CLEVELAND NATIONAL FOREST FOUNDATION v. SAN DIEGO ASSOCIATION OF GOVERNMENTS (PEOPLE)

Appellants, Cleveland National Forest Foundation and Sierra Club, Response to Amicus Curiae Brief

Cal.November 12, 2015

S223603 IN THE SUPREME COURTOF CALIFORNIA CLEVELAND NATIONAL FOREST FOUNDATION; SIERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; CREED-21; AFFORDABLE HOUSING COALITION OF SAN DIEGO COUNTY; PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffs, Intervenor and Respondents, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS; SAN DIEGO ASSOCIATION OF GOVERNMENTS BOARD OF DIRECTORS, Defendants and Appellants. SUPREME COURT __ After a Decision by the Court OfAppeal -F LE D. 8 Fourth Appeilate District, Division One Case No. D063288 NOV 12 2015 Appealfrom the San Diego County Superior Court, *fank A. Vicisuire Clerk Case No. 37-2011-00101593-CU-TT-CTL (Lead Case)>~ [Consolidated with Case No. 37-201 1-00101660-CU-TT-CTL] The Honorable Timothy B. Taylor, Judge Presiding Deputy Plaintiffs’ Consolidated Answer to Amici Curiae Briefs *Rachel B. Hooper (SBN 98569) Daniel P. Selmi (SBN 67481) AmyJ. Bricker (SBN 227073) 919 S. Albany Street Shute, Mihaly & Weinberger LLP Los Angeles, CA 90015 396 HayesStreet Telephone: (213) 736-1098 San Francisco, CA 94102 Facsimile: (949) 675-9861 Telephone: (415) 552-7272 Facsimile: (415) 552-5814 Marco Gonzalez (SBN 190832) Coast Law Group LLP 1140 South Coast Highway 101 Encinitas, CA 92024 Telephone: (760) 942-8505 Facsimile: (760) 942-8515 Attorneys for Plaintiffs and Respondents Cleveland National Forest Foundation and Sierra Club Kevin P. Bundy (SBN 231686) Center for Biological Diversity 1212 Broadway,Suite 800 Oakland, CA 94612 Telephone: (510) 844-7100 x313 Facsimile: (510) 844-7150 Attorney for Plaintiff and Respondent Center for Biological Diversity Cory J. Briggs (SBN 176284) BRIGGS LAW CORPORATION 99 East “C”Street, Suite 111 Upland, CA 91786 Telephone: (909) 949-7115 Facsimile: (909) 949-7121 Attorneysfor Plaintiffs and Respondents Creed-21 and Affordable Housing Coalition of San Diego County TABLE OF CONTENTS | Page INTRODUCTION...........c:ccescescsseseseccessecesecesaceeeeesceseseaeeessnsesseeesseeesnnes 1 I. Although This Court’s Review Is De Novo,the EIR Would Fail Even Under Substantial Evidence Review.............sssesseeeeseenees 5 A. An Agency’s Interpretation of CEQA’s RequirementsIs Reviewed De NOVO...........:csscscesseesesseesesessseesessenseeesceesnees 5 B. Amici’s Arguments for Substantial Evidence Review Lack Merit. 00.0... ceeseeeeceeeecessceseceessssseesessseesessessneeseneesaes 10 C. Substantial Evidence Does Not Support the EIR’s . Omission of Analysis of the Plan’s Inconsistency with California’s Long-Term Climate Stabilization Goals.... 13 II. SANDAG’s Omissions Were Not a Proper Exercise of Discretion, But Rather an Abuseof Discretion....................006. 16 A. SANDAGErred by Omitting Critical Information from the EDR...ee ceceecsccssccesecenseessetceeesesesesseeeeeseeseseseseeseenenses 16 B. Selection of a “Threshold of Significance” Is Not Conclusive ofCEQA Compliance...........eeseeeeeeeeeeneee 21 C. Agencies Lack Discretion to Produce Incomplete and Misleading EIRS...........::ccsccsssscsesecesessssseesceesresesseeereeanes 27 Ill. A Ruling in Plaintiffs’ Favor Would Not Have “Unreasonable Consequences,” but Would Be Entirely Consistent with CEQA and Longstanding CEQA Precedent. 00...ceceseeseeseseteeseees 29 A. The Question Before the Court Is Indisputably Narrow and Does Not Implicate Every Future CEQA Approval.30 l. CEQA’sTiering and Other Streamlining Provisions Allow Many Projects to Proceed Without an EIR. ooo...eeeeecessssecscccserecesceenerece 32. 2. The CEQA Guidelines Simplify Review of Projects Consistent with Specific Greenhouse Gas Reduction Plans. ...........cessssssessessseesseeeeeeesneeeees 36 R B G ER EN T E b e r B. CEQA’sInformation Disclosure Provisions, Not Policy Disagreements, Require SANDAGto Analyze the Plan’s Inconsistencies with Long-Term Climate-Stabilization GoalS..0.....ceseeessesceeecceseesccesaceescessetsceetseesssereseseesseesceseasease 38 C. Requiring SANDAGto AnalyzeIts Plan in Light of Current Scientific Information Does Not Add a “New” CEQA Mandate..0.0...... eee eeeeesecctecceseceeecenseersoneesenseeseneess 42 D. SANDAG’s CEQAViolation Does Not Implicate Separation Of POWeTS...........c:cesssessscesesesseessneesseseeeessesens 44 IV. As SANDAGHasAcknowledged, the Requested GHG Analysis Is “Easily Performed.” ..............sessccseeeeeesseeeeceeneenes 50 CONCLUSION...eecceeceseeeeeereneceseeneesceessceesseacseeseesserseceseseaseseneeeenes 55 il TABLE OF AUTHORITIES Page(s) State Cases Agricultural Labor Relations Board v. Superior Court (1976) 16 Cal.3d 392 oo. ceccsssseessesecesnecssceesseeesesceescescessnecessceeacenseeeateesseeseasens28 Association ofIrritated Residents v.Air Resources Board (2012) 206 CalApp.4th 1487 ooo.cececcccseceecseesesecesceeseeeeeeeeeseesseeaeenes 20, 27, 48 Association ofIrritated Residents v. County ofMadera (2003) 107 Cal.App.4th 1383 0.cescessseseeeseceessetsecseceaceseeseecesetenessneesseeseeeees 10 Bakersfield Citizensfor Local Control v. City ofBakersfield (2004) 124 CalApp.4th 1184oeccccecseessceseeeeeseeesceseseesseeeeeeseneesseees ‘10, 18 In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings . (2008) 43 Cal.4th 1143 oo.ccsscsesececesseeecessecseeseescenesseesescesesesseseseeessetsnnesees34 Berkeley Hillside Preservation v. City ofBerkeley . (2015) 60 Cal.4th 1086 20...eseseeseeseceeseeseceecsecseesecsceeceeseesesesseeesenseseesensenses37 Berkeley Keep Jets Over the Bay Committee v. Board ofPort Commissioners (2001) 91 Cal.App.4th 1344 occccsscccssscescssesseceseserseesecsecesneceseseeseeeeses passim Californiansfor Alternatives to Toxics v. Department ofFood andAgriculture (2005) 136 CalApp.4th 1 oo...eeeccscscessseesssssecsseseeceeeceseeeecesceseessnsecesasesteesneeeees40 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 US. 837eeeeesesseseeseeseseeeeseeesaecencesceectecesseesseesesessneeessaetetesseeeenesees28 Citizens To Preserve the Ojai v. County of Ventura (1985) 176 CalApp.3d 421 occccecesecssescnecssseeseseeesceeeeeesnessesenenenenaes 18, 43, 52 City ofMarina v. Board ofTrustees ofthe California State University (2006) 39 Cal.4th 341 ooeceessesseentenseesetensenssnesusenscsssensasessstssnssresssssssnserenseeseneeeO | City ofSan Diego v. Board ofTrustees ofthe California State University (2015) 61 Cal.4th 945ooneeeenceeesenseeceesecesccesesceaceseeesseeseeecessseseesnesanesseees6, 8 ili Communitiesfor a Better Environment v. City ofRichmond (2010) 184 Cal.App.4th 70uesusceeeceeesessceseceseessscestecessseesseensessssecsees 54,55 Communitiesfor a Better Environment v. South Coast Air Quality ManagementDistrict (2010) 48 Cal.4th 310 oo. eeeeecescseseseecsessecesesecsecesssessecenseetsesesesseetenetensaees passim E. L. White, Inc. v. Huntington Beach (1978) 21 Cal.3d 497 ooocecccseesecssscesseesssscceseessceeseeesseeesseessseseeeseseeseesesasess32 EbbettsPass Forest Watch v. California Department ofForestry and Fire Protection (2008) 43 Cal.4th 936 descacceccsececsececcescerseceossceeseeeconsssaseeeeesceeeeeteceeenssesssseeeeees 19, 46 ' Federation ofHillside & Canyon Associations v. City ofLos Angeles | (2000) 83 Cal.App.4th 1252 ono. eceeecsecessesenceseseessesesessecneesseeeaeessesseseessecessseevens 11 Friends ofthe Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859 oo... cccecscesscecsssesecscesscescessensesenscsseesesssecsseesensscensons43 KeepOur Mountains Quiet v. County ofSanta Clara (2015) 236 Cal.App.4th 714 weececessceseceeeeecseeessnenenes seesevscssseccesesssseecsensesass46 Kings County Farm Bureau y. City ofHanford (1990) 221 Cal.App.3d 692 .o..ccccccsccssscssssesescsssssescsescesesensesesessssssessstscsesssessenaes43 Laurel Heights Improvement Association v. Regents of University ofCalifornia (1988) 47 Cal.3d 376 ceccccsccscssccsscesssscescssesscessessssesseceesecesseeesceessssssaass passim Los Angeles Unified School District v. City ofLos Angeles (1997) 58 Cal.App.4th 1019 oo.ccccsceeseseceseesseeeseeecsceessecenteesesseesseeessnasseenes 54 Mira Monte Homeowners Association v. County ofVentura (1985) 165 Cal.App.3d 357 occcecsccsscessscsscessseceteseceseceseesseeeeeeseseessesseeesasceusens 17 _ Napa Citizensfor Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342 wocccscsssccssssssssssssesssssssccssssseessssssssessssssssnsevseeceseeeeseste 54 Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439oeceseetecscsescescsssceesseceesensceesensseseesceaesessesseseseseeesesees27 iv No Oil, Inc. v. City ofLos Angeles (1974) 13 Cal.3d 68 oo.sesssessssessesseseseescsssscsvscscsssssecsesessseccsesesssacsscssscesecsesass 6 Pratt v. Coast Tirucking, Inc. (1964) 228 Cal.App.2d 139 ocncccccccsscsssscssssessscsssssscssssssceessesseasetacsassesscsscsesees32 Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 uo...vesseesecssesseseesceseeeeseneeesetessssestesensnaseees 12, 22 Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 oo... ccccccecsesscsessessscsscsssscessesesseteeensseseseeseeescnesseetsseesneees 8 Sierra Club y. County ofSan Diego (2014) 231 Cal.App.4th 1152 sooteaeenteseesessscssesseesecsscssnesecssssnssenesnneenseneensenesesnenss2 Sierra Club v. State Board ofForestry | (1994) 7 Cal.4th 1215 woeccscssecssssecsecsssscssssesacsvssseseeseneeseassessoneccesees passim Stanislaus Natural Heritage Project v. County ofStanislaus (1996) 48 Cal.App.4th 182 oo ccccccsccsseessssssssssscsssssscscsssecessscesecsersessessceesensees34 Utility Consumers’ Action Network v. Public Utilities Commission (2010) 187 Cal.App.4th 688 oo... ccccscesccssscessssscsssssessvsecsceerssssesssacsesssecssenenes 14 VineyardArea Citizensfor Responsible Growth v. City ofRancho Cordova (2007) 40 Cal.4th 412oeececsssessessesesessssssesescssssssssvsvsevavecsesesssescensaees passim Whitman v. Board ofSupervisors (1979) 88 Cal.App.3d 397 occccccescessssscsscsscsssscsssesseeseecens ee senessceaceeeseessseteeesseens 14 Yamaha Corp. ofAmerica v. Board ofEqualization (1998) 19 Cal.4th 1 oneccessssessesecsecsssscscsvscsesscsssesecsesecsassceatseasacscssesessases 8, 28 State Statutes Government Code | § O5080.....ceecsesescssecseescseesssssssessssessesecssesesscsssssssscsesscassaesececscestsesssesesenss passim Health and Safety Code § 38500 et SQ. oseeeeseccsssessssssseseesessesesecssssssssssescavscscscsceasacecststssasaeseseseassseeseeel | Public Resources Code § 21002.eeeeeeeeteeeeees eeesstcecetecsnseeesceeeceeseesseceseesecaeesessaecaesoeesessereaserenes4} § 21003.1ee eeeccenceesecececcesscecsceeseceesssaeensnessesesasseeneeseesonsensessesessesesesessueeeseeeensees4] § 21005 on. eecccsccccsceescsseeceecsseesseeeesscesesseeecnsecseesceessseeseesssesseossecessecearersnessenesereees45 § Q1OG] eeeeeeecsceecceneecseceeeeeseesenseeessaeecseessnsoaesesseecssesseeassceesesseessesesescessseeeaee45 § 21080...eececcceccecssseeessecsececceetscsceessneesseceseeeneceatecsseesseeessusseosssesaseeseseseseeeesaes45 § 2108221occeseeeeeeeeeseeeseeeesceesesneesseeeesasessoeessaeens sesecaeeessessssesesseesesosneoseeees41 § 21082.2 0... cccsscccessercccssccectsceessrececsnseecesssseecasensssonesseeesssaeeesesssseeseesenseeeeeesecenees45 § 21083oeeeeeseeeeesesceceecesseeesceresseersceeecsnssssarseesssescesaconssasesssssnssesseseseeeesseaseseeas42 § 21084oooeeecesceeecsceesecetseeccerenseeeescenseeeesssesasesssevessecssseeessssesssesseseseeesesaesonsees37 § 21091eeccccccescceessnececesseessnecesseeeseseessceesseesaeessssessssessaeeoessessssssseessenerseeseneeee41 § 21092.ccecccesceecsensesteceseeeseneescrecessceesscetseeesnerssuesesescseasoosseeesseesseeseseseneeeersees41 § 21093eeeeeeeeteeeeseaceceseeseeeeateceesecessaceescecaeeseeessasessseoeaneceseeesseereresseeesaeeeeees32 § 21094.eccccsscecesenececeesceesceeessseesseceescessceeeeeessseesssessasesesssssseserseeseeseeeeesess32 § Q11OOLeeecesceesececeecesseesccesseecececesaecesceneessssessseeesseaseesesessacsseceseesenseeeeseess45 § QLSSeeeecccseceseeecssetseesseecseseesseecesacesseessseseaeeesasessevsseecesssesesseasepeaesenees 33, 35 § 21155.1eeeeesateaeeaceseseneceenestonss saceneeasenceasesceesceateescecseetseeeseesneens ... 