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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.
Correction: Because 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