CEQA Greenhouse Gas Litigation San Diego County

This post summarizes the most important greenhouse gas planning lawsuits initiated in San Diego County and their potential implications for local planning.

In Citizens for Responsible Equitable Environmental Development (“CREED”) v. City of Chula Vista (2011) the City of Chula Vista certified a mitigated negative declaration (MND) and approved development permits for a project that would demolish existing buildings and replace them with a larger and more energy efficient building. The trial court denied the petition for a writ of mandate that the City should have prepared an environment impact report instead of an MND. Upon appeal, the California 4th Court of Appeal rejected arguments about insufficiency of greenhouse gas analyses but remanded the case to the trial court for other reasons. The court upheld the lead agency’s discretion to select the appropriate threshold for evaluating a project’s greenhouse gas (GHG) emissions, provided the threshold decision is supported by substantial evidence.

The court held that the City’s adoption of the Business-As-Usual (BAU) method of significance thresholds to determine whether the project’s GHG emissions were cumulatively considerable under CEQA was valid. Under the BAU method, a project demonstrates that it can achieve a certain percentage reduction in its GHG emissions through various greenhouse gas reduction measures compared to the situation that existed in a baseline year, in this case 2005. The court held that both the pre-CEQA Guideline comments and the post-CEQA Guidelines amendments gave the City discretion to adopt the GHG threshold of significance it believed was appropriate.  “Thus, under the new guidelines, lead agencies are allowed to decide what threshold of significance it will apply to a project.” The court rejected the argument that “the standards and analysis used by the Court were arbitrary and unsubstantiated”. AB 32 estimates that GHG emissions in the state need to be reduced by approximately 16% (as compared to the Business-As-Usual scenario) in order to meet the 2020 target. Therefore if a project meets or exceeds a projected 16% reduction in GHG emissions in 2020, the impacts from such emissions will be less than significant for CEQA purposes. It was not necessary to use other more stringent BAU thresholds suggested by CREED, for example, based upon data supplied in a San Diego County Greenhouse Gas Inventory report.

Although the BAU method had been criticized by the California Attorney General’s Office and the California Natural Resources Agency, cities and regions have found the BAU method practical and obvious. Therefore this case provides court guidance that supports the BAU method and agency discretion to choose thresholds. However, in Friends of the Northern San Jacinto Valley et al. v. County of Riverside (2012) the trial court held that the BAU scenario used must be realistic.

In Cleveland National Forest Foundation, Center for Biological Diversity and Sierra Club v San Diego Association of Government Board of Directors (2012), SANDAG’s Final Environmental Impact Report for the 2050 Regional Transportation Plan/Sustainable Communities Strategy was challenged for, among other reasons,  failure to “adequately analyze and disclose the impacts of the RTP/SCS on … greenhouse gas emissions, and state goals related to:  … climate change,” thus committing “a prejudicial abuse of discretion for which the RTP/SCS must be set aside.”

On December 3rd, 2012, the superior court judge found that “the real focal point of this controversy is whether the EIR is in conformance with a series of state policies enunciated by the legislative and executive branches since 2005 relating to greenhouse gases.” State policies included Executive Order S-03-05, which set a state goal of reducing greenhouse gas emissions by 2050, followed by AB32 and SB 375. The judge found that while “SANDAG acknowledges that SB 375 mandates a sharper focus on reducing GHG emissions… the EIR is impermissibly dismissive of Executive Order S-03-05.” The judge further found that SANDAG’s position  “fails to recognize that Executive Order S-3-05 is an official policy of the State of California, established by a gubernatorial order in 2005, and not withdrawn or modified by a subsequent (and predecessor) governor. Quite obviously it was designed to address an environmental objective that is highly relevant under CEQA (climate stabilization). SANDAG thus cannot simply ignore it.”

Further, the court agreed with petitioners that the failure of the EIR to cogently address the inconsistency between the dramatic increase in overall GHG emissions after 2020 contemplated by the RTP/SCS and the statewide policy of reducing emissions during the same three decades (2020-2050) constitutes a legally defective failure of the EIR to provide the SANDAG decision makers (and thus the public) with adequate information about the environmental impacts of the RTP/SCS. “Moreover, … having chosen to develop a plan for 15 years beyond that which was required under law, SANDAG was obligated to discuss impacts beyond the 2020 horizon. The ARB’s scoping plan adopts the Executive Order, and SANDAG failed to extend the analysis to 2050.”

The court agreed that there was a prejudicial abuse of discretion for which SANDAG was directed to set aside its October 28, 2011 certification of the EIR for the RTP/SCS. Although SANDAG announced that it would work to settle the case with the plaintiffs in early December, it has also filed an appeal (Dec. 26, 2012) with the Fourth Appellate District.

This decision appears to be the first time a California court has held that an agency’s failure to comply with Executive Order S-3-05 is a legal defect under CEQA.  It raises questions such as what thresholds of significance should be applied to projects that will be built or operate beyond AB 32′s 2020 deadline, or SB 375′s 2035 target and whether it is within each jurisdiction’s discretion to establish its own thresholds beyond those dates.

In Sierra Club v County of San Diego (April 19, 2013), the trial court held that San Diego County’s Climate Action Plan (CAP) failed to be adopted in a manner required by law. Even if it were properly adopted, there was not substantial evidence that the CAP satisfied the Programmatic EIR (PEIR) for the General Plan Update (GPU) of 2011. The PEIR had required that the CAP include more detailed GHG reduction targets and deadlines, comprehensive and enforceable GHG emissions reduction measures that will achieve a 17% reduction in emissions from County operation from 2006 by 2020 and a 9% reduction in community emissions between 2006 and 2020, and that progress will be monitored. The court ordered that the San Diego County CAP be set aside.

Disclaimer: This is for informational purposes only and is not meant to provide legal advice.

Please contact Nilmini Silva-Send for comments and questions at silvasend@sandiego.edu

About Dr. Nilmini Silva-Send

Dr. Nilmini Silva-Send is EPIC’s Assistant Director, Adjunct Professor, and the C. Hugh Friedman Fellow in Energy Law and Policy. She leads the regional and local climate change projects and has extensive policy and technical knowledge about energy and GHG mitigation methods and measures. She has participated in several international energy policy dialogues, including in Mexico and Saudi Arabia. Dr. Silva-Send has been a co-Principal Investigator in a recent multidisciplinary National Science Foundation funded climate education project in which she worked with climate scientists, social psychologists and communication specialists to develop more effective methods to communicate links between climate science, energy use and society. During her career Dr. Silva-Send has conducted legal and technical analysis of environmental laws in Europe and the U.S., and carried out environmental due diligence assessments in Europe. She has also taught upper level and graduate level international law courses in Germany and since 2004 at the University of San Diego School of Law, where from 2009 she developed and teaches a contemporary course in International Energy Law. Dr. Silva-Send has a B.S. in Chemistry and a PhD in International Law and Policy. She is a member of the International Bar Association.
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