33, 35 § QV1S5.2ceccccencccesneeetceseesseseeseneessceeesacesaeesseerseseesssesseeeecsesssarsesenseeenenes 33, 35 § 21155.30acecencceccsesseseaeeceaeesenseeeeasensnseaeesessnesssasesesasooseneneseaneeseaeess 33, 35 § Q11SS4ccccccestecessneceseseceesseeeeesaeeessecesaceeaeecanecscesessenseesesscsecesensseeesseeonees 33, 35 § DL1LS9.28 ..cccccessscssscccsscsssesssecescsesssnsesscseecsescsserseenssessssseneceessessseassessseseseees 33, 35 State Regulations Cal.Code Regs., Title 14 § 15007 0... eesccsesccescceseeceecesceceeseceressceesceseeaeeneeseeeesssaessessssacaesssecssanscesessesersesensaes23 § 15064...ee eeeccceseeecessceceeeeceeseaeeeeaeectaceeeseeeceesseesscanesenosaeeesonss 17, 36, 40, 43, 45 § 15064.4oeeeeeeeeereeesdaceesecceessscesencesseeessecencessnensseaseeseescssseaseneeers 36, 43, 45 § 15126.2eeeececescecessnscencesccessseesssscesescecesceeseeenceesadersceseseuaeessesccesensenseesenseseeues42 § S142eeeecceneeeesneeeeceeseeesneecssncessseesesseeeseteceeesceeeseeessueeesosesssenss 17, 40, 43, 45 § S144eeecceccscececeseensecsseesesecesceeeesonecsenseacsseesensesensnsesseeaseseesessseeseaeeesansensers54 8 SLABLeeeeceeseseeeeeseseeseeeteesneeeserenesdesseeeseeeseesseesenseseaeeeseeetseees 17, 40, 43,.45 § SSDeeeeetccesccecessserscceseeeseceesssacesnsccesscesseseeeessessecasesuaeeseseessseseteessesenseeeesees32 § S167eeeeeeseceeeesecesecesseessneencsneersscesssaseseessssessacesseesnsscesusesssesseereeaueneseenenses32 § 15168.eeeeesceccesceeeeeceeecscceessceeessasesssesseeeseuessesenssessseeeessesessssesesseeeenees 32, 34 §§ LS 175-151 79.5 occeeeccsceensesseesessceeessnecseecseeesseeeanesssasesenseeseessseseeeessseeeseaeeasuas32 §§ 15182-15183 ooeeeceneeeeesceeeseneeesenssassseesseesesesssesseascsessscesusessaeeeseasessees32 § 151835eeeesses cesseeseesceeceeeseesseeesseceesesereessdecssasesuseeseueesvsaseareneeecseerenes 33,36 vi Other Authorities Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Vols. 1 & 2) §§ 1.24-1:26..cccscsecescccseccccssscessssssccsssssssveccessssvessesesessssssssussssssnuscerssssessesseresnnsssessssseee 46 § 10.2 cresssssecsssssnssssssessesssssssessasssssesceeesssnsussssssssesunssssesessesuiusessessasanssesesssunsssssestee 33 § 10.19 vcrceccscsccsssseessscsssecerssesessees seusesescesssuseseessssssssssessecessasasesessueceersnssueseceessassesess 349 § 20.88 oasccccsccssssssecccsssecsssssesesssssesssssssescessssuesssssssssssssusssssssssusessssuetsscecessnssssessseaseess 37 Recommendations ofthe Regional Targets Advisory Committee (RTAC) Pursuant to Senate Bill 375: A Report to the California Air Resources Board .........1000++. 48 Vil INTRODUCTION The foremost goal ofthe California Environmental Quality Act (“CEQA”)is to ensure that decision-makers and the public have the information necessary for meaningful consideration of the environmental consequencesofplanning and developmentprojects. Here, the San Diego Association of Governments (“SANDAG”) ‘prepared an environmental impact report (“EIR”) that thwarted this goal. The EIR omitted any analysis ofthe stark inconsistency between the long-term increase in greenhouse gas emissions proj ected under SANDAG’sRegional Transportation Plan/Sustainable Communities Strategy (“RTP/SCS”or “Plan”) and the long-term reductions in greenhouse gas emissions demanded byboth science and California’s overall climate stabilization policy. That science and policy—treflected not only in Executive Order S-3-05, but also in Senate Bill (“SB”) 375,’ Assembly Bill (“AB”) 32,” the AB 32 Scoping Plan, and even SANDAG’s ownClimate Action Strategy— establish that in order to avoid the worst effects of climate change, steep greenhouse gas reductions must continue through 2050. ' Citations to “SB 375”are to Statutes 2008, chapter 728, codified in _ part at Government Code 65080, subdivision (b)(2). * Citations to “AB 32”are to Health and Safety Code section 38500 et seq. 1 SANDAG’sPlan,in sharp contrast, would allow regional land use and transportation emissionsto rise again after 2020 and increase through 2050. SANDAG’sdecision to forgo any analysisofthis inconsistency rendered the EIR fundamentally and prejudicially misleading. The EIR assured decision-makers and the public that the Plan would advance California’s long-term climate goals, when in reality it would do exactly the opposite. SANDAG’s ownClimate Action Strategy recognized the scientific basis and overall policy importance of the emissions reductions needed between 2020 and 2050 to stabilize the climate. SANDAGthuscould not simply ignore the real, long-term consequences of approving a Plan that would cause emissions to rise over that same time period. (See Sierra Clubv. | County ofSan Diego (2014) 231 Cal.App.4th 1152, 1175 [finding climate action plan’s rising emissionsafter 2020 likely significant in light of conflict with Executive Order’s long-term goals].) Rather than engage with the EIR’sbasic failings, Amici Curiae Building Industry Legal Defense Foundation,et al. (“Building Industry”), CaliforniaInfill Builders Federation, et al. (“Federation”), California Association of Councils of Governments, et al. (“CACOG”), and Pacific Legal Foundation (“PLF”) (collectively “Amici’”) attempt to avoid them by invoking the wrong standard of review,inventing nonexistent threats to agency discretion,raising misplaced concerns about the scope and effect of executive orders, and speculating about the dire consequences ofholding SANDAGto its fundamental statutory responsibilities. ~ Amici’s arguments are molehills, not mountains. Of course lead agencieslike SANDAG retain substantial discretion underthe statute, including discretion to select thresholds of significance, but _ that discretion does not permit agencies to undercutcore statutory requirements by preparing misleading or uninformative EIRs. Nor may agenciesignorethebasic scientific facts underlying state policy—facts reflected not only in legislative actions and expert state agency judgments, but also in SANDAG?’s ownClimate Action Strategy—simply because those facts were at one timereflected in an executive order. And no paradeofhorribles will flow from affirmance ofthe appellate court’s judgment, Amici’s overblown claims to the contrary notwithstanding. This case presentsa relatively narrow set of circumstances where an agency could and should have evaluated the very real and serious long-term consequencesofits transportation Plan, but instead decidedto truncate the analysis to painta rosier picture. CEQArequiresthat the public and decision-makers be provided | with the kind of analysis SANDAG omitted here in reviewing the long-term implicationsofregional transportation planning decisions. Indeed, this case illustrates why scrupulous enforcement of CEQA’s requirements is so important. Although SANDAG’sSustainable Communities Strategy technically met SB 375’s short- and medium- range targets, it would increase long-term emissions in a manner contrary to both science and overall California climate policy. Analysis of that conflict—which CEQA alone can provide—iscritical to informed decision-making and adequate mitigation of the Plan’s long-term climate impact. | SANDAG’s decision to omit this analysis violated both CEQA’sexplicit requirements andits basic purposes. _ Plaintiffs and Respondents Cleveland National Forest Foundation, et — al. (“Plaintiffs”) thus respectfully request that the Court affirm the decision of the Court ofAppeal holding that SANDAG’s EIR prejudicially violated CEQA,require SANDAGto decertify the deficient EIR, and remandthe matter for further proceedings and | issuance of a writ consistent with its decision. I. Although This Court’s Review Is De Novo, the EIR Would Fail Even Under Substantial Evidence Review. Amici, like SANDAG,urge this Court to review the EIR for substantial evidence. (CACOG Amici Curiae Brief (““CACOG Br.”) at pp. 12-24; see also (SANDAGConsolidated Reply Brief (“SANDAG Reply Br.”) at pp. 12-18.) As both Plaintiffs andthe People demonstrated in their merits briefs, however, this case turns on SANDAG’serroneous/egal interpretation of CEQA’s requirements. (Plaintiffs’ Answer Br. at pp. 18-22; People of the State of California’s Answer Brief on the Merits (“People’s Answer Br.”)at pp. 21-22.) Accordingly, the correct standard of review is de novo. But even if the Court were to apply substantial evidence review,the EIR wouldfail. A. An Agency’s Interpretation of CEQA’s Requirements Is Reviewed De Novo. This Court has madethe basic principles governing judicial review more than clear. An agency mayabuseits discretion under Public Resources Codesection 21168.5° in either oftwo ways:(1) “by _ failing to proceed in the manner CEQAprovides”or (2) “by reaching > Allfurther undesignated statutory references are to the Public Resources Code. Citations to “Guidelines” are to the CEQA Guidelines, codified at title 14, California Code of Regulations, section 15000 et seq. 5 factual conclusions unsupported by substantial evidence.” (Vineyard AreaCitizensfor Responsible Growth v. City ofRancho Cordova (2007) 40 Cal.4th 412, 435.) Review ofthese two types of error “differs significantly”: on one hand,this Court determines de novo “whether the agency has employedthe correct procedures,” while on the other, it “accord[s] greater deference to the agency’s factual conclusions.” (Ibid.) The Court thus independently reviews an agency’s interpretation of CEQA’s legal requirements. (See, e.g., City _ ofSan Diego v. Board ofTrustees ofthe California State University (2015) 61 Cal.4th 945, 956; City ofMarina v. Board ofTrustees ofthe California State University (2006) 39 Cal.4th 341, 355-56; No Oil, Inc. v. City ofLos Angeles (1974) 13 Cal.3d 68, 88.) An agency’s purely factual determinations,in contrast, are given greater deference. (See Vineyard, supra, 40 Cal.4th at p. 435.) This case is predominantly,ifnot exclusively, one of improper procedure: SANDAGreached anerroneous /egal conclusion that CEQAdid not require analysis of its Plan’s long-term inconsistency with California’s science-based climate stabilization goals because - those goals werearticulated in an Executive Order. Plaintiffs’ position is not “sleight ofhand,” as CACOGinsinuates (CACOG 6 Brief at page 16), but rather plain from the face ofthe record. (See Plaintiffs’ AnswerBr. at pp. 18-19 [citing AR 8b:3767, 3769, 3770, 4431, 4433].)’ Moreover, SANDAG’s decision did notrest solely on whether the Executive Order bindslocal agencies (CACOGBriefat pages 17-18), but rather involved an interpretation of CEQAitself. (AR 8b:3769, 4432 [concluding there was “no legal requirement” to use the Executive Orderas a “threshold of significance” becauseit was not an “adopted [greenhouse gas] reduction plan within the meaning ofCEQA Guidelines 15064.4(b)(2)”].) SANDAG’s explicitly “legal” conclusion that CEQAdid not require use ofthe Executive Orderas a “threshold of significance” misconstrued CEOA’s requirements and led the agency to ignore the obvious conflict between the Plan’s rising emissions and the Executive Order’s science-based downward emissionstrajectory. SANDAG’s ‘use of an incorrect legal standard thus rendered the EIR incomplete | and misleading. Accordingly, SANDAG’srefusalto analyze the full consequence ofits project is the same type of misinterpretation of * Citations to the Administrative Record are in the format “AR [tab number]:[page number].” Citations to the Supplemental Administrative Record are in the format “SAR [tab number]:[page number].” 