SAN FRANCISCO (Northern California Record) – The San Diego Association of Governments (SANDAG)'s 2011 environmental impact review of Cleveland National Forest development ignores "the elephant in the room", said the lone dissenter in a much-anticipated and recently decided California Supreme Court ruling.

"No one is asking SANDAG to singlehandedly prevent California from blowing through its greenhouse gas emissions limits," Justice Mariano-Florentino Cuéllar said in his dissent to a state court ruling handed down July 14. "But the agency was given a specific role in the state's coordinated climate change agenda: to reduce transportation emissions from the San Diego region. Under SANDAG's plan and according to its projections, the opposite will occur.

California Supreme Court Justice Mariano-Florentino Cuéllar
California Supreme Court Justice Mariano-Florentino Cuéllar

"While the agency is, for the most part, entitled to make that choice, it does not have discretion to downplay the consequence - one requiring blunter acknowledgement as the elephant in the room that it is."

Cuéllar maintained in his dissent that SANDAG should have analyzed the consistency of projected emissions based on goals in an Executive Order No. S-3-05 issued in June 2005 by then Gov. Arnold Schwarzenegger. The executive order set the goal of reducing the state's greenhouse gas emission to 80 percent below 1990 levels by 2050.

Cuéllar's dissent came in the high court's 6-1 ruling in Cleveland National Forest Foundation v. SANDAG, in which the majority found that the governmental association did not abuse its discretion when it chose not to follow the executive order and did not conceal its plan's environmental impacts. SANDAG’s environmental impact review, EIR in the Supreme Court's ruling, was sufficient, the majority opined.

In his dissent, Cuéllar said SANDAG should have done more: "Though this EIR is governed by the same general framework that governs the validity of an EIR for a typical development project, it was also somewhat distinct in that the whole purpose of the project at issue — the entire reason the legislature directed SANDAG to issue a regional transportation plan — was to help achieve the state‘s goal of reducing greenhouse gas emissions from transportation infrastructure." 

Debate has raged for years over development in the Cleveland National Forest. A trial court judgment in this case set aside the EIR certification while requiring that a subsequent EIR fix most of the defects identified in the litigation’s cross-appeals.

Division 1 of the Fourth District California Court of Appeal appeals in November 2014 upheld a superior court ruling against a San Diego-area planning agency, maintaining the climate and public health risks of a transportation plan had not been fully assessed. That decision confirmed the lower court ruling that SANDAG violated California statue that requires the association take steps to reduce greenhouse gases and air pollution in the region’s long-range transportation plan.

Plaintiffs in the case, the Cleveland National Forest Foundation, Center for Biological Diversity and Sierra Club have claimed SANDAG’s environmental impact review did not live up to the CEQA.

The California Attorney General's Office also joined the case on behalf of the people of the state.

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