Golden Door Properties, LLC v. County of San Diego ( 2020 )

Filed 6/12/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GOLDEN DOOR PROPERTIES, LLC, D075328
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2018-0001-
3324-CU-TT-CTL)
COUNTY OF SAN DIEGO,
Defendant and Appellant.
_____________________________________
SIERRA CLUB et al., D075478
Plaintiffs and Respondents,
v. (Super. Ct. No. 37-2018-0001-
14081-CU-TT-CTL)
COUNTY OF SAN DIEGO,
Defendant and Appellant.
____________________________________
SIERRA CLUB, D075504
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2012-00101054-
CU-TT-CTL)
COUNTY OF SAN DIEGO,
Defendant and Appellant.
CONSOLIDATED APPEALS from judgments and orders of the Superior Court of
San Diego County, Timothy Taylor, Judge. Affirmed in part, reversed in part, and
remanded with directions. Requests for judicial notice denied.
Thomas E. Montgomery, County Counsel and Joshua M. Heinlein, Deputy County
Counsel; Cox, Castle & Nicholson; Michael H. Zischke and Linda C. Klein, for
Defendant and Appellant County of San Diego.
Chatten-Brown, Carstens & Minteer; Jan Chatten-Brown 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, for Plaintiff and Respondent Golden Door
Properties, LLC.
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
1 California Environmental Quality Act (CEQA), Public Resources Code section
2100 et seq.
2
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.
3
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
4
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 CO2e.[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.)
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
(Center for Biological Diversity).) This policy is implemented in CEQA.
2 Sierra Club v. County of San Diego (2014) 231 Cal. App. 4th 1152 (Sierra Club I)
and Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal. App. 5th 892
(Golden Door).
3 The capacity of each GHG to retain heat varies. Emissions of GHGs are
expressed as MTCO2e, which is the amount of carbon dioxide in metric tons that would
have the same global warming potential as the emission of the particular GHG.
(Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17
Cal. App. 5th 708, 731, fn. 6 (Irritated Residents).)
5
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.)
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
4 The CEQA Guidelines in title 14 of the California Code of Regulations, section
15000 et seq., are hereafter cited as Guidelines. We give them great weight "except
where they are clearly unauthorized or erroneous." (Center for Biological Diversity,
supra, 62 Cal.4th at p. 217, fn. 4.)
5 Undesignated statutory references are to the Health and Safety Code.
6
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.) " '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
6 Carbon emissions are sequestered, for example, by trees, which absorb carbon
from the atmosphere.
7
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 Determining Climate Change—collectively the
7 (OPR
[as of June 12, 2020] archived at ).
8
"Project." The County as lead agency prepared the Project's SEIR, which addresses GHG
impacts in the County's unincorporated areas and from County operations.8
The superior court determined that the CAP is inconsistent with the GPU and,
therefore, invalid. The court also determined that M-GHG-1 violates CEQA by
(1) requiring the purchase of out-of-County offsets without legally sufficient analysis;
and (2) unlawfully delegating and deferring feasibility findings. The superior court
further determined that the SEIR violates CEQA by inadequately analyzing
(a) cumulative GHG impacts; (b) impacts to "energy and environmental justice"; and
(c) "smart growth mitigation or alternatives for [General Plan Amendment projects]."
The court also determined that the County violated CEQA by failing to properly respond
to comments on the draft SEIR (DSEIR).
Documents discussed throughout this opinion, introduced here and explained in
more detail later, are:
(1) 2011 General Plan Update (GPU): A comprehensive, long-
term plan for developing unincorporated areas of the County. Calls
for reducing GHG emissions to meet state GHG targets, and requires
preparation of a Climate Action Plan to achieve this reduction.
(2) 2011 Program Environmental Impact Report (PEIR):
Analyzes environmental impacts from implementing the GPU.
Requires a climate action plan be prepared.
(3) 2018 Climate Action Plan (2018 CAP or CAP):
Establishes a baseline inventory of GHG emissions in the
unincorporated County and from County operations. Projects future
8 County operations include County facilities and operations located within the
unincorporated County communities and in the incorporated cities.
9
GHG emissions and contains measures to meet state GHG reduction
targets.
(4) Guidelines for Determining Significance of Climate
Change (Significance Guidelines): Contains criteria and a
checklist to determine a project's consistency with the CAP.
(5) 2018 Supplemental EIR (SEIR): Analyzes environmental
impacts from implementing the CAP and contains mitigation
measures, including M-GHG-1.
CAP
PEIR
GPU Analyzes
Establishes baseline GHG
inventory in unincorporated
Calls for reducing environmental County and from County
GHG emissions to impacts of the GPU, operations, projects future
meet state targets including GHG GHG emissions, contains
and to prepare a impacts. Directs GHG reduction measures to
Climate Action Plan preparation of a meet state targets.
Climate Action Plan.
Guidelines For
SEIR Determining
Analyzes Significance
environmental
impacts from the Determines whether
Climate Action Plan. projects are
Includes M-GHG-1. consistent with the
Climate Action Plan
10
B. The GPU
The unincorporated County contains 3,570 square miles and as shown in the map
post, is mostly undeveloped.
In 2011, the County updated its general plan, establishing "a blueprint for future
land development projects in the unincorporated County that meets community desires
and balances the environmental protection goals with the need for housing, agriculture,
infrastructure, and economic vitality."
The GPU contains principles guiding future growth that are intended to retain the
County's "rural character, economy, and unique communities, as well as minimizing the
environmental impacts of future development." To accomplish these goals, the GPU
"shifts growth capacity from the eastern backcountry areas to western communities" by
encouraging growth "in villages with 'compact land development patterns to minimize
intrusion into agricultural lands and open spaces; reduce travel distances to local services
11
and businesses, while also inducing community association, activity, and walking.' " The
GPU seeks to "develop lands and infrastructure more sustainably in the future."9
The GPU contains a "Vision Statement" and "Guiding Principles." These
"represent[] the basis by which all updated plan goals, policies, and implementation
programs are measured . . . ." Addressing GHG emissions, the Vision Statement
provides:
"[T]he Land Use Map provides a mix and density of land uses
that will minimize automobile trips and their length, invigorate the
economic health of our businesses, and promote association with our
neighbors. These, coupled with increased access to transit, will
reduce our air emissions, greenhouse gas emissions, energy
consumption, [and] noise . . . ."
C. Climate Change Legislation
California's "landmark legislation addressing global climate change, the California
Global Warming Solutions Act of 2006," is commonly referred to as Assembly Bill
No. 32 (Assem. Bill No. 32). (Center for Biological Diversity, supra, 62 Cal.4th at
p. 215.) Assem. Bill No. 32 calls for reducing GHG emissions to 1990 levels by 2020.
(Ibid.)
In 2016, the Legislature enacted Senate Bill No. 32 (Sen. Bill No. 32), "which
adopts a goal of reducing [GHG] emissions by 40 percent below 1990 levels by the year
9 Sustainability means "simultaneously meeting our current economic,
environmental, and community needs, while also ensuring that we are not jeopardizing
the ability of future generations to meet their needs."
12
2030. This 40 percent reduction is widely acknowledged as a necessary interim target to
ensure that California meets its longer-range goal of reducing [GHG] emissions to
80 percent below 1990 levels by the year 2050." (Cleveland National Forest Foundation
v. San Diego Assn. of Governments (2017) 3 Cal. 5th 497, 519 (Cleveland National).)10
These mandates are a key element of the GPU's goals and policies. GPU Goal
COS-20 (as originally adopted) provides for the "[r]eduction of local GHG emissions
contributing to climate change that meet or exceed requirements of the Global Warming
Solutions Act of 2006." Policy COS-20.1 likewise provides that the County shall
"[p]repare, maintain, and implement a climate action plan with a baseline inventory of
GHG emissions from all sources; GHG emissions reduction targets and deadlines, and
enforceable GHG emissions reduction measures."11
One of the GPU's guiding principles is that "land should be developed more
compactly, resulting in reduced automobile use and increased use of public transit,
10 Sierra Club's request for judicial notice of Executive Order No. B-30-15,
pertaining to the 40 percent reduction target, is denied as irrelevant. (San Diegans for
Open Government v. San Diego State University Research Foundation (2017) 13
Cal. App. 5th 76, 90, fn. 8 (SDOG).)
11 As part of the Project, the County amended COS-20 and COS 20.1 in 2018. COS
20 as amended provides: "Reduction of community-wide (i.e., unincorporated County)
and County Operations greenhouse gas emissions contributing to climate change that
meet or exceed requirements of the Global Warming Solutions Act of 2006, as amended
by [Sen. Bill No. 32] . . . ." As amended, COS-20.1 provides, "Prepare, maintain, and
implement a Climate Action Plan for the reduction of community-wide (i.e.,
unincorporated County) and County Operations greenhouse gas emissions consistent
with . . . Guidelines Section 15183.5."
13
walking, and bicycling. This will result in less consumption of gasoline, generation of
less air pollution and GHG emissions, the preservation of greater amounts of habitat and
agricultural lands, and the improvement of the lifestyles and health of community
residents." The GPU promotes reductions in vehicle trips, gasoline consumption, and
GHG emissions by containing 41 "mobility strategies."
D. The PEIR
The PEIR addresses the environmental impacts from implementing the GPU.12
The PEIR did not "speculate on the individual environmental impacts of specific future
development projects," but rather considered "build-out of the General Plan land use
designations up to forecasted population and housing unit totals."
Growth consistent with the GPU would create in-County GHG emissions.
Mitigation measures are necessary to achieve state GHG reduction targets. PEIR
mitigation measure CC-1.2 requires the County to prepare a climate action plan with
"comprehensive and enforceable GHG emissions reduction measures" to achieve
mandated GHG targets.
The County adopted the GPU and certified the PEIR in August 2011.
12 A program EIR considers " 'a series of actions that can be characterized as one
large project and are related . . . .' " (Guidelines, §15168, subd. (a).) This allows the lead
agency to consider "broad policy alternatives and program wide mitigation
measures. . . ." (Cleveland National Forest Foundation v. San Diego Assn. of
Governments (2017) 17 Cal. App. 5th 413, 425 (Forest Foundation).)
14
E. The 2018 CAP
1. The CAP applies to projects that are consistent with GPU-allowed
land use
Broadly speaking, there are two types of development projects in the County. One
type is a project proposing land use that is completely consistent with that allowed under
the General Plan. The other type is a project proposing intensity or density of land use
exceeding that allowed under the General Plan—that is, a project requiring a general plan
amendment.
"The scope of the CAP is to serve as mitigation to reduce GHG emissions
resulting from buildout of the 2011 GPU . . . ." In other words, to the extent a project is
consistent with land use allowed under the GPU, the project applicant must mitigate
GHG emissions with CAP GHG reduction measures.
2. The CAP's GHG inventory
The CAP establishes a baseline inventory of GHG emissions against which to
measure future reductions. The baseline consists of GHG emissions from activities
within the unincorporated County and from County operations as of 2014. Although
Assem. Bill No. 32 and Sen. Bill No. 32 use 1990 as a benchmark, 2014 is the most
recent year in which accurate information is available to inventory GHG emissions in the
unincorporated County. This inventory includes GHG emissions from projects requiring
a general plan amendment because of increased density or intensity of land use beyond
that allowed under the GPU (hereafter, such projects are referred to as GPAs), but only if
the GPA project was constructed as of 2014.
15
3. The CAP's GHG projections
The CAP also projects future GHG emissions for development consistent with
GPU allowed land use. These projections, based on current trends, population growth,
and known legislation, are called " 'business-as-usual' " projections. The projections
assume no additional local GHG reduction efforts and regulations will be undertaken, and
that population, housing, employment, and transportation will grow consistent with San
Diego Association of Governments (SANDAG) projections.
The CAP's GHG projections do not include GPA projects under review, but not
yet adopted by the County (hereafter referred to as in-process GPAs).13 However, the
projections include GHG emissions from GPA projects adopted between August 2011
(the date of the GPU) and August 2017 (the date the DSEIR was publicly released). The
projections also account for anticipated legislation that will reduce future emissions
without any additional County action. This includes, for example, anticipated increased
electric vehicle use.
The CAP's 2014 baseline and projected GHG emissions in MTCO2e are:
2014 Baseline 2020 Projection 2030 Projection 2050 Projection
3,211,505 3,018,671 2,824,049 2,991,507
13 Such projects are instead analyzed in the cumulative impact analysis in the SEIR,
where M-GHG-1 applies.
16
4. GHG reduction targets and measures
To meet legislative GHG emission reduction targets, CARB recommends reducing
emissions to six MTCO2e per capita by year 2030 and to two MTCO2e per capita by
2050. This is equivalent to reducing 2014 emissions by 40 percent (by 2030) and 77
percent (by 2050). Therefore, to meet state targets, the County must reduce GHG
emissions to 1,926,903 MTCO2e by 2030 (40 percent below 2014 levels) and to 738,646
MTCO2e by 2050 (77 percent below 2014 levels).
The CAP contains 26 measures intended to meet these targets. "All [26] GHG
[r]eduction [m]easures in the CAP will be implemented within the unincorporated
County and from County operations . . . ." Likewise, all CAP GHG reduction measures
"will achieve GHG reductions locally (i.e., from County operations and within the
unincorporated County)."
The County "collaborated with over 50 stakeholder groups in the environmental,
business, and community sectors during a total of over 100 public events to gather input
to inform development of strategies and measures for the CAP. The primary determinant
for whether a measure was chosen was its GHG reduction potential and whether it would
help the County achieve its GHG reduction target in 2030. Measures were also assessed
for their applicability and effectiveness in the County's unique rural setting. . . . As
shown in the CAP, the selected measures are anticipated to meet state targets through
2030." All of the CAP's reduction measures "would need to be implemented . . . to meet
the reduction targets."
17
CAP measures include, for example, County acquisition of (1) open space, which
would reduce GHG emissions by preserving land that can otherwise be developed; and
(2) easements on agricultural land to extinguish future development potential. Under
another measure, the County will update 15 community plans by 2030, and an additional
four between 2031 and 2040 to incorporate a balanced approach to housing, jobs,
services, and infrastructure—including bike lane improvements, shared parking, and
community centers located in a core area. The CAP measures also include installing
electric vehicle charging stations, encouraging solar water heater installation, and
streamlining the permitting of solar energy production.
The CAP's GHG reduction measures may also produce "co-benefits"—"additional
jobs and economic development, cleaner air, fewer illnesses and disease, reduced energy
and water costs, or an overall improvement in the quality of life and public health."
5. CAP reduction measure T-4.1
Once implemented, the CAP's suite of measures may require adjustment to stay on
target. To provide needed flexibility, the CAP includes measure T-4.1, under which the
County may make "direct investments in local projects to offset carbon emissions."
"A direct investment project is created when a specific action is taken that reduces,
avoids, or sequesters GHG emissions." For example, the County could invest in a
weatherization project that reduces carbon emissions within the county while also
reducing residents' heating and cooling expenses. Other direct investment projects are
urban forest and urban tree planting.
18
Under T-4.1, the "County will not purchase carbon offset credits . . . but will . . .
track carbon offsets achieved through County direct investment projects" within the
unincorporated County. Emissions reductions occur, but unlike in cap-and-trade, offsets
are not traded as an independent commodity. The SEIR estimates that T-4.1 can achieve
176,614 MTCO2e reductions by 2030.
T-4.1 "would be implemented throughout the unincorporated County, where the
benefits of carbon sequestration and GHG emissions reductions would occur." Direct
investment projects must comply with (1) "established protocols that have been approved
by . . . CARB, the California Air Pollution Control Officers Association (CAPCOA), or
the San Diego County Air Pollution Control District"; (2) "that received 'public review
prior to adoption' "; and (3) the project must yield GHG reductions that are additional—
that is, beyond what will occur under business-as-usual operations and reductions not
otherwise mandated. "Adherence to the protocols ensures that the carbon reductions
generated by the project are real, permanent, quantifiable, verifiable, and enforceable."
