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

27 Cal.App.5th 892

238 Cal.Rptr.3d 559

GOLDEN DOOR PROPERTIES, LLC, Plaintiff and Respondent,

v.COUNTY OF SAN DIEGO, Defendant and Appellant.

Sierra Club, LLC, Plaintiff and Respondent,

v.County of San Diego, Defendant and Appellant.

D072406

D072433

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

Filed September 28, 2018

Thomas E. Montgomery, County Counsel, and Claudia Gacitua Silva, Assistant County Counsel, San Diego, for Defendants and Appellants.

Chatten-Brown & Carstens, Jan Chatten-Brown, and Joshua Randall Chatten-Brown, Santa Monica, for Plaintiff and Respondent Sierra Club.

Latham & Watkins, Andrew D. Yancey, Samantha K. Seikkula and Christopher W. Garrett, San Diego, for Plaintiff and Respondent Golden Door Properties, LLC.

HUFFMAN, J.

IINTRODUCTION

The County of San Diego (the County) challenges a peremptory writ of mandate and injunction, along with a judgment directing it to set aside and vacate the "2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document" (the 2016 Guidance Document or Guidance Document) and prohibiting it from using the Guidance Document or the "Efficiency Metric" defined in it as part of its California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq. ) review of greenhouse gas (GHG) impacts for development proposals in unincorporated areas of the County. The County contends the matter is not justiciable because it is not ripe and the Guidance Document does not establish a threshold of significance for use in environmental review, nor does its use violate CEQA. The County further contends its separate development of a climate action plan (CAP) and threshold of significance is evidence the Guidance Document does not violate a previous writ or use piecemeal environmental review. We disagree with the County and affirm the trial court writ and judgment in their entirety.

IIBACKGROUND

A. Legal Principles

In June 2005, Governor Arnold Schwarzenegger signed Executive Order No. S-03-05 (June 1, 2005), establishing GHG reduction targets to 2000 levels by 2010, to 1990 levels by 2020, and to 80 percent below 1990 levels by 2050. (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 32 (2015–2016 Reg. Sess.) as amended Aug. 19, 2016, p. 4.) The following year, California Assembly Bill No. 32 (2005–2006 Reg. Sess.) (Assembly Bill 32), the California Global Warming Solutions Act of 2006, established a statewide goal of achieving substantial reduction in the emission of gases contributing to global warming, including the reduction of GHG emissions to 1990 levels by 2020. ( Health & Saf. Code, §§ 38500 et seq., 38550 ; Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204, 215, 195 Cal.Rptr.3d 247, 361 P.3d 342 ( Biological Diversity ).) It also ordered the preparation and approval of a scoping plan for achieving the "maximum technologically feasible and cost-effective reductions in greenhouse gas emissions" by 2020. ( Health & Saf. Code, § 38561, subd. (a).) The 2008 scoping plan identified cuts of approximately 30 percent from the business as usual emission levels predicted for 2020, which was about a 15 percent reduction from the 2008 levels.¹ ( Biological Diversity, at p. 216, 195 Cal.Rptr.3d 247, 361 P.3d 342.)

In 2010, a new CEQA guideline on determining the significance of impacts from GHG emissions gave lead agencies discretion for estimating the amount of GHG a project will emit and offered three factors for consideration: (1) the extent to which the project may increase or reduce GHG emissions as compared to the existing environmental setting; (2) whether project emissions exceed a threshold of significance the lead agency deems applicable; and (3) the extent to which the project complies with regulations or requirements implementing a statewide, regional, or local plan to reduce or mitigate GHG emissions. ( Cal. Code Regs., tit. 14, § 15064.4, subd. (b) ;² Biological Diversity , supra, 62 Cal.4th at p. 217, 195 Cal.Rptr.3d 247, 361 P.3d 342.) These requirements "must be adopted by the relevant public agency through a public review process and must reduce or mitigate the project's incremental contribution of greenhouse gas emissions. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding compliance with the adopted regulations or requirements, an EIR [environmental impact report] must be prepared for the project." ( § 15064.4, subd. (b)(3).)