7 CEQA that this Court reviewed de novoin City ofSan Diego and City ofMarina. It is similarly akin to the University of California Regents’ mistaken conclusion that CEQA did not require any assessmentofthe reasonably foreseeable future consequences ofcarrying out a project until future uses were formally approved (Laurel Heights Improvement Associationv. Regents of University ofCalifornia (1988) 47 Cal.3d 376, 393-99 (“Laurel Heights [’))—a conclusion | this Court also reviewedde novo (see Vineyard, supra, 40 Cal.4th at p. 435). As CACOGacknowledges,this Court is the “final arbiter of what [CEQA] means.” (CACOGBr.at p. 16 [citing Yamaha Corp. of America v. Board ofEqualization (1998) 19 Cal.4th 1, 11; Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 128-30].) To that end,this Court “scrupulously enforce[s] all legislatively mandated CEQArequirements” (Vineyard, supra, 40 Cal.4th at page 435)— . including the fundamental requirement that an EIR function as an “informative document” (City ofSan Diego, supra, 61 Cal.4th at page 956 [use of incorrect legal standard for determining feasibility of mitigation rendered EIR invalid; citation omitted]). (See,e.g., Communitiesfor a Better Environment v. South Coast Air Quality ManagementDistrict (2010) 48 Cal.4th 310, 319, 322 [choice of incorrect baseline for determining air pollutant emissions was inconsistent with CEQA guidelines and rendered EIR fundamentally misleading]; Sierra Club v. State Board ofForestry (1994) 7 Cal.4th 1215, 1236-37 (“Sierra Club”) [agency violated CEQA’s procedures by failing to provide relevant information about species on project site].) Substantial evidence review,in contrast, is reserved for true factual disputes. Becauseit is not the role of this Court to“weigh conflicting evidence and determine whohasthe better argument,” deference to an agency’s well-supported factual judgments is appropriate. (See Vineyard, supra, 40 Cal.4th at p. 435 [quoting Laurel Heights I, supra, 47 Cal.3d at p. 393].) Here, however, Plaintiffs are not challenging SANDAG’s methodologyfor calculating greenhouse gas emissions or disputing expert opinion regarding the effects of climate change. Rather, Plaintiffs challenge SANDAG’s complete failure to disclose and analyze the Plan’s long- term rising greenhouse gas emissionsin relation to the long-term - emissions reductionsall parties now agree are necessary to stabilize the climate. The substantial evidence test does not apply to this type of challenge. (See, e.g., Bakersfield Citizensfor Local Controlv. City ofBakersfield (2004) 124 Cal.App.4th 1184, 1208; Association of Irritated Residents v. County ofMadera (2003) 107 Cal.App.4th 1383, 1392.) Simply put, the dispute here is not aboutthe facts, but rather about what CEQArequires. B. Amici’s Arguments for Substantial Evidence Review Lack Merit. Amici’s pleas for substantial evidence review beg an important | but unanswered question: substantial evidence of what? Amici seem to suggest that this Court should look only for substantial evidence that the EIR adequately informed decision-makersandthe public. (See, e.g., Federation Amici Curiae Brief in Support of SANDAG (“Federation Br.”) at pp. 15-18 [contending substantial evidence supports the conclusion SANDAG “made a goodfaith and reasonable effort” to analyze emissions]; cf. also SANDAGReply Br.at p. 17 [framing inquiry as whether substantial evidence supports SANDAG’s“certification of the EIR . .. as adequate”].) But Amici would have this Court apply substantial evidencereview to a fundamentally legal conclusion—whetherthe EIRsatisfied CEQA’s basic information disclosure requirements—and thus muddle this Court’s clear distinctions between the different CEQA standards of 10 review. (See Vineyard, supra, 40 Cal.4th at p. 435.) In a similar vein, CACOG suggests this Court need only determine whetherthere is substantial evidence to support ~ SANDAG’sselection of a “methodology” or “scope” for the EIR. (See CACOGBr. at pp. 13-15.) However, an agency’s decisions regarding the scope ofanalysis or methodology employed are reviewed for substantial evidence only to the extent they present factual questions—andeven then, only ifthey do not involve application of an erroneouslegal standard. (See Federation of Hillside & Canyon Associations v. City ofLos Angeles (2000) 83 Cal.App.4th 1252, 1259.) If SANDAG had groundedits decision to omit any analysis of the inconsistency between the Plan’s rising emissionsandthe Executive Order’s downward trajectory in factual determinations—say,that the Plan’s emissions would notrise after 2020, but would continue on a downward trajectory—then substantial evidence review might be appropriate. But—as the record here clearly shows—thatis not what SANDAGdid.” In any event, the Court still must determine whether the > As discussed in Plaintiffs’ Answer Brief (pages 19-20), the factual rationales SANDAGbelatedly advanced inlitigation are not reflected in the record and cannotsaveits decision.. . 11 resulting analysis served CEQA’s fundamentalinformation disclosure purpose. (See, e.g., Communitiesfor a Better Environment, supra, 48 Cal.4th at pp. 319, 322.) Absent judicial scrutiny of this requirement, agencies could simply choose a “scope” or “methodology” for analysis that omits inconvenient facts, elides or downplays actual impacts,and leads to misleading conclusions. Just as an agency may notuse a threshold of significance in a mannerthat ignores substantial evidenceof significant impacts (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109), or choose an environmental “baseline”that results in illusory comparisons (Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 322), so it may not employ a “scope” or “methodology” of analysis that fails to inform decision-makers and the public of the project’s real environmental consequences. An agency cannotentitle itself to extra-statutory discretion and absolute judicial deference simply by characterizing its strategic omissions as decisions about “scope” or “methodology.” Amici’s (and SANDAG’s) suggestions that de novo review would violate Public Resources Code section 21083.1 by imposing a requirementnot explicitly stated in the statute or Guidelines fail for 12 ‘the same reason. The requirement that an EIR adequately inform both _ decision-makers and the public of a project’s environmental consequences has always been at the very core ofthe statute. (See, e.g., Laurel Heights I, supra, 47. Cal.3d at p. 392.) This Court has long recognized that CEQAprecludes. approval of a project in the absence of information “necessary to make an informed assessment” of environmental impacts. (Sierra Club, supra, 7 Cal.4th at pp. 1220- 21.) By definition, enforcement of CEQA’smost fundamental requirements cannotstretch the statute beyondlegislatively authorized bounds. C. Substantial Evidence Does Not Support the EIR’s Omission of Analysis of the Plan’s Inconsistency with California’s Long-Term Climate Stabilization Goals. SANDAG’s EIR would fail even underthe substantial evidence standard Amici advocate. Again, SANDAG’sstated reasons for omitting a comparison with the Executive Order trajectory were almost exclusively legal, and only a few scattered, conclusory objections in the EIR arguably could be characterized as factual. (See,e.g., AR 8b:3767, 3769, 4431 [noting Executive Orderdid not contain an “implementation plan” and characterizing role of transportation and land use in achieving goals as uncertain].) 13 Conclusory statements ofthis kind, without further explanation or evidentiary support, are inadequate under CEQA. (See,e.g., Whitman v. Board ofSupervisors (1979) 88 Cal.App.3d 397, 411.) None of these conclusory statements constitutessubstantial evidence supporting SANDAG’sdecision to forgo any analysis of the inconsistency between the Plan’s rising emissions and the reductions necessary to stabilize the climate. Moreover, no evidence supports the conclusion that the EIR’s selection of a “scope”or a “methodology” or “thresholds of significance” resulted in adequate disclosure of the Plan’s long-term greenhouse gas impacts. Tellingly, although the Federationinsists that “abundant evidence in the record” supports this conclusion (Federation Brief at page 17), it provides not a single citation to the record. Thepoint is therefore not only unsupported, but also waived. (See Utility Consumers’ Action Network v. Public Utilities Commission (2010) 187 Cal.App.4th 688, 693.) For its part, CACOG cites two pagesofthe record where SANDAGsetsforth its chosen thresholds and claims “[t]hat was enough to comply with CEQA.” (CACOGBr.at p. 37.) As discussed in Part II.B., infra, however, mere identification of a threshold is not conclusive ofCEQA 14 compliance. As shownin Plaintiffs’ answer brief, SANDAG’s various “thresholds of significance” eliminated any scientifically relevant benchmark for evaluating the Plan’s 2050 emissionsincrease in relation to the long-term reductionsall parties now apparently agree are necessary for climate stabilization. (See Plaintiffs’ AnswerBr.at pp. 26-35; see also Amici Curiae Brief of Climate Scientists Dennis D. Baldocci, Ph.D., et al. (“Climate Scientists Br.”), at pp. 27-30.) Specifically, the EIR’s discussion of the AB 32 Scoping Plan and SANDAG’s own Climate Action Strategy completely ignored portions ofthose documents incorporating the state’s 2050 goals. (Plaintiffs’ Answer Br. at pp. 30-35.) And the EIR’s analysis ofthe Plan’s consistency with SB 375’s static, isolated 2020 and 2035 targets provided no basis for evaluating the significance ofits rising emissions through 2050. (/d. at pp. 29-30.) In sum, this Court should review SANDAG’serroneouslegal interpretation of CEQA’s requirements de novo. Buteven ifthe Court were to do otherwise, no substantial evidence in the record supports SANDAG’s decision to omit any discussion ofits Plan’s fundamental inconsistency with the state’s long-term, science-based climate 15 stabilization goals. Nor is there substantial evidence to support a conclusion that the EIR adequately informed decision-makers and the public absent such analysis. Il. SANDAG’s Omissions Were Not a Proper Exercise of Discretion, But Rather an Abuse of Discretion. Amici view this case through the exceedingly narrow and ultimately distorting lens of an agency’s discretion to choose “thresholds of significance” for evaluating environmental effects. Their myopic focus obscures three key points. First, this case does not turn primarily on the EIR’s “thresholds of significance,” but rather on its omission of information critical to determining the Plan’s climate impacts. Second,it is well established that mere selection and application of a “threshold of significance” are not conclusive of CEQAcompliance. Andthird,as the appellate court below properly recognized,it is axiomatic that agency discretion must be exercised in accordance with CEQA’s fundamental purposes. A. SANDAGErred by Omitting Critical Information -from the EIR. CEQAis first and foremost concerned with “identifying any substantial adverse changesin physical conditions” (Berkeley Keep Jets Over the Bay Committee v. Board ofPort Commissioners (2001) 16 91 Cal.App.4th 1344, 1380 (“Berkeley Jets”))}—in other words, with a -project’s actual effects on the physical environment. (See, e.g., Mira Monte Homeowners Association v. County of Ventura (1985) 165 Cal.App.3d 357, 364-66 [finding further environmental review required following discovery that proposed project would affect additional sensitive wetland habitat].) An agency thus must obtain andfully disclose the information necessary to permit meaningful evaluation of those effects, including relevant scientific data where available. (See, e.g., Guidelines §§ 15064, subd. (b), 15142, 15148.) Failure to disclose that information violates CEQA. In Sierra Club v. Board ofForestry, for example, the Board of Forestry approved a logging plan despite lacking informationcritical to evaluating the plan’s impacts on sensitive species; the Board erroneously concludedit lacked legal authority to compelthe landownerto provide the needed information. (Sierra Club, supra, 7 Cal].4th at pp. 1220, 1236.) This Court held that CEQA notonly authorized but also obligated the Boardto collect the information necessary to identify significant environmental impacts and propose feasible mitigation measures: without the required information, meaningful assessmentofthe plan’s impacts under CEQA was 17 impossible. (/d. at pp. 1236-37.) Other courts have also invalidated EIRsthat omitted information and analysis based on erroneous interpretations of CEQA’s requirementsor relied on outdated and incomplete scientific information. (See, e.g.,Bakersfield Citizensfor Local Control, supra, 124Cal.App.4th at pp. 1208, 1211-12 [EIR improperly omitted analysis ofurban decay based on conclusion impact was purely economic and outside scope of CEQA]; Berkeley Jets, supra, 91 Cal-App.4th at p. 1367 [EIR using “scientifically outdated information” was not a reasoned, good-faith effort to inform decision-makers andthe public]; Citizens To Preserve the Ojaiv. County of Ventura (1985) 176 Cal.App.3d 421, 430-32 [EIR violated CEQAbyomitting any analysis of major source of cumulative air pollution].) Here, SANDAGchosethree “thresholds” for evaluating the significance of the Plan’s greenhouse gas emissions. (AR 8a:2567.) Yet under each ofthese thresholds, the EIR failed to provide any scientifically relevant basis for evaluating the significance of the Plan’s long-term emissionsincrease, because it omitted any analysis of the inconsistency between the Plan’s upward emissions trajectory through 2050 and the downwardemissionstrajectory necessary to 18 stabilize the climate and achieve California’s overall 2050 emissions reduction goals. (Plaintiffs’ Answer Br. at pp. 26-35; see also People’s AnswerBr. at pp. 41-44, 46-47.) As in Sierra Club, SANDAG’serroneouslegal conclusion that it need not analyze its Plan’s long-term emissions in the context of California’s science- based climate stabilization goals led the agency to approve the Plan in the absenceof information critical toa meaningful assessmentofits long-term impacts.° (Sierra Club, supra, 7 Cal.4th at pp. 1236-37.) Indeed, the EIR strongly suggested that the Plan wasconsistent with California climate policy. (AR 8a:2584-85 [concluding Plan did not impede the AB 32 Scoping Plan but rather “encouraged and promoted”its goals].) It maintained this fiction, however, only by ignoring key aspects ofthe thresholds against which it measured the Plan’s impacts. The AB 32 Scoping Plan, for example, recognized the scientific imperative to reduce emissions consistently through 2050 and proposed an interim target for 2020 designed to “put the state on a ° This is not a case where the EIR simply lacked additional detail beyond that neededto assess impacts. (See, e.g., Ebbetts Pass Forest Watch v. California Department ofForestry and Fire Protection (2008) 43 Cal.4th 936, 950-51.) Rather, it is a case where the EIR entirely omitted information essential to an understandingofthe Plan’s long-term effects—namely,its inconsistency with the mid- century emissionsreduction trajectory necessary to stabilize the climate. 19 path to meet” that long-term goal. (AR 320:27875; see also Association ofIrritated Residents v. Air Resources Board (20 12) 206 Cal.App.4th 1487, 1496.) The EIR, however,stated that “[t]he Scoping Plan does not have targets established beyond 2020,” and therefore failed to analyze any longer-term inconsistency. (AR 8a:2586, 2588.) SANDAG’s own Climate Action Strategy similarly adopted the 2050 emissions reduction trajectory as a long-term guiding principle: “By 2030, the region must . . . be well on its way to doingits share for achieving the 2050 greenhouse gas reduction level.” (AR 216:17629.) The EIR, however, concluded the Plan “would not impede”the Strategy (AR 8a:2586, 2588)—abaldly misleading claim thatrests entirely on the EIR’s omission of any discussion of the Plan’s plain inconsistency with the emissions reductions necessary to achieve the 2050 goal. Contrary to Amici’s (and SANDAG’s)contentions, these omissions demonstrate that there was no substantial evidence to support a conclusion that the EIR adequately informed decision-makers and the public as CEQA requires. 7 SANDAG’sclaim that the Strategy “does not adopt” the 2050 goal (SANDAGReply Brief at page 29) is disingenuous; the mandatory language of the Strategy speaksforitself. 20 B. Selection of a “Threshold of Significance” Is Not Conclusive of CEQA Compliance. Amici’s arguments appear to assumethat agencies have absolute discretion to select and apply whatever “thresholds of significance”they see fit, and that oncea thresholdis chosen, compliance with CEQAis conclusively presumed. Like SANDAG, however, Amici read CEQAfartoo narrowly. Even assuming for the sake of argument that SANDAGhadselected “thresholds of significance” consistent with Guidelines section 15064.4, this action alone would not be conclusive of CEQA compliance. (See Opinion at pp. 19-20.) Indeed, Amici’s argumentsoverlook established law. Courts have long recognizedthat agencies violate CEQA by choosing thresholdsof significance that obscure rather than elucidate impacts of concern. In Berkeley Jets, for example, the court held that an EIR for an airport expansion plan improperlyrelied on a daily average threshold for noise impacts that failed to providecritical information about the environmental impact ofmost concern—individual nighttime noise eventslinked to sleep disruption. (Berkeley Jets, supra, 91 Cal.App.4th at pp. 1381-82.) Other courts similarly have _heldthat thresholds ofsignificance “cannot be used to determine 21 automatically whether a given effect will or will not be significant.” (Protect the Historic Amador Waterways, supra, 116 Cal.App.4th at pp. 1108-09.) Rather, agencies must considerall substantial evidence that a project may havesignificant effects notwithstanding compliance with a threshold. (/bid.) An importantcorollary to these principles is that an agency cannot simply declare an impact significant because it exceeds a threshold; rather, it must disclose and analyze howsignificant the effect is likely to be. (Plaintiffs’ AnswerBr. at pp. 28-29; see Berkeley Jets, supra, 91 Cal.App.4th at p. 1371; cf. also Sierra Club, supra, 7 Cal.4th at p. 1233 [agency must properly “identify the adverse effects of [a] proposed project” before approving project despite significant impacts].) The relevant question, therefore, is not whether SANDAGsimply went through the motionsofselecting thresholds of significance, but rather whetherthe resulting analysis contained the information necessary to inform decision-makers and the public of the Plan’s long-term environmental impacts. Having framed the question improperly, Amici reach the wrong answers. CACOG,for instance, relies primarily on inferences from agencyandlegislative silence to contend that CEQA did not require 22 SANDAGtousethe Executive Order as a thresholdofsignificance.® First, CACOGpoints out that the Governor’sOffice of Planning and Research (“OPR”) did not mention the Executive Order in its 2008 “Technical Advisory” on greenhouse gases and CEQA. (CACOGBr. at pp. 29-31.) Yet CACOG overlooks OPR’s specific comments on the Draft EIR for this project, in which OPRexplicitly “encourage[d] SANDAGtoplace its predicted emissions reductions in the context of State policy goals by providing a quantification ofthe role its planning efforts will play in helping the state achieve its 2050 GHG emissions reduction target of 80 percent,” (AR 308:25005.) CACOGalsofails to mention that the Technical Advisory was issued only as “interim” guidance pending finalization of theCEQA Guidelines amendments that included section 15064.4. (AR 319:26459.) Its relevance to this | EIR, which wasfirst circulated for public review more than a year after the effective date of the Guidelines,is therefore minimal. (See Guidelines § 15007, subd.(d).) ® CACOGalso spends roughly a quarterofits brief detailing the “maze”of federal and state requirements applicable to metropolitan planning organizations. (CACOGBr.at pp. 38-51.) As CACOG correctly concedes, however, noneofthese “complexities”entitle SANDAGorany other metropolitan organizations to heightened discretion or other “different standards” under CEQA.(id. atp. 50.) This material is therefore irrelevant to the question before the Court. 23 In the same vein, CACOGnotesthat the Legislature did not explicitly reference the Executive Order in SB 375. (CACOG Br.at pp. 29-30.) It did, however, require regional emissionstargets to be updated through 2050.’ (Gov. Code § 65080, subd. (b)(2)(A)(iv).) Nothing in SB 375 indicates that the Legislature intended regional emissionstargets to increase through 2050; indeed, this would be directly contrary to the Legislature’s explicit emissionsreduction purpose. (Gov. Code § 65080, subd. (b)(2) [repeatedly requiring that targets “reduce” emissions]; see also SB 375, § 1, subd.(c) [finding that despite increasing fuel efficiency, “qt will be necessary to achieve significant additional greenhouse gas reductions from changed land use patterns and improved transportation” to meet AB 32 goals].) The reference to 2050 in SB 375is thus more reasonably read as encompassing, rather than eschewing, the long-term emissions reduction trajectory expressed in the Executive Order. Expert agencies like OPR and the California Air Resources Board (“CARB”) expressed concern about SANDAG’sPlan onthis ” The Federation argues that this provision does not require the Air Resources Boardto “create” targets for 2050, but rather requires the Board only to “update”targets every eight years “until 2050.” (Federation Br. at pp. 9-10; see Gov. Code § 65080(b)(2)(A)(iv).) It is difficult to see the distinction. By “updating”targets “until 2050,” the Board necessarily must “create” targets for 2050. 