An independent, qualified third-party must verify the GHG reduction achieved.14
6. CAP implementation and monitoring
The County will annually report the CAP's implementation, update the GHG
emissions inventory every two years, and every five years report findings from these
updates. "[I]f certain measures have proven successful, additional investment in those
measures may be made; or, conversely, if certain measures are proving to be more
14 Plaintiffs do not challenge T-4.1 or any other CAP GHG reduction measure.
19
difficult to achieve, then the County may redirect its efforts to other measures to achieve
overall GHG reduction targets."
7. Consistency with the CAP is the threshold of significance
CEQA requires public agencies to conduct an environmental review of
discretionary projects they approve and to prepare an EIR for any project that may have a
significant effect on the environment. (Pub. Resources Code, § 21151, subd. (a).) The
Guidelines encourage public agencies to develop "thresholds of significance" to assist in
determining whether a project's effect will be deemed significant. (Guidelines,
§ 15064.7.) " 'A threshold of significance is an identifiable quantitative, qualitative or
performance level of a particular environmental effect, non-compliance with which
means the effect will normally be determined to be significant by the agency and
compliance with which means the effect normally will be determined to be less than
significant.' " (California Building Industry Assn. v. Bay Area Air Quality Management
Dist. (2016) 2 Cal. App. 5th 1067, 1072-1073.)
The Project's threshold of significance for GHG emissions is consistency with the
CAP:
"A proposed project would have a less than significant
cumulatively considerable contribution to climate change impacts if
it is found to be consistent with the County's Climate Action Plan;
and, would normally have a cumulatively considerable contribution
to climate change impacts if it is found to be inconsistent with the
County's Climate Action Plan."
20
Details on how to achieve consistency with the CAP are in a separate document,
the Guidelines for Determining Significance, which also contains a checklist of CAP
GHG reduction measures, called the CAP Consistency Review Checklist (Checklist).
The Checklist implements a two-step process to determine consistency with the
CAP. The first step assesses whether a project is consistent with growth projections and
land use assumptions in the GPU. Those assumptions are the basis of the CAP's GHG
emissions projections.
Thus, if a project's land use is consistent with the GPU, then its GHG emissions
are already accounted for in the CAP's projections (because the projections assume
build-out under the GPU). In that event, the proposed project will achieve GHG
reduction targets by implementing CAP reduction measures.
In step two, the project applicant uses the Checklist to itemize and describe how
the project will implement applicable CAP GHG reduction measures.15 For example,
applicants for a residential development must indicate on the Checklist whether the
project will implement electric or alternatively-fueled water heating systems.
In-process GPAs that the County had not adopted by August 2017 are not included
in the CAP's GHG projections. Such projects achieve consistency with the CAP under
M-GHG-1, which we discuss next.
15 The CAP and Checklist also applies to projects requiring a land use and/or zoning
amendment to the GPU, but which would result in an equivalent or less GHG-intensive
project when compared to those allowed under the GPU.
21
E. The SEIR and M-GHG-1
1. The SEIR, in general
Twenty-one GPAs were in-process as of August 2017. The SEIR acknowledges
that in-process GPAs are reasonably foreseeable, could result in significant GHG impacts
and, therefore, are included in the SEIR's cumulative GHG impacts analysis. The SEIR
also recognizes that these and future GPAs are not accounted for in the CAP and may
impact the County's ability to meet CAP targets. To the extent in-process and future
GPAs would increase GHG emissions above projected CAP levels, their impact would be
significant (i.e., inconsistent with the CAP). The SEIR requires GPAs to use M-GHG-1
to mitigate GHG emissions to be within the threshold of significance, i.e., to not exceed
the CAP's GHG emission projections.
2. M-GHG-1, in general
M-GHG-1 "requires a project that increases density or intensity [of land use]
above what is allowed in the [GPU] to mitigate GHG emissions first through all feasible
onsite design features . . . ." Onsite design features may include "land use and design
features that reduce VMT [Vehicle Miles Traveled], promote transit oriented
development, promote street design policies that prioritize transit, biking, and walking,
and increase low carbon mobility choices, including improved access to viable and
22
affordable public transportation . . . ."16 If onsite design features are insufficient to fully
mitigate GHG emissions, then the project may use offsite mitigation, including in some
cases purchasing offset credits originating from projects anywhere in the world.17
Under M-GHG-1, the GPA project may mitigate GHG emissions under either of
two options: The first is called "No Net Increase." Under this option, "GPA project
applicants shall achieve no net increase in GHG emissions from additional density above
the 2011 GPU." For example, "if 400 residential units were allowed under the GPU and
a GPA proposes 500 residential units, the emissions for the 400 would be mitigated by
implementing CAP reduction measures, thereby reducing GHG impacts from the 400
units to below significance. GHG emissions for the 100 additional units must be
mitigated to zero through "onsite design features and mitigation measures and offsite
mitigation, including the purchase of carbon offset credits . . . ."
Option two is called "Net Zero." Under this option, GPA applicants shall reduce
all project GHG emissions to zero. Applicants shall first demonstrate compliance with
CAP measures before considering additional feasible onsite design features and
mitigation measures. Offsite mitigation, including purchase of carbon offset credits,
16 "Generally, vehicle miles traveled [VMT] is the most appropriate measure of
transportation impacts. . . . VMT refers to the amount and distance of automobile travel
attributable to a project." (Guidelines, § 15064.3, subd. (a).)
17 The text of M-GHG-1 is in Appendix 2 to this opinion.
23
would be allowed after all feasible onsite design features and mitigation measures have
been incorporated.
Common to both options is the goal to reduce to zero any increases in GHG
emissions over those projected in the CAP. If that occurs, CAP GHG emission forecasts
are unaffected by the GPA project. Accordingly, the GPA project would be consistent
with the CAP, and thus within the threshold of significance for GHG emissions.
F. CEQA Streamlining
To avoid repetition, wasted time, and unnecessary speculation, a lead agency may
"tier" environmental impact reports for a sequence of actions so that later EIRs
incorporate and build on the information in the previous CEQA document. (Pub.
Resources Code, §§ 21068.5; 21093, subd. (a).) Projects that are consistent with the
GPU and implement CAP GHG reduction measures may incorporate by reference the
CAP's cumulative GHG analysis. Conversely, projects that are consistent with the GPU
but do not implement CAP GHG reduction measures, as well as GPAs—will require a
project-level GHG analysis.
PROCEDURAL HISTORY18
A. Sierra Club Petition
After the County certified the SEIR, Sierra Club filed a petition for a writ of
mandate challenging the County's approval of the CAP, Significance Guidelines,
18 Procedural history predating the events described here is contained in Sierra Club
I, supra, 231 Cal.App.4th at pp. 1156-1163 and Golden Door, supra, 27 Cal.App.5th at
pp. 896-898.
24
threshold of significance for GHG emissions, and the SEIR. In the trial court, Sierra
Club asserted (1) the CAP and SEIR violated CEQA because M-GHG-1 allows
"in-County emissions from in-process and future GPAs to increase, provided there are
offsets purchased somewhere in the world, without demonstrating that such offsets will
be fully enforceable, verifiable, permanent, and additional"; (2) the County "gutted
Mitigation Measure CC-1.2 by establishing a target of "a mere 2 [percent] reduction in
emissions within the County from 2014 levels by 2020"; (3) the SEIR fails to analyze the
CAP's impact on the Regional Transportation Plan/Sustainable Communities Strategy
(RTP/SCS); (4) the County improperly failed to update its transportation modeling "using
data that included the recently approved GPAs, all reasonably expected GPAs, and the
approval of new residential development in far-flung rural areas"; (5) the SEIR failed to
analyze impacts from increased vehicle miles that would result from allowing "GPA
applicants to purchase GHG offsets"; (6) the SEIR fails to consider an alternative in
which "land use classifications and new GPA approvals" comport with and achieve
certain VMT reduction goals; (7) The SEIR fails to make good faith, reasoned responses
to public comments; (8) the SEIR fails to analyze environmental justice impacts; and
(9) the CAP and threshold of significance are inconsistent with the GPU.
B. Golden Door Petition and Consolidation
In a separate action, Golden Door sought injunctive and declaratory relief. Golden
Door alleged that it is the "owner and operator of an award-winning hospitality and
agricultural operation . . . situated on approximately 600 acres" in San Diego County.
Golden Door challenged the County's compliance with its General Plan and CEQA "to
25
the extent that the County has failed, in its newly adopted CAP, to adhere to requirements
to achieve 'reduction of community-wide (i.e., unincorporated County) and County
Operations greenhouse gas emissions' and other legal requirements."
In the trial court, Golden Door primarily asserted that the County violated CEQA
(and acted inconsistently with the GPU) by adopting a "program for carbon offset credits
('offsets') that would allow in-process and future ['GPAs'] to increase [GHGs] within the
County, in exchange for the purchase of offsets applicable to elsewhere in the
world . . . ." Golden Door asserted that the County "did not even attempt to quantify the
GHGs from the known, in-process GPAs, even though the 2018 CAP Project clearly
intended the offset program to apply to all GPAs." Golden Door also asserted that the
County improperly delegated and deferred feasibility findings in M-GHG-1 and failed to
adequately analyze: (1) VMT and other impacts resulting from implementing M-GHG-1;
(2) cumulative GHG impacts; (3) energy and environmental justice; and (4) smart growth
mitigation or alternatives for GPAs. Like Sierra Club, Golden Door also claimed that the
County failed to adequately respond to comments.
By stipulation, the trial court consolidated these two cases, along with a third
(Sierra Club v. County of San Diego, No. 37-2012-00101054-CU-TT-CTL) that had been
stayed.
After hearing, the trial court granted an (amended) peremptory writ of mandate,
ordering the County to set aside its approvals of the CAP, Guidelines for Determining
Significance, Checklist, certification of the SEIR, and "all attendant approvals in reliance
thereon . . . ." The trial court also entered a permanent injunction, providing: "During
26
review of [GHG] emissions impacts of development proposals on unincorporated County
lands under CEQA, including in the review of such impacts prior to the issuance of any
permits or entitlements for any General Plan amendment projects approved after
February 14, 2018, the County . . . shall not rely on Mitigation Measure M-GHG-1 . . . ."
Subsequently, the court entered a "final judgment" that also declared "that the February
2018 Climate Action Plan and the certification of the Final SEIR to the 2011 General
Plan Update Program EIR are legally inadequate and may not be used to provide the
basis for CEQA review of GHG impacts of development proposals in the unincorporated
County."
C. Appeals and Consolidation
The County filed a notice of appeal in the consolidated cases from "all judgments
and orders" including the writ of mandate and the permanent injunction. This court
consolidated the three appeals.
DISCUSSION
I.
THE CAP IS NOT INCONSISTENT WITH THE GPU
A. The Trial Court's Ruling
In the trial court, Plaintiffs asserted that the CAP is inconsistent with the GPU
because (1) M-GHG-1 is "part and parcel" of the CAP; and (2) the GPU requires
reducing in-County emissions; however, M-GHG-1 allows purchasing carbon offsets
"anywhere in the world." Noting the "paucity of offsets available within the County,"
27
Sierra Club asserted, "offsets are all but certain to come from outside the County," thus
violating a prime directive in the GPU.
The superior court agreed with Plaintiffs, stating, "[T]he County's General Plan
has consistently . . . stated it required in-County GHG reductions. However, M-GHG-1,
which is expressly incorporated into the 2018 CAP . . . allows essentially unlimited
increases in GHG within the County. In this respect, applicants proposing projects in the
County can meet their GHG mitigation requirements by purchasing offsets from
anywhere in the world . . . ."
The County contends the court erred because (1) M-GHG-1 is not a mitigation
measure of the CAP. Rather, M-GHG-1 is a mitigation measure in the SEIR and only
applies to GPAs; (2) the CAP is, therefore, not inconsistent with the GPU; and (3) GPAs
using M-GHG-1 would mitigate GHG emissions to be within CAP projections and,
therefore, be consistent with the GPU. We agree with the first and second points, and
find it unnecessary to consider the third in this context.
B. The Consistency Requirement
Land use decisions must be consistent with the policies expressed in a general
plan. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 570
(Citizens of Goleta Valley).) This doctrine is " 'the linchpin of California's land use and
development laws; it is the principle which infused the concept of planned growth with
the force of law.' " (Corona-Norco Unified School Dist. v. City of Corona (1993) 17
Cal.App.4th, 994.) However, " 'it is nearly, if not absolutely, impossible for a project to
be in perfect conformity with each and every policy set forth in the applicable plan. . . .
28
It is enough that the proposed project will be compatible with the objectives, policies,
general land uses and programs specified in the applicable plan.' " (Save Our Heritage
Organisation v. City of San Diego (2015) 237 Cal. App. 4th 163, 186.)
C. The Standard of Review
Our role is the same as that of the trial court. (Naraghi Lakes Neighborhood
Preservation Assn. v. City of Modesto (2016) 1 Cal. App. 5th 9, 19.) Review "is highly
deferential to the local agency, 'recognizing that "the body which adopted the general
plan policies in its legislative capacity has unique competence to interpret those policies
when applying them in its adjudicatory capacity. [Citations.] Because policies in a
general plan reflect a range of competing interests, the governmental agency must be
allowed to weigh and balance the plan's policies when applying them, and it has broad
discretion to construe its policies in light of the plan's purposes. [Citations.] A reviewing
court's role 'is simply to decide whether the [governing body] officials considered the
applicable policies and the extent to which the proposed project conforms with those
policies.' [Citation.]" [Citation.]' " (Friends of Lagoon Valley v. City of Vacaville (2007)
154 Cal. App. 4th 807, 816.) "It is, emphatically, not the role of the courts to
micromanage these development decisions." (Sequoyah Hills Homeowners Assn. v. City
of Oakland (1993) 23 Cal. App. 4th 704, 719 (Sequoyah Hills), italics omitted.)
D. The CAP is Not Inconsistent with the GPU
The CAP's GHG reduction measures apply only to the extent development is
consistent with land use allowed under the GPU. In such cases, the project's emissions
have already been accounted for in the CAP's projections. By incorporating the CAP's
29
GHG mitigation measures, a project will reduce its GHG emissions to levels consistent
with state GHG reduction targets.
In contrast, M-GHG-1 applies only to "in-process and future" GPAs—that is,
development involving density or intensity of land use above that allowed under the
GPU. To the extent such projects exceed CAP emission projections, their emissions are
not included in the CAP and, therefore, must be mitigated to zero to keep the County on
track to meet state targets. M-GHG-1 is intended to be that mitigation program. The
CAP explains this, stating:
"With incorporation of Mitigation Measure GHG-1, GPAs listed
in the cumulative impact discussion of the Draft SEIR and all future
GPAs that propose increased density/intensity above what is allowed
in the General Plan will comply with the CAP and, therefore, will
not interfere with the County's 2020 and 2030 GHG reduction
targets or 2050 goal. General Plan Amendments would, therefore,
comply with the threshold of significance, which is consistency with
the CAP."
Thus, although the CAP refers to M-GHG-1, M-GHG-1 is not one of the CAP's
GHG reduction measures. Rather, the 26 local measures, none of which involve
purchasing carbon offsets outside the County—are the heart of the CAP. If the analysis
were to stop here, we would conclude that the CAP is fully consistent with the GPU
because the CAP analyzes GHG emissions resulting from buildout under the GPU.
