science andstate policy relating to long-term climate stabilization or explain why it cannot, supporting any such explanation with substantial evidence. The question presented in this case might otherwise evade review,giventhe relatively short period between regional transportation plan updates. (See California Charter Schools Assn. v. Los Angeles Unified SchoolDist. (2015) 60 Cal.4th 1221, 1233-1234 [case relating to allocation offacilities to charter schools for past school year not moot whereissueis “likely to recur yet evade review becauseofthe relatively short duration of the academic year”’].) In light of these developments andthe time that has elapsed, rather than requiring SANDAGto revise or supplement the 2011 EIR to correct the deficiencies identified in this litigation, it would appear to be most efficient to focus the remedy on the pending EIR process—aresult thatis not precluded by CEQA’s remedyprovisions. (See § 21168.9, subd. (a).) Accordingly, the People request that SANDAGbeordered, in the course of preparing the pending 2050 Plan EIR, to take the corrective actions identified by this court should the People prevail, and, in addition, the specific corrective actions identified by the Court ofAppeal (see Opn.at pp. 26-27 [greenhouse gas-related mitigation], 30 [project alternatives], 41 [air quality impacts and mitigation], 44 [agricultural impacts]).”’ 2° The trial court did not order that specific activities approved under the 2050 Plan be suspended, and the People do not request any change to that aspect of the remedy. 53 CONCLUSION The People respectfully request that the court hold that SANDAG abusedits discretion in determining that in the EIR for the 2050 Plan—a large-scale, long-term transportation infrastructure and land use planning project—SANDAGhadnoobligation under CEQAto considerthe science and state policy of long-term climate stabilization. It should further affirm the decision of the Court of Appeal that SANDAG’serror wasprejudicial, provide that SANDAG mustdecertify the deficient 2011 EIR, and remand the case for further proceedings consistent with this court’s opinion. Dated: July 10, 2015 Respectfully submitted, KAMALAD. HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General MARK J. BRECKLER Chief Assistant Attorney General SALLY MAGNANI Senior Assistant Attorney General TIMOTHY R. PATTERSON Supervising Deputy Attorney General i“[ . E——~—— JAnic(L. RICHARDS Principal Deputy Solicitor General Attorneysfor People ofthe State of California, ex rel. Kamala D. Harris, Attorney General 54 CERTIFICATE OF COMPLIANCE I certify that the attached PEOPLE OF THE STATE OF CALIFORNIA’S ANSWERBRIEF ON THE MERITSusesa 13 point Times New Romanfontand contains 13,984 words. Dated: July 10, 2015 KAMALA D. HARRIS . Attorney General of California Lpuie | [eux . RICHARDS Principal Deputy Solicitor General People ofthe State ofCalifornia, ex rel. Kamala D. Harris, Attorney General DECLARATIONOF SERVICE BY FIRST CLASS AND ELECTRONIC MAIL Case Name: Cleveland National Forest Foundation; Sierra Club; Centerfor Biological Diversity; CREED-21; Affordable Housing Coalition ofSan Diego; People ofthe State ofCalifornia v. San Diego Association of Governments; San Diego Association ofGovernments BoardofDirectors Case No.: $223603 (California Court of Appeal, Fourth Appellate District, Division One, Case No. D063288; San Diego County Superior Court, Case No. 37-201 1-00101593-CU-TT-CTL [Consolidated with Case No. 37-201 1-00101660-CU-TT-CTL]) I declare: I am employedin the Office of the Attorney General, whichis the office of a member of the California State Bar at which member’s direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that sameday in the ordinary course of business. On July 10, 2015, I served the attached PEOPLE OF THE STATE OF CALIFORNIA’S ANSWERBRIEF ON THE MERITSbyplacing a true copyofthis documentenclosedin a sealed envelopeas first class mail in the internal mail collection system at the Office of the Attorney General at [ fillin address] , and by sending an electronic version of the same document, addressedas set out in the attachment. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on July 10, 2015, at Oakland, California. Debra Baldwin bvwer Declarant Signature SERVICE LIST Cleveland National Forest Foundation, etal. v..San Diego Association ofGovernments, etal. (Case No. 8223603) Attorney or Recipient — _ |Party2 Margaret M.Sohagi Philip A. Seymour The Sohagi Law Group, PLC 11999 San Vicente Boulevard, Suite 150 Los Angeles, CA 90049-5136 Telephone: (310) 475-5700 Facsimile: (310) 475-5707 msohagi@sohagi.com pseymour@sohagi.com Attorneys for San Diego Association of Governments and San Diego Association of Governments Board of Directors Julie D. Wiley, Special Counsel San Diego Associationof Governments 401 B Street, Suite 800 San Diego, CA 92101 Telephone: (619) 699-6966 Facsimile: (619) 699-1995 JWI@sandag.or Attorney for San Diego Association of Governments Michael H. Zischke Andrew B. Sabey Linda C. Klein Cox, Castle & Nicholson LLP 555 California Street, 10" Floor San Francisco, CA 94104 Telephone: (415) 262-5100 Facsimile: (415) 262-5199 mzischke(@coxcastle.com asabey(@coxcastle.com Iklein@coxcastle.com Attorneys for San Diego Association of Governments and San Diego Association of Governments Board ofDirectors Rachel B. Hooper AmyJ. Bricker Erin B. Chalmers Shute, Mihaly & Weinberger LLP 396 HayesStreet San Francisco, CA 94102 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 Hooper@smwlaw.com Bricker@smwlaw.com Chalmers@smwlaw.com Attorneys for Cleveland National Forest Foundation and Sierra Club Daniel P. Selmi 919 South Albany Street Los Angeles, CA 90015 Telephone: (213) 736-1098 Facsimile: (949) 675-9861 DSelmi@aol.com Attorney for Cleveland National Forest Foundation and Sierra Club Marco Gonzalez Coast Law Group LLP 1140 South Coast Highway 101 Encinitas, CA 92024 Telephone: (760) 942-8505 Facsimile: (760) 942-8515 Marco@coastlawgroup.com Attorney for Cleveland National Forest Foundation and Sierra Club Kevin P. Bundy Center for Biological Diversity 1212 Broadway, Suite 800 Oakland, CA 94612 Telephone: (510) 844-7100 x313 Facsimile: (510) 844-7150 KBundy@biologicaldiversity.org Attomey for Center for Biological Diversity Cory J. Briggs Mekaela M. Gladden Briggs Law Corporation 99 East “C”Street, Suite 111 Upland, CA 91786 Telephone: (909) 949-7115 Cory(@briggslawcorp.com Mekaela@briggslawcorp.com Attorneys for CREED-21 and Affordable Housing Coalition of San Diego County Clerk of the CourtCalifornia Court of AppealFourth District, Division OneSymphony Towers750 B Street, Suite 300San Diego, CA 92101Telephone: (619) 744-0760 California Court of AppealFourth Appellate District, Division One,Case No. D063288 SERVICELIST — Contd. Cleveland National Forest Foundation,et al. v. San Diego Association ofGovernments, et al. (Case No. S223603) Attorney orRecipient» =i (ititi‘isSCs*dParty The Honorable Timothy B. Taylor San Diego County Superior Court, Case San Diego County Superior Court No. 37-2011-00101593-CU-TT-CTL Hall of Justice — Dept. 72 {Consolidated with Case No. 37-2011- 330 West Broadway 00101660-CU-TT-CTL] San Diego, CA 92101 Telephone: (619) 450-7072
