In Sierra Club v. County of San Diego a three-judge panel of the Fourth Appellate District heard an appeal by the County of San Diego of a superior court finding that the County violated CEQA by not complying with the requirements of its own Climate Change Mitigation Measure CC-1.2 (Mitigation Measure CC-1.2) in its Climate Action Plan (CAP). The superior court based its decision on the finding that the CAP lacked enforceable GHG reduction measures that would achieve the specified emission reductions under Mitigation Measure CC-1.2.
The appellate court affirmed the lower court decision. The Court of Appeal dismissed the County’s first claim that the original cause of action was barred by the statute of limitations and moved to its CEQA analysis. The court’s CEQA analysis first found that the CAP violated CEQA as mitigation for a plan-level document because the CAP failed to adopt a CAP that complied with the requirements of Mitigation Measure CC-1.2. The court found that the CAP lacked enforceable greenhouse gas (GHG) emissions required by the mitigation measure, lacked detailed deadlines for GHG reduction, and the County lacked evidence to support its assertions that the CAP mitigation would achieve GHG reductions. In essence, once the County incorporated Mitigation Measure CC-1.2 in its general plan EIR the implementation of the mitigation measure became necessary unless the County instituted a review of the need for the mitigation and a stated reason supported by substantial evidence for removing the mitigation.
Second, the court found that the County did not proceed in the manner required by law by failing to analyze the environmental impact of the CAP and Threshold project. The court found that the County erroneously relied on the EIR of the general plan update when adopting the CAP and Threshold project. Third, the court found that the County failed to proceed in a manner required by law when it did not incorporate mitigation measures directly into the CAP as a plan-level document. Fourth, the court found that substantial evidence supported the lower courts decision that an EIR was required for the CAP and Threshold project. The court found that the County’s failure to comply with Mitigation Measure CC-1.2, AB 32, and Executive Order No. S-3-05 supported the conclusion that the CAP and Threshold Project “will have significant, adverse environmental impacts that have not been previously considered, mitigated, or avoided.” This finding is consistent with other appellate rulings that that local and regional climate action plans or regional transportation plans (See Cleveland National Forest Foundation v. SANDAG) must be consistent with an agency’s own mitigation or strategic documents in the administrative record and achieve enforceable emission reductions as required by AB 32, SB 375, and Executive Order No. S-3-05.
The San Diego County Board of Supervisor voted on December 2, 2014 to submit a petition to review the appellate court decision as reported by the UT-San Diego.