Court to San Diego – Freeways Aren’t the Answer

While the relationship between land use and transportation might seem obvious, coordinated regional transportation and land use planning is still pretty new in California. In 2005 Governor Arnold Schwarzenegger issued Executive Order S-3-05, which set greenhouse gas reduction goals for California and established responsibilities for executive agencies to implement the goals and report on their progress.The Executive Order called for reducing greenhouse gas emissions to 2000 levels by 2010, to 1990 levels by 2020, and to 80 percent below 1990 levels by 2050. In 2006, the Legislature adopted the California Global Warming Solutions Act (Assembly Bill 32), which, among other provisions, charged the California Air Resources Board (CARB) with setting statewide greenhouse gas reduction goals. AB 32 also intended for efforts to continue the greenhouse gas reduction efforts set forth in Executive Order S-3-05.

In 2008, the Legislature implemented AB32’s statewide greenhouse gas reduction goals at regional level through the Sustainable Communities and Climate Protection Act (Senate Bill 375). In adopting SB 375, the Legislature found automobiles and light trucks are responsible for 30 percent of the state’s greenhouse gas emissions and directed the Air Resources Board to develop regional greenhouse gas reduction goals for automobiles and light trucks. Metropolitan Planning Organizations (MPO’s) would then include a “sustainable community strategy” (SCS) in their regional transportation plans (RTP’s). MPO’s are federally funded and mandated organizations established under the Federal-Aid Highway Act of 1962. They include representatives from local and regional governments and every urban area with a population of over 50,000 persons must one. RTP’s are fiscally contained plans that establish a continuing, cooperative, and comprehensive regional transportation policy in order to allocate federal transportation funds. By requiring an integrated RTP/SCS, SB 375 integrated land use, housing, and transportation planning to create more sustainable, walkable, transit-oriented, compact development patterns and communities that meet greenhouse gas reduction goals. Once the RPT/SCS is approved, transit and infill projects meetings certain standards qualify for exemptions from environmental review under the California Environmental Quality Act (CEQA). An approved RTP/SCS makes infill and transit projects significantly easier and less expensive and also reduce the likelihood (of at least the likelihood of success) of NIMBY-motivated litigation.

The San Diego Association of Governments (SANDAG) developed the first RTP/SCS under SB 375 in 2011. Despite AB32’s efforts to continue Executive Order S-3-05’s greenhouse gas emission reduction programs, SANDAG’s plan ignored Executive Order S-3-05, focused on freeway extension and expansion (albeit with some “managed lanes”) and deferred transit projects until later, resulting in more driving and more sprawl. By 2050, SANDAG’s plan would increase greenhouse gas emissions, rather than decreasing them and certainly not decreasing emissions to 80 percent below 1990 levels. Opponents argued for earlier investments in transit, which, according to the opponents, would ultimately result in less sprawl, less driving, more transit use, and lower greenhouse gas reductions. SANDAG’s plan, by adding capacity early, would encourage more driving and more sprawl, exactly the kind land use design that discourages transit use and increases greenhouse gas emissions (it also requires more O&M, which is already underfunded).

Opponents of SANDAG’s plan, including the Cleveland National Forest Foundation and the Center for Biological Diversity sued under the state’s California Environmental Protection Act (CEQA). The California Attorney General subsequently intervened in opposition to SANDAG. Together, the petitioners alleged that SANDAG violated CEQA by failing to adequately analyze air quality impacts and greenhouse gas emissions and by failing to analyze a reasonable range of alternatives, particularly alternatives that would have focused more on transit and less on highway extension and expansion. The real focus, however, was that SANDAG failed to consider Executive Order S-3-05’s greenhouse gas reduction goals. Since CEQA is really about informing the public, the petitioners were not alleging that the RTP/SCS itself was illegal, but that SANDAG inadequately informed the public of the environmental impacts of the RTP/SCS.