24 very point. (AR 308:25004 [OPRstating “we are concerned that the [Plan] implies that future growth will be unavoidably less transportation efficient, which counters SB 375’s underlying purpose”|]; SAR 344:30143 [CARB noting “unexpected” long-term increase in Plan’s per capita emissions].) The fact that SB 375 did not mention the Executive Order by name or numberdoes notrelieve SANDAGofits independent responsibility under CEQAto disclose and analyze the extent to which its Plan fundamentally contravenes the actions California has deemed necessary, based on the best science, to stabilize the climate. (See Gov. Code § 65080, subd. . (b)(2)(K) [providing that “nothing in this section relieves a public or private entity . .. from compliance with any otherlocal, state, or federal law”].) Fortheir part, the Federation and the Building Industry contend Guidelines section 15064.4 endorses SANDAG’schoice of thresholds. Their arguments, however, cannot be squared with SANDAG’sactual approach to the EIR. The Federation echoes SANDAG(andJustice Benke’s dissent below)in insisting that because the Executive Order wasnot a “plan” adopted through a “public review process,” analysis cannot be required under Guidelines 25 section 15064.4. (Federation Br. at pp. 18-20.) The Building Industry similarly contends that because the Resources Agency “deliberately avoided” linking significance determinations to statewide statutes and broad planslike AB 32, the AB 32 Scoping Plan, and SB 375, the Agencycould not have anticipated that significance determinations would consider a “broad statewide document”like the Executive Order. (Brief ofAmici Curiae Building Industry in Support of SANDAG(“Building Industry Br.”) at pp. 8-10.) Yet the AB 32 Scoping Plan and SANDAG’sClimate Action Strategy—both of which SANDAGexplicitly relied on in makingits significance determinations under section15064.4—adopted and incorporated the Executive Order’s science-based climate stabilization trajectory. The Federation’s objection, based solely on the process usedto adoptthe _ Executive Order that SANDAGrejected as a threshold, cannot excuse SANDAG’sfailure to address long-term inconsistencies between the Plan and California’s climate goals, as articulated in the documents the EIR did choose to analyze. In any event, the EIR’s reliance on both the ScopingPlan and SB 375 indicates that SANDAGhad no objection to using “broad statewide document[s]” in assessing the Plan’s significance. This Court reviewsthe rationale for SANDAG’s 26 actions that is reflected in the record, not reasons advancedlaterin- litigation. (See Plaintiffs’ Answer Br. at p. 20; People’s AnswerBr. at pp. 50-51.) The Building Industry’s objections to the breadth or statewide scope ofthe Executive Order are thus ofno moment. C. Agencies Lack Discretion to Produce Incomplete and Misleading EIRs. Amici place great emphasis on agencydiscretion to select and apply thresholds of significance. Plaintiffs recognize that agencies retain discretion. But stating this fact does not answer the question as to whetherthat discretion has been exercised in accordance with CEQA’s requirements. Rather, as the appellate court correctly held, an agency “abusesits discretion if it exercises it in a mannerthat causes an EJR’s analysis to be misleading or without informational value.” (Opinionat p. 19 [citing Neighborsfor Smart Railv. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 445, 457].) That agency discretion is cabined by express statutory requirements and fundamentallegislative goals is a bedrock principle of administrative law. Agency actions “that violate acts ofthe Legislature are void and noprotestations that they are merely an -exercise of administrative discretion can sanctify them.” 27 (Agricultural Labor Relations Board v. Superior Court (1976) 16 Cal.3d 392, 419 [internal quotation omitted]; see also Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 USS. 837, 843, fn. 9 [judiciaryis “ final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent”]; Yamaha Corp., supra, 19 Cal.4th at p. 11, fn. 4 [granting no deference “to an agency’s view when deciding whether a regulation lies within the scope of the authority delegated by the Legislature”].) Amici neglect this principle in arguing that requiring SANDAGto addressthe inconsistency betweenits Plan’s rising emissions and the downward emissions trajectory necessary for climate stabilization would unduly infringe on the discretion agencies generally retain under CEQA. Asthe Opinion below correctly held, an agency neverhasdiscretion to certify a | misleading EIR. (Opinionat p. 19; see also, e.g., Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 322.) Moreover, as discussed below (Part III.A, infra), the Court need not decide how muchdiscretion each agencyin the state might retain in determining whether and how to address long-term climate impacts for each and every imaginable type ofproject. In this case, however, 28 it is not only reasonable, but clearly essential, that the long-term climate implications of transportation and land use planning in one of California’s most populous regions be addressed in light of accepted science and overarchingstate policy. Itt. A Ruling in Plaintiffs’ Favor Would Not Have “Unreasonable Consequences,” but Would Be Entirely Consistent with CEQA and Longstanding CEQA Precedent. Amici attempt to create controversy by drummingupa list of “unreasonable consequences” that will purportedly result if the Court rules for Plaintiffs. (Building Industry Br. at p. 12.) In reality, none of these scenarios bears anyrelation to the present case. Thelist can be boiled down to four central themes: any ruling in Plaintiffs’ favor would allegedly (1) create a broad rule that would require lead agencies to prepare an EIR for every future approval; (2) allow Plaintiffs to prevail in CEQA caseson policy groundsalone; (3) impermissibly expand CEQA’s requirements beyond explicit statutory and regulatory boundaries; and (4) eviscerate the separation ofpowers doctrine by allowing changes to CEQA without a proper legislative process. (See Building Industry Br. at pp. 12-25; Brief ofAmicus Curiae PLF in Support of SANDAG (“PLF Br.”) at pp. 10-13; Federation Br. at pp. 13-15; CACOGBr.at pp. 35-37.) As shown 29 below, Amici are wrongonall four counts. This case presents an important but hardly groundbreaking question regarding CEQA’s fundamental requirements for information disclosure. Amici have it exactly backwards: A ruling in Plaintiffs’ favor will not shake CEQA’s foundation, but will reinforce it. A. The Question Before the Court Is Indisputably Narrow and Does Not Implicate Every Future CEQA Approval. Amici Building Industry assert that a holding in Plaintiffs’ favor would necessarily set a broad rule that, for every future project | approval, lead agencies must prepare an EIRto analyzethe project’s consistency with the Executive Order’s climate stabilization goal. (Building Industry Br. at pp. 12-14, 18-21.) They then venture further into hyperbole, suggesting the rule would apply to otherwise exempt projects, such as single family homes and those that benefit the environment. (/d. at 20.) They speculate that preparation of an EIR for all future projects would be necessary becauseit is always possible to make a “fair argument”that a project is not reducing greenhouse gas emissions enoughto help the state achieveits climate stabilization goal. (/d. at 18-19.) However, as explained above (supra, Part IIJ.B), this case is not 30 aboutsetting an across-the-board mandatory CEQA threshold for greenhouse gases. Plaintiffs do not seek such a broad andrigid rule, nor would such a rule be appropriate underthe statute. Rather, this case presentsa relatively limited circumstance involving the planning of a large-scale, regional transportation infrastructure system and associated developmentpatterns over a 40-year period. As amici Building Industry admits elsewhere,“[t]he question the Court has asked—must an EIR for an RTP includea consistency analysis with EO S-03-05 under CEQA—isa narrow one.” (Building Industry Br. at p. 12.) The answerto this question is straightforward under long- standing CEQAprecedent requiring an EIR to discuss and mitigate significant environmental consequencesoverthe full life of a project. (See, e.g., Vineyard, supra, 40 Cal.4th at p. 431.) Here the project at issue is a 40-year planning documentfor an enormousand densely populated California region. (AR 8a:1 997-98.) Further, the Plan’s primary purposeis to set the region on a course to reduce greenhouse gas emissions consistent with California policy. (AR 8a:1997, 2071.) Therefore, SANDAG’sPlanis of a nature, scope, and scale where an analysis ofthe Executive Order’s downward emissionstrajectory, 31 based on undisputed climate science, is absolutely necessary to fulfill CEQA’s fundamental purposes. The type of analysis appropriate for smaller-scale projects is therefore not before the Court. “[I]t is the general rule that an amicus curiae acceptsthe case as he finds it and may not‘launch out upon a juridical expedition of its own unrelated to the actual appellate record.” (E. L. White, Inc. v. Huntington Beach (1978) 21 Cal.3d 497, 510-11 [quoting Pratt v. Coast T:rucking, Inc. (1964) 228 Cal.App.2d 139, 143].) Nonetheless, as shown below, numerous CEQAprovisionsindicate that any required analysis need not be as onerous as Amiciassert. 1. | CEQA’s Tiering and Other Streamlining Provisions Allow ManyProjects to Proceed Without an EIR. While CEQA requires disclosure ofthe full impacts of large- scale and long-term planning projects, the statute provides numerous avenuesfor streamlining or “tiering” environmental review forfuture elementsofthose projects so that agencies may avoid duplication of analysis. (See, e.g., §§ 21093, 21094; Guidelines, §§ 15152 [Tiering], 15167 [Staged EIRs], 15168 [Program EIRs], 15175-15179.5 [Master EIRs], 15182-83 [EIRs for land use plans]; see generally 1 Kostka & 32 Zischke, Practice Underthe Cal. Environmental Quality Act (Cont. Ed. Bar 2nd ed. 2015) [“Practice Under the Cal. Environmental Quality Act”] § 10.2.) The CEQA Guidelines clarify that such streamlining provisions apply in the context of a greenhouse gas analysis. (Guidelines, § 15183.5, subd.(a).) Further, pursuant to SB 375, certain projects consistent with a Sustainable Communities Strategy receive streamlined CEQA reviewor are exempt from the statute entirely. (§§ 21155-21155.4 [“transit priority” projects consistent with SCSare either exempt from CEQAoreligible for streamlined review]; § 21159.28 [residential and mixed-use residential projects consistent with SCS mayreceive streamlined environmental review provided they incorporate mitigation required by prior EIR].) The present case does notalter these provisions, which may speed environmentalreview of smaller-scale projects. At the same time, however, these provisions underscore the importance of reviewinga large-scale project’s greenhouse gas emissions trajectory early in the planning process. Thepurposeoftiering is to allow public agenciesto evaluate“big picture” environmental impacts of long-term planning or program-wide decisions, in order to determine whether those broaderpolicy decisions are wise, before expending the 33, resources on specific projects undertaken to implementthe plan or program. (See Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 197-98; In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1169-70; Practice Underthe Cal. Environmental Quality Act § 10.19 at p. 10-26.) Reviewing impacts with a broader focus enablesa “lead agency to consider broad policy alternatives and program wide mitigation measuresat an early time whenthe agencyhasgreater flexibility to deal with basic problems or cumulative impacts.” (Guidelines § 15168, subd. (b)(4).) Contrary to these provisions, SANDAG approved a 40-year “blueprint” for the region’s transportation system while ignoring the “big picture” consequencesofits decisionto set the region on a course that is wholly inconsistent with both science andstate climate policy. The Opinion below recognizedthat in the context ofthis type of project—aregional transportation plan calling for billions of dollars in highway,transit, and other investments over the next four decades— an assessmentofthe Plan’s long-term inconsistency with climate science and policy is particularly important: Such an omissionis particularly troubling where,as here, the project under review involves long-term, planned. 