Moreover, all of the CAP's GHG reduction measures will be implemented locally, thus
reducing GHG emissions in the County, which is also fully consistent with the GPU.
However, the CAP is not entirely independent from M-GHG-1. The CAP projects
future GHG emissions in the County. Those projections exclude emissions from
30
in-process GPAs and future GPAs. The CAP's projections exclude these foreseeable
GHG emissions on the assumption that such projects will mitigate their GHG emissions
to zero (or net zero) under M-GHG-1. The CAP states:
"General Plan Amendment projects currently in process . . . have
not been included in the 2014 GHG . . . projections. . . . GPAs have
the potential to result in a significant cumulative impact and also
impact the ability of the County to meet its targets and goal.
However, Mitigation Measure GHG-1 is provided to reduce the
cumulative impact to less than significant. In addition, [M-GHG-1]
would be required for all future GPAs . . . ."
As noted ante, M-GHG-1 allows mitigating in-County GHG emissions with offset
credits originating outside the County—even in another country. However, the GPU
expresses fundamental principles "designed to protect the County's unique and diverse
natural resources and maintain the character of its rural and semi-rural communities. It
reflects an environmentally sustainable approach to planning that balances the need for
adequate infrastructure, housing, and economic vitality, while maintaining and preserving
each unique community within the County, agricultural areas, and extensive open space."
(Italics added.) The GPU emphasizes local policies to reduce local GHG emissions:
"The General Plan takes steps to address the challenging issue of
climate change by reducing GHG emissions, retaining and
enhancing natural areas, improving energy efficiency, reducing
waste, recycling, and managing water use. The General Plan will
reduce GHG emissions primarily through minimizing vehicle trips
and approving land use patterns that support increased density in
areas where there is infrastructure to support it, increased
opportunities for transit, pedestrians, and bicycles, and through green
building and land development conservation initiatives. Policies
also address adaptation to climate change, such as continued wildfire
management and protection, monitoring flood hazards, and regional
collaboration on biological preservation, water use and supply, and
other areas of concern."
31
To the extent GPAs emit GHG in the County, but mitigate those impacts by
reducing emissions elsewhere, the CAP's projection of future GHG emission levels is not
entirely consistent with the GPU's focus on reducing in-County GHG emissions.19 The
issue, therefore, is whether this is enough to invalidate the CAP as being inconsistent
with the GPU.
A project need not conform perfectly to every general plan policy to be consistent
with the general plan. (Families Unafraid to Uphold Rural etc. County v. Board of
Supervisors (1998) 62 Cal. App. 4th 1332, 1341.) The rule of general plan consistency is
that the project "must be 'compatible with the objectives, policies, general land uses, and
programs specified in' " the general plan. (Sequoyah Hills, supra, 23 Cal.App.4th at
pp. 717-718.) "[C]ourts accord great deference to a local governmental agency's
determination of consistency with its own general plan, recognizing that 'the body which
adopted the general plan policies in its legislative capacity has unique competence to
interpret those policies when applying them in its adjudicatory capacity. [Citations.]
Because policies in a general plan reflect a range of competing interests, the
governmental agency must be allowed to weigh and balance the plan's policies when
applying them, and it has broad discretion to construe its policies in light of the plan's
purposes. [Citations.] A reviewing court's role 'is simply to decide whether the [agency]
officials considered the applicable policies and the extent to which the proposed project
19 See post, section II (F) for additional discussion of the impact of M-GHG-1 on the
CAP.
32
conforms with those policies.' " (San Franciscans Upholding the Downtown Plan v. City
& County of San Francisco (2002) 102 Cal. App. 4th 656, 677-678.)
Here, GPU policies must also be construed in light of science. "[T]he global
scope of climate change and the fact that carbon dioxide and other greenhouse gases,
once released into the atmosphere, are not contained in the local area of their emission
means that the impacts to be evaluated are also global rather than local." (Center for
Biological Diversity, supra, 62 Cal.4th at pp. 219-220.) Thus, reducing or eliminating
GHG emissions anywhere is a benefit.
Although the CAP is not perfectly in tune with the GPU, and in light of the highly
deferential standard of review, we conclude the court erred in determining that the CAP
is inconsistent with GPU policies. A "guiding principle" in the GPU is to "reduce
greenhouse gas emissions that contribute to climate change." The GPU recognizes that
the "sources, impacts, and solutions to climate changes are complex." The GPU contains
a policy to "reduce GHG emissions primarily through minimizing vehicle trips and
approving [sustainable] land use patterns . . . ." (Italics added.) The GPU provides that
the "primary opportunities to reduce air quality pollutants and GHG emissions are in the
urbanized areas of the County where there are land use patterns that can best support the
increased use of transit and pedestrian activities . . . ." (Italics added.)
Plaintiffs' argument that the CAP is inconsistent with these goals would require
replacing "primarily" with "exclusively." Moreover, the CAP is consistent with the GPU
by providing measures to reduce VMT, recognizing that such measures are necessary to
achieve the 2030 target. "[P]roposed transportation measures in the CAP focus on
33
reducing VMT through improved design of development, infrastructure improvements,
travel demand management programs, parking code revisions, and alternative fuel use."
"Several GHG reduction measures focus on reducing the number and length of single-
occupancy vehicle trips (measures T-1.1, T-1.2, and T-1.3) and expanding alternative
transportation opportunities (measures T-2.1, T-2.2, T-2.3, and T-2.4)." CAP measure
T-2.1 reduces VMT by improving roadway segments, intersections, and bikeways to
encourage pedestrian and cyclist trips. Another reduces VMT by encouraging alternative
work schedules and telecommuting.
Additionally, the GPU provides that the CAP shall contain a "baseline inventory"
of GHG emissions from all sources, GHG emissions reduction targets and deadlines, and
enforceable GHG emissions reduction measures. The CAP complies by containing
(1) a baseline inventory, (2) GHG reduction targets and deadlines, and 26 GHG reduction
measures.
The GPU also contains a policy to reduce in-County and County operations GHG
emissions to meet legislative targets. The CAP is consistent with this goal by adopting
per capita reductions suggested by CARB to meet 2030 and 2050 targets.
To support a contrary result, Plaintiffs cite Spring Valley Lake Assn. v. City of
Victorville (2016) 248 Cal. App. 4th 91. There, a city's general plan required all new
commercial development to generate electricity onsite to the maximum extent feasible.
(Id. at p. 98.) The EIR for a proposed Walmart stated the project would be solar ready,
and should a determination be made in the future that photovoltaic panels can deliver
power there at a reasonable cost, Walmart and the city would negotiate adding solar
34
energy-generating facilities to the project. (Ibid.) On appeal, this court affirmed the trial
court's finding that the project was not consistent with the general plan because the city
"effectively found there was no extent to which it would be feasible to require the project
to generate electricity onsite" and "there is no evidence in the record to support such a
finding." (Id. at pp. 99-100.) In contrast here, however, the SEIR's finding that
implementing the CAP would not be inconsistent with the 2011 GPU is supported by
substantial evidence.
E. It is Unnecessary to Decide Whether M-GHG-1 Projects Are Consistent
with the GPU
In a related argument, Plaintiffs contend that GPAs using M-GHG-1 will be
inconsistent with the GPU because M-GHG-1 allows in-County emissions to be
mitigated with out-of-County offsets. It is unnecessary to decide this issue. As explained
post, M-GHG-1 is not CEQA-compliant. Because M-GHG-1 fails on these grounds, it is
unnecessary to decide whether M-GHG-1 is invalid for other reasons. (See Communities
for a Better Environment v. City of Richmond (2010) 184 Cal. App. 4th 70, 101-102 (CBE)
[appellate court not required to address additional alleged defects that may be addressed
in a completely different and more comprehensive manner upon subsequent CEQA
review following remand].)
35
II.
M-GHG-1 VIOLATES CEQA
A. The Trial Court's Ruling
The superior court determined that M-GHG-1 violates CEQA by (1) "allow[ing]
the use of offsets purchased anywhere on the planet, with no limit on geographic scope or
duration (and no temporal or cumulative limit)"; (2) containing an "illusory" geographic
priority because only one offset project exists in the County; and (3) requiring offsets be
purchased from CARB-approved registries is "not remotely similar to the CARB
program." Elaborating, the trial court noted that cap-and-trade offsets are generally
limited to those occurring in the United States and may only be used to meet up to
8 percent of a participant's annual compliance obligations. However, M-GHG-1 has
neither limitation. The court also stated there is no evidence that out-of-County offsets
will be enforceable, verifiable, and of sufficient duration. The court further determined
that M-GHG-1 lacks "standards or criteria" for achieving the Director's " 'satisfaction' "
and for determining whether a registry is sufficiently "reputable" to substitute for the
identified registries.
B. CEQA Overview
" 'The foremost principle under CEQA is that the Legislature intended the act "to
be interpreted in such manner as to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language.' " [Citations.] 'With
narrow exceptions, CEQA requires an EIR whenever a public agency proposes to
approve or to carry out a project that may have a significant effect on the environment.
36
[Citations.]' The basic purpose of an EIR is to 'provide public agencies and the public in
general with detailed information about the effect [that] a proposed project is likely to
have on the environment; to list ways in which the significant effects of such a project
might be minimized; and to indicate alternatives to such a project.' [Citations.] 'Because
the EIR must be certified or rejected by public officials, it is a document of
accountability. If CEQA is scrupulously followed, the public will know the basis on
which its responsible officials either approve or reject environmentally significant action,
and the public, being duly informed, can respond accordingly to action with which it
disagrees.' [Citation.] The EIR "protects not only the environment but also informed
self-government.' " (Sierra Club v. County of Fresno (2018) 6 Cal. 5th 502, 511-512
(Sierra Club).) " ' "The EIR is the heart of CEQA," and the integrity of the process is
dependent on the adequacy of the EIR.' " (Rialto Citizens for Responsible Growth v. City
of Rialto (2012) 208 Cal. App. 4th 899, 924.)
C. The Standard of Review
The parties disagree about the applicable standard of review. The County
contends the CEQA issues are reviewed for abuse of agency discretion, and that the
substantial evidence standard governs review of the County's "factual findings,
conclusions, and determinations." However, citing primarily Sierra Club, supra, 6
Cal. 5th 502, Plaintiffs contend "[d]e novo is the correct standard of review" for the
CEQA claims.
The applicable standard of review is more nuanced. "[T]he appellate court
reviews the agency's action, not the trial court's decision; in that sense appellate judicial
37
review under CEQA is de novo." (Vineyard Area Citizens for Responsible Growth, Inc.
v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 427.)
The County's determinations as lead agency are reviewed for abuse of discretion.
(Sierra Club, supra, 6 Cal.5th at p. 512.) " '[A]n agency may abuse its discretion under
CEQA either by failing to proceed in the manner CEQA provides or by reaching factual
conclusions unsupported by substantial evidence.' " (Banning Ranch Conservancy v. City
of Newport Beach (2017) 2 Cal. 5th 918, 935 (Banning Ranch).)
And within this abuse of discretion standard, review varies depending on the issue
involved. " 'While we determine de novo whether the agency has employed the correct
procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements"
[citation], we accord greater deference to the agency's substantive factual conclusions. In
reviewing for substantial evidence, the reviewing court "may not set aside an agency's
approval of an EIR on the ground that an opposite conclusion would have been equally or
more reasonable," for, on factual questions, our task "is not to weigh conflicting evidence
and determine who has the better argument." ' " (Sierra Club, supra, 6 Cal.5th at p. 512.)
In Sierra Club, the California Supreme Court summarized these principles as
follows: (1) An agency has considerable discretion in deciding the manner of discussing
potentially significant effects in an EIR. (2) However, a reviewing court must determine
whether that discussion comports with an EIR's intended function. (3) This review is not
solely a matter of discerning whether there is substantial evidence to support the agency's
factual conclusions. (Sierra Club, supra, 6 Cal.5th at pp. 515-516.) For example, there
are " 'instances where the agency's discussion of significant project impacts may
38
implicate a factual question that makes substantial evidence review appropriate,' such as
an agency's decision to use a particular methodology. [Citation.] 'But whether a
description of an environmental impact is insufficient because it lacks analysis or omits
the magnitude of the impact is not a substantial evidence question.' [Citation.] Where
the ultimate inquiry is whether an EIR omits material necessary to reasoned
decisionmaking and informed public participation, the inquiry is predominantly legal and,
'[a]s such, it is generally subject to independent review.' " (Chico Advocates for a
Responsible Economy v. City of Chico (2019) 40 Cal. App. 5th 839, 846-847.)
"The ultimate inquiry . . . is whether the EIR includes enough detail 'to enable
those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.' " (Sierra Club, supra, 6 Cal.5th
at p. 516.) "Generally, that inquiry is a mixed question of law and fact subject to de novo
review, but to the extent factual questions . . . predominate, a substantial evidence
standard of review will apply." (South of Market Community Action Network v. City and
County of San Francisco (2019) 33 Cal. App. 5th 321, 330-331 (South of Market).) " 'A
prejudicial abuse of discretion occurs if the failure to include relevant information
precludes informed decisionmaking and informed public participation, thereby thwarting
the statutory goals of the EIR process.' " (Id. at p. 331.)
With these principles in mind, we turn to the CEQA issues.
39
D. M-GHG-1 Violates CEQA Because Its Performance Standard
is Unenforceable
1. Introduction
A mitigation measure is a change that would reduce or minimize the project's
significant adverse environmental impact. (No Slo Transit, Inc. v. City of Long Beach
(1987) 197 Cal. App. 3d 241, 256.) " 'Mitigating conditions are not mere expressions of
hope.' " (Sierra Club I, supra, 231 Cal.App.4th at p. 1167.) They must be enforceable
through permit conditions, agreements, or other legally-binding instruments. (Pub.
Resources Code, § 21081.6, subd. (b); Guidelines, § 15126.4, subd. (a)(2).)
Mitigation measures for GHG emissions may include "[o]ffsite measures,
including offsets that are not otherwise required." (Guidelines, § 15126.4, subd. (c)(3).)
The parties agree that offsets "can be a valuable GHG mitigation strategy" if "[p]roperly
restricted" with "verified offsets." However, as the superior court remarked, "the devil is
in the details."
Under section 38562, subdivision (d)(1) and (2), cap-and-trade offset credits may
be issued only if the emission reduction achieved is "real, permanent, quantifiable,
verifiable, enforceable, and additional to any GHG emission reduction otherwise required
by law or regulation, and any other GHG emission reduction that otherwise would
occur."
" 'Real' means . . . that GHG reductions . . . result from a demonstrable action or
set of actions, and are quantified using appropriate, accurate, and conservative
methodologies that account for all GHG emissions sources, GHG sinks, and GHG
40
reservoirs within the offset project boundary and account for uncertainty and the potential
for activity-shifting leakage and market-shifting leakage."20 (Cal. Code Regs., tit. 17,
§ 95802.) " 'Permanent' means . . . that GHG reductions . . . are not reversible, or when
GHG reductions . . . may be reversible, that mechanisms are in place to replace any
reversed GHG emission reductions . . . to ensure that all credited reductions endure for at
least 100 years." (Ibid.) " 'Quantifiable' means . . . the ability to accurately measure and
calculate GHG reductions . . . relative to a project baseline in a reliable and replicable
manner for all GHG emission sources . . . ." (Ibid.) " 'Verifiable' means that an Offset
Project Data Report assertion is well documented and transparent such that it lends itself
to an objective review by an accredited verification body." (Ibid.) " 'Additional'
means . . . greenhouse gas emission reductions or removals that exceed any greenhouse
gas reduction or removals otherwise required by law, regulation or legally binding
mandate, and that exceed any greenhouse gas reductions or removals that would
otherwise occur in a conservative business-as-usual scenario." (Cal. Code Regs., tit. 17,
§ 95802.)
