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

• Citation: 17 Cal.App.5th 413,225 Cal.Rptr.3d 591
• Decision Date: 16 November 2017
• Docket Number: D063288
• Court: California Court of Appeals
• Parties: CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; The People, Intervenor and Appellant. Creed-21 et al., Plaintiffs and Appellants, v. San Diego Association of Governments et al., Defendants and Appellants; The People, Intervenor and Appellant.

17 Cal.App.5th 413

225 Cal.Rptr.3d 591

CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants,

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

The People, Intervenor and Appellant.

Creed-21 et al., Plaintiffs and Appellants,

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

The People, Intervenor and Appellant.

D063288

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

Filed November 16, 2017

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

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

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

McCONNELL, P. J.

IINTRODUCTION

A

After the San Diego Association of Governments (SANDAG) certified an environmental impact report (EIR) for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (transportation plan), CREED-21 and Affordable Housing Coalition of San Diego filed a petition for writ of mandate challenging the EIR's adequacy under the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ).¹ Cleveland National Forest Foundation and the Center for Biological Diversity filed a similar petition, in which Sierra Club and the People later joined.

The superior court granted the petitions in part, finding the EIR failed to carry out its role as an informational document because it did not analyze the inconsistency between the state's policy goals reflected in Executive Order S-3-05 (Executive Order) and the transportation plan's greenhouse gas emissions impacts after 2020. The court also found the EIR failed to adequately address mitigation measures for the transportation plan's greenhouse gas emissions impacts. Given these findings, the court declined to decide any of the other challenges raised in the petitions.

SANDAG appealed, contending the EIR complied with CEQA in both respects. Cleveland National Forest Foundation and Sierra Club (collectively, Cleveland) cross-appealed, contending the EIR further violated CEQA by failing to analyze a reasonable range of project alternatives, failing to adequately analyze and mitigate the transportation plan's air quality impacts, and understating the transportation plan's impacts on agricultural lands. The People separately cross-appealed, contending the EIR further violated CEQA by failing to adequately analyze and mitigate the transportation plan's impacts from particulate matter pollution.

A majority of this court concluded the EIR failed to comply with CEQA in all identified respects. ( Cleveland National Forest Foundation v. San Diego Assn. of Governments (2014) ––– Cal.App.4th ––––, 180 Cal.Rptr.3d 548 [nonpub. opn.] ( Cleveland I ).)

B

The California Supreme Court granted review on the sole issue of whether the EIR should have analyzed the transportation plan's impacts against the greenhouse gas emission reduction goals in the Executive Order. ( Cleveland National Forest Foundationv. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 503–504, 510, 220 Cal.Rptr.3d 294, 397 P.3d 989 ( Cleveland II ).) The Supreme Court concluded, "The EIR sufficiently informed the public, based on the information available at the time, about the [transportation] plan's greenhouse gas impacts and its potential inconsistency with state climate change goals. Nevertheless, we do not hold that the analysis of greenhouse gas impacts employed by SANDAG in this case will necessarily be sufficient going forward. CEQA requires public agencies like SANDAG to ensure that such analysis stay in step with evolving scientific knowledge and state regulatory schemes." ( Cleveland II , at p. 504, 220 Cal.Rptr.3d 294, 397 P.3d 989.)

Consequently, the Supreme Court reversed this court's judgment "insofar as it determined that the [EIR's] analysis of greenhouse gas emission impacts rendered the EIR inadequate and required revision." ( Cleveland II , supra , 3 Cal.5th at p. 519, 220 Cal.Rptr.3d 294 397 P.3d 989.) The Supreme Court did not grant review of this court's other holdings nor did it express how, if at all, its opinion affected their disposition. ( Ibid. ) The Supreme Court remanded the matter to this court for further proceedings consistent with the Supreme Court's opinion. ( Ibid. )

