Litigation Update: Latest Round of Litigation Filed over County of San Diego CAP and General Plan Update Amendment

On March 16, 2018, the Sierra Club and several other environmental and climate oriented organizations (Petitioners) filed a Writ of Mandate in San Diego Superior Court against the County of San Diego.  The Writ challenges the County of San Diego’s February 14, 2018 adoption of its:

  • Revised Climate Action Plan (CAP);
  • Final Supplemental Environmental Impact Report (EIR);
  • Guidelines and new Thresholds that determine whether a project’s Greenhouse Gases (GHGs) emission are significant or insignificant under California Environmental Quality Act (CEQA); and
  • Under the Guidelines, an allowance for a project that requests a General Plan amendment (GPA project) to be found consistent with the Revised CAP if the project incorporates design features from the Guideline Checklist and uses post project approval GHG offsets from a geographic priority list—approved at the discretion of the Director of Planning and Development Services—for GHG emissions not prevented by the incorporated Checklist design features.

This follows Sierra Club’s 2012 Petition for Writ of Mandate, Sierra Club v. County of San Diego, Case No. 37-2012-00101054-CU-TT-CTL, against the County that set aside the County’s 2012 CAP and ordering preparation of a CAP that complied with the General Plan Update and CEQA. The Court of Appeal affirmed the trial court’s decision in Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152.  In 2016, the Sierra Club challenged the County Planning and Development threshold of significance for GHGs under CEQA.  The trial court set aside the threshold for nonconformance with the court’s Writ in Case No. 37-2012-00101054-CU-TT-CTL.

The Petition brings two causes of action against the County.  First, Petitioners allege the County failed to maintain internal general plan consistency and violated the planning and zoning laws.  Specifically, Petitioners allege that the addition of the Mitigation Measure M-GHG-1 to the County’s General Plan is inconsistent with the goals and policies of the General Plan, making the GPU internally inconsistent.  The Petitioners allege that this mitigation measure “allows for the purchase and use of out-of-County GHG emissions reductions as offsets for new projects, including development projects that vary from the existing GPU and therefore require General Plan Amendments.” (Writ at p. 15). Petitioners argue that this creates inconsistencies and conflict with the General Plan Goals and Policies that “call for in-County GHG reductions and environmental improvements, not out-of-County reductions…” in violation of the Government Code’s requirement for General Plan internal consistency. (Ibid.[emphasis in original]).

Second, Petitioners allege that the County violated CEQA for several reasons.  Generally, the Petition alleges that the County violated CEQA “by failing to provide full and legally adequate mitigation for the GHG impacts of the GPU.” (Id. at p. 16). Specifically, the Petitioners allege that the CAP is inadequate because the Revised CAP relies on obtaining offsets for project GHG reductions.  Petitioners base this allegation on the argument that existing registries for GHG offsets lack verified standards and cannot ensure that offsets “represent real, additional reduction of GHGs, enforceable as project conditions at the time of discretionary approval.” (Ibid.). Petitioners believe that the lack of standards and criteria for offsets violate CEQA Guideline sections 1512.64(a) and (c) requirements that mitigation measures “be additional to any other legal requirement or existing program, and be fully enforceable.” (Ibid.).  Petitioners allege that these standards and criteria lack substantial evidence. (Ibid.).  Petitioners also allege a CEQA violation based on County statements found in the GPU Mitigation Measure CC-1.2, the Revised CAP, and the Supplemental EIR’s that the CAP is not a GHG mitigation measure.

Next, Petitioners allege that the County violated CEQA in Measure T-4.1 of the Revised CAP because this measure is not “fully enforceable, and …GHG emissions reductions are not supported by substantial evidence.” (Id. at p.17). Measure T-4.1 initiates County investment in programs and projects that will reduce GHG reductions. Petitioners raise additional challenges to Measure T-4.1 for its deference to an unspecified future implementation timeframe and lack of criteria or performance standards. (Id. at pp. 17-18). Petitioners allege that this in turn makes it unclear under the Supplemental EIR (SEIR) whether in-County reductions will occur, failing to adequately inform decision makers and the public.

Finally, Petitioners allege the following CEQA violations:

  • The County failed to adequately analyze and disclose significant impacts from the mitigation measures themselves;
  • The County failed to analyze and discuss the consistency of the Revised CAP and the consequent adopted Guidelines and New Threshold with SANDAG’s Regional Transportation Plan and Sustainable Communities Strategy (RTP/SCS) required by SB 375;
  • The SEIR failed as an informational document for not analyzing, disclosing, or mitigating VMT impacts, emission increases, or increased energy uses;
  • The County failed to adequately analyze consistency or inconsistency between Mitigation Measure M-GHG-1 and the GPU and any significant impacts;
  • The County failed to adequately consider mitigation measures proposed by commentators;
  • The County failed to adequately consider alternatives;
  • The County failed to follow CEQA requirements for the SEIR in its responses to public and government comments; and
  • The County failed to address environmental justice population impacts. (Id. at pp.19-21).

The Petition asks relief from the Court that includes:

  • An alternative and peremptory writ of mandate requiring the County to vacate and set aside its approval of the Guidelines, Threshold, Checklist, and Mitigation Measure M-GHG-1 and to refrain from relying on these documents in processing of permits for development projects on unincorporated County lands;
  • An alternative and peremptory writ of mandate commanding the County to revise its Climate Action Plan within one year of the date of writ issuance so that the Climate Action Plan and its supporting CEQA analysis fully comply with CEQA and all other applicable laws, including, but not limited to, the inclusion in the Climate Action Plan of verifiable and fully enforceable requirements for reductions in GHG emissions to all state-mandated levels, and deadlines and milestones for achieving the same;
  • An alternative and peremptory writ of mandate commanding the County to file returns to the writ every 90 days detailing the progress being made to comply with CEQA; requiring that the County provide a list within the first 90-day period of all the mitigation measures recommended by members of the public or by County staff that were not incorporated into the Revised CAP, along with the County’s evidence that those measures were either infeasible or would fail to achieve required emissions reductions; and within 120 days of issuance of the Writ, meet with Petitioners and other stakeholders to discuss adoption of additional mitigation measures that would achieve the emissions reduction goals set forth by the State; and
  • Cost of the suit, reasonable attorney’s fees, and other relief the Court deems just and proper. (Id. at p. 22-23).

More information about the specific allegation can be found in the linked Petition.  We will continue to track and provide updates on this case as it progresses.

Disclaimer: EPIC completed the initial 2014 GHG inventory for the County of San Diego and performed a cost analysis for the draft Climate Action Plan.

About Joe Kaatz

Staff Attorney at the Energy Policy Initiatives Center, University of San Diego School of Law.
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