20 GHG sink means "a physical unit or process that removes a GHG from the
atmosphere." (Cal. Code Regs., tit. 17, § 95802.) GHG reservoir means "a physical unit
or component of the biosphere, geosphere, or hydrosphere with the capability to store,
accumulate, or release a GHG removed from the atmosphere by a GHG sink or a GHG
captured from a GHG emission source." (Ibid.) Leakage is an unintended increase in
GHG emissions caused by a project. " 'Market-shifting leakage,' in the context of an
offset project, means increased GHG emissions or decreased GHG removals outside an
offset project's boundary due to the effects of an offset project on an established market
for goods or services." (Id., § 95102.)
41
The text of M-GHG-1 incorporates section 38562, subdivision (d)(1) by reference
by stating, "Carbon offset credits must be purchased through [certain named registries or
through] . . . any other reputable registry or entity that issues carbon offsets consistent
with . . . section 38562(d)(1) . . . ."21 Moreover, to demonstrate that M-GHG-1 is
CEQA-compliant, the County invites comparison between M-GHG-1 and CARB-issued
offset credits under cap-and-trade. Although conceding at oral argument that there are
"some differences" between cap-and-trade offset credits and offset credits under
M-GHG-1, the County contends cap-and-trade and M-GHG-1 are "substantially similar."
Specifically, the County asserts that M-GHG-1 will be "effective and enforceable"
because M-GHG-1 requires offsets to be purchased from registries that "meet the
stringent requirements of . . . section 38562, subdivision (d)(1)."
Accordingly, we compare and contrast the "stringent requirements" in M-GHG-1
with those governing CARB offset credits under cap-and-trade.
2. Cap-and-trade offset protocols
The value of any offset depends on whether GHG emission reduction has
occurred. "[U]nlike the produce at the farmer's market, we can't examine the [GHG
offset] product to determine its value. Not only are emission reductions invisible, they
actually didn't happen. So to have confidence in their value, we need a reliable and
accurate picture of what would have happened, as well as what actually happened."
21 The County asserts that CEQA does not "import Health and Safety Code standards
for Assem. Bill No. 32 . . ." It is unnecessary to address that issue because M-GHG-1
self-imposes these requirements.
42
(California Air Pollution Control Officers Association, Quantifying Greenhouse Gas
Mitigation Measures (2010), p. 22 (CAPCOA Quantifying), italics in original.)
"Protocols are the formalized procedures for accounting for credits that ensure the
credits are an accurate and reliable representation of emission reductions that actually
occurred." (CAPCOA Quantifying, supra, at p. 22.) Protocols " 'qualify and quantify
GHG destruction, ongoing GHG reductions or GHG removal enhancements achieved by
an offset project.' " (Our Children's Earth Foundation v. State Air Resources Bd. (2015)
234 Cal. App. 4th 870, 879 (Our Children's).)
Under cap-and-trade, an offset project must use a CARB-approved "Compliance
Offset Protocol" (CARB Protocol). (Cal. Code Regs., tit. 17, § 95973, subd. (a)(1).)
CARB Protocols are designed to "ensure that the reductions are quantified accurately,
represent real GHG emissions reduction, and are not double-counted within the system."
More specifically, a CARB Protocol must:
"(1) Accurately determine the extent to which GHG emission
reductions and GHG removal enhancements are achieved by the
offset project type;
"(2) Establish data collection and monitoring procedures relevant
to the type of GHG emissions sources, GHG sinks, and GHG
reservoirs for that offset project type[];
"(3) Establish a project baseline that reflects a conservative
estimate of business-as-usual performance or practices for the offset
project type;
"(4) Account for activity-shifting leakage and market-shifting
leakage for the offset project type, unless the Compliance Offset
Protocol stipulates eligibility conditions for use of the Compliance
Offset Protocol that eliminate the risk of activity-shifting and/or
market-shifting leakage;
43
"(5) Account for any uncertainty in quantification factors for the
offset project type;
"(6) Ensure GHG emission reductions and GHG removal
enhancements are permanent;
"(7) Include a mechanism to ensure permanence of GHG
removal enhancements for sequestration offset project types;
"(8) Establish the length of the crediting period pursuant to
[California Code of Regulations, title 17,] section 95972[,
subdivision] (b) for the relevant offset project type; and
"(9) Establish the eligibility and additionality of projects using
standard criteria, and quantify GHG reductions and GHG removal
enhancements using standardized baseline assumptions, emission
factors, and monitoring methods." (Cal. Code Regs., tit. 17,
§ 95972.)
A CARB Protocol must also specify the project's geographic boundary.
Generally, that boundary must be within the United States or its territories. (Cal. Code
Regs., tit. 17, § 95972, subd. (c).)22 Also, the project must employ procedures specified
in the CARB Protocol "for monitoring measurements and project performance . . . ." (Id.,
§ 95976, subd. (a).)
There are currently six CARB Protocols. (Cal. Code Regs., tit. 17, § 95975,
subd. (e).) Each is from a distinct economic sector outside the coverage of cap-and-trade.
(Ibid.) For example, the livestock protocol authorizes offset credits for projects that
reduce methane emissions. (Our Children's, supra, 234 Cal.App.4th at p. 880.)
22 In this respect, the County's assertion at oral argument that cap-and-trade has no
"geographic preferences" is incorrect.
44
Cap-and-trade offsets must also be additional. This means that the offset project
must "exceed any [GHG] reduction or removals otherwise required by law, regulation, or
legally binding mandate." The offset must also exceed what would have otherwise
occurred "in a conservative business-as-usual scenario." (Health & Saf. Code, § 38562,
subd. (d)(1) & (2); Cal. Code. Regs., tit. 17, § 95802, subd. (a)(4).)23 For example, the
ozone depleting substances protocol excludes destruction of such substances by the
United States government because such " 'is common practice and considered business-
as-usual. . . .' " (Our Children's, supra, 234 Cal.App.4th at p. 881.)
A CARB Protocol must " '[e]stablish [] the eligibility and additionality of projects
using standard criteria, and quantif[y] GHG reductions and GHG removal enhancements
using standardized baseline assumptions, emission factors, and monitoring methods.'
[Citation.] Furthermore, a specific project may qualify for an offset credit only by
meeting both the additionality requirements set forth in the regulation and any
additionality requirements in the applicable [CARB] [P]rotocol." (Our Children's, supra,
234 Cal.App.4th at p. 878.)
23 " 'Conservative' means . . . utilizing project baseline assumptions, emission factors,
and methodologies that are more likely than not to understate net GHG reductions or
GHG removal enhancements for an offset project to address uncertainties affecting the
calculation or measurement of GHG reductions or GHG removal enhancements." (Cal.
Code Regs., tit. 17, § 95802, subd. (a)(77).) " 'Business-as-Usual Scenario' means the set
of conditions reasonably expected to occur within the offset project boundary in the
absence of the financial incentives provided by offset credits, taking into account all
current laws and regulations, as well as current economic and technological trends.' "
(Id., subd. (a)(43).)
45
CARB Protocols are regulatory documents. Therefore, CARB must "provide
public notice of and opportunity for public comment prior to approving any [CARB]
Protocols . . . ." (Cal. Code Regs., tit. 17, § 95971, subd. (a).)
After issuing offset credits, CARB may invalidate them if newly discovered
information shows the Protocol was noncompliant. (Cal. Code Regs., tit. 17, § 95985,
subd. (c).)
Offset projects in foreign countries present additional concerns. "With domestic
offsets, the offset developer and capped source purchaser are within [CARB's]
jurisdiction. Regulations have been adopted that assure that if an offset is false, fails or
otherwise is inadequate that [CARB] can take enforcement action.' [CARB] can rely
upon existing monitoring, inspections and other tools that an enforcement agency has
available to it. An international offset in a developing country is inevitably dependent
upon the host country or third parties to validate the activities giving rise to the offset.
Corruption at any stage in the development of the offset, from the initial reporting to the
verification and monitoring will undermine the offset." (Alan Ramo, The California
Offset Game: Who Wins and Who Loses, 20 Hastings W.-Nw. J. Envt'l L. & Pol'y 109,
147 (2014) (Ramo Offset).)
California's cap-and-trade program includes several additional requirements for
out-of-state and foreign offsets. This process is called "linkage." (Gov. Code, § 12894,
subd. (e).)
Before linking with another jurisdiction's offset program, CARB must notify the
Governor, who has 45 days in which to consider advice from the Attorney General, and
46
make (or decline to make) the following findings that are submitted to the Legislature:
(1) The other jurisdiction's GHG emissions program must be "equivalent to or stricter
than" California's program; (2) California must retain the ability to enforce Assem. Bill
No. 32 requirements against any entity subject to regulation under those statutes, and
against any entity located within the other jurisdiction to the maximum extent permitted
under the United States and California Constitutions; (3) the other jurisdiction must have
equivalent or stricter enforcement powers; and (4) the proposed linkage does not impose
any liability on California. (Gov. Code, § 12894, subds. (f) & (g).)24
3. Registries
An Offset Project Registry (Registry) is "an entity that . . . is approved by [C]ARB
that lists offset projects, collects Offset Project Data Reports, facilitates verification of
Offset Project Data Reports, and issues registry offset credits for projects being
implemented using a CARB Protocol." (Cal. Code Regs., tit. 17, § 95802.) However, to
obtain a CARB offset credit, it is not enough for a Registry to issue credit. CARB alone
determines whether a registry offset qualifies as a compliance instrument. (Id., §§ 95802
[defining registry offset credit], 95981.1 [process for issuing CARB offset credits].)
4. M-GHG-1 is not equivalent to cap-and-trade offsets
The County contends that M-GHG-1 is "substantially similar" to the offset
program authorized under cap-and-trade. Specifically, the County asserts that like offsets
24 Sierra Club's request for judicial notice of CARB's website discussing linkage is
denied as irrelevant. (SDOG, supra, 13 Cal.App.5th at p. 90, fn. 8.)
47
under cap-and-trade, M-GHG-1 requires offsets "be purchased from a registry approved
by [C]ARB or one that meets section 38562[, subdivision (d)(1)]." The County argues
that this is a "sufficient safeguard[]" to "ensure credits purchased pursuant to M-GHG-1
are real, permanent, verifiable, and enforceable."
However, M-GHG-1 is materially different from Assem. Bill No. 32 compliant
cap-and-trade offsets in several key respects. Under M-GHG-1, offsets must be
purchased through "(i) a CARB-approved registry, such as the Climate Action Reserve,
the American Carbon Registry, and the Verified Carbon Standard, (ii) any registry
approved by CARB to act as a registry under the state's cap-and-trade program,
(iii) through the CAPCOA GHG Rx and SDAPCD, or (iv) if no registry is in existence as
identified . . . above, then any other reputable registry or entity that issues carbon offsets
consistent with . . . section 38562 [subdivision] (d)(1), to the satisfaction of the
Director . . . ."25 At oral argument, the County explained that it is "through the use of
those registries that the protocol gets applied." But M-GHG-1 says nothing about the
protocols that the identified registries must implement. Therefore, implicit in the
County's argument is that if the registry administering the offset is CARB-approved, then
for that reason alone, necessarily the GHG emissions reduction protocol administered by
that agency is also Assem. Bill No. 32 compliant, thereby ensuring the validity of the
offset credit claimed. However, this assumption is incorrect.
25 CAPCOA GHG Rx is the California Air Pollution Control Officers Association
Greenhouse Gas Reduction Exchange. APCD is the Air Pollution Control District.
48
Unlike M-GHG-1, under cap-and-trade, it is not enough that the registry be
CARB-approved. Equally important, the protocol itself must be CARB-approved. (Cal.
Code Regs., tit. 17, § 95970, subd. (a)(1) & (2).)26 This distinction is significant because
some offset protocols administered by CARB-approved registries are not Assem. Bill No.
32 compliant. Indeed, CARB has stated that offset protocols developed by CARB-
approved registries (including registries named in M-GHG-1) do not by that fact alone
meet the offset criteria in Assem. Bill No. 32:
"Voluntary offset programs such as the American Carbon
Registry, Climate Action Reserve, Verified Carbon Standard, and
others may submit protocols to [C]ARB for review. However,
regardless of how the voluntary protocols are developed, [C]ARB
staff must determine whether the voluntary protocol should be
developed for use in the Cap-and-Trade Program and if so, to
conduct its own rulemaking process under the Administrative
Procedure Act. . . . This process ensures that any voluntary
protocol . . . demonstrates the resulting reductions meet the offset
criteria in [Assem. Bill No. 32] . . . .
"Protocols developed by the voluntary programs are not
Compliance Offset Protocols as they are not developed through a
rulemaking process, may not meet the [Assem. Bill No. 32] and Cap-
and-Trade Regulation criteria, and were not approved by [CARB]."
(Italics added.)
Furthermore, before approving a protocol, CARB subjects the proposed offset
protocol to public notice, a comment period, and a public hearing. (Cal. Code Regs.,
tit. 17, §§ 95970, subd. (a)(2), 95971, subd. (a).) CARB also requires that emission
reductions for offset credit be from sources not already covered by cap-and-trade. For
26 "A registry offset credit must . . . [r]esult from the use of a Compliance Offset
Protocol . . . ." (Cal. Code Regs., tit. 17, § 95970, subd. (a)(2).)
49
example, CARB would not approve an offset protocol for installing solar panels because
electricity generation is already covered under cap-and-trade.
The CARB Protocols are the heart of cap-and-trade offsets—but the word
"protocol" is not even mentioned in M-GHG-1. Contrary to the County's contention,
M-GHG-1 is not equivalent to cap-and-trade offset programs because M-GHG-1 does not
require the protocol itself to be consistent with CARB requirements under title 17, section
95972, subdivision (a)(1)-(9) of the California Code of Regulations, quoted ante. For
example, CARB will not approve a protocol unless its GHG reductions are permanent.
(Id., § 95970, subd. (a)(1).) If the project is to sequester carbon (e.g., planting trees), the
protocol must ensure that the GHG will not be released for 100 years. M-GHG-1 is
deficient because it has no such safeguards.
Under cap-and-trade, legislative safeguards seek to ensure that out-of-state offsets
reflect genuine GHG reductions. For example, CARB may approve out-of-state offsets
only if the Governor makes findings to ensure the linked jurisdiction's offsets are
genuine, verifiable, and enforceable under law that is at least as strict and enforceable as
is California law. (Gov. Code, § 12894, subd. (f).) However, M-GHG-1 has no such
restrictions. The only M-GHG-1 limit on mitigating with international offsets is the
Director's unilateral decision that offsets are not feasibly available within (1) the
unincorporated county; (2) the County; (3) California; and (4) the United States. The
fundamental problem, unaddressed by M-GHG-1, is that the County has no enforcement
authority in another state, much less in a foreign country. M-GHG-1 does not require a
50
finding that an out-of-state offset site has laws at least as strict as California's with respect
to ensuring the validity of offsets.
At oral argument, the County asserted that the "registries" would be the County's
enforcement mechanism to ensure the validity of offsets originating in foreign countries.
This argument fails, however, because it is premised on the assumption that the registry's
protocol is Assem. Bill No. 32 compliant—and as explained ante, M-GHG-1 does not
require use of an Assem. Bill No. 32 compliant protocol.