In April 2015, Governor Edmond G. Brown, Jr., signed Executive Order No. B-30-15 (Apr. 29, 2015), which added a reduction target of 40 percent below 1990 levels by 2030. (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 32 (2015–2016 Reg. Sess.) as amended Aug. 19, 2016, p. 4.) Executive Order No. B-30-15 was codified by Senate Bill No. 32, which was signed into law September 8, 2016.

B. Factual and Procedural Background

In August 2011, the County updated its 1978 general plan. The corresponding environmental impact report (EIR) incorporated mitigation measures to address GHG emissions. The mitigation measures were intended to reduce the impact County operations would have on the environment. Mitigation measure CC-1.2 required the County to prepare a CAP, including an update on the baseline inventory of GHG from all sources.³ It also required GHG emission targets and deadlines for achieving the reductions in County operations and the community. Mitigation measure CC-1.8 required the County to "[r]evise County Guidelines for Determining Significance based on the Climate Change Action Plan." Thus, to comply with the general plan update, the County needed to adopt a CAP and develop thresholds for determining significance based on the CAP.

The County subsequently developed and adopted a CAP in 2012, which the Sierra Club, LLC, challenged via a petition for a writ of mandate, arguing it violated CEQA. The trial court issued the writ in April 2013 and, while the appeal in that matter was pending, the County adopted the 2013 guidelines for determining significance for climate change (2013 Guidelines). Sierra Club filed a supplemental petition for writ of mandate in February 2014, seeking to set aside the 2013 Guidelines. The parties entered a stipulation staying the supplemental petition pending the outcome of the appeal.

In 2014, we issued our decision affirming the original writ of mandate in Sierra Club, supra, 231 Cal.App.4th 1152, 180 Cal.Rptr.3d 154. The trial court subsequently entered a supplemental writ of mandate (Supplemental Writ) directing the County to set aside the 2012 CAP and environmental findings, as well as the 2013 Guidelines. The court also ordered the County to design a schedule for preparing a new CAP and new guidelines for determining significance for GHG emissions in compliance with CEQA, and it retained jurisdiction until it determines compliance with CEQA. The County complied with the Supplemental Writ requirements, including designating a timeline for the development of the CAP.

While separately developing the CAP, in July 2016 the County published the 2016 Guidance Document. In September 2016, Sierra Club filed a second amended petition for a writ of mandate challenging the adoption of the Guidance Document. While the matter was pending, Golden Door Properties, LLC (Golden Door) filed a petition and complaint for injunctive and declaratory relief related to the 2016 Guidance Document. In January 2017, the trial court granted a stipulation permitting the Golden Door v. County of San Diego , case No. 37-2016-00037402-CU-TT-CTL, case to be heard with the Sierra Club matter.⁴

The trial court concluded the claims were ripe, the 2016 Guidance Document creates a threshold of significance under CEQA, the Guidance Document violates the County's mitigation measures CC-1.2 and CC-1.8, and it is not based on substantial evidence. The trial court further concluded the County was out of compliance with the writ of mandate because the 2016 Guidance Document constitutes piecemeal environmental review. The court granted a second supplemental peremptory writ of mandate and injunction and entered judgment "prohibiting the County from using the 2016 Guidance Document and its ‘County Efficiency Metric’ for CEQA review of GHG impacts for development proposals on undeveloped land in San Diego County." The County now challenges the writ and judgment.

C. The 2016 Guidance Document

The County issued its 2016 Guidance Document on July 29, 2016. The "Significance Criteria" section has "Guidelines for Determining Significance," which "include[ ] identification and justification of the selected significance criteria used to assess impacts." It contains the following language: "The significance criteria used in the Climate Change Analysis should include a statement and supporting analysis as to whether the subject project complies with GHG reduction requirements under AB 32, the Global Warming Solutions Act of 2006 for the year 2020; and whether the subject project is on the trajectory towards GHG emission reduction goals of Executive Orders S-3-05 and B-30-15 at buildout. Additional detail on the process to make the latter determination is provided below. Due to the range of project types processed by the County, significance criteria and analysis approaches may vary. The following sections identify one potential set of criteria and methodologies, along with supporting evidence that would be appropriate for a Climate Change Analysis."

In the subsequent "Significance Determination" section, the County explains: "The County Efficiency Metric is the recognized and recommended method by which a project may make impact significance determinations. The County is recommending a quantitative GHG analysis be conducted and the significance of the impact determined for project emissions at 2020 and...