Cascade Bicycle Club, Non-Profit Corp. v. Puget Sound Reg'l Council

• Decision Date: 22 July 2013
• Docket Number: No. 67549–4–I.,67549–4–I.
• Citation: 306 P.3d 1031,175 Wash.App. 494
• Court: Washington Court of Appeals
• Parties: CASCADE BICYCLE CLUB, a Washington non-profit corporation, Futurewise, a Washington non-profit corporation, and Sierra Club, a California non-profit corporation, Appellants, v. PUGET SOUND REGIONAL COUNCIL, a state regional transportation planning organization and a federally designated metropolitan planning organization, Respondent.

175 Wash.App. 494

306 P.3d 1031

CASCADE BICYCLE CLUB, a Washington non-profit corporation, Futurewise, a Washington non-profit corporation, and Sierra Club, a California non-profit corporation, Appellants,

v.PUGET SOUND REGIONAL COUNCIL, a state regional transportation planning organization and a federally designated metropolitan planning organization, Respondent.

No. 67549–4–I.

Court of Appeals of Washington, Division 1.

July 22, 2013.

Jeffrey M. Eustis, Aramburu & Eustis LLP, Tim Trohimovich, Futurewise, Seattle, WA, for Appellants.

Melody B. McCutcheon, Hillis Clark Martin & Peterson, Rodney L. Brown, Jr., Cascadia Law Group, Seattle, WA, for Respondent.

Andrea K. Rodgers Harris, Mattson Rodgers PLLC, Seattle, WA, Amicus Curiae on behalf of Snoqualmie Indian Tribe.

Leslie Riley Seffern, Atty. Gen. of Washington Ecology, Olympia, WA, Amicus Curiae on behalf of Wa State Department of Ecology.

Andrea K. Rodgers Harris, Mattson Rodgers PLLC, Seattle, WA, Amicus Curiae on behalf of Tahoma Audubon Society.

LEACH, C.J.

[175 Wash.App. 498]¶ 1 Cascade Bicycle Club, Futurewise, and Sierra Club appeal the trial court's dismissal of their challenge to the regional transportation plan adopted by the Puget Sound Regional Council (PSRC) for King, Kitsap, Pierce, and Snohomish Counties. They assert that the plan must, but does not, comply with RCW 70.235.020(1)(a), which sets specific greenhouse gas emissions reduction requirements for the state of Washington. They also assert that the plan's environmental impact statement fails to comply with the State Environmental Policy Act (SEPA) ¹ because it fails to consider an alternative that would meet the statutory reduction requirements, fails to make required disclosures, and fails to consider available mitigations.

¶ 2 Our legislature and governor have recognized Washington's vulnerability to climate change and global warming by setting ambitious goals for reducing the total emission of greenhouse gases. With dramatic growth forecast for the Puget Sound region, the path to achieving these goals remains unclear. Because the transportation sector contributesabout half of current greenhouse gas emissions, one could reasonably expect that the transportation planners for the PSRC would play a leading role in identifying political, financial, technological, and developmental strategies that could actually achieve the state's stated goals. And they have.

[175 Wash.App. 499]¶ 3 After years of gathering information and taking public comment, the PSRC adopted a plan that describes a “preferred alternative”: moving toward user fees and away from gas taxes, altering land use patterns so as to make growth more compact, increasing transit service and making it more accessible to walkers and cyclists, improving the highways and ferry system, and using information technology to make the entire system more efficient and reduce unnecessary travel. But as the plan itself admits, even if this preferred alternative becomes a reality, emissions from surface transportation will continue to rise above baseline levels and the Puget Sound region will not meet overall state goals. Major technological changes that do have the potential to actually achieve the state's goals for reducing emissions in the Puget Sound region—for example, improvements to vehicles and fuels—are beyond the scope of a regional transportation plan.

¶ 4 Our resolution of this appeal demonstrates that the current statutory framework does not require that the PSRC adopt a transportation plan for the Puget Sound region that achieves its proportional share of the state's goals for reducing greenhouse gas emissions. Because the plan is not required to comply with RCW 70.235.020(1)(a) and the environmental impact statement complies with SEPA's requirements, we affirm.

FACTS

¶ 5 In 1998, various units of general government in King, Kitsap, Pierce, and Snohomish Counties, including the counties, entered into an interlocal agreement to create a regional planning agency known as the PSRC. The agency's mission is to preserve and enhance life in the central Puget Sound area. PSRC is funded through a combination of state and federal grants, dues from PSRC members, and other local sources.

¶ 6 Under federal law, PSRC has been designated the metropolitan planning organization for King, Kitsap, Pierce, and Snohomish Counties. ² As a metropolitan planning organization, it must develop long-range transportation plans and transportation improvement programs for its metropolitan planning area to guide the funding and development of future transportation projects.³ PSRC's metropolitan planning area consists of the 4 counties, more than 70 cities and towns within the region, 4 port districts, the region's transit agencies, the Washington State Department of Transportation, the Washington Transportation Commission, the Muckieshoot Indian Tribal Council, and the Suquamish Tribe.