Moreover, nothing other than the Director's determination of feasibility limits a
GPA applicant from obtaining up to 100 percent of its GHG emission reductions through
M-GHG-1 offsets. This includes offset projects occurring anywhere in the world. In
sharp contrast, cap-and-trade offsets cannot exceed 8 percent of an entity's entire
compliance obligation. (Cal. Code Regs., tit. 17, § 95854, subd. (b).)27
The relative ease with which GPAs might obtain offset credits originating in
foreign countries under M-GHG-1 is particularly concerning because "[i]n a developing
country where one relies upon records that may not exist, and testing technology that may
be inadequate or fraudulent, it can be difficult if not impossible" to verify GHG
reductions. (Ramo Offset, supra, 20 Hastings W.-Nw. J. Envt'l L. & Pol'y at p. 121.)
"Beyond these challenges is the issue of what would have happened anyway. A
developing country is so named because it is economically underdeveloped and is
27 We express no opinion on whether 8 percent is also the CEQA limit. That issue is
not before us.
51
hopefully making economic and social progress. In that climate, how does one
distinguish between an emission reduction that would have happened anyway and one
that is happening only or in part because of the encouragement of the offset program and
the potential to sell a credit for a profit?" (Ibid.) "Corruption also presents
challenges . . . . [As of 2011], [t]here [were] . . . carbon reduction projects either certified
or under development in Ethiopia, Nicaragua, the Philippines, Kenya, and Venezuela.
Yet, Transparency International's Global Corruption Report 2009 rates Ethiopia as the
126th most corrupt country out of 180 countries, Nicaragua as the 134th, the Philippines
as the 141st, Kenya as the 147th, and Venezuela as the 158th." (Brian Joseph McFarland,
Carbon Reduction Projects and the Concept of Additionality (2011) 11 Sustainable Dev.
L. & Pol'y 15, 16 (McFarland), fn. omitted.)
There is another significant deficiency in M-GHG-1. Under cap-and-trade, GHG
emission reductions must be additional "to any greenhouse gas emission reduction
otherwise required by law or regulation, and any other greenhouse gas emission reduction
that otherwise would occur." (§ 38562, subd. (d)(2).) "Additionality is an important
requirement because if non-additional (i.e., 'business-as-usual') projects are eligible for
carbon [offset] . . . then the net amount of greenhouse gas emissions will continue to
increase and the environmental integrity of carbon reduction projects will be called into
question." (McFarland, supra, 11 Sustainable Dev. L. & Pol'y at p. 15.) For example,
CARB will not approve a protocol that "includes technology or GHG abatement practices
that are already widely used." Moreover, "[t]o assess if a specific GHG mitigation
method may have 'otherwise occurred,' " CARB will determine "if that method is
52
common practice in the geographic area in which the proposed [CARB Protocol] is
applicable."
Although additionality is "a critical component of any environmental market" it is
"often seen as expensive [and] onerous. . . ." (Karen Bennett, Additionality: The Next
Step for Ecosystem Service Markets (2010) 20 Duke Envt'l. L. & Pol'y F. 417, 419.)
Perhaps this explains why M-GHG-1 seemingly goes out of its way to not require
additionality.
Under M-GHG-1, the Director may approve offsets issued by any "reputable
registry or entity that issues carbon offsets consistent with . . . section 38562[,
subdivision] (d)(1)." The County asserts this reference to section 38562 ensures that
offset protocols administered under M-GHG-1 will be substantially similar to Assem. Bill
No. 32 compliant offsets. However, subdivision (d)(1) of section 38562 does not require
that offsets be additional. Additionality is required under the next subdivision [(d)(2)] in
section 38562, which provides in part:
"Any regulation adopted by [CARB] . . . shall ensure all of the
following: [¶] . . . [¶] (2) . . . the reduction is in addition to any
greenhouse gas emission reduction otherwise required by law or
regulation, and any other greenhouse gas emission reduction that
otherwise would occur." (§ 38562, subd. (d)(2).)
Although M-GHG-1 cites subdivision (d)(1) of section 38562, it is silent with
respect to subdivision (d)(2). And there is nothing else in M-GHG-1's text that requires
53
additionality.28 At oral argument, when asked to identify the language in M-GHG-1 that
requires "additionality," the County's lawyer cited a portion of the SEIR that states, "One
carbon offset credit represents the past reduction or sequestration of one metric ton of
carbon dioxide equivalent that is 'not otherwise required' (CEQA Guidelines section
15126.4 [subdivision] (c)(3))." (Italics added.) Later, however, counsel correctly
conceded that "not otherwise required" is not in the text of M-GHG-1. Rather, it is in a
prefatory section of the SEIR about greenhouse gas emissions, prior to the text of
M-GHG-1 itself.
In comments to the DSEIR, Golden Door's attorneys called the County's attention
to these problems. In response, the County did not claim that additionality was not
required. Rather, the County asserted that M-GHG-1 offsets would be additional by
"adher[ing] to the applicable protocol, as detailed in SEIR Appendix B." In its reply
brief, the County makes the same assertion, stating: "Appendix B to the SEIR contains
nearly 3,000 pages of offset protocols that the registries listed in M-GHG-1 use to ensure
that offsets meet rigorous standards showing they are . . . additional, and verifiable . . . ."
The problem with this argument is that Appendix B itself states that it does not
apply to M-GHG-1. Rather, Appendix B applies to CAP reduction measure T.-4.1.
Appendix B is entitled "Range of Direct Investment Protocols." (Italics added.) The
28 In its reply brief, the County glosses over this deficiency by asserting that under
M-GHG-1, "a registry must meet the requirement of . . . section § [sic] 38562 . . . ."
However, the text of M-GHG-1 invokes only subdivision (d)(1) of that statute, not
subdivision (d)(2).
54
direct investment program is GHG reduction measure T-4.1 in the CAP. As explained
ante, under T-4.1, the County may invest in projects in the County that reduce or
eliminate in-County GHG emissions. The SEIR explains, "Appendix B of this Draft
SEIR provides a range of protocols that may be applied to County direct investment
projects to implement GHG Reduction Measure T-4.1." Elsewhere in its response to
comments, the County similarly states, "Appendix B provides support for the County's
local direct investment projects through CARB-approved protocols. . . . Appendix B
applies only to how the County will ensure tracking and enforceability of GHG Reduction
Measure T-4.1." (Italics added.) In response to another comment, the County added,
"The performance-based protocols listed in CAP SEIR Appendix B will be used to
develop project-level detail for implementing GHG Reduction Measure T-4.1 . . . ." At
oral argument, the County had no response to this point.
Thus, although nothing appears to preclude a GPA project from using an
Appendix B protocol as part of its M-GHG-1 mitigation—nothing in M-GHG-1 requires
it. By insisting that M-GHG-1 requires additionality because it requires GPAs to use
Appendix B protocols, the County actually highlights one of M-GHG-1's most significant
flaws—offset credits under M-GHG-1 need not be additional.29
29 In this litigation, Plaintiffs have not challenged any of the Appendix B protocols.
Therefore, for future reference they are:
CAPCOA GHG Rx protocols: (a) Biomass Waste for Energy Project (2013);
(b) Coastal Wetland Creation Version 1.0 (2016); (c) Compost Additions to Grazed
Grasslands (2014); (d) Forestry Protocol #1 (2013); (e) Forestry Protocol # 2 (2013);
55
5. The County's arguments that M-GHG-1 is enforceable lack merit
The County also contends that M-GHG-1 is effective and enforceable because it
"perfectly conforms" to a "discussion draft" on carbon offsets prepared by the Governor's
Office of Planning and Research (OPR). However, this document is not part of the
record and we deny the County's judicial notice request. (Moore v. City of Los Angeles
(2007) 156 Cal. App. 4th 373, 386 [review of administrative proceeding is limited to
matters contained within the administrative record].)
In any event, the OPR document on its face states it is a "draft" containing "initial
thoughts." To the extent the document has any probative value, it states that offsets are a
"permissible way to mitigate climate change impacts under CEQA." Plaintiffs do not
challenge that point. The issue is whether M-GHG-1 does so in a CEQA-compliant
manner, which the OPR document does not address.
(f) Forestry Protocol #3 (2013); (g) Revised Livestock Projects (2014); (h) U.S.
Livestock version 4.0 (2017); (i) Organic Waste Digestion (2017); (j) Weatherization of
Single Family and Multi-Family Buildings (2016); (k) Wetland Implementation and Rice
Cultivation in the Sacramento-San Joaquin Delta, San Francisco Estuary and the Coast of
California Version 1.0 (2016);
Climate Action Reserve protocols: (a) Coal Mine Methane Version 1.1; (b) Forest
Version 4.0 (2017); (c) Grassland Version 2.0 (2017); (d) Landfill Version 4.0 (2011);
(e) U.S. Livestock Version 4.0; (f) Nitric Acid Production Version 2.1; (g) Nitrogen
Management Version 1.1; (h) Organic Waste Composting Version 1.1; (i) Urban Forest
Management Version 1.0 (2014); (j) Urban Tree Planting Version 2.0 (2014); (k) U.S.
Ozone Depleting Substances Version 2.0;
CARB protocols: (a) U.S. Forest Projects (2015); (b) Livestock Projects Capturing
and Destroying Methane from Manure Management Systems (2014); (c) Mine Methane
Capture Projects Capturing and Destroying Methane From U.S. Coal and Trona Mines
(2014); (d) Ozone Depleting Substances Projects Destruction of U.S. Ozone Depleting
Substances Banks (2014) ; (e) Urban Forest Projects (2011).
56
The County also contends that the Newhall Ranch Resource Management and
Development Plan (Newhall) is an "example of the type of project that helps the state
achieve its emission reduction goals." The County claims that the Newhall plan relies on
carbon offsets "from anywhere in the world for approximately 50 percent of its GHG
emission reductions . . . ." The County concludes, therefore, that statewide emissions
reductions "can be accomplished by reductions that occur out-of-state."
However, comparing M-GHG-1 to Newhall's GHG mitigation measures serves
only to demonstrate M-GHG-1's severe deficiencies. In Newhall, GHG mitigation
measures included requirements that (1) homes, commercial buildings, and public
facilities create as much energy as is used by implementing energy-efficient design and
renewable energy generation, such as solar panels; (2) every home (up to 21,500) be
equipped with an electric vehicle charging station; (3) 2,000 onsite charging stations be
installed in commercial and community areas; (4) subsidies for electric vehicle purchases
be provided; (4) electric school bus and neighborhood electric vehicle programs, transit
subsidies, tech-enabled mobility features, bike-share and car-share programs be provided;
and (5) energy efficient upgrades for schools and public buildings in disadvantaged
communities be constructed. M-GHG-1 contains none of these measures.
Moreover, Newhall's GHG mitigation identified "Direct Reduction Activities" that
"are prototypical" of GHG reduction measures the developer would implement. These
included (1) conservation of forest land to sequester GHG emissions; (2) funding clean
burning cook stoves for underprivileged households in foreign countries (more than three
billion people globally depend on burning wood fuels in archaic stone fires; a single clean
57
cook stove can save about two MTCO2e per year); and (3) programs for methane capture.
M-GHG-1 identifies no specific GHG offset protocols to be implemented.
Further, "to ensure environmental integrity," the Newhall GHG mitigation plan
required that any reduction or elimination be additional. It also defined additional using
both a legal requirement test and a performance test.30 As already explained, the text of
M-GHG-1 does not require additionality.
Moreover, the County is incorrect in claiming that Newhall's GHG mitigation plan
allowed carbon offsets "anywhere in the world for approximately 50 percent of its GHG
emission reductions." Actually, in Newhall at least 68 percent of project GHG emissions
reductions were required to be achieved in California. Moreover, at least 80 percent were
required to be achieved in the United States. In Newhall, even the possibility of 20
percent international offsets was reduced by requiring the developer to continue seeking
reasonable opportunities to obtain domestic offsets. M-GHG-1 has no similar limits on
international offsets.
And finally, in Newhall if the lead agency determines within 90 days that offsets
are noncompliant with performance standards, permitting ceases until that agency
30 The legal-requirement test requires that the activity "shall not be required for GHG
reduction by applicable law (i.e., statute, ordinance or regulation) in effect at the time of
the initiation" of the activity. The performance test requires that the activity "shall reduce
GHG emissions below the applicable common industry practice for GHG reductions as in
effect at the time" the activity is initiated. The performance test for a particular activity
"shall be set in a protocol by an [a]pproved [r]egistry through analysis of standard
practices and technology deployment in the applicable industry sector."
58
determines the standards have been met. Once again, M-GHG-1 has no safeguards for
after-acquired information invalidating a previously issued offset.
For the first time in its reply brief, the County also contends that M-GHG-1
reductions would be "additional" because the County "would not permit a project
applicant to mitigate . . . with out-of-County offsets until the applicant has exhausted the
project's onsite and in-County options. By not raising this in its opening brief, the
County has forfeited the point. (Doe v. California Dept. of Justice (2009) 173
Cal. App. 4th 1095, 1115 (Doe) [" ' "Obvious considerations of fairness in argument
demand that the appellant present all of his points in the opening brief. To withhold a
point until the closing brief would deprive the respondent of his opportunity to answer it
or require the effort and delay of an additional brief by permission." ' "].) Moreover,
even if we were to consider this argument, it fails because it is based on a fundamental
misunderstanding. Additionality is not a geographic limitation, but rather considers
whether the offset would have otherwise occurred.
Again for the first time in its reply, citing Our Children's, supra, 234 Cal.App.4th
at page 882, the County contends that GHG emission reductions under M-GHG-1 are
additional because they "would be additional to other legislatively-mandated reductions
as assured by compliance with [s]ection 38562." This point is also forfeited. (Doe,
supra, 173 Cal.App.4th at p. 1115.) Moreover, as explained ante, M-GHG-1 does not
invoke subdivision (d)(2) of section 38562. The offset program analyzed in Our
Children's does. (Our Children's, at p. 877.)
59
E. M-GHG-1 Violates CEQA By Improperly Deferring Mitigation
Under M-GHG-1, the Director determines whether to approve offset credits. That
decision is based on two determinations. First, the registry or issuing entity must be
CARB-approved or "reputable" and issue offsets consistent with section 38562,
subdivision (d)(1). Second, the offsets must not be "available" and/or not "financially
feasible" in a location closer to the County as listed in the geographical hierarchy.
Plaintiffs contend that M-GHG-1 violates CEQA by improperly delegating and deferring
mitigation to these future determinations. We agree.
"Formulation of mitigation measures shall not be deferred until some future time."
(Guidelines, § 15126.4, subd. (a)(1)(B).) However, the specific details of a mitigation
measure . . . may be developed after project approval when it is impractical or infeasible
to include those details during the project's environmental review provided that the
agency (1) commits itself to the mitigation, (2) adopts specific performance standards the
mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can
feasibly achieve that performance standard and that will considered, analyzed, and
potentially incorporated in the mitigation measure." (Ibid.; see also Forest Foundation,
supra, 17 Cal.App.5th at pp. 442-443.) Where an EIR improperly defers mitigation, the
approving agency abuses its discretion by failing to proceed as required by law. (CBE,
supra, 184 Cal.App.4th at pp. 89-90.)
Citing Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal. App. 4th 884
(Oakland Heritage), the County contends that M-GHG-1 is "similar to mitigation
measures upheld by courts that require plans or purchasing of offsets subject to review
60
and approval by an agency official." In Oakland Heritage, the appellate court upheld a
mitigation measure deferring site-specific earthquake mitigation measures. However, the
EIR in Oakland Heritage required the developer to submit a design level investigation for
each parcel that would "be in accordance with applicable City ordinances and policies
and consistent with the most recent version of the California Building Code, which
requires structural design that can accommodate ground accelerations expected from
known active faults." (Id. at p. 889.) The EIR also required that the design level
investigation would be reviewed by a structural engineer, a registered geotechnical
engineer, and submitted to "the City Building Services Division . . . 'to ensure compliance
with the applicable requirements of the geotechnical investigation as well as other
applicable code requirements.' " (Id. at p. 894.) The EIR further contained "an extensive
discussion of the mandates of various state and [c]ity laws bearing upon seismic safety,
including the Seismic Hazards Mapping Act [citation], the Building Code . . ., and
various City ordinances." (Id. at p. 892.) The EIR concluded that " '[c]onsidering the
rigorous investigation process required under the engineering standard of care,
compliance with state laws and local ordinances, and regulatory agency technical
reviews, the mitigation measures . . . will reduce the risk of seismic hazards and ensure
that impacts associated with development [of the] . . . Project area would remain less than
significant.' " (Id. at p. 910.)
