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    San Diego’s former planning director Bill Fulton is now working in Texas, but he still keeps close tabs on planning and development in California.

    Earlier this week, he posted a piece on his blog that made his opinion clear: The ruling against SANDAG’s long-term transportation plan is not only wrong – it’s dangerous.

    Two courts have ruled that SANDAG’s plan is too car-centric and doesn’t do enough to reduce greenhouse gases. Rather than making changes to the plan, the transit agency’s board voted earlier this month to appeal to the state Supreme Court.

    Fulton’s thinking echoes another SANDAG board member, Kristine Alessio, who said the ruling, if confirmed by the Supreme Court, would give the governor far too much power over the state Legislature.


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    I usually reserve this space for analysis rather than to express a strong opinion, but in this case I’m going to depart from my customary practice. I agree with Justice Benke (the minority opinion, against the lawsuit) and disagree with Justice McConnell (the majority opinion). You can see the danger embedded in the McConnell ruling: A governor of either party with a sweeping frame of mind could issue an executive order on almost any topic and it would have to be considered – not just in the CEQA context but possibly more broadly as well – as state policy.

    SANDAG’s transportation plan lays out all the major transportation projects — highways, local roads and public transit — for the next 40 years. An environmental review of the project said the plan made good on a state requirement to show it controls greenhouse gas emissions through 2020. But, the plan allows emissions to increase after that, and two courts have now ruled that’s not acceptable because of an executive order issued by Gov. Arnold Schwarzenegger calling for further reductions through 2050.

    Justice Judith McConnell ruled that applying requirements from the executive order — which went further than restrictions enacted by the Legislature — didn’t constitute giving the executive power over the Legislature because it was the Legislature’s intent for all of the requirements to work together, and the legislation essentially grew out of the executive order itself.

    Fulton called that tortured logic.

    It’s also worth noting that Justice McConnell’s majority opinion is – in my opinion, at least – tortured in its reasoning, whereas Justice Benke’s is straightforward and strongly argued. This is often the case when a majority opinion is straining to make the reasoning fit the desired outcome. Benke’s dissent also addresses the CEQA implications much more directly, making a convincing argument that the majority opinion essentially tells lead agencies to use the executive order as significance threshold (a CEQA requirement). This is a conclusion that the majority opinion takes care to avoid stating directly, but, as Benke points out, it would be almost impossible not to use (the executive order) as a significance threshold given McConnell’s opinion.

    Fulton’s reputation is built on supporting the sort of dense, transit-connected developments favored by the environmentalists who sued over SANDAG’s plan.

    And that’s partly why he finds this ruling so troubling, he writes. His experience working on the city’s Climate Action Plan drove home the importance of a city knowing which laws it must follow.

    Environmentalists routinely insisted the Climate Action Plan must include legal mandates beyond 2020, like those included in the executive order, he said.

    We tried to push back by arguing that, as a city, we didn’t have to follow an executive order because, simply put, it wasn’t a law. You’d be surprised at how hard it was to get people to see the argument.

    But that’s the danger of Justice McConnell’s ruling, if it stands: If you want all the regional and local governments in the state to do something – or at least explain why they are not doing that something – then you don’t need to pass a law. All you need is a governor with a pen.

    CorrectionBecause of an editing error, an earlier version of this post mischaracterized Fulton’s objection to the court ruling against the SANDAG plan.

      This article relates to: Corrections, Growth and Housing, Land Use, News, Public Transportation, Regional Neighborhood Growth, SANDAG, Share

      Written by Andrew Keatts

      I'm Andrew Keatts, a reporter for Voice of San Diego. Please contact me if you'd like at andrew.keatts@voiceofsandiego.org or 619.325.0529.

      12 comments
      Greg Chick
      Greg Chick subscriber

      Personally I think mass transit is "cool"  it is cheaper than single person in a car and generally safer too.  But, people are needed to be passengers and payers, so I propose a media campaign to do this.  Hollywood could show cool things happening on mass transit other than rapes and murders and graffiti.  

      Walt Brewer
      Walt Brewer subscribermember

      Nr. Chick,

      Do you have numbers that refute support to on-road vehicles is about 20 times more effective than mass transit to reduce emissions?

      Greg Chick
      Greg Chick subscriber

      Follow the money, forget the smog, the big money is running the highway,  not the people.  The people are the ones who pay and deal with the ineffective system.   The big tax titty that the big corporations suck on is hanging on the belly of the big cow in the room! SANDAG.  

      We as people need to vote with our dollar, take our own responsibility to task and car pool, support the transit system, vote with an education, get over the image of a convertible sports car flying down the freeway having personalized lic. plates and a matching hairdo.   That has been sold to US, pun intended by Hollywood and paid for by the oil companies and car makers through advertising  on TV and Movies.   Image is very expensive and people will pay anything for it.  They know this and are laughing all the way to the bank... 

      Walt Brewer
      Walt Brewer subscribermember

      Mr Shu: It would be useful for the public to see your analyses and Plan that does meet at least the Transportation Share of GHG performance called out in the Executive Order.

