Golden Door Props., LLC v. Cnty. of San Diego

50 Cal.App.5th 467

264 Cal.Rptr.3d 309

GOLDEN DOOR PROPERTIES, LLC, Plaintiff and Respondent,

v.COUNTY OF SAN DIEGO, Defendant and Appellant.

Sierra Club et al., Plaintiffs and Respondents,

v.County of San Diego, Defendant and Appellant.

Sierra Club, Plaintiff and Respondent,

v.County of San Diego, Defendant and Appellant.

D075328

D075478

D075504

Court of Appeal, Fourth District, Division 1, California.

Filed June 12, 2020

Thomas E. Montgomery, County Counsel and Joshua M. Heinlein, Deputy County Counsel; Cox, Castle & Nicholson; Michael H. Zischke and Linda C. Klein, San Francisco, for Defendant and Appellant County of San Diego.

Chatten-Brown, Carstens & Minteer; Jan Chatten-Brown, Santa Monica, and Joshua R. Chatten-Brown for Plaintiffs and Respondents Sierra Club, Center for Biological Diversity, Cleveland National Forest Foundation, Climate Action Campaign, Endangered Habitats League, Environmental Center of San Diego and Preserve Wild Santee.

Latham & Watkins; Christopher W. Garrett, Daniel P. Brunton, Taiga Takahashi, Samantha K. Seikkula and Diego E. Flores, San Diego, for Plaintiff and Respondent Golden Door Properties, LLC.

IRION, J.

In this CEQA case,¹ the County of San Diego (County) challenges a judgment, writ of mandate, and injunction directing it to set aside its approvals of a Climate Action Plan (2018 CAP or CAP), Guidelines for Determining Significance of Climate Change, (Guidelines for Determining Significance), and supplemental environmental impact report (SEIR). The primary issue is whether a greenhouse gas (GHG) mitigation measure in the SEIR, called M-GHG-1, is CEQA-compliant. Under M-GHG-1, certain projects may mitigate their in-County GHG emissions by purchasing carbon offsets originating elsewhere, including internationally.

Plaintiffs are (1) Sierra Club, Center for Biological Diversity, Cleveland National Forest Foundation, Climate Action Campaign, Endangered Habitats League, Environmental Center of San Diego, and Preserve Wild Santee (collectively Sierra Club); and (2) Golden Door Properties, LLC (Golden Door). Plaintiffs' overarching contention is that "[p]roperly restricted and verified offsets can be a valuable GHG mitigation strategy, but the offsets in M-GHG-1 provide no such assurances."

The superior court ordered the County to vacate its approvals of the CAP, Guidelines for Determining Significance, and the certification of the SEIR. The court also enjoined the County from relying on M-GHG-1 during review of greenhouse gas emissions impacts of development proposals on unincorporated County land.

Our primary holdings are: (1) M-GHG-1 violates CEQA because it contains unenforceable performance standards and improperly defers and delegates mitigation. (2) The CAP is not inconsistent with the County's General Plan. (3) However, the County abused its discretion in approving the CAP because the CAP's projected additional greenhouse gas emissions from projects requiring a general plan amendment is not supported by substantial evidence. (4) The SEIR violates CEQA because its (a) discussion of cumulative impacts ignores foreseeable impacts from probable future projects; (b) finding of consistency with the Regional Transportation Plan is not supported by substantial evidence; and (c) analysis of alternatives ignores a smart-growth alternative.

To be abundantly clear, our holdings are necessarily limited to the facts of this case, and in particular, M-GHG-1. Our decision is not intended to be, and should not be construed as blanket prohibition on using carbon offsets—even those originating outside of California—to mitigate GHG emissions under CEQA.

Similarly, our holding regarding the CAP's invalidity is a narrow one. The judgment requiring the County to set aside and vacate its approval of the CAP is affirmed because the CAP's greenhouse gas emission projections assume effective implementation of M-GHG-1, and M-GHG-1 is itself unlawful under CEQA. Except to the extent that (1) the CAP is impacted by its reliance on M-GHG-1; and (2) the CAP's inventory of greenhouse gases is inconsistent with the SEIR (see part IX, post ), the CAP is CEQA-compliant.

This is the third time the County's attempt to adopt a viable climate action plan and related CEQA documents has been before this court. In an attempt to avoid a fourth, we further note that the CAP contains a GHG reduction measure (T-4.1) designed to offset in-County GHG emissions. As explained post , T-4.1 significantly differs from M-GHG-1 in several respects and, perhaps more importantly in indicating the types of offset protocols that might pass muster, is unchallenged in this litigation.