C

Cleveland and the People filed supplemental opening briefs ( Cal. Rules of Court, rule 8.200(b)(1) ) requesting this court revise its decision in Cleveland I by removing the discussion of the adequacy of the EIR's analysis of the transportation plan's greenhouse gas emissions impacts and consistency with the Executive Order, and replacing the discussion with a reference to the Supreme Court's decision on this issue. Cleveland and the People further requested this court keep the remainder of the decision substantially intact and publish it as revised.²

SANDAG did not file a supplemental opening brief, but SANDAG filed a supplemental responding brief ( Cal. Rules of Court, rule 8.200(b)(1) ). In its brief, SANDAG did not assert the Supreme Court's decision in Cleveland II affected any of this court's other holdings in Cleveland I . Instead, SANDAG asserted the case is moot because the EIR and the transportation plan have been superseded by more recent versions, which Cleveland and the People have not challenged. SANDAG also asserted the EIR and transportation plan will be superseded once more by another EIR and transportation plan currently being prepared.

Cleveland and the People dispute the EIR has been superseded and is legally ineffective.³ They further contend that, even if this case were technically moot, the EIR's analytical errors are capable of repetition and could evade review because SANDAG must update the transportation plan every four years.

We agree with Cleveland and the People that SANDAG has not established this case is moot. "[A] moot case is one in which there may have been an actual or ripe controversy at the outset, but due to intervening events, the case has lost that essential character and, thus, no longer presents a viable context in which the court can grant effectual relief to resolve the matter." ( Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1222, 218 Cal.Rptr.3d 517.) While there is evidence in the record suggesting SANDAG prepared different environmental review documents for the 2015 version of the transportation plan, there is no evidence indicating the EIR at issue in this case has been decertified and can no longer be relied upon for the current version or future versions of the transportation plan, or for projects encompassed with the transportation plan. Additionally, while there is evidence suggesting the environmental review documents associated with the 2015 version of the transportation plan may have addressed this court's concerns about the EIR's greenhouse gas emissions impacts analysis, there is no evidence indicating these environmental review documents addressed this court's concerns about any of the EIR's other analytical deficiencies. Consequently, on this record, it appears this case may still be able to provide Cleveland and the People with effective relief because correcting the defects in the EIR may result in modifications to the current version or future versions of the transportation plan, or to projects encompassed within the transportation plan.⁴ (See Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888, 92 Cal.Rptr.2d 268.)

Even if this case were moot, its falls within the exception for cases "present[ing] important questions of continuing public interest that may evade review" because of the frequency with which SANDAG must update the transportation plan (see part II.B.1.b, post ) as well as the nature of a program EIR and the associated limits on future environmental review (see part II.A.2, post ). ( California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933, 222 Cal.Rptr.3d 210, 401 P.3d 49 ; Cleveland II , supra , 3 Cal.5th at p. 511, 220 Cal.Rptr.3d 294, 397 P.3d 989 ; Peterson v. City of San Diego (1983) 34 Cal.3d 225, 227, 193 Cal.Rptr. 533, 666 P.2d 975.) We, therefore, exercise our discretion to once again address the issues presented in this appeal that were not reviewed or decided by the Supreme Court in Cleveland II . ( California Cannabis Coalition v. City of Upland , supra , at p. 933, 222 Cal.Rptr.3d 210, 401 P.3d 49.)

IIDISCUSSION

AGeneral Role of an EIR

"The Legislature has made clear that an EIR is ‘an informational document’ and that ‘[t]he purpose of an environmental impact report is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.’ " ( Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, 253 Cal.Rptr. 426, 764 P.2d 278 ( Laurel Heights ); Guidelines, § 15002.)⁵ "The EIR is the primary means of achieving ... the policy of this state to ‘take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.’ [Citation.] The EIR is therefore ‘the heart of CEQA.’ [Citations.] An EIR is an ‘environmental "alarm bell" whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.’ [Citations.] The EIR is also intended ‘to demonstrate to an apprehensive citizenry that the agency has,...