34 expendituresofbillions of taxpayer dollars. No one can reasonably suggest it would be prudent to go forward with planned expenditures of this magnitude before the public and decision makers havebeen provided withall reasonably available information bearing on the project’s impactsto the health, safety, and welfare of the region’s inhabitants. (Opinion at pp. 19-20.) - The transportation projects and development scenarios contemplated in the Plan will go a long way toward determining whether and how the San Diegoregion helps achieve California’s science-based climatestabilization goals. And, under the CEQA streamlining provisions discussed above,future projects adopted pursuant to the Plan may undergo limited or no environmental review. (See §§ 21155-21155.4.) In fact, certain Plan-consistent residential development projects may not need to address the impact of vehicle trips on global warmingat all. (§ 21159.28, subd. (a)(1).) Clearly, any such subsequent review would be muchless effective in evaluating and mitigating climate change, which is a cumulative problem calling for systemic solutions. Thus,it is critical that SANDAGconduct a thorough review now ofits long-term regional plan. (See Opinionat pp. 6-7.) 35 2. The CEQA Guidelines Simplify Review of Projects Consistent with Specific Greenhouse Gas Reduction Plans. Recent amendments to the CEQA Guidelines envision preparation of geographically specific plans and regulations with clear and enforceable measures for reduction of greenhouse gas emissions from particular types of projects. (See, e.g., Guidelines §§ 15064, subd. (h)(3), 15064.4, subd. (b)(3), 15183.5, subd. (b).) These amendments may enable agencies to avoid EIR-level discussion of greenhouse gas emissionsfor individual projects that comply with applicable regulations or requirements implementing these plans, so long as there is no substantial evidence that the project’s greenhouse gas emissions wouldstill be cumulatively considerable. The ~ Guidelinesfurther specify that “[t]he mere existence of significant cumulative impacts caused by other projects alone shall not constitute substantial evidence that the proposed project’s incremental effects are cumulatively considerable.” (Guidelines § 15064, subd. (h)(4).) Likewise, CEQA provides that greenhouse gas emissions alone will not preclude the use of a categorical exemption (suchas for a single family home) so long as the project complies with a greenhouse gas reduction plan consistent with Guidelines section 15183.5. 36 (§ 21084, subd. (b).) Even if an otherwise exemptprojectis not consistent with such a plan, a CEQApetitioner would still need to demonstrate that there are “unusual circumstances” that mayresult in significant greenhouse gas impacts to removethe project from the exemption. (Berkeley Hillside Preservation v. City ofBerkeley (2015) 60 Cal.4th 1086; see also Practice Under the Cal. Environmental Quality Act (Vol. 2) § 20.88 at p. 20-120.) Thus, purely beneficial or otherwise exempt projects would not require an EIR solely due to the cumulative emissions of other projects or the mere fact that the state hasidentified a long-term objective for climate stabilization. In sum, the case at bar involvesa relatively narrow set of circumstances concerning a critical aspect ofthe state’s long-term planning efforts to reduce greenhouse gases. Here, the link between the Plan andthe state’s long-term climate policy is absolutelyclear. Moreover, numerous CEQAprovisionsallow and encourage streamlined CEQAreview of greenhouse gas emissions from individual projects that follow a larger emissions reduction plan or program. There is simply no basis for Amici’s exaggerated claims that a holding in Plaintiffs’ favor would set a broad rule requiring an EIR for every future approval. 37 B. CEQA’s Information Disclosure Provisions, Not Policy Disagreements, Require SANDAGto Analyze the Plan’s Inconsistencies with Long-Term Climate- Stabilization Goals. Amici next contend that Plaintiffs’ claims stem solely from a policy disagreement, and that a ruling for Plaintiffs would allow anyone to challenge any CEQA documenton policy grounds alone. (PLF Br.at pp. 3, 11; see also Building Industry Br. at pp. 24-25.) Amici are wrong on both counts. According to amicus PLF,Plaintiffs’ claims amountto a disagreement with SANDAG’spolicy choice to achieve only SB 375’s greenhouse gas emission reduction targets rather than the longer-range targets set forth in the Executive Order. (PLF Br.at p. 3.) PLF misstates the record and Plaintiffs’ position. SANDAGdid not, in fact, reject the policy goal set forth in the Executive Order. Rather, its chiefpolicy document on greenhouse gas emissions embraces that goal. SANDAG’s Climate Action Strategy recognizes that “the 2050 reduction goal [set forth in the Executive Order] is based on the scientifically-supported level of emissions reduction needed to avoid significant disruption ofthe climate andis used as the long-term driver for state climate change policy development.” (AR 216:17627.) The document further declares that “state efforts are 38 driving climate changeaction at the regional and local level.” (AR 216:17626.) Consequently, SANDAG’sStrategy proposes and evaluates “policy measures” according to “their effectiveness in helping to achieve short-term (2020) and longer-term (2035 and 2050) | goals for greenhouse gas emission reduction.” (AR 216:17624; see also id. at p. 17629 [stating that “[b]y 2030”the region mustbe “well on its way to doing its share for achieving” the 2050 goal].) Given that SANDAGconcurswith the Executive Order’s science-based goal of reducing emissions considerably through 2050, and that its own Plan extends through 2050, SANDAGshould have addressed the inconsistency betweenits Plan’s rising greenhousegastrajectory and the declining trajectory through 2050 necessary to stabilize the climate. Plaintiffs’ claims thus rely on the very same science-based, long-range targets that SANDAG’s own Climate Action Strategy endorsed asthe driver for regional policy development. If SANDAG had disagreed with the trajectory set forth in the Executive Order, including the underlying science, and had provided substantial evidencein support ofits alternative view of the science, this might have been a different case. But that is not what SANDAGdid. 39 Accordingly, Plaintiffs’ claims do not stem from a policy disagreement with SANDAG. If anything, SANDAG’s Climate Action Strategy indicates the agency’s basic agreement with Plaintiffs that the Executive Order establishesscientifically relevant policy guidance. Striking a similar note, other Amici object that a ruling in Plaintiffs’ favor might require agencies to evaluate the significance of their projects’ impacts in light of established scientific facts. CACOG, for example, protests that requiring agencies to address the significance of environmental effects based on the existence of a “scientific consensus” will interfere with agency discretion and improperly involve the courts in factual disputes. (See CACOGBr.at pp. 20-24; see also Building Industry Br. at pp. 22-23 [worrying that agencies might have to analyze consistency with policies “that are based in science”].) Yet CEQA already requires agenciesto base their significance determinations on “scientific and factual data.” (CEQA Guidelines, §§ 15064, subd. (b), 15142, 15148; see also Californians for Alternatives to Toxics v. DepartmentofFood and Agriculture (2005) 136 Cal.App.4th 1, 15-17; Berkeley Jets, supra, 91 Cal.App.4th at pp. 1367-68, 1370-71.) It is nonsensical to suggest 40 that those same “scientific and factual data” becomeirrelevant to CEQAsimply because they are also reflected in a “policy.” (See Climate Scientists Br. at p. 28.) CACOGalsocontends that membersofthe public will improperly “pack the administrative record” with scientific evidence. (CACOG Br.at p. 22-23.) Informed public input, however,is not contrary to CEQA,butrather keyto its design. (See, e.g., §§ 21002, 21003.1, 21082.1, 21091, 21092.) Moreover, agencies can counter any public effort to “pack” the record with inaccurate information by providing correct information, giving rise to the kind of factual dispute in which agencies are routinely granted deference. CACOG comesperilously close to arguing that agencies should have discretion to ignore scientific facts altogether—even where,as here, there is no realdispute amongthe parties as to their accuracy or applicability. In sum,a ruling for Plaintiffs in this case would notset a precedent that allowsa petitioner to succeed in a CEQAsuit based on its own preferred policies or those stated in any administrative policy document. As always, CEQArequires a petitioner to demonstrate that the agency prejudicially abusedits discretion either by failing to adhere to CEQA’sproceduresfor information disclosure,failing to 4] support its factual conclusions with substantial evidence, orfailing to evaluate feasible measuresto lessen or avoid a significant impact. Here, Plaintiffs have demonstrated that SANDAG’s EIR misled the public by claiming that the 2050 Plan wasdoingits part to meet the state’s and SANDAG’slong-term climate stabilization objectives, whenin fact the Plan was workingdirectly counter to those objectives. C. Requiring SANDAGto Analyze Its Plan in Light of Current Scientific Information Does Not Add a “New” CEQA Mandate. Amici’s arguments based on CEQA’sso-called “safe harbor” provision also fail. Requiring analysis of the Plan’s long-term impacts by reference to accepted scientific goals would not “impose[] - procedural or substantive requirements beyondthose explicitly stated” in CEQAorthe Guidelines (section 21083.1) but would simply give effect to several explicit statutory and Guidelines requirements. For example, CEQA expressly requires complete, good-faith disclosure and analysis of a project’s long-term impacts. (§ 21083, subd. (b)(1) [requiring mandatory finding of significance for projects that have the potential “to achieve short-term, to the disadvantage of long-term, environmental goals”]; Guidelines § 15126.2, subd. (a) 42 [EIR must give “due consideration to both the short-term and long- term effects” of a project].) Here, SANDAG’sfailure to addressits Plan’s long-term rising emissionsin the context ofscientifically relevant climatestabilization goals thwarted these requirements. Environmental analyses, moreover, must reflect consideration of relevant scientific information to the extent possible. (Guidelines §§ 15064, subd. (b), 15064.4, subd. (a), 15142 [EIR “shall” be prepared in a manner which “will ensure the integrated use” of the natural sciences], 15148 [recognizing preparation ofEIR “is dependent upon. . . scientific documents relating to natural features”].) Consistent with the Guidelines, the courts have routinely insisted that EIRs include relevant scientific and factual information wheneverit is reasonable and practical to do so. (Laurel Heights I, supra, 47 Cal.3d at pp. 398- 99; see also Friends ofthe Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 870-71; Berkeley Jets, supra, 91 Cal.App.4th at pp. 1367, 1370; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 723; Citizens to Preserve the Ojai, supra, 176 Cal.App.3d at p. 432.) SANDAGviolated these requirements by declining to consider relevant scientific information based on the erroneouslegaljudgment that CEQAdid not require 43 consideration of anything reflected in an executive order. SANDAG may not avail itself of CEQA’s “safe harbor” provision to justify an EIR whoseanalysis violated both the fundamental goals and express requirements ofthe statute and Guidelines. | D. SANDAG’s CEQAViolation Does Not Implicate Separation of Powers. Largely reiterating Justice Benke’s dissent below, Amici contendthat this case presents “serious separation ofpowers concerns.” (CACOGBr. at p. 35; see also Building Industry Br. at pp. 11-12.) These concerns, however, are misplaced. Like SANDAG,Amiciarguethat general directives from the executive branch cannot be“binding[] on local agencies.” (CACOG Brief at 35; Building Industry Br. at pp. 11-12.). Amici also claim that requiring adherence to the Executive Order would violate state law by giving the orderthe force of law in the absence of appropriate procedures. (CACOGBr.at pp. 36-37; Building Industry Br. at pp. 23, 25; Federation Br. at pp. 13-15.) But Amici, like SANDAG, mischaracterizePlaintiffs’ claims. Plaintiffs do not argue that the Executive Ordereither binds a local agency to meetits reduction targets or establishes a mandatory CEQAthreshold. (See Plaintiffs’ AnswerBr.at pp. 46, 53-54.) The only “binding”requirementsat 44 | issue here are the ones already contained within CEQAitself. Aspreviously discussed, CEQA requires full disclosure of a project’s significant environmental impacts, and prohibits EIRs that mislead the public. (See,e.g., §§ 21061, 21100, 21005, subd.