Posts Tagged ‘AB 32’


In a 2-1 decision, the Fourth District Court of Appeal concluded that the environmental impact report (EIR) for a regional transportation plan for the San Diego area was inadequate because it did not apply a long-term greenhouse gas emissions reduction target contained in a 2005 Executive Order. The opinion, Cleveland National Forest Foundation v. San Diego Association of Governments, Case No. D063288, was filed Nov. 24, 2014, includes a vigorous dissent, and is available here.

The case involved the 2050 Regional Transportation Plan and Sustainable Communities Strategy, adopted in 2011 by the San Diego Association of Governments (SANDAG). The Regional Transportation Plan calls for investing $214 billion in local, state and federal transportation funds over the next 40 years for transit projects and improvements to highways, roads and streets. The Sustainable Communities Strategy is designed to reduce greenhouse gas (GHG) emissions to state-mandated levels over time. The San Diego region was the first region in California to produce a Regional Transportation Plan that includes a Sustainable Communities Plan, as required by Senate Bill 375.

At issue in the case was a 2005 Executive Order issued by former Gov. Arnold Schwarzenegger. The Executive Order established reduction targets for GHG emissions, including a target of 80 percent below 1990 levels by 2050. Following the 2005 Executive Order, the Legislature enacted the California Global Warming Solutions Act of 2006 (AB 32) and the Sustainable Communities and Climate Protection Act of 2008 (SB 375). SB 375 requires the California Air Resources Board to establish regional reduction targets for GHG emissions from cars and light duty trucks for 2020 and 2035, and to revisit those targets every eight years through 2050 or sooner if circumstances warrant. The Air Resources Board set initial regional reduction goals for 2020 and 2035, but not beyond.

The program EIR for SANDAG’s Regional Transportation Plan applied three different thresholds to analyze the significance of GHG emissions, based on CEQA Guidelines section 15064.4. The EIR’s analysis included standards tied to the years 2020 and 2035. The EIR discussed the Executive Order’s 2050 reduction target, but explained it did not apply it to the analysis because the Air Resources Board had not yet developed such a formal target. The EIR found the proposed transportation plan would lead to GHG emissions reductions through 2020, but increases in emissions after that.

The petitioners, Cleveland National Forest Foundation and Sierra Club, challenged the EIR on several grounds under CEQA. Among other things, the petitioners found fault with the EIR because it did not analyze longer term GHG emissions impacts under the goal contained in the 2005 Executive Order. SANDAG argued the EIR could not apply policy goals contained in the Executive Order because no statute or regulation had translated the Order’s goals into “comparable, scientifically based emissions reduction targets.”

The majority agreed with the petitioners that the EIR’s GHG impacts analysis was deficient. According to the majority opinion, the failure to use the Executive Order’s 2050 target as a significance threshold violated CEQA’s requirement for a “reasonable, good faith effort at full disclosure.” The majority referred to the omission as a failure to perform a “consistency analysis” with the Executive Order.

The majority also held that the EIR 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, improperly deferring the formulation of mitigation, and understating the plan’s impacts on agricultural lands.

The dissent described the majority’s requirement of a “consistency analysis” with the Executive Order as “judicial fiat, pure and simple” and “a new formulation of the law.” The dissent stated that a policy directive from the Governor’s office does not constitute a required threshold of significance under CEQA. According to the dissent, in the absence of the Legislature’s independent action in tasking the Air Resources Board with adopting regional 2050 GHG targets, the EIR was not required to consider the broad 2050 goals contained in the Executive Order.

Air Resources Board Releases Proposed AB 32 Scoping Plan

February 13th, 2014 by Chris Stiles

On February 10, 2014, the California Air Resources Board released the proposed first update to the AB 32 Scoping Plan. The Scoping Plan is a key component of AB 32. It describes the strategies California will implement to reduce greenhouse gases to achieve the goal of reducing emissions to 1990 levels by 2020. The Scoping Plan was first considered by ARB in 2008 and, pursuant to AB 32, must be updated every five years.

The initial AB 32 Scoping Plan contains the main strategies used by California to reduce the greenhouse gases that cause climate change. The initial Scoping Plan has a range of GHG reduction actions which include direct regulations, alternative compliance mechanisms, monetary and non-monetary incentives, voluntary actions, market-based mechanisms such as a cap-and-trade system, and an AB 32 program implementation fee regulation to fund the program.

The proposed update highlights California’s progress toward meeting the near-term 2020 GHG emission reduction goals and builds on the initial Scoping Plan with new strategies and recommendations. It defines ARB’s climate change priorities for the next five years and sets the groundwork to reach California’s long-term climate goals, including an 80 percent reduction in GHG emissions by 2050. The new actions and strategies are intended to move the state farther along the path to a low-carbon, sustainable future.

The proposed update identifies eight key sectors for ongoing action: (1) energy; (2) transportation, fuels, land use and infrastructure; (3) agriculture; (4) water; (5) waste management; (6) natural lands (7) short-lived climate pollutants (such as methane and black carbon); and (8) green buildings. It explains that each of these sectors must play a role in supporting the statewide effort to continue reducing emissions. As steps are taken to develop a statewide target, sector targets will also be developed that reflect the opportunities for reductions that can be achieved through existing and new actions, policies, regulations and investments.

According to ARB’s press release, the proposed update incorporates the latest scientific consensus which indicates the need for accelerated emissions reductions in the coming decades to achieve climate stabilization.

The proposed update includes input from a range of key state agencies. It is also the result of extensive public and stakeholder processes designed to ensure that California’s greenhouse gas and pollution reduction efforts continue to improve public health and drive development of a more sustainable economy.

ARB is soliciting additional input before it considers the final version the update.  ARB will hold a public informational presentation on the proposed update at its February 20, 2014, meeting, that will include additional opportunities for stakeholder feedback and public input. ARB plans to hold a Board hearing in late-Spring 2014 to formally consider the Final Scoping Plan Update and environmental analysis.

The proposed Scoping Plan Update is available on the ARB website at:  http://www.arb.ca.gov/cc/scopingplan/2013_update/draft_proposed_first_update.pdf