      Walt Brewer
      Walt Brewer subscribermember

      Participants continue to ignore Staff analyses do not support nearly 50% of capital allocation for mass transit in SANDAG’s 2050Transportation Plan.

      The critical dominating numbers to show mass transit trivial daily contribution to travel share and fuel savings directly related to emissions including GHG.

      On-road vehicles: 35 million passenger-miles, and 1.2 mil gallons fuel savings.

      Mass transit: 2.1 mil p-m and 26 thousand gallons fuel savings.

      Compared to the 15% mpg reduction underway used here, and a 50% reduction for personal vehicles approved for 2025, shouldn’t emphasis shift to take advantage, and begin to quantify further gains from emergingautonomous vehicle?s?

      Jack Shu
      Jack Shu subscriber

      From page 14 of the Appellate Court ruling

      "In this case, SANDAG's decision to omit an analysis of the transportation plan's consistency with the Executive Order did not reflect a reasonable, good faith effort at full disclosure and is not supported by substantial evidence because SANDAG's decision ignored the Executive Order's role in shaping state climate policy. The Executive Order underpins all of the state's current efforts to reduce greenhouse gas emissions. As SANDAG itself noted in its Climate Action Strategy, the Executive Order's 2050 emissions reduction goal "is based on the scientifically-supported level of emissions reduction needed to avoid significant disruption of the climate and is used as the longterm driver for state climate change policy development." (Italics added.)

      The reasoning is continues and states on page 15..." As evidence in the record indicates the transportation plan would actually be inconsistent with state climate policy over the long term, the omission deprived the public and decision makers of relevant information about the transportation plan's environmental consequences. The omission was prejudicial because it precluded informed decisionmaking and public participation."

      The full text of the ruling is available at transitsandiego.org under Climate Change Lawsuit.

      mbrackney
      mbrackney subscriber

      How can Bill Fulton's and apparently SANDAG's argument that "as a city, we didn’t have to follow an executive order (S-3-05) because, simply put, it wasn’t a law" be right? (parenthetical text added)  Of course Executive Order S-3-05 is not a statutory law (passed by the legislature) but it is a regulatory law, so unless Fulton and SANDAG are challenging the legitimacy of all executive orders in California, it looks to me like the only possible question here is whether this particular executive order, issued a year before AB 32, was in some way illegitimate.  This question not having been raised in court (as far as I know), the court decisions have simply enforced the law.

      Jack Shu
      Jack Shu subscriber

      It seems most people still miss what is missing in SANDAG's EIR for the 2050 RTP/SCS.  EIR's are required to give the public and decision makers information.  Looking at reasonable alternatives, consideration of health impacts etc. that is what was missing.  In regards to health impacts, not coming up with the kind of information that other RTPs in California do have. Why would anyone who want's to do good planning say that we don't need to do a better job of doing that?

      With regards to this so called conflict between a law from the legislature and an Exec. Order, I just can't see it.  The law was made so that we work towards the goals of the Exec. Order.  Where is the conflict? Let me make an analogy.  The best medical experts say to you that you need to stop smoking and that you do it a month.  Your personal doctors says to you that in order to meet this goal you need to cut down to one pack of cigarettes a day in two weeks. You agree that the goal is very important and develop a plan to cut down to one pack a day in two weeks.  But in the same plan you budget for and admit you will be smoking three packs a day at the end of the month.  Your reasoning is that you are doing what your doctor ordered and that you do not have to worry what happens after the two weeks.  This is the kind of reasoning that SANDAG and other are using.

      My comparison is a bit off however, because we are not dealing with ones own health but that of our children and grand children.

      Cory Briggs
      Cory Briggs subscribermember

      This is why no enviros cried as Mr. Fulton packed his bags and moved to Texas.  (Remember: He's the same guy who said I was the only person around who opposed the convention center expansion.  Wrong then, wrong now.)

      Erik Bruvold
      Erik Bruvold subscribermember

      Oh now I get it.  I had to reread it again.  I might suggest a change to make the subject of the sentence (The appellate court) explicit rather than implied.  That way we know he doesn't like the court's actions and supports what the SANDAG board did.

      Erik Bruvold
      Erik Bruvold subscribermember

      Andrew, confused.  You write that Fulton thinks "The SANDAG board’s decision to keep fighting for its long-term transportation plan is not only wrong – it’s dangerous."

      But then you go onto write that he finds it troubling the majority's reasoning and logic.  Isn't the issue that if not appealed the majority opinion is now law and would govern subsequent disputes (and thus the reason to appeal).? Yes, Sandag could ammend the plan but wouldn't the opinion still hold as a published opinion and govern a whole host of subsequent actions.  Fulton puts the blog behind a paywall (and while interesting, it isn't 9 dollars interesting) so I am still confused as whether he supports or opposed the appeal and what he thinks SANDAG should do.

      Andrew Keatts
      Andrew Keatts author

      @Erik Bruvold There was an editing error that got the nature of his complaint exactly backwards. We corrected it back to what it was always intended to say. Let me know if you think it's unclear as currently written.