(a); Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 322.) Furthermore, CEQA requires an agency to considerthe best scientific information available when analyzing a project’s physical impacts on the environment, including GHG impacts. (§§ 21080, subd. (e), 21082.2; Guidelines §§ 15064, subd. (b), 15064.4, subd.(a), 15142, 15148.) The Executive Order did not establish the science underlying California climate policy; rather, the science informed the Executive Order, whichin turn has guided subsequentlegislative and executive action related to climate change. (See Brief ofAmici Curiae of League of WomenVoters,et al. (“League of Women Voters Br.”), at pp. 5-10 [describing scientific foundation and ongoing relevance of Executive Order].) Again, evenSANDAG’s ownClimate Action Strategy confirmsthis. (AR 216:17627.) Agencies may not ignore scientific facts simply becausethey are reflected in an executive order. Rather, CEQA’s provisions direct an agency to consider information relevantto its project’s physical impacts on the 45 environment, whatever form that information maytake. Amici attempt to read these provisions out of CEQAin favor of a narrow rule that would require environmental analysis only where a legislative enactmentspecifically spells out the criteria and information to be utilized in that analysis. The Legislature, however, has consistently rejected such an approach in favor of a more flexible method based on the pertinent physical conditions and applicable science. (See generally Practice Under the Cal. Environmental Quality Act §§ 1.24-1.26 at pp. 1-25 to 1-41; see also Plaintiffs’ AnswerBr. at pp. 54-55 [courts also have rejected this reading of CEQA],) It is well-settled that compliance with a regulatory standard doesnot automaticallyindicate a less-than-significant effect. (See, e.g., Ebbetts Pass Forest Watch, supra, 43 Cal.4th at p. 957. [compliance with herbicide registration requirements and label restrictions alone insufficient to show no adverse effects in context of logging plan]; Keep Our Mountains Quiet v. County ofSanta Clara (2015) 236 Cal.App.4th 714, 733 [compliance with noise ordinance does not foreclose possibility of significant noise impacts].) Thus,it is Amici, not Plaintiffs, who effectively ask this Court to amend CEQAbyaltering this settled standard. 46 S H R I i i n Amici also follow Justice Benke’s dissent in arguing that because the Legislature in AB 32 and SB 375 exclusively delegated to CARB authority to set greenhouse gas reduction targets, the Governor had no authority to set a target for 2050 through the Executive Order. (See, e.g., Federation Br. at pp. 2-10.) Again, these arguments misperceive the reason that the Executive Order is important here— not because it somehowestablishesa bindingtarget, but becauseit reflects the best scientific judgment concerning the long-term emissions reductions necessary to stabilize the climate. The Federation’s brief also misstates the issues and holding in Association ofIrritated Residents, supra. There, the plaintiffs did not argue that CARB erred by limiting the AB 32 Scoping Plan’s reduction goals to 2020, asthe Federationinsists (at pages 4-5), but rather that CARB should haveset a stricter targetfor 2020 in accordance with AB 32’s direction to implement the “maximum”feasible emissions reductions. (206 Cal.App.4th at p. 1496.) The court upheld CARB’stargetin part because the 2020 goalis just the first step in California’s efforts to stabilize the climate under AB 32, and explicitly recognized that the 2050.goal articulated in the Executive Orderis the statute’s “ultimate objective.” ([bid.) 47 The Federation is thus correct that AB 32 delegated broad target-setting authority to CARB. But the Federation overlooks the fact—emphasized by the court in Association ofIrritated Residents— that CARB actually used that authority to adopt the 2050 climate stabilization goal as the long-term guiding principle behind the interim reductions outlined in the 2008 Scoping Plan. (/bid.; see also AR 320:27851, 27864, 27875, 27882, 27977-80.) CARB once again confirmed the importanceofthe 2050 goalin its 2014 Scoping Plan update, as the Federation effectively concedes, (Federation Br. at p. 9 [describing 2030 interim target as necessary to reach “California’s emissions goals”].) | The Federation’s arguments based on SB 375 fail for similar reasons. It is true that SB 375 required CARB to convene a “Regional Targets Advisory Committee” to provide a broad range of input on targets for 2020 and 2035. (Gov. Code § 65080, subd. (b)(2)(A)(i).) That Committee’s final report, however, concluded that targets should be set at a level that puts California on a path to achieving its 2050 goals.'° CARB’s expectation that SB 375 would reduce emissions '© Recommendations ofthe Regional Targets Advisory Committee (RTAC) Pursuant to Senate Bill 375: A Report to the California Air Resources Board at pp. 26-27 (Sept. 29, 2009), available at 48 over time—an expectation entirely consistent with the Committee’s view of SB 375’s objectives, and which informed CARB’sregional _ targets—ledthe agency to express significant concern aboutthe Plan’s long-term emissions increase notwithstanding its technical compliance with the SB 375 targets for the San Diegoregion. (SAR 344:30143.) Finally, SB 375’s targets address only per capita emissions from automobiles andlight trucks. (Gov. Code § 65080, subd. (b)(2)(A); SAR 344:30142 [defining regional targets as “a percent reduction in per capita GHG emissions from passenger vehicles from a base year of 2005”].) SB 375’s targets thus do not address the full range of transportation and land use emissions associated with SANDAG’sPlanin any event. In sum, the Legislature’s delegationof authority to CARB is not relevant to the question presented here. But evenif it were, CARB’s exercise ofthat authority supports requiring analysis ofthe Plan’s inconsistency with the state’s long-term climate goals, as articulated in the plans and policies adopted pursuantto that legislative delegation. The Opinion below holdsthat in order to provide the public and decision-makers with adequate information, http://www.arb.ca.gov/cc/sb375/rtac/report/report.htm (visited Oct. 29, 2015). 49 CEQArequired SANDAGto address its Plan’s stark inconsistency with the science underlying California’s long-term climatepolicy. | That holding does notunsettle the balance ofpower between the branches of California’s government. Amici’s arguments,in contrast, would contravene the intent of the Legislature—andthusthreaten the separation ofpowers—byinvesting administrative agencies with near- absolute discretion to ignore CEQA’s fundamental information disclosure requirements. IV. AsSANDAGHas Acknowledged, the Requested GHG. Analysis Is “Easily Performed.” Several amici argue that analyzing a project’s consistency with statewide climate stabilization goals for 2050 is far too uncertain and difficult for an agency to perform. (See, e.g., Building Industry Br. at pp. 15-18; PLF Br. at p. 12 [“There is no way for SANDAG—or,for that matter, a court—to convert the executive order’s broad goals into an amount of emissions reductionsthat a particular region’s land use and transportation planning must achieve.”]) For this, Amicicite nothing in the record. Instead, they invoke Justice Benke’s statement that it would impossible to calculate the region’s “fair share” of 2050 emissions reductions without specific guidance from CARB. (See Building Industry Br. at pp. 15-16; see also Federation Br. at p. 17). 50 However, SANDAGhaspreviously stated that this calculation is “easily performed.” (SANDAGAppellants’ Petition for Rehearing at p. 7; see also AR 216:17628 [Climate Action Strategy chart showing regional emissionstargets through 2050].) Indeed, SANDAGaddressed(at least in general terms) the Executive Order’s declining emissionstrajectory in its 2015 EIR for thenext update to its Plan, even though CARB hasnotyet set regional or sector targets for 2050. (See Declaration in Support of People’s Amended Motion for Judicial Notice, Ex. 1.) As Plaintiffs’ Answer Brief demonstrates, all of the information SANDAGutilized inits 2015 EIR wasreadily available to the agency whenit prepared the EIR at issue here. (Plaintiffs’ Answer Br. at pp. 49-51.) Furthermore, several other regional transportation agencies have performed a similar analysis for their own regional transportation plans. (See League of WomenVotersBr. at pp. 17-18.) Thus, SANDAGreadily could have conducted a meaningful analysis of its Plan’s dramatic deviation from the continuous emissions reduction trajectory needed to achieve climate stabilization. By purposefully omitting such an analysis from its EIR, SANDAG subverted informed consideration of the Plan’s consequences—a 51 result directly at odds with CEQA. (See Opinionat pp. 14-15, 19.20.) SANDAGhasnot shownthat the Executive Order’s lack of a detailed, regionally specific plan for achieving the state’s long-term climate stabilization goals madeit impossible to conductat least a basic assessmentofthe Plan’s obvious inconsistency with the overall downward emissionstrajectory guiding those goals. As this Court has observed,“[t]he fact that precision may not be possible . . . does not meanthat no analysis is required.” (Laurel Heights I, supra, 47 Cal.3d at p. 399.) CEQA does“not require prophecy” — but where an agency can provide “meaningful, reliable data” in an EIR, even in “general terms,” it must do so. (Id. at pp. 398-99; see also Citizens to Preserve the Ojai, supra, 176 Cal.App3d at p. 432 [“assuming a sophisticated technical analysis was notfeasible, if some reasonable, albeit less exacting, analysis of the [impact] could be performed,the [agency] was required to do so and report the results”].) The appellate court’s Opinion below reflects these samesettled principles. (Opinion at pp. 15-16.) The fatal flaw in the EIR was not its failure to analyze the Plan’s consistency with the Executive Order perse, but rather “moreparticularly”its failure to address the Plan’s inconsistency with “the Executive Order’s overarching goal of 52 ongoing greenhouse gas emissions reductions.” (Opinion at pp. 14-15 [emphasis added].) SANDAGconcedesthescientific validity ofthis overarching climate stabilization goal, even if Amici seemingly continue to quibble. SANDAGhadnobasis for omitting at least somelevel of analysis of its Plan’s inconsistency with that goal. Amici’s related claim that other agencies will be saddled with an impossible task is likewise unfounded. A similar analysis could be performed, if necessary, for other regions and sectors, based on the best available