By Leslie Z. Walker

On November 30, 2007 the San Diego Association of Governments (“SANDAG”) adopted its 2030 Regional Transportation Plan (“RTP”) over Attorney General Jerry Brown’s criticism that the Environmental Impact Report (“EIR”) for the RTP “does not fully address the impacts on global warming of the project.” 

According to the EIR, the 2030 RTP would substantially increase the levels of gasoline, diesel, and electricity consumed during operation of the region’s transportation network. These consumption increases will likely result in elevated greenhouse gas (“GHG”) emissions.  Since GHGs contribute to climate change, the RTP includes GHG emission reduction measures such as adopting a regional climate change action plan; working with member agencies to increase the number of alternative fuel vehicles used by the cities and their contractors; and increasing the number of vanpools in the region.

The RTP allocates $280 million to projects in designated smart growth areas. Smart growth can reduce transportation-related GHG emissions by mixing land uses and locating jobs and homes near transit, reducing the frequency and distance people need to drive. SANDAG has designated 193 areas in the San Diego region as places where smart growth development exists or could be built. The $280 million will be awarded to projects in these areas, on a competitive basis. 

The Deputy Attorney General sent two letters on behalf of the Attorney General to SANDAG. The first letter was a comment on the Notice of Preparation for the Draft Environmental Impact Report for the 2030 RTP, sent in June of 2007. The letter mirrored the Attorney General’s comments on Draft EIRs for the Fresno, San Joaquin, Kern, and Merced RTPs, asserting that under the California Environmental Quality Act, “SANDAG has an obligation to consider global warming impacts in the draft EIR.”

On November 29, 2007, the Deputy Attorney General submitted a second letter. This letter commented on the Draft EIR and was sent after the close of the comment period. The letter commended SANDAG for including policies directed at reducing GHG emissions, but found that the EIR did not fully address these emissions and urged SANDAG to adopt additional measures to mitigate climate change.  The Attorney General claimed that SANDAG’s plan to fund smart growth projects does not comply with smart growth principles because many of the areas are not near employment centers and cannot be efficiently served by public transit. According to SANDAG staff, the criticism reflected a misunderstanding of the plan. The 193 areas are merely candidates for funding that will be granted on a competitive basis, and funding will not be awarded to all of these areas.

The Attorney General and environmental community continue to press forward with the argument that CEQA requires evaluation of greenhouse gas emissions. Regrettably, the legislature in 2007 missed the opportunity to provide meaningful guidance on this issue. Practitioners look forward to clear direction from the legislature and the Resources Agency and we can only speculate as to when the Attorney General will be equally vigorous at scrutinizing state agency CEQA documents for analysis of global warming and adoption of all feasible mitigation measures.

For more news on Global Warming, visit the Climate Change category of Abbott & Kindermann’s blog at http://blog.aklandlaw.com/archives/cat-climate-change.html.

Leslie Walker is an associate with Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.