On October 29, 2014, the Fourth District Court of Appeal of California upheld the Sierra Club’s challenges to the County of San Diego’s (“County”) approval of a climate action plan (“CAP”) and related significance thresholds under the California Environmental Quality Act (“CEQA”). In Sierra Club v. County of San Diego, No. D064243, 2014 WL 5465857 (Cal. Ct. App. Oct. 29, 2014), the Court held that the County’s CAP did not ensure the necessary greenhouse gas (“GHG”) emissions reductions and that the County failed to meaningfully analyze the environmental impacts of the CAP.
This case illustrates the difficulties agencies may encounter when integrating efforts to address climate change impacts into their CEQA analysis and documentation, as discussed in a previous post regarding a case addressing the appropriate threshold of significance under CEQA for GHG emissions impacts.
The environmental impact report (“EIR”) for the General Plan Update the County adopted in 2011 included “Mitigation Measure CC-1.2,” which required the County to prepare a CAP to provide a baseline inventory for GHG emissions and set more detailed GHG emissions reduction targets and deadlines. The Court held that the County erred in failing to prepare an EIR for the CAP or to make findings regarding its environmental effects. The Court determined that the County had improperly relied on an addendum to the General Plan Update EIR based on the erroneous assumption that the CAP constituted the same project as the General Plan Update. According to the Court, the County further erred in failing to incorporate mitigation measures directly into the CAP. The General Plan Update EIR had anticipated that more details regarding mitigation measures would be available at the time the CAP was prepared and that the County would implement such mitigation measures through the CAP. Further, the Court determined that the CAP was a plan level program, permitting subsequent development without individualized climate change analysis (even though it was not considered as such in the General Plan Update EIR) and thus triggered CEQA’s requirement to incorporate mitigation measures directly into the plan document.
The opinion highlights CEQA’s impediments to removing a mitigation measure included in a previous EIR. The Court relied on Lincoln Place Tenants Ass’n v. Los Angeles, 130 Cal. App. 4th 1491, 1508 (2005), for the proposition that a public agency must prepare a supplemental EIR when the agency determines that a previously adopted mitigation measure is not feasible. Accordingly, the County should have considered the environmental impacts of its deviation from the General Plan Update EIR because the CAP did not comply with Mitigation Measure CC-1.2. The Court further noted that the County failed to analyze alternative, feasible mitigation measures provided by the Sierra Club without providing substantial evidence justifying that decision.
The Court’s rejection of the CAP is a reminder that a mitigation measure must be enforceable and can trigger its own environmental review under CEQA. In essence, the County pursued the CAP as a deferred mitigation measure to mitigate the GHG impacts of its General Plan Update. The General Plan Update EIR’s Mitigation Measure CC-1.2 required “more detailed greenhouse gas emissions reductions targets and deadlines.” The CAP, however, stated that the General Plan Update would increase GHG emissions, not reduce them. Further, the CAP described its strategies as “recommendations,” relied on unfunded programs or coordination from the San Diego Association of Governments and other entities, and proffered no evidence of the likelihood of participation in various programs. Because the CAP was open-ended and did not further the goals of Mitigation Measure CC-1.2, the CAP failed to constitute an enforceable mitigation measure.
Notably, the Court also held that the County did not properly analyze its failure to comply with Executive Order S-3-05 (requiring 80% reduction of GHG emissions below 1990 levels by 2050) for emissions reductions after 2020, which was a significant impact not addressed in the General Plan Update EIR. The Court rejected the County’s arguments that such analysis would be “speculative.” The CAP stated that the County would need to reduce emissions 49% below 2005 levels by 2035 to be on a path to meet the 2050 targets, but explained that the County could only develop a feasible scenario to achieve 13.7% reductions below 2005 levels. Although EIR writers often grapple with the appropriate means of addressing the long-term goals of Executive Order S-3-05, the Court notes that other agencies have, in fact, been able to consider environmental impacts relevant to these long-term goals. The opinion also indicates that courts will require an agency to show substantial evidence supporting its decision to reject an alternative that would mitigate these long-term impacts, but leaves open the question of the specificity required for compliance.
Finally, the Court rejected the County’s argument that the Sierra Club’s challenge applied to the 2011 certification of the General Plan Update’s Program EIR. The Court determined that the Sierra Club’s suit challenged the County’s approval of the CAP on June 20, 2012, not the General Plan Update EIR and Mitigation Measure CC-1.2, approved in 2011, thus bringing the Sierra Club’s July 20, 2012 petition within the 30-day statute of limitations period.