In a rather earthshaking ruling, California’s Fourth District Court of Appeals ruled that the San Diego Association of Governments (SANDAG) must comply with the Governor Schwarzenegger’s Executive Order S-3-05 to “by 2050, reduce GHG emissions to 80 percent below 1990 levels.” SANDAG had completed its 2050 Regional Transportation Plan using AB 32 as its primary compliance hurdle. AB 32 “requires California to reduce its GHG emissions to 1990 levels by 2020.” SB 375 required that metropolitan planning organizations (MPOs) such as SANDAG develop sustainable community strategies (SCS) that reduce GHG emissions by an amount allocated by the California Air Resources Board to each MPO.  SANDAG’s RTP is its SCS.

This is the first time that an EO has been held at legally binding on local agency actions. Governors have issued plenty of EOs before but they’ve been taken as providing policymaking and rulemaking guidance to the Governor’s appointees in various agencies. This decision raises the question whether those other EOs will now carry much more weight? And if governors issue conflicting EOs, which one is currently in force? What if an EO conflicts with state law passed by the Legislature?

On climate change, governors have issued seven such EOs. The Governor recently issued an EO calling for substantial water use reductions in the drought. Is the EO from 2008 still in force?  The Energy Action Plan EO from 2004 calls for several specific actions by state agencies, many of them undertaken but necessarily on the timeline specified. Should the 33% renewable portfolio standard (RPS) be implemented along the lines of state law or the EO? A bit of research could show many more of these types of examples.

SANDAG is appealing the decision the State Supreme Court. How various interests align will be interesting.