Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966.
By William W. Abbott
In a case perhaps driven primarily by philosophical considerations, the Court of Appeal (First Appellate District) upheld ABAG’s Sustainable Communities plan (the “Plan”), adopted under the authority of SB 375 (Steinberg). SB 375, adopted in 2008, created a framework for linking transportation investment and land use planning in a manner to move the state closer to its targeted reduction in greenhouse gas emissions by passenger vehicles and light trucks. The heavy lifting under SB 375 is by the regional planning agencies, in this case Association of Bay Area Governments (“ABAG”) in consultation with the California Air Resources Board (“CARB”) as it discharges its responsibilities developing and implementing the State Scoping Plan.
In response to the targets set by CARB, ABAG developed and released a Draft Plan. The Plan identified land use and transportation strategies believed to meet the required per capita reductions. These strategies included land use intensification around transit corridors. Ultimate implementation of the strategies would rest with the individual cities and counties as the ABAG Plan did not directly control land use decisionmaking. ABAG prepared an EIR to go with the Draft Plan. The EIR evaluated (a) the Plan’s ability to meet the regional SB 375 generated targets, (b) anticipated changes in greenhouse emissions (direct and indirect) by 2040, and (c) compliance with the Executive Orders (S-3-05 and B-16-2012). With respect to the first analysis (meeting the regional targets), the EIR excluded any benefits from the Pavley I legislation and low carbon fuel requirements, whereas Pavley I and low carbon adjustments were factored into the analysis for the second and third evaluations. ABAG submitted its Draft Plan to CARB for technical review as provided for by SB 375, and CARB approved the methodology.
Bay Area Citizens was critical of the Draft Plan along with the EIR, and offered its own alternative. Citizens claims included the argument that the Plan had to account for reductions from Pavley I and low carbon fuels and that ABAG should have considered its alternative which avoided “draconian” land use and transportation strategies. Dissatisfied with the Plan and EIR, Citizens following adoption filed a petition for writ of mandate challenging the adoption. The trial court denied relief as did the appellate court.
The appellate decision is quite detailed, setting forth the full regulatory structure for the adoption of the regional plans, including CARB’s role. Citizen’s primary attack dealt with the role of reductions from Pavley I and low carbon fuels. As the court noted, the regional targets for reductions are separate and distinct from the reductions taken under the Scoping Plan for Pavley I and low carbon fuels. The appellate court agreed with ABAG that factoring Pavley I and low carbon into the regional targets would result in double counting. As most of Citizen’s arguments were tied to its fundamental attack regarding exclusion of Pavley I and low carbon fuels into the regional targets, the appellate court rejected those as well.
Although the appellate decision is mostly dedicated to SB 375, Citizens also challenged the EIR. Its first argument challenged the project description, reintroducing the theme that Pavley I and low carbon should have been factored in as part of the project description. The appellate court readily disposed of this argument, reciting that the seven identified goals for the Plan were sufficiently broad and appropriately linked to SB 375. The appellate court then turned to Citizens’ challenge to the EIR’s alternatives. Citizens first argued that the No Project alternative was required to reflect the benefits of other state programs (notably Pavley I and low carbon fuels) which largely centered upon an argument that the EIR should have included the Citizen’s alternative. Again, the appellate court disagreed noting that the targets in greenhouse gas reduction and climate change from the Plan were developed independent from and were additive to the anticipated benefits of Pavley I and low carbon fuels. The appellate court also determined that the Pavley II impacts were not known until too late in the EIR process and therefore were not required to be reflected in the EIR. Citizens also argued that the EIR was required to review its plan as an alternative, suggesting that its plan would have met basic project objectives without the secondary effects of higher density development. The court rejected this argument finding that the EIR included a reasonable range of alternatives and that Citizens had failed to demonstrate any shortcomings against that legal standard. Citizens last argument was a variation on the same theme: because the Agency failed to account for the benefits of Pavely I and low carbon fuels, the Agency failed to adequately respond to the Citizens comments as to those issues. Again noted the appellate court, the Citizens had it wrong.
Finally, as an independent ground to uphold the EIR, the Court agreed with amicus California Attorney General that the EIR was a full disclosure document. The document was clear when and where it relied upon Pavley I and low carbon fuels, and that the challengers failed show why more analysis was required. Essentially then, Citizens challenge was to the wisdom of the Plan itself, essentially at its best that the Plan did more than the minimum to meet the law. In the end, a challenge to the wisdom of the Plan was not a CEQA challenge.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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.