On Sept. 14, 2018, the San Diego County Superior Court issued a stay/preliminary injunction preventing any San Diego County ("County") project requiring an amendment to the County's General Plan from relying on greenhouse gas ("GHG") offset credits generated outside of the County.1 A GHG offset credit is a promise to reduce emissions by one ton of carbon dioxide per year, or remove one ton from the atmosphere, which can take the form of forest management, methane capture, manure management, and other projects.2 Ruling at the request of petitioners, the Sierra Club and Golden Door Properties, the court found that because the County's General Plan requires GHG emission reductions from "County operations" and "community activities," GHG offset credits for reductions that occur outside of the County may not be used to reduce emissions from projects within the County.
While the stay is in place only until the court can hear the merits of the Sierra Club's claims (which challenge the County's approval of its 2018 Climate Action Plan ("CAP")), the court's ruling leaves project proponents and the County guessing as to how to appropriately address GHG emissions and satisfy the state's and the County's aggressive GHG emission reduction goals.
On one hand, the petitioners' position and the court's stay are mystifying because they directly contradict science and state law. There is little scientific basis for requiring GHG emission reductions to occur in a particular place-- the climate impacts of GHG emissions can be felt beyond a country's (or county's) borders as GHGs spread across the Earth's atmosphere.3 Reducing GHG emissions inside or outside the County has the same effect in combating global climate change.
Furthermore, California acknowledges this fact by permitting entities covered by cap-and-trade to use GHG offset credits generated outside of the state to meet cap-and-trade requirements.4 Environmental groups challenged the state's carbon offset program in court but that challenge was rebuffed.5 The California Environmental Quality Act ("CEQA") also allows the use of GHG offsets to mitigate climate change impacts. "Environmental leadership" projects rely on GHG offset credits under the Jobs and Economic Improvement Through Environmental Leadership Act to be net neutral GHG projects, and the CEQA Guidelines specifically state that feasible means of mitigating GHG emissions include "Off-site measures," such as "offsets," and "[m]easures that sequester greenhouse gases."6
On the other hand, the petitioners' position is completely transparent--the Sierra Club's goal is to prevent widespread development in the County, and Golden Door wants to prevent the Newland Sierra project (a 2,135unit housing development with office and retail uses) from being constructed at its doorstep. Never mind that the San Diego region is in the midst of a housing affordability crisis, or that the court's ruling introduces yet more uncertainty into the process that much needed housing projects in the County must traverse.7
So, what comes next? Perhaps the most straightforward action the County could take would be to amend the portions of its General Plan found objectionable by the stay to make clear that GHG offsets generated outside the County are entirely permissible to help projects meet GHG emission reduction goals. But the County is limited as to how many General Plan amendments it can make per year, and it is not clear whether an amendment of this type could be made before the end of the year.8 The County may also be able to appeal the stay, although the case is set for a merits hearing in December 2018, and any appellate relief may not be timely.
Despite the stay, on Sept. 26, 2018, the County Board of Supervisors approved the Newland Sierra housing project, which relies on GHG emission offset credits from outside the County to mitigate GHG emissions. Litigation is likely, and Golden Door is circulating a referendum for signatures to rescind the County's approval.