¶ 7 Under state law, PSRC is the regional transportation planning organization (RTPO) for the same four-county area.⁴ An RTPO is formed through the “voluntary association of local governments within a county, or within geographically contiguous counties.” ⁵ Among other duties, the RTPO must coordinate with the Department of Transportation, transportation providers, ports, and local governments within the region to prepare a regional transportation plan (RTP) that is “consistent with countywide planning policies ... with county, city, and town comprehensive plans, and state transportation plans.” ⁶

¶ 8 In 2007, Washington enacted a climate change mitigation statute,⁷ which set specific greenhouse gas reduction goals for the state.⁸ In 2008, it enacted a limiting greenhouse gas emissions statute,⁹ which repealed the “goals” set in 2007 and reenacted them as greenhouse gas emissions reduction requirements for the state.¹⁰ Also in 2008, PSRC adopted a regional growth strategy, VISION 2040, which includes a number of multicounty planning policies adopted under the Growth Management Act.¹¹ Among the policies is MPP–En–20, which addresses the region's contribution to climate change.

¶ 9 In 2009, Washington Governor Christine Gregoire signed Executive Order 09–05, which sought to reduce greenhouse gas emissions by, among other things, directing (1) the Department of Ecology to develop industry-specific emissions benchmarks for various industries in Washington state that may in the future be subject to a cap and trade program, (2) the Departments of Ecology, Commerce, and Transportation to assess changes in Washington's transportation fuel standards that “would best meet Washington's greenhouse gas emissions reduction targets,” (3) the secretary of the Department of Transportation to work with the Departments of Ecology and Commerce to “evaluate ... the vehicle miles traveled benchmarks established in RCW 47.01.440 as appropriate to address low-or no-emission vehicles, and develop additional strategies to reduce emissions from the transportation sector,” and (4) the secretary of the Department of Transportation to work with PSRC and other regional councils to adopt RTPs to “provide people with additional transportation alternatives and choices, reduce greenhouse gases and achieve the statutory benchmarks to reduce annual per capita vehicle miles traveled in those counties with populations greater than 245,000.”

[175 Wash.App. 502]¶ 10 In 2007, PSRC began to develop an RTP, Transportation 2040 (T2040). T2040 is a 30–year action plan to address transportation needs in the four-county region. In 2009, PSRC issued a draft environmental impact statement (EIS) for T2040. Each appellant organization commented on this draft. PSRC issued a final EIS in 2010.

¶ 11 In May 2010, PSRC adopted T2040 as the federal metropolitan transportation plan and state regional transportation plan for the region. In June 2010, Cascade Bicycle Club, Futurewise, and Sierra Club (collectively “Cascade”) filed this action, requesting direct review under SEPA and declaratory relief and a constitutional writ of review regarding PSRC's compliance with RCW 70.235.020(1)(a). Cascade alleged that T2040 failed to meet the greenhouse gas emissions reduction requirements in RCW 70.235.020(1)(a), which it claimed applied to PSRC. Cascade also contended that T2040 violated SEPA for several reasons. The trial court dismissed Cascade's complaint, concluding that the emissions limits in RCW 70.235.020(1)(a) do not apply to PSRC and that the EIS was adequate under SEPA. Cascade appeals.

¶ 12 The Snoqualmie Indian Tribe and the Tahoma Audubon Society each filed an amicus curiae brief supporting Cascade's position. The Washington State Departments of Ecology, Commerce, and Transportation filed an amicus curiae brief supporting that of PSRC.

STANDARD OF REVIEW

¶ 13 This case includes an appeal from a trial court decision on a writ of review under article IV, section 6 of the Washington State Constitution. On such appeals, we review de novo the agency tribunal's record to determine whether the administrative body's action was illegal, arbitrary, or capricious, depending on the issue presented.¹² We do not review the trial court's record.¹³ Because this appeal presents a legal question concerning PSRC's interpretation of RCW 70.235.020(1)(a), we must determine whether PSRC's actions violated that statute.¹⁴

¶ 14 We also review de novo an agency decision regarding the adequacy of an EIS.¹⁵ We give substantial weight to the agency's determination that the EIS is adequate under SEPA.¹⁶

ANALYSIS

Emissions Reductions in RCW 70.235.020(1)(a) Do Not Apply to PSRC

¶ 15 Cascade claims that T2040 violates state law because implementing this plan will not reduce greenhouse gas emissions in the applicable four-county region to the statewide standard established in RCW 70.235.020(1)(a). It supports this claim with two distinct assertions: (1) PSRC is a state agent whose plan must comply with this statute and (2) PSRC obligated itself...