The California Supreme Court has accepted Cleveland National Forest Association v. SANDAG, the controversial case that raises the question of whether a governor's executive order must be taken into consideration in CEQA analysis.
Meanwhile, the Supreme Court let stand an appellate court ruling striking down San Diego County's climate action plan, meaning the county will now have to set strict greenhouse gas emission reduction targets for itself as it had promised to do in its General Plan.
In taking the SANDAG case, the Supreme Court limited its review to that one narrow -- but extremely important and controversial -- issue: Whether the environmental impact report for SANDAG's regional transportation plan must include an analysis of consistency with Executive Order S-3-05, which calls for an 80% reduction in greenhouse gas emissions by 2050.
In a split ruling in November [updated link with modification here], the Fourth District Court of Appeal concluded that the executive order must be taken into consideration in the EIR.
SANDAG has argued that it complied with state law because the RTP (which also serves as the sustainable communities strategy under SB 375) met the 2020 GHG emissions reduction target contained in AB 32, the state's climate change law, even though the RTP showed an increase in emissions after that. The environmentalist plaintiffs in the case argued that Schwarzenegger's executive order constitutes the state's climate change policy and therefore must be taken into consideration in the EIR. By a 2-1 vote, the Fourth District agreed with the environmentalists.
The Fourth District also covered a number of other issues, but the Supreme Court did not include them in its review.
In a commentary, CP&DR Publisher Bill Fulton has argued that the Fourth District's ruling gives the governor too much power by permitting him to create state policy unilaterally through executive orders.