FACTUAL BACKGROUND

A. Overview

This is a complex case, in part because of the size of the record (approximately 72,000 pages), and the extensive litigation history, which spans nearly a decade with two prior opinions from this court.² We begin with an overview of some of the key documents in the case. Because acronyms are used throughout, a glossary is appended at the end of this opinion.

1. GHG emission reduction

"Greenhouse gases absorb infrared radiation and trap the heat in the Earth's atmosphere, rather than allowing the radiation to escape into space.... [¶] Fossil fuel combustion is the source of the vast majority of the United States' [GHG] emissions.... In 2010, California produced 452 million metric tons (MT) of CO₂ e.^{[3 ]} The transportation sector was the largest contributor to California's [GHG] emissions, producing 38 percent of the state's total...." ( Irritated Residents, supra , 17 Cal.App.5th at pp. 731-732, 225 Cal.Rptr.3d 463.)

The Legislature has "emphatically established as state policy the achievement of a substantial reduction in the emission of gases contributing to global warming." ( Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 215, 195 Cal.Rptr.3d 247, 361 P.3d 342 ( Center for Biological Diversity ).) This policy is implemented in CEQA.

CEQA requires a lead agency to "make a good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of [GHG] emissions resulting from a project." ( Cal. Code Regs., tit. 14, § 15064.4, subd. (a).)⁴ In determining the significance of a project's GHG emissions, CEQA directs the lead agency to consider, among other things, the "extent to which the project complies with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of [GHG] emissions." (Guidelines, § 15064.4, subd. (b)(3).)

The California Air Resources Board (CARB) is "the state agency charged with monitoring and regulating sources of emissions of greenhouse gases that cause global warming in order to reduce emissions of greenhouse gases." ( Health & Saf. Code,⁵ § 38510.) CARB has pursued several strategies for reducing GHG emissions, including a cap-and-trade program. ( Cal. Code Regs., tit. 17, §§ 95801 - 96022 ; Association of Irritated Residents v. State Air Resources Bd. (2012) 206 Cal.App.4th 1487, 1498, fn. 6, 143 Cal.Rptr.3d 65.)

2. Cap-and-trade

" ‘Cap-and-trade is a market-based approach to reducing pollution. The "cap" creates a limit on the total amount of emissions from a group of regulated sources, and generally imposes no particular emissions limit on any one firm or source.’ " ( Association of Irritated Residents v. State Air Resources Bd., supra , 206 Cal.App.4th at p. 1498, fn. 6, 143 Cal.Rptr.3d 65.) " ‘The "trade" aspect of a cap-and-trade program creates an incentive for businesses to seek out cost-effective reductions, while also encouraging rapid action to reduce emissions quickly. Regulated entities receive allowances ... representing the right to emit a ton of greenhouse gas emissions. At specified intervals, regulated businesses must surrender an allowance for each ton of GHG ... they release. Over time, the total amount of allowances available to all sources is reduced, meaning overall emissions from those sources must be also reduced. If an individual source does not need all of the allowances it has in a given period, it may "bank" those allowances to surrender later or sell them to another registered party. The ability to sell allowances to other businesses that need them creates a market price for pollution reductions and an incentive for businesses to achieve the maximum reductions possible at the lowest cost.’ " ( Ibid. )

Thus, under cap-and-trade, GHG emitters may comply with the cap by purchasing GHG reductions that others achieve, called offsets. Offset credits can be produced by a variety of activities that reduce or eliminate GHG emissions or increase carbon sequestration.⁶

Under cap-and-trade, offset projects must comply with rules and procedures—called Compliance Offset Protocols (CARB Protocols), which CARB adopts and administers through an Offset Project Registry (OPR). ( Cal. Code Regs., tit. 17, §§ 95973, subd. (a)(1) ; 95987, subd. (a).) OPRs facilitate "the listing, reporting, and verification of offset projects developed using the [Protocols], and issue registry offset credits."⁷ OPRs must be approved by CARB and "shall use [CARB Protocols] to determine whether an offset project may be listed ... for issuance of registry offset credits." ( Cal. Code Regs., tit. 17, §§ 95986 ; 95987, subd. (a).) Entities can use offsets to fulfill only up to 8 percent of their compliance obligation. (Id. , § 95854, subd. (b).)

GHG offsets "must be real, additional, quantifiable, permanent, verifiable, and enforceable." ( Cal. Code Regs., tit. 17, § 95802, subd. (a).) Numerous statutes and regulations are designed to ensure these criteria are met. ( Health & Saf. Code, § 38562 ; Cal. Code Regs., tit. 17, § 95100 et seq. )

3. The broad contours of this case

This case involves the County's (1) CAP; (2) associated General Plan Amendment to the County's 2011 General Plan Update (GPU); (3) a threshold of significance for GHG emissions; and (4) Guidelines for...