The San Diego County Superior Court ruled that SANDAG violated CEQA. The Fourth District Court of Appeal sustained the Superior Court’s ruling, based in large part on SANDAG’s failure to consider Executive Order S-3-05’s greenhouse gas reduction requirements. Although CARB had yet to set specific greenhouse gas reduction targets for 2050, the SANDAG RTP/SCS nonetheless had a fundamental problem, because it resulted in higher greenhouse gas emissions in 2050 and failed to discuss this impact. SANDAG also failed to provide feasible mitigation measures for impacts caused by greenhouse gas emission, failed to adequately describe existing exposure to toxic air contaminants, and improperly deferred mitigation measures. Significantly, SANDAG also failed to provide a reasonable range of alternatives. In CEQA, a lead agency is not required to present every alternative. While it must present alternatives that could avoid or lessen the project’s impacts, it only must provide a reasonable range of alternatives. SANDAG, however, in failing to provide any alternative that would substantially reduce driving, failed to provide a reasonable range of alternatives.

To the Appellate Court, it appeared the project alternatives focused on congestion relief (i.e. traffic delay), even though SANDAG’s Climate Action Strategy (SANDAG’s plan for addressing climate change) explains that

Measures to relieve congestion… may induce additional vehicle travel during uncongested periods, particularly over the long-term, which can partially or fully offset the greenhouse gas reductions achieved in the short-term from congestion relief. Induced demand (sometimes called the rebound effect) in transportation refers to the increase in travel that can occur when the level of service on a roadway or other facility improves. Travelers sometimes respond to faster travel times and decreased costs of travel by traveling more, resulting in increased vehicle miles traveled.

Given SANDAG’s acknowledged long-term drawbacks of congestion relief alternatives, no substantial evidence supported the absence of an alternative that would reduce driving. The substantial evidence standard in CEQA review is pretty low. The lead agency only needs one relevant fact to support its decision and SANDAG had nothing. Of course, inconsistency with its own Climate Action Strategy did not help either.

This is also significant, because we still fund a lot of new highways and continue expanding roads (sometimes at the expense of sidewalks) in order to address congestion. If you have ever wondered why a four-way intersection only has three crosswalk, why your city engineer refuses to make space in the street for a bike lane, or why a corner has a really broad turning angle that lets cars fly around really fast, yet is really unsafe for pedestrians, it’s in order to maintain traffic flow. Litigation alleging San Francisco’s Bicycle Master Plan would worsen traffic congestion held up the plan for years, even block bike racks. Time and again I hear members of the public at meetings voice concern about making a street safer for bicyclists and pedestrians, because they’re worried about traffic congestion. Since some of the Fourth DCA’s reasoning is based on SANDAG’s own Climate Action Strategy, that reasoning is specific to this case. However, there is nothing from submitting similar evidence through comments as part of the CEQA process. Also, new CEQA Guidelines implementing SB 743 that prohibit findings of significant impact based solely on traffic congestion (a metric known as “Level of Service”) and instead use “vehicle miles traveled” (i.e. how much people drive) will make freeway-focused, sprawl inducing plans like SANDAG’s harder to adopt and implement, as such plans will need mitigation and an alternative that results in less driving will almost always be preferred. 

The Fourth District Court of Appeal was not unanimous, however, and a dissenting opinion strongly disagreed with the majority incorporating Executive Order S-3-05 into AB 32 (even though it’s clearly stated in AB 32). Since SANDAG filed an appeal with the California Supreme Court, this will likely be the significant issue. Furthermore, since CEQA’s substantial evidence standard of review for an Environmental Impact Report (EIR) like the RTP/SCS is so low, there is also the chance that the Supreme Court could decide the RTP/SCS EIR is supported by substantial evidence. The Supreme Court reviews few cases, but since this is the first RTP/SCS to see litigation, there is a good chance the Supreme Court take up the case. For now, it means MPO’s need to develop RTP’s that look at greenhouse gas reduction goals and include alternatives that reduce driving and curb sprawl, rather than continuing to expand roads and highways.

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