On June 12th, the California Court of Appeal, Fourth District, filed its decision in Golden Door Properties LLC v. County of San Diego, __ Cal.App. 5th __ (2020) (WL 3119041). In doing so, the Court extended the now decade-long effort of San Diego County to craft an adequate Climate Action Plan ("CAP"): as the Court itself noted, this is its third decision in that effort. The County's greenhouse gas ("GHG") reduction plan within the CAP, particularly the use of offsets, provided perhaps the highest and most broad-reaching issues of interest; however, the Court also addressed a number of other alleged shortfalls of the environmental impact report ("EIR") for the CAP, including the cumulative impacts analysis, alternatives analysis, consistency with applicable plans, and the adequacy of responses to comments. Although the County prevailed on the issue of the consistency of the CAP with the County's General Plan, and on the sufficiency of responses to comments on the EIR, Petitioners prevailed on the sufficiency of the CAP and overall sufficiency of the EIR under the California Environmental Quality Act ("CEQA").
Substantial analysis concerned a single mitigation measure (M-GHG-1) proposed to reduce GHG emissions from General Plan amendments to net-zero. This is significant because the CAP considered—and applied only to—developments consistent with the County's 2011 General Plan Update. Measure M-GHG-1 first required projects with increased density above the approved 2011 levels to employ "all feasible" GHG reduction measures, including VMT reductions such as promotion of alternative transportation measures. If on-site measures fail to reduce GHG emissions to CAP-approved levels, a project may then employ off-site measures, including credits from GHG reduction programs worldwide.
The Court rejected measure M-GHG-1's use of credits from GHG reduction programs primarily because of a lack of compliance with key requirements of the State's cap-and-trade program. These key requirements included percentage-based limits on the use of offsets, and the application of offsets over and above any legally required or known GHG reductions. Measure M-GHG-1 did not include these components.
The Court also rejected the goal established for measure M-GHG-1 (net zero or no net increase) as insufficiently specific or objective, which then rendered the measure impermissibly deferred. According to the Court, the measure charged the Planning Director with determining the compliance of a selected offset with the State's cap-and-trade standards, but did not provide objective criteria for making that determination. The Court determined the lack of objective criteria thwarted any attempt assure that on-site measures were feasible, or that off-site measures were feasible and available for use.
Regarding other key deficiencies of the EIR: the cumulative impact analysis simply failed to address the effects of future General Plan amendments in several environmental issue areas; the policy consistency analysis was found unsupported because the CAP included foreseeable projects that were not consistent with the plan; and the alternatives analysis was found insufficient because it did not evaluate a "smart growth" alternative to reduce VMT.
The Court's decision spans over 130 pages, and addresses additional substantive, policy, and procedural issues to those summarized above. Although the Court was careful to state the decision did not constitute a universal prohibition on the use of GHG offsets, the case includes important lessons for formulating a legally adequate CAP, as well as enforceable GHG mitigation measures. The experienced attorneys at JMBM can help you navigate these and other complex CEQA and Land Use issues.
Originally published 18 June, 2020
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