Oakland Heritage concluded that the EIR sufficiently addressed potential
environmental impacts associated with seismicity. The court noted that the EIR
"discussed the statutes and regulations aimed at increasing seismic safety." (Oakland
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Heritage, supra, 195 Cal.App.4th at p. 907.) The EIR also "discussed the responsibilities
of the engineers and building officials and the processes to ensure that site investigations,
grading, and construction are completed in accordance with the laws designed to protect
the public and property from the effects of earthquake shaking and ground failure." (Id.
at pp. 908-909.)
Contrary to the County's assertions, the mitigation measure in Oakland Heritage
is materially distinguishable from M-GHG-1. In Oakland Heritage, the delegation to
staff was based on objective statutory standards. In contrast here, M-GHG-1 provides
only a generalized goal of no increase or net zero GHG emissions, and then allows the
Director to determine whether any particular offset program is acceptable based on
unidentified and subjective criteria.
Deferred mitigation violates CEQA if it lacks performance standards to ensure the
mitigation goal will be achieved. For example, in CBE, supra, 184 Cal. App. 4th 70, the
appellate court struck down deferred mitigation for GHG emissions reduction because the
mitigation measure "merely propose[d] a generalized goal of no net increase in
greenhouse gas emissions and then set[] out a handful of cursorily described mitigation
measures for future consideration that might serve to mitigate the 898,000 metric tons of
emissions resulting from the Project." (Id. at p. 93.) The mitigation measures were
undefined, and "[t]he only criteria for 'success' of the ultimate mitigation plan" was "the
subjective judgment of the City Council, which presumably will make its decision
outside of any public process a year after the Project has been approved." (Ibid.) The
mitigation plan in CBE violated CEQA because it "offered no assurance that the plan for
62
how the [p]roject's greenhouse gas emissions would be mitigated to a net-zero standard
was both feasible and efficacious . . . ." (Id. at p. 95.)
M-GHG-1 violates CEQA in much the same ways as did the deferred mitigation
plan addressed in CBE. As there, M-GHG-1 sets a generalized goal—no net increase or
net-zero GHG emissions. And also like CBE, achieving that goal depends on
implementing unspecified and undefined offset protocols, occurring in unspecified
locations (including foreign countries), the specifics of which are deferred to those
meeting one person's subjective satisfaction.
Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal. App. 4th
777 (Endangered Habitats) is another instructive example of improper deferred
mitigation. There, the EIR required an acoustical report to demonstrate structures were
designed to meet noise standards "satisfactory to the manager of the county's building
permit division." (Id. at pp. 793-794.) The Court of Appeal held this violated CEQA
because it "does no more than . . . allow approval by a county department without setting
any standards." (Id. at p. 794.)
Like the improper deferred mitigation plans in CBE and Endangered Habitats, M-
GHG-1 contains no objective standards for determining whether any particular offset
project is "available" and "financially feasible" in one location or another. Without any
objective and measurable standard for what "feasible" onsite reductions consist of,
M-GHG-1 provides no reasonable assurance that any onsite GHG reduction will actually
occur.
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This concern is not merely theoretical. The County has approved GPAs using
GHG mitigation measures similar to M-GHG-1 that will use a staggering amount of
offsite carbon credits. For example, the County-approved Newland Sierra project
planned to mitigate 82 percent of its GHG emissions with offsite offsets.31
Especially troubling is that M-GHG-1 contains no objective standards for the
Director to apply in determining whether offsets originating in foreign countries are real,
permanent, verifiable, enforceable, and additional. As one commentator notes, the
ordinary challenges in establishing that a domestic offset protocol meets these standards
are magnified in foreign countries:
"The main motivation in encouraging offsets in developing
countries is the enhancement of forests. The question becomes,
what is the business-as-usual scenario in a situation when
deforestation, the destruction of forests, is business as usual? If a
lowering of the rate of deforestation is considered an emissions
reduction, all that means is less trees are being cut down. This is a
far cry from the [C]ARB's domestic Urban Forest Protocol using a
performance standard of a net gain in trees. Until there is actually an
increase in trees, the ability to remove carbon continues to decline
and yet offsets can be rewarded." (Ramo Offset, supra, 20 Hastings
W.-Nw. J Envt'l L. & Pol'y at p. 149.)
The administrative record in this case echoes some of these same concerns,
stating, "The complexity of the offset program . . . is certain to result in some inaccuracy,
and potentially in fraud. These uncertainties are one of the reasons that CARB limits the
use of offsets in the Cap-and-Trade program to no more than 8 [percent] of the total."
31 In March 2020, a majority of the electorate voted to repeal the Board of
Supervisors' amendment of the General Plan associated with the Newland Sierra project.
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However, under M-GHG-1, the Director's findings of unavailability and feasibility could
allow a GPA applicant to offset all project GHG emissions through credits originating in
foreign countries.
M-GHG-1 also entrusts to the "satisfaction of the Director" whether the proposed
offset registry is "reputable" and the protocol being implemented by the registry is
"consistent" with section 38562, subdivision (d)(1)—that is, whether the projected GHG
reductions are "real, permanent, verifiable and enforceable." However, M-GHG-1 has no
objective criteria for making such findings.32 In contrast, to ensure that GHG reductions
are real, CARB requires the reduction be "a direct reduction within a confined project
boundary." Thus, "[r]ecycling activities would not be eligible for offset credit as the
recycling activities do not have a direct GHG reduction at the recycling facility. . . ."
M-GHG-1 contains no similar standards. To ensure permanency, CARB requires there
be "no opportunity for a reversal of the avoided emissions." This is implemented, for
example, in CARB's forestry protocol, which requires sequestering carbon "for at least
100 years." But M-GHG-1 lacks any permanency criteria. To ensure emissions
reductions are additional, CARB will not approve a protocol "for a project type that
32 At oral argument, the County asserted that objective criteria guides the Director's
discretion under M-GHG-1 because there must be "sufficient credits"—i.e., an amount of
carbon offsets to result in a GPA project having zero GHG emissions above the CAP. It
is undoubtedly true that determining the amount of GHG reductions needed to obtain net
zero is objective because it is a mathematical calculation. However, this begs the
question whether the calculated GHG emissions reduction will actually be obtained. That
is determined by the validity of the protocol being implemented, and M-GHG-1 does not
require Assem. Bill No. 32 compliant protocols.
65
includes technology or GHG abatement practices that are already widely used."
However, M-GHG-1 contains no such objective criteria.
It is true that M-GHG-1 establishes a goal of no net increase above the CAP's
GHG emission projections. However, courts have invalidated deferred mitigation
measures having similar generalized goals that lack performance standards. (CBE, supra,
184 Cal.App.4th at p. 93 [no "net increase" in GHG emissions]; Gray v. County of
Madera (2008) 167 Cal. App. 4th 1099, 1118-1119 (Gray) [mitigation measure aimed at
restoring water supplies governed only by generalized goal, not specific performance
criteria]; San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal. App. 4th
645, 670 [measures intended to protect vernal pools relied on generalized goal and lacked
specific performance criteria or standards].)
In defending M-GHG-1, the County asserts that CEQA permits shifting the
responsibility to perform a mitigation measure to agency staff's discretion. The County
contends the discretion given the Director under M-GHG-1 is similar to mitigation
upheld in California Clean Energy Committee v. City of Woodland (2014) 225
Cal. App. 4th 173 (California Clean), Mount Shasta Bioregional Ecology Center v. County
of Siskiyou (2012) 210 Cal. App. 4th 184 (Mount Shasta), and Gray, supra, 167
Cal. App. 4th 1099. However, these cases do not support the County's claims.
In California Clean, a city certified an EIR for a 234-acre shopping center. A
mitigation measure required the developer to submit a market study and urban decay
analysis for approval by the city's community development department (Department).
(California Clean, supra, 225 Cal.App.4th at p. 193.) The appellate court held that the
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mitigation measure properly delegated review and approval authority to the Department.
However, the court held the measure violated CEQA by failing to specify actions
required to alleviate urban decay. (Id. at pp. 193-195.) Similarly here, there is nothing
inherently unlawful under CEQA by delegating M-GHG-1 determinations to the
Director. The problem is that M-GHG-1 contains no objective criteria for exercising that
discretion to ensure that the GHG emissions reduction goals are actually met.
In Mount Shasta, plaintiffs challenged an EIR for a project expanding an existing
manufacturing facility. (Mount Shasta, supra, 210 Cal.App.4th at p. 190.) The Court of
Appeal upheld noise mitigation measures that required postoperation acoustical testing if
noise exceeded the level of significance (an increase of at least 3.0 dBA and an overall
noise level above the applicable city or County standard). (Id. at p. 208.) However,
unlike Mount Shasta, here M-GHG-1 contains no objective standard to govern the
Director's discretion. Feasible means "capable of being accomplished in a successful
manner within a reasonable period of time, taking into account economic, environmental,
legal, social, and technological factors." (Guidelines, § 15364.) M-GHG-1 contains no
objective criteria for the Director to apply in making these factual determinations.
M-GHG-1's lack of objective standards is well illustrated by comparing it to the
mitigation measure in Sierra Club, supra, 6 Cal. 5th 502. That case involved an EIR for a
planned community of 2,500 homes. (Id. at p. 508.) A mitigation measure provided that
HVAC units would be equipped with a catalyst if "reasonably available and economically
feasible." (Id. at p. 525.) The Supreme Court held that mitigation measure passed CEQA
muster because the EIR objectively defined "economically feasible" to mean costing less
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than 10 percent of the base HVAC cost. (Ibid.) In contrast here, M-GHG-1 contains no
objective standard of feasibility.
The County's reliance on Gray, supra, 167 Cal. App. 4th 1099 is also untenable.
There, to mitigate night light impacts, the EIR required that exterior lighting shall be
designed and maintained "such that glare and reflections are contained within the
boundaries of the parcel, and shall be hooded and directed downward and away from
adjoining properties and public rights-of-way." (Id. at p. 1126.) The measure also
prohibited blinking and flashing lights and provided that all light fixtures "shall be
appropriate to the use they are serving in scale, intensity, and height." (Ibid.) The
measure stated, "[A]ll exterior lighting will be designed, installed and operated as
required by the Planning Director." (Ibid.) The Court of Appeal upheld the measure
because the agency had committed itself to "specific performance standards"—that
lighting be hooded and directed away from adjacent properties and towards the project
site. (Id. at p. 1127.) M-GHG-1 is materially different because mitigation measures are
based on the Director's private and subjective discretionary determinations.
In a related argument, citing Sacramentans for Fair Planning v. City of
Sacramento (2019) 37 Cal. App. 5th 698 (Sacramentans), the County also asserts that the
Director's discretion under M-GHG-1 is "no greater" than the discretion afforded to the
staff member in that case to determine that a housing project provided "a significant
community benefit." However, the discretionary issue in Sacramentans was whether the
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city's approval resulted from an unconstitutional delegation of legislative authority. (Id.
at p. 716.) The case does not involve deferred mitigation.33
The County also defends M-GHG-1's lack of objective standards by emphasizing
that scientific knowledge in this area is constantly evolving. We agree that an agency
should be encouraged to adopt flexible mitigation measures that can adapt as better
technology becomes available (unless those changes increase the project's significant
impacts). (See Sierra Club, supra, 6 Cal.5th at p. 524.) However, "the novelty of
greenhouse gas mitigation measures is one of the most important reasons 'that mitigation
measures timely be set forth, that environmental information be complete and relevant,
and that environmental decisions be made in an accountable arena." (CBE, supra, 184
Cal.App.4th at p. 96.) Although "foreseeing the unforeseeable is not possible, an agency
must use its best efforts to find out and disclose all that it reasonably can." (Ibid.)
The County's reliance on California Native Plant Society v. City of Rancho
Cordova (2009) 172 Cal. App. 4th 603 (Native Plant) is also unpersuasive. There, a
project significantly impacted vernal pool habitat. (Id. at p. 610.) Mitigation measures
included acquiring offsite habitat. (Id. at p. 612.) Project opponents asserted that the
agency improperly deferred mitigation by failing to specify where offsite vernal pools
might be acquired. (Ibid.) The Court of Appeal rejected that contention because the
33 The CEQA issues in Sacramentans were whether (1) the regional transportation
and emissions reduction plan were inadequate; and (2) the impact analysis improperly
tiered to prior environmental impact reports. (Sacramentans, supra, 37 Cal.App.5th at
p. 718.)
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mitigation measure included objective criteria—replacement habitat in a specified ratio
(2:1) to the habitat lost from the project. (Id. at pp. 621-622.) The case is inapposite
because M-GHG-1 lacks objective criteria to ensure mitigation is effective.
Citing Gentry v. City of Murrieta (1995) 36 Cal. App. 4th 1359, the County also
contends that "courts have upheld mitigation measures such as M-GHG-1 where a
building official . . . must review and approve a plan or proposed implementation of a
mitigation measure, essentially performing a mitigation monitoring function." However,
this argument misses the target. The CEQA defect in M-GHG-1 is not that it allows one
person—the Director—to make discretionary decisions. The problem is M-GHG-1 lacks
objective criteria to ensure the Director's exercise of that discretion will result in GHG
reduction that is real, permanent, quantifiable, verifiable, enforceable, and additional.
Unlike M-GHG-1, the mitigation measure in Gentry was "subject to a host of specific
performance criteria imposed by various ordinances, codes, and standards, as well as
other mitigation conditions." (Id. at p. 1395.)
F. The Effect of M-GHG-1's Invalidity on the CAP
After determining that M-GHG-1 was invalid under CEQA, the superior court also
held the CAP was invalid because it "expressly incorporated" M-GHG-1 by reference.
As explained ante, we read the CAP differently because M-GHG-1 is not a CAP GHG
emission reduction measure for GPU-consistent projects, but rather is a mitigation
measure for GPAs in the SEIR. Nevertheless, we too conclude that the CAP is tainted by
M-GHG-1, albeit on somewhat different grounds.
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The CAP contains in-County GHG projections for 2020, 2030, and 2050. Those
projections perform important CEQA functions by (1) informing the public of the total
GHG emissions to be expected if the CAP is implemented; and (2) determining the extent
to which a GPU-consistent project must eliminate or reduce GHG emissions to be within
the threshold of significance.
These projections exclude forecasted GHG emissions from future GPAs and
in-process GPAs that the County had not adopted by August 2017. The CAP excludes
these on the assumption that in-process and future GPAs will mitigate GHG emissions
above the CAP to zero under M-GHG-1. Because M-GHG-1 is invalid, there is no
factual basis for that assumption. Accordingly, to this extent the CAP's finding that
in-process and future GPAs would not result in significant GHG impacts is not supported
by substantial evidence.
G. The SEIR Discloses M-GHG-1's 30-Year Shelf Life
Golden Door contends that the CAP and SEIR are misleading because they do not
disclose that M-GHG-1 requires offsets for only 30 years, after which "any purported
GHG reductions from offset credits vanish, and the County's ability to meet GHG targets
worsens significantly." However, the SEIR states, "M-GHG-1 . . . requires GPAs that
increase density or intensity above the 2011 GPU to offset additional (Option 1) or all
(Option 2) GHG emissions for a 30-year period." The SEIR also explains that a 30-year
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project life is "consistent with the 30-year project lifetime frame used by the South Coast
Air Quality Management District's GHG guidance (SCAQMD 2008)."