scientific data. But even if this inquiry proved to be moredifficult for certain regions or sectors, this alone would not relieve an agency ofits responsibilities under CEQA.As this Court held long ago in Laurel Heights, supra, there is “no authority that exempts an agency from complying with the law, environmental or otherwise, merely because the agency’s task maybe difficult.” (47 Cal.3d at 399.) Indeed, the information Plaintiffs seek for this long-range plan is no more “fuzz[y]” (PLF Brief at page 13) than the information this and other courts have consistently held an agency mustprovidefor - other long-term projects. Examples include analyzing the impacts from water usage (whichis particularly uncertain under California’s 53 current drought conditions), growth inducement, air pollution, and noise, even though many such impacts are based on cumulative and undefined conditions. (See, e.g., Vineyard, supra, 40 Cal.4th at p. 431 {An EIR evaluating a planned land use project must assumethat all phasesofthe project will eventually be built and will need water, and mustanalyze, to the extent reasonably possible, the impacts of providing water to the entire proposed project.”]; Napa Citizensfor Honest Government v. Napa County Board ofSupervisors (2001) 91 Cal.App.4th 342, 370 [EIR must analyze number, type, and general location of future housing units, even though precise details of future housing were not yet known]; Berkeley Jets, supra, 91 Cal.App.4th at p. 1370 [agency must investigate and disclose impacts from toxic air contaminants, despite lack of universally accepted method for doing so]; Los Angeles Unified School District v. City ofLos Angeles (1997) 58 Cal.App.4th 1019, 1028 [EIR must include analysis of cumulative traffic noise on schools from future buildoutofplan area].) Preparing an EIR “necessarily involves some degree of forecasting.” (Guidelines § 15144.) However, “an agency mustuseits bestefforts to find out and disclose all that it reasonably can.” (Id; see also Communitiesfor a Better Environment v. City ofRichmond 54 (2010) 184 Cal.App.4th 70, 96 [“difficulties caused by evolving technologies andscientific protocols do not justify a lead agency’s failure to meet its responsibilities under CEQA”].) Thoseefforts must reflect the best available scientific information, be it embodied in an Executive Order, a scientific study, or both. CONCLUSION Amici speculate that a ruling in Plaintiffs’ favor would undermine agency discretion, exacerbate uncertainty, and transform CEQAinto a free-for-all for everyproject opponentwith a policy axe to grind. However,it is Amici, notPlaintiffs, who wouldstrip CEQA of its most meaningful requirements by allowing agencies near unfettered discretion to ignore both scientific facts and long-term environmental consequences. Plaintiffs urge the Court to reject Amici’s attempts to subvert CEQA,andinstead to uphold CEQA’s core principles: to provide a complete and accurate view ofa project’s physical impacts on the environment, and to identify feasible ways to reduceor avoid significant impacts, so that the reviewing agency and the public may make informed and accountable choices. | Here, SANDAG developed a 40-year Plan with the express purpose of reducing greenhousegas reductions from land use and 55 transportation. Although SANDAGmetSB 375’s targets for 2020 and 2035,it did so in a mannerthat contradicted both California’s climate goals and the expectations of agencies like CARB and OPR. SANDAG’struncated examination of the Plan’s consistency with other standards—such as AB 32’s interim emissions reduction goal for 2020, or SB 375’s regional targets for cars and trucks—failed to elucidate the Plan’s real climate consequences in a mannerthat facilitated meaningful public input and informed decision-making. This case demonstrates CEQA’scritical importance in California’s fight to stabilize our climate. CEQA’s objectives can be achieved only by requiring SANDAGto examine whetherits Plan will ultimately help or hinder achievementof California’s long-term, science-based climate stabilization goals. This evaluation is especially importantfor a large and densely populated region such as San Diego. Only scrupulous compliance with CEQA caninform decision-makers and the public whether SANDAG’s long-term planning decisions will play a significantrole in the effort to combat climate change, or will inhibit that effort. 56 DATED: November12,2015 SHUTE, MIHALY & WEINBERGER LLP By: (ie By tbary— ” RACHEL B. HOOPER Attorneys for Plaintiffs and Respondents Cleveland National Forest Foundation and Sierra Club DATED: November 12, 2015 CENTER FOR BIOLOGICAL DIVERSITY By:an KEVIN P. BUNDY Attorney for Center forBiological Diversity DATED: November 12,2015 BRIGGS LAW CORPORATION By: Cn (| [aes ga Cea) CORY. BRIGGS > Attorney for CREED-21 and Affordable Housing Coalition of San Diego County 722306.11 57 CERTIFICATE OF WORD COUNT (California Rules of Court 8.504(d)(1)) The text ofthis Consolidated Answer Brief consists of 10,881 words, not including tables of contents and authorities, signature block, andthis certificate ofword count as counted by Microsoft Word, the computer program usedto preparethisbrief. Watt B boy RACHELB. HOOPER\ 59 PROOF OF SERVICE Cleveland National Forest Foundation, et al. v. San Diego Association ofGovernments,et al. Case No. 8223603 California Supreme Court At the timeofservice, J was over18 years of age and nota party to this action. I am employedin the City and County of San Francisco, State of California. My business address is 396 Hayes Street, San Francisco, CA 94102. On November 12,2015, I servedtrue copies of the following document(s) describedas: PLAINTIFFS’ CONSOLIDATED ANSWER TO AMICI CURIAE BRIEFS on the parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL:I enclosed the document(s) in a sealed envelope or package addressed to the personsat the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I. am readily familiar with Shute, Mihaly & Weinberger LLP's practice for collecting and processing correspondencefor mailing. On the same daythat the correspondenceis placedfor collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury underthe laws ofthe State of California that the foregoing is true and correct. Executed on November12, 2015, at San Francisco, California. _ZAV~ Sean P. Mulligan r SERVICELIST Cleveland National Forest Foundation, etal. v.. San Diego Association of Governments, etal. Case No. 223603 California Supreme Court Julie D. Wiley, Special Counsel San Diego Association of Governments 401 B Street, Suite 800 San Diego, CA 92101 Telephone: (619) 699-1995 Facsimile: (619) 595-8605 E-mail: jwi@sandag.org Attorneyfor Defendants and Appellants San Diego Association ofGovernments, San Diego Association ofGovernments Board ofDirectors Michael H.Zishcke Andrew B. Sabey Linda C. Klein Cox, Castle & Nicholson LLP 50 California Street, Suite 3200 San Francisco, CA 94111 Telephone: (415) 262-5100 Facsimile: (415) 262-5199 Email: mzischke@coxcastle.com asabey@coxcastle.com Iklein@coxcastle.com Attorneyfor Defendants andAppellants San Diego Association ofGovernments, San Diego Association ofGovernments Board ofDirectors Margaret M. Sohagi Philip Seymour The Sohagi Law Group, PLC 11999 San Vicente Boulevard, Suite 150 Los Angeles, CA 90049 Telephone: (310) 475-5700 Facsimile: (310) 475-5707 E-mail: msohagi@sohagi.com pseymour@silcom.com Attorneyfor Defendants and Appellants San Diego Association ofGovernments, San Diego | Association ofGovernments BoardofDirectors Timothy R. Patterson Supervising Deputy Attorney General Office of the Attorney General P.O. Box 85266 San Diego, CA 92186-5266 600 West Broadway,Suite 1800 San Diego, CA 92101 Telephone: (619) 645-2013 Facsimile: (619) 645-2271 E-mail: tim.patterson@doj.ca.gov Attorneyfor Intervenor and Respondent People ofthe State of California Janill L. Richards Office of the Attorney General 1515 Clay Street, 20th Floor Oakland, CA 94612 Telephone: (510) 622-2130 Facsimile: (510) 622-2270 E-mail: janill.richards@doj.ca.gov Attorneyfor Intervenor and Respondent People ofthe State ofCalifornia Marco Gonzalez Coast Law Group LLP 1140 South Coast Highway 101 Encinitas, CA 92024 Telephone; (760) 942-8505 Facsimile: (760) 942-8515 E-mail: marco@coastlawgroup.com Attorneysfor Plaintiffs andRespondents Cleveland National Forest Foundation and Sierra Club Kevin P. Bundy Center for Biological Diversity 1212 Broadway, Suite 800 Oakland, CA 94612 Telephone: (510) 844-7113 Facsimile: (510) 844-7150 E-mail: kbundy@biologicaldiversity.org Attorneyfor Plaintiffand Respondent Centerfor Biological Diversity . Daniel P. Selmi 919 S. Albany Street Los Angeles, CA 90015 Telephone: (213) 736-1098 Facsimile: (949) 675-9861 E-mail: dselmi@aol.com Attorneysfor Plaintiffs and Respondents ClevelandNational Forest Foundation and Sierra Club Cory J. Briggs Briggs Law Corporation 99 East “C”Street, Suite 111 Upland, CA 91786 Telephone: (909) 949-7115 Facsimile: (909)-949-7 121 E-mail: cory@briggslawcorp.com Attorneysfor Plaintiffs andRespondents CREED-21 andAffordable Housing Coalition ofSan Diego County In Consolidated Case No. 37-201 1- 00101660-CU-TT-CTL M. Reed Hooper Jonathan C. Wood Pacific Legal Foundation 930 G Street Sacramento, CA 95814 Telephone: (916) 419-7111 Facsimile: (916) 419-7747 E-mail: mrh@pacificlegal.org E-mail: jw@pacificlegal.org Attorneysfor Amicus Curiae Pacific Legal Foundation Michelle Wilde Anderson Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305 Telephone: (650) 498-1149 Facsimile: (650) 725-0253 Email: manderson@law.stanford.edu Deborah Ann Sivas Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305 Telephone: (650) 723-0325 Facsimile: (650) 723-4426 Email: dsivas@stanford.edu Attorneysfor Amici Curiae League of WomenVoters of California. etal. NancyC. Miller Jennifer V. Gore Miller & Owen 428 J Street, Suite 400 Sacramento, CA 95814 Telephone: (916) 447-7933 Email: miller@motlaw.com Attorneysfor Amici Curiae Building Industry Legal Defense Foundation, et al. Cara Ann Horowitz Jesse Lueders UCLASchool ofLaw 405 Hilgard Avenue ‘Los Angeles, CA 90095 Telephone: (310) 206-4033 Facsimile: (310) 206-1234 Email: horowitz@law.ucla.edu _ Attorneysfor Amici Curiae Dennis D. Baldocchi, Ph.D., etal. Whitman F. Manley Laura M.Harris ChristopherL.Stiles Remy Moose & Manley, LLP 555 Capitol Mall, Suite 800 Sacramento, CA 95814 Telephone: (916) 443-2745 Facsimile: (916) 443-9017 Email: wmanley@rmmenvirolaw.com Ihanis@rmmenvirolaw.com cstiles@rmmenvirolaw.com Attorneysfor Amici Curiae California Association of Councils ofGovernments, et al. Tina A. Thomas. Thomas Law Group 455 Capitol Mall, Suite 801 Sacramento, CA 95814 Telephone: (916) 287-9292 Facsimile: (916) 737-5858 Attorneysfor Amici Curiae California Infill Builders Federation and San Diego Housing Commission Richard M. Frank UC Davis School ofLaw 400 Mrak Hall Drive Davis, CA.95616 _ Ethan N. Elkind UC Berkeley School ofLaw 2850 Telegraph Avenue Suite 500 Berkeley, CA 94705 Jayni Foley Hein Policy Director Institute for Policy Integrity New York University School ofLaw Wilf Hall 139 MacDougal Street Third Floor New York, NY 10012 Attorneysfor Amici Curiae Council of Infill Builders and Planning and Conservation League Clerk of the Court San Diego Superior Court 330 West Broadway San Diego, CA 92101 Stephan C. Volker Alexis E. Krieg Daniel P. Garrett-Steinman Law Offices of Stephan C. Volker 436 14th Street, Suite. 1300 Oakland, CA 94612 Telephone: (510) 496-0600 Facsimile: (510) 496-1366 Attorneyfor Amicus Curiae Backcountry Against the Dump, Ine. California Court of Appeal Ath District, Division 1 750 B Street, Suite 300 San Diego, CA 92101