III.
CUMULATIVE IMPACTS
A. Additional Background
The SEIR identifies 21 GPAs. These include Newland Sierra (2,135 dwelling
units), Otay 250 (up to 3,158 dwelling units), and Otay Ranch Village 14 (1,119 dwelling
units).34
The SEIR acknowledges that these in-process GPAs "are reasonably foreseeable
[and] have sufficient detail and plans to understand the changes in land use conditions
that are proposed . . . ." The SEIR also acknowledges that these GPAs are "probable
future projects that when combined with the [P]roject, could result in a cumulatively
considerable effect." The SEIR addresses cumulative GHG impacts from these GPAs by
requiring them to mitigate under M-GHG-1. The issue here is whether CEQA requires
analysis of cumulative impacts from in-process GPAs other than, and in addition to, their
projected GHG emissions.
Although conceding that "[t]he SEIR properly finds that GPAs are reasonably
foreseeable," the County claims no additional cumulative impacts analysis is required
because (1) "the parameters of those projects remained highly speculative"; and (2) the
34 Sierra Club's request for judicial notice of the County's plans for review and
approval of the Otay Ranch Village 14 GPA, and that project's draft EIR is denied as
irrelevant. (SDOG, supra, 13 Cal.App.5th at p. 90, fn. 8.)
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County did not know whether the in-process GPAs would rely on carbon offsets, "and if
so, whether that reliance would . . . result in other impacts such as air quality, noise,
energy, or transportation . . . ." For the first time in its reply brief, the County further
contends that even if in-process GPAs would "vastly increase GHG emissions, energy
impacts, and air emissions through unaccounted VMT increases," there is no harm
because "[t]he CAP would reduce GHG emissions and related air quality and energy
impacts compared to conditions without the CAP."35
B. Cumulative Impacts and the Standard of Review
A cumulative impact is one "created as a result of the combination of the project
evaluated in the EIR together with other projects causing related impacts". (Guidelines,
§ 15130, subd. (a)(1).) "The cumulative impact from several projects is the change in the
environment which results from the incremental impact of the project when added to
other closely related past, present, and reasonably foreseeable probable future projects."
(Id., § 15355, subd. (b).)
Environmental impacts of probable future projects must be analyzed because
"consideration of the effects of a project or projects as if no others existed would
encourage the piecemeal approval of several projects that, taken together, could
35 Also for the first time in its reply brief, the County claims that the SEIR analyzed
air quality emissions from "reasonably foreseeable" GPAs "based on their location and
proposed mix of uses . . . ." However, by not raising these arguments in its opening brief,
the County has forfeited them. (Doe, supra, 173 Cal.App.4th at p. 1115.) Applying
forfeiture is especially appropriate because in the opening brief, the County took a
contrary position, asserting that no cumulative impact analysis beyond GHG emissions
was required.
73
overwhelm the natural environment and disastrously overburden the man-made
infrastructure and vital community services. This would effectively defeat CEQA's
mandate to review the actual effect of the projects upon the environment." (Las Virgenes
Homeowners Fed'n v. County of L. A. (1986) 177 Cal. App. 3d 300, 306.) The agency
must interpret this requirement to " 'afford the fullest possible protection of the
environment.' " (Friends of the Eel River v. Sonoma County Water Agency (2003) 108
Cal. App. 4th 859, 868 (Eel River).)
An EIR must analyze cumulative impacts of a project when the project's
incremental effect is cumulatively considerable. (Guidelines, § 15130, subd. (a);
Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal. App. 4th
1184, 1214 (Bakersfield Citizens).) Moreover, if a mitigation measure would itself create
new significant environmental impacts, these too must be discussed, "though in less
detail than required for those caused by the project itself." (Forest Foundation, supra,
17 Cal.App.5th at p. 432.)
Even where, as here, a program EIR is involved, "[t]he fact more precise
information may be available during the next tier of environmental review does not
excuse [the agency] from providing what information it reasonably can now. [Citation.]
Moreover, if known impacts are not analyzed and addressed in a program EIR, they may
potentially escape analysis in a later-tier EIR." (Forest Foundation, supra, 17
Cal.App.5th at p. 440.) "If, on the other hand, the cumulative impact is insignificant or if
the project's incremental contribution to the impact is not cumulatively considerable, the
lead agency is not required to conduct a full cumulative impacts analysis, but the EIR
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must include a brief explanation of the basis for the agency's finding(s)." (San Francisco
Baykeeper, Inc. v. State Lands Com. (2015) 242 Cal. App. 4th 202, 222 (SF Baykeeper).)
" 'We review an agency's decision regarding the inclusion of information in the
cumulative impacts analysis under an abuse of discretion standard. "The primary
determination is whether it was reasonable and practical to include the projects and
whether, without their inclusion, the severity and significance of the cumulative impacts
were reflected adequately." ' " (Rodeo Citizens Assn. v. County of Contra Costa (2018)
22 Cal. App. 5th 214, 231 (Rodeo Citizens).)
C. The SEIR's Cumulative Impacts Analysis Fails Because It Does Not Address
Impacts by GPAs Mitigating GHG Emissions under M-GHG-1
When conducting a cumulative impacts analysis, an agency must include closely
related projects that are currently under environmental review. This is because once
review is begun, a significant investment of time, money, and planning has probably
occurred. Thus, once an EIR is initiated, the project is probable rather than merely
possible. (Eel River, supra, 108 Cal.App.4th at p. 870.)
For example, in San Franciscans for Reasonable Growth v. City & County of San
Francisco (1984) 151 Cal. App. 3d 61 (SFRG), the agency considered a proposal to
construct high-rise downtown office buildings. (Id. at p. 67.) As part of its cumulative
impacts analysis, the agency considered the amount of new office space that would be
added to the area by other approved projects. (Id. at p. 68.) Project opponents asserted
that the agency violated CEQA by failing to consider projects then under environmental
review. (Id. p. 74.) The Court of Appeal agreed, stating, "Because projects under
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environmental review . . . could easily have been ascertained by the [agency] from its
own records, there was no practical or reasonable barrier to their disclosure and inclusion
in the analyses. . . . The only reason we can infer for the [agency's] failure to consider
and analyze this group of projects was that it was more expedient to ignore them." (Ibid.)
Elaborating, the appellate court stated:
"First, experience and common sense indicate that projects which
are under review are ['reasonably] foreseeable probable future
projects. . . .' Ordinarily an office building project that is awaiting
environmental approval has reached a stage of development where
the developer, financial institutions, and contractors almost certainly
view its construction to be a very real probability, and not without
reason. Such a view is doubtless shared by those performing the
environmental review and preparing the EIR.
"Second, we find it illogical that an EIR should carefully
evaluate the direct impacts of one project which is 'under
environmental review,' but completely ignore the cumulative
impacts of that project's siblings in the same category. Nothing
makes the EIR's subject project more 'probable' or 'foreseeable' than
any of the other projects under review, just as nothing makes them
less so." (SFRG, supra, 151 Cal.App.3d at p. 75.)
Here, the 21 in-process GPAs, if constructed, would collectively add nearly
14,000 dwelling units in the unincorporated County. The EIRs for just five of these
disclose they will collectively produce 139,485 MTCO2e in construction-related GHG
emissions alone.36 However, the SEIR does not analyze these cumulative impacts—
except by stating that in-process GPAs will mitigate to zero above the CAP under
M-GHG-1.
36 One hundred thirty nine thousand four hundred eighty five MTCO2e is equivalent
to about one year of GHG emissions from 30,000 combustion engine cars.
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These in-process GPAs are closely related projects currently under environmental
review. They are closely related because the CAP and SEIR address GHG emissions
reduction in the unincorporated County and from County operations, and the GPAs will
create GHG emissions in this same geographic area. These GPAs are in the process of
environmental review by the County as lead agency. Accordingly, the SEIR should have
considered whether these GPAs (listed in Table 1-3 of the SEIR) would create
cumulatively considerable impacts in addition to GHG impacts in combination with the
Project.37 As Golden Door correctly notes, cumulative impacts from adding 14,000
dwellings and related infrastructure in projects utilizing M-GHG-1 (and, therefore, using
offsite carbon offsets to mitigate their in-County GHG emissions) would likely include
impacts to air quality, energy, and vehicle miles traveled, among others. "The absence of
this analysis makes the [S]EIR an inadequate informational document." (Eel River,
supra, 108 Cal.App.4th at p. 872.)
The County contends that analyzing cumulative impacts (in addition to GHG
impacts) from in-process GPAs requires an inappropriate level of detail for the SEIR.
However, the detail required for a cumulative impact analysis is based on reasonableness
and practicality. (Rodeo Citizens, supra, 22 Cal.App.5th at p. 231.) In this case, the
SEIR admits that the in-process GPAs are "reasonably foreseeable [and] have sufficient
detail and plans to understand the changes in land use conditions that are proposed."
37 SEIR Table 1-3 contains "the complete list of GPAs" that were under County
review as of August 2017.
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Despite knowing that (1) these probable GPAs would add some 14,000 homes, and
(2) these projects would implement M-GHG-1 by using offsite carbon offsets—the
County did not analyze any of their cumulative impacts apart from GHG emissions
(which the SEIR concluded would be mitigated to zero above the CAP.) The problem
here is not a lack of detail about a cumulative impact considered; the CEQA defect is the
failure to analyze any such cumulative impact at all.
The County does not explain how the GPAs could be probable and foreseeable
enough to create cumulatively considerable GHG impacts, but not probable and
foreseeable enough to create, for example, vehicle miles traveled impacts from projects
expected to add 14,000 new homes to the backcountry. Of course, if a potential
cumulative impact is insignificant, the lead agency is not required to conduct "a full
cumulative impacts analysis," but must explain the basis for the finding of insignificance.
(SF Baykeeper, supra, 242 Cal.App.4th at p. 222.) However, the SEIR also fails to
engage in that analysis.
The County also defends its failure to analyze these cumulative impacts by
asserting, "CEQA does not require the SEIR to speculate about whether the County
would approve pending project applications or the conditions imposed should the County
approve them." Citing Sacramento Old City Assn. v. City Council (1991) 229
Cal. App. 3d 1011 (Sacramento Old City) and Environmental Council of Sacramento v.
City of Sacramento (2006) 142 Cal. App. 4th 1018 (Environmental Council of
Sacramento), the County asserts that "[e]ven though applications for GPAs
existed . . . the parameters of those projects remained highly speculative." The County
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claims it did not know of changes that might be made "during the public process, whether
the future and proposed projects would rely on carbon offsets, and if so, whether that
reliance would . . . result in other impacts such as air quality, noise, energy, or
transportation." The County repeated this at oral argument, noting that after the County
certified the SEIR, the general plan amendment for one of the in-process GPAs was set
aside by referendum.
However, the SEIR itself contradicts the claim that the GPAs were too speculative.
Table 1-3 of the SEIR contains a list of "past, present, and probable future projects that
when combined with the [P]roject could result in a cumulatively considerable effect."
(Italics added.) Moreover, the County's reliance on Sacramento Old City and
Environmental Council of Sacramento for the opposite conclusion is unavailing. In both
cases, the future projects were not then in any stage of development. In Sacramento Old
City, plaintiffs challenged an EIR for a project expanding a convention center and
constructing an office tower. (Sacramento Old City, supra, 229 Cal.App.3d at p. 1016.)
Among other things, the EIR determined that an additional 2,621 parking spaces would
be needed. (Id. at p. 1020.) Plaintiffs argued that mitigation measures to accommodate
the 2,600 parking space deficit would include constructing new downtown parking lots,
erecting a large parking garage, or shuttling hundreds of people from outlying parking
areas—all of which in themselves would create substantial cumulative environmental
impacts that must be analyzed in the EIR, but were not. (Id. at p. 1030.) The Court of
Appeal rejected that contention, stating, " 'prophecy' is not required in an EIR" and "[n]or
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do we require discussion in the EIR of specific future action that is merely contemplated
or a gleam in the planner's eye." (Id. at p. 1031.)
Environmental Council involved a habitat conservation plan and implementation
agreement for protecting hawks and snakes in a 53,537 acre basin. (Environmental
Council of Sacramento, supra, 142 Cal.App.4th at p. 1023.) The conservation plan
established a program to minimize and mitigate the expected loss of habitat and
incidental killing of covered species that could result from authorized urban development
of 17,500 acres. (Id. at p. 1025.) Subsequently, the city and county adopted a
memorandum of understanding (MOU) outlining an approach for future agreements
regarding land use in the basin. (Id. at pp. 1029-1030.) The MOU did not approve
development nor involve any specific development proposals. (Id. at p. 1030.) No funds
were committed under the MOU, and the MOU did not change any existing land use
requirements but rather contemplated further discretionary approvals and environmental
review. (Ibid.) A federal court described the MOU as "tentative" and stated that
development under the MOU "was not reasonably certain to occur . . . ." (Ibid.) The
plaintiffs in Environmental Council asserted that CEQA required the agencies to consider
cumulative impacts from the MOU. (Id. at pp. 1028-1029.) The Court of Appeal
rejected that argument because the MOU involved "unspecified and uncertain
development that might be approved in the future" and "[f]ar too little is known about the
scope, the location, or the types of projects that might be proposed in the future . . . ."
(Id. at p. 1032.)
80
In sharp contrast here, the in-process GPAs were well beyond the initial planning
stages. The County knew the scope, location, types of projects being proposed and, in
some cases, even specific amounts of GHG emissions that would be mitigated with offset
credits originating out of County. In the superior court, the County filed a declaration by
one of its planning managers, who authenticated excerpts from the Lake Jennings
Marketplace EIR. That EIR requires the applicant to purchase 2,708 MTCO2e in offset
credits before the first grading permit is issued and another 71,880 MTCO2e of credits
before the first certificate of occupancy is issued. In the same declaration, the planning
manager also authenticated EIR excerpts of five other in-process GPAs with similar GHG
mitigation measures. As summarized in the table post, these in-process GPAs will
mitigate GHG emissions by purchasing listed amounts of offset credits, almost certainly
originating outside the County:
Project EIR date Offset Provision Summary
Newland Sierra38 Draft EIR circulated Requires carbon offsets for
June 2017. approximately 82 percent of its GHG
emissions. Allows international
offsets.
Warner Ranch Draft EIR circulated Requires purchasing 2,413 MTCO2e
December 2016. in annual carbon offsets.
Harmony Grove Draft EIR in April Requires 4,411 MTCO2e in offset
Village South 2017, revised in credits before issuance of the first
February 2018. grading permit and thereafter 5,222
annually; allows international offsets.
38 The administrative record contains public communications stating that the
Newland Sierra project includes a GPA that would add over 2,100 homes in an area
zoned for only 99 homes in the GPU and is six miles from the nearest public transit
center.
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Valiano Final EIR published in Requires offset credits up to 6,123
February 2018. MTCO2e to mitigate construction-
related GHG emissions and 4,493
annually for operational GHG
emissions.
Otay 250 Final EIR published in Even with onsite mitigation, the
March 2018. project will result in 37,554 MTCO2e
that may be mitigated with offsets,
including internationally.
As lead agency, the County had access to these EIRs and, therefore, was not
required to speculate about their contents. The County knew or reasonably should have
known that these GPAs would almost certainly be purchasing out-of-County credits to
offset in-County GHG emissions. Accordingly, the SEIR was required to consider
whether these GPAs and others like them would lead to significant cumulative impacts in
combination with the Project.
In a related argument, the County urges that cumulative impact analysis should be
deferred until project-specific environmental review of each of the GPAs. However, in
Forest Foundation, this court rejected a similar argument, stating: " 'Designating an EIR
as a program EIR . . . does not by itself decrease the level of analysis otherwise required
in the EIR. [I]n considering a challenge to a program EIR, 'it is unconstructive to ask
whether the EIR provided "project-level" as opposed to "program-level" detail and
analysis. Instead, we focus on whether the EIR provided "decisionmakers with sufficient
analysis to intelligently consider the environmental consequences of [the] project.' "
(Forest Foundation, supra, 17 Cal.App.5th at p. 426.)
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In sum, the SEIR's cumulative impact analysis is inadequate because it fails to
address reasonably known cumulatively considerable impacts from probable GPAs
utilizing M-GHG-1 to mitigate GHG emissions by purchasing out-of-County offsets.39
IV.
THE SEIR'S FINDING OF CONSISTENCY WITH THE REGIONAL TRANSPORTATION
PLAN IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
A. Senate Bill No. 375—Background
In 2008, the Legislature enacted the Sustainable Communities and Climate
Protection Act (Stats. 2008, ch. 728, § 1; Stats. 2009, ch. 354, § 5), commonly known as
Senate Bill No. 375 (Sen. Bill No. 375), to reduce GHG emissions through improved land
use and transportation planning. Sen. Bill No. 375's findings and legislative declarations,
quoted in part below, emphasize the necessity for changed land use patterns and
improved transportation to meet Assem. Bill No. 32 goals:
"(a) The transportation sector contributes over 40 percent of the
greenhouse gas emissions in the State of California; automobiles and
light trucks alone contribute almost 30 percent. The transportation
sector is the single largest contributor of greenhouse gases of any
sector. [¶] . . . [¶]
"(c) Greenhouse gas emissions from automobiles and light trucks
can be substantially reduced by new vehicle technology and by the
increased use of low carbon fuel. However, even taking these
measures into account, it will be necessary to achieve significant
additional greenhouse gas reductions from changed land use patterns
and improved transportation. Without improved land use and
transportation policy, California will not be able to achieve the
39 Our analysis assumes without deciding that the GHG mitigation measure(s) in
EIRs for these in-process GPAs is/are lawful. Those projects are not before us and we
express no opinion on that issue.
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goals of AB 32." (Gov. Code, § 14522.1 [Section 1 of Stats. 2008,
ch. 728 [Sen. Bill No. 375]], italics added.)
Under Sen. Bill No. 375, CARB must develop region-by-region emission
reduction targets for automobiles and light trucks for 2020 and 2035. (Gov. Code,
§ 65080, subd. (b)(2)(A).) "The targets set by CARB for the San Diego region, using a
2005 baseline, require a 7 percent per capita reduction in greenhouse gas emissions by
2020 and a 13 percent per capita reduction by 2035." (Cleveland National, supra, 3
Cal.5th at p. 506.)
Metropolitan planning organizations (MPOs) are also involved in implementing
Sen. Bill No. 375. MPOs are federally required organizations comprised of
representatives of local government, transportation agencies, and state officials.
(23 U.S.C. § 134.) The San Diego Association of Governments (SANDAG) is the MPO
for the San Diego region.
Under Sen. Bill No. 375, each MPO must draft and adopt a Sustainable
Communities Strategy (SCS) as part of its regional transportation plan (RTP). (Gov.
Code, § 65080, subd. (b)(2)(B).) CARB reviews and either approves or rejects each SCS.
(Id., subd. (b)(2)(J)(ii).)
An SCS establishes how planned land uses and transportation projects will achieve
CARB's GHG reduction targets. These include "a forecasted development pattern for the
region, which, when integrated with the transportation network, and other transportation
measures and policies, will reduce the greenhouse gas emissions from automobiles and
light trucks to achieve, if there is a feasible way to do so, the greenhouse gas emission
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reduction targets approved by [CARB] . . . ." (Gov. Code, § 65080, subd. (b)(2)(B)(vii).)
An SCS must also (1) assess how to provide housing for all income levels of the regional
population, projected eight years into the future; and (2) identify a transportation network
to service the region's transportation needs. (Id., subd. (b)(2)(B)(iii) & (iv).)
"The reductions mandated by [Sen. Bill No. 375] may be achieved through a
variety of means, including 'smart growth' planning to maximize building densities at
locations served by public transit and to locate residences near needed services and
shopping to reduce automobile dependency.[40] Other means include shifting
investment toward mass transit, changing transportation pricing, and encouraging car
sharing, walking, and biking." (Cleveland National, supra, 3 Cal.5th at p. 506.)
Because the RTP must be internally consistent, the housing needs analysis and the
reductions in GHG emissions must work together to achieve the stated goals. (Gov.
Code, § 65080, subd. (b) ["The [RTP] shall be an internally consistent document"].)
However, the SCS is not the equivalent of a general plan. The SCS does not directly
require local government to take particular actions in planning, regulating, and permitting
land development. (Gov. Code, § 65080, subd. (b)(2)(K) ["Nothing in a[n SCS] shall be
interpreted as superseding the exercise of the land use authority of cities and counties
within the region."].)
40 Smart growth means "compact, efficient, and environmentally sensitive pattern of
development that focuses future growth away from rural areas and closer to existing and
planned job centers and public facilities, while preserving open space and making more
efficient use of existing urban infrastructure."
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Sen. Bill No. 375 requires the California Transportation Commission to establish
guidelines for an MPO to use in developing an RTP. (Gov. Code, § 14522.1, subd.
(a)(1).) These guidelines must take VMT into account:
"(b) The guidelines shall . . . account for all of the following:
"(1) The relationship between land use density and household
vehicle ownership and vehicle miles traveled in a way that is
consistent with statistical research.
"(2) The impact of enhanced transit service levels on household
vehicle ownership and vehicle miles traveled." (Gov. Code,
§ 14522.1, subd. (b)(1) & (2).)
However, under Sen. Bill No. 375, a combination of factors and methodologies
may be used to achieve GHG reduction targets. Each percentage reduction in GHG
emissions assigned to a particular MPO does not require that same percentage reduction
in VMT. (Gov. Code, § 65080, subd. (b)(2)(A)(i).)
B. SANDAG's Regional Plan
As part of its mandate under Sen. Bill No. 375, SANDAG's target is to reduce the
region's per capita GHG emissions from cars and light trucks by 7 percent by 2020 (when
compared with a 2005 baseline), and 13 percent by 2035. To achieve these goals,
SANDAG developed an SCS as part of its RTP (Regional Plan).
The Regional Plan is organized around five strategies: (1) focus housing and job
growth in urbanized areas where there is existing and planned transportation
infrastructure, including transit; (2) preserve sensitive habitat, open space, cultural
resources, and farmland; (3) establish a transportation network that reduces GHG
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emissions; (4) address housing needs of all economic segments of the population; and
(5) implement the regional plan through incentives and collaboration.
1. Housing
The Regional Plan states, "Land use decisions made at the local level can impact
nearly all sources of emissions . . . . Development guided by smart growth principles—
remember: more compact communities, less suburban sprawl—brings people closer to
more destinations. It also encourages alternative travel choices, such as public transit,
carpooling, walking and biking, which cut greenhouse gas emissions and other forms of
pollution."
The Regional Plan notes that "[d]uring the last 15 years, our jurisdictions have
changed their land use plans significantly, resulting in development patterns that
concentrate future growth in urbanized areas, reduce sprawl, and preserve more land for
open space and natural habitats." SANDAG states these were "seismic shifts" in thinking
about how to grow. The Regional Plan concludes that the "long-term plans for our local
cities and the County of San Diego now call for focusing new growth in the urbanized
areas of the western portion of our region where more people already live." By designing
communities that better integrate land use and transportation, the Regional Plan seeks to
"create more opportunities for developing a wider variety of travel choices beyond the
car . . . ."
SANDAG forecasts that the San Diego region will continue to grow more
sustainably. "More compact and efficient communities, paired with a greater variety of
transportation options and less sprawl, will result in preserved open space and habitat,
87
and a more efficient use of water and energy." New housing should be located "in urban
communities close to jobs and transit."
"While the western areas will grow over time through more compact communities,
more land in the eastern two-thirds of the region will be preserved as open space." The
Regional Plan encourages local jurisdictions in the region "to continue to embrace smart
growth and sustainable development" because "new growth and development in the most
urbanized areas of the region is a key strategy toward sustainability."
Sen. Bill No. 375 requires that areas be identified within the region sufficient to
house the region's entire population over the course of the planning period. The Regional
Plan forecasts needing 325,000 additional homes. The Regional Plan states that "[n]ew
housing should be located in urban communities close to jobs and transit." SANDAG
projects that 82 percent of homes to be built by 2050 will be attached multifamily units
mostly located where the greatest investments in public transit are being made.
Approximately 55 percent of the region will be preserved as open space and parks,
habitat, or farmland.
2. Transportation
The "heart" of the Regional Plan is an SCS that "charts a course toward lower
GHG emissions related to cars and light trucks, and proposes other measures to make the
San Diego region more environmentally sustainable." The SCS focuses on transportation
because "about a third of GHG emissions generated in this nation come from that sector
alone." Transportation is also the largest source of GHG emissions in the region. In
2012, passenger cars and light trucks comprised 37 percent of the region's GHG
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inventory. Although the transportation sector is responsible for the greatest GHG
reductions (nearly 30 percent of the total), most of those reductions will come from
higher fuel efficiency vehicles (18 percent) and a more diverse fuel mix (low carbon fuel
standards) (9 percent). Statewide regional transportation plans are responsible for less
than three percent of the GHG reductions.
SANDAG states that its Regional Plan will exceed its CARB targets
"[b]y . . . using land in ways that make developments more compact, conserving open
space, and investing in a transportation system that provides people with alternatives to
driving alone." "Reducing the number of miles that people travel in their cars is an
important goal." "Fuel efficiency improvements and alternatives also comprise a major
part of" planned GHG emission reductions from the transportation sector.
The Regional Plan states that it will exceed CARB's goals, resulting in a 15
percent per capita reduction in emissions by 2020, and a 21 percent per capita reduction
by 2035—"far more than what the state mandates require . . . ." Approximately half of
the reductions would result from "investment in transit projects and their operations,
managed lanes, active transportation projects" and measures "that support . . . working
from home or telecommuting." "About one-quarter of the reductions are estimated from
changing land use and population characteristics, while another quarter are projected
from increases in the cost of driving . . . ."
89
C. The SEIR's Discussion of Consistency with Sen. Bill No. 375
1. The CAP
The SEIR states that the Project is consistent with the Regional Plan and with Sen.
Bill No. 375. With respect to the CAP, the SEIR states that GHG reduction measure
T.2.1 would "implement traffic calming measures," and measure T.2.2 would require
private employers to adopt a transportation demand management program.41 Measure
T-2.3 reduces County employee VMT by 20 percent by 2030. Parking restrictions in
measure T-2.4 reduce VMT by 10 percent by 2030. The SEIR concludes that
"[a]dditional supporting efforts for the built environment and transportation category" in
the CAP "would also encourage efforts to support the goals and policies of Sen. Bill
No. 375 and the [Regional Transportation Plan]/SCS." The CAP's numerous GHG
reduction measures will contribute 13 percent of GHG reductions needed to meet the
2030 target and 8 percent of the GHG reductions estimated for 2050. These include
41 Measure T-2.1 seeks to reduce VMT by making pedestrian and bicycle trips "a
more comfortable and safer experience when traveling along public roads. Specific
improvements may include marked crosswalks, countdown signal timers, speed humps,
and protected bikeways. Measure T-2.2 states it will reduce emissions from commute
VMT in new nonresidential development by 15 percent by 2030 by amending the County
Code to include a Transportation Demand Management Ordinance requiring measures
such as telecommuting, car sharing, vanpools, carpools, shuttle service, bicycle parking
facilities, and transit subsidies.
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(1) reducing VMT by acquiring open space, agricultural easements, and updating
community plans; (2) using alternative fuels in County projects and installing electric
vehicle charging stations; and (3) establishing a local direct investment program.
Summarizing its strategy to reduce VMT, the CAP states:
"The county's largest unincorporated communities are located in
the western areas of the county, with access to water, sewer, roads,
schools, and other public facilities. Focusing new development in
and around existing unincorporated communities allows the County
to maximize existing infrastructure . . . .
"This strategy focuses on preserving open space and agricultural
lands, and focusing density in the county villages. Conservation
efforts will avoid GHG emissions from transportation and energy
use associated with conveyance of water and solid waste service.
Reductions in Vehicle Miles Traveled (VMT) resulting from this
strategy will also improve air quality through reduced vehicle
emissions and contribute to public health improvements by creating
opportunity for active transportation choices."42
The SEIR also concludes that the CAP is consistent with the Regional Plan's VMT
projections. The SEIR explains this is because the County provided SANDAG land use
forecasts based on the GPU. SANDAG, in turn, used these forecasts to make VMT
projections that achieve Sen. Bill No. 375 targets. The CAP uses these same VMT
forecasts for the GHG reduction measures. The SEIR concludes that the CAP's GHG
inventory is consistent with SANDAG's VMT projections, since both are based on
projected build-out under land uses allowed under the GPU.
42 "Active transportation choices" includes any method of travel that is human
powered, such as walking and bicycling.
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The SEIR acknowledges the "disproportionality" between the percentage of GHG
emissions attributable to the transportation sector (45 percent) and the lower percentage
of GHG emissions reductions attributable to CAP GHG reduction measures (13 percent).
The SEIR explains that disparity is the unavoidable result of the unincorporated county's
"low-density development" and "intervening distance between land uses."
2. M-GHG-1
The SEIR acknowledges that "several comments question how . . .
M-GHG-1 . . . addresses the consistency of future projects proposing a [GPA] with Sen.
Bill No. 375." The SEIR states that such projects "have the potential to result in a
significant cumulative GHG impact because they may adversely affect the ability of the
CAP to meet its targets and goal . . . ." Nevertheless, the SEIR explains that M-GHG-1 is
consistent with Sen. Bill No. 375 and the Regional Plan because (1) it is the GPA
applicant's responsibility (not the County's) to determine how the GPA affects VMT
projections and the region's ability to meet Sen. Bill No. 375 targets; and (2) it would be
"speculative" to "presuppose approval of future and proposed GPA projects, including the
GHG emissions and VMT from these future projects. The SEIR concludes, therefore,
that "M-GHG-1 would ensure that GPAs are mitigating their emissions such that they
would not conflict with the Regional Plan and Sen. Bill No. 375 targets . . . ."
D. The Plaintiffs' and the Amicus Attorney General's Contentions
Plaintiffs contend that "[t]he CAP, via M-GHG-1, creates a 'pathway' for future
GPAs to mitigate their emissions through the purchase of out-of-county carbon offsets, in
direct contradiction of Sen. Bill No. 375's instruction to reduce emissions from land use
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development and transportation patterns." In a related argument, Plaintiffs assert that
"the SEIR does not fully address how facilitating sprawl development and increased
VMTs by authorizing out-of-County offsets would be consistent with the [Regional
Plan]."
Appearing as amicus curiae, the Attorney General amplifies these arguments,
noting that one of the GPAs, Harmony Grove Village South, will increase VMT by 11.5
million miles annually.43 Like Plaintiffs, the Attorney General asserts that the SEIR fails
as an informative document because "the SEIR does not even acknowledge that
[M-GHG-1] will foreseeably result in increased VMT, let alone provide a complete
analysis of its consistency with the SANDAG Plan."
E. The Consistency Finding is Not Supported by Substantial Evidence
1. Introduction
The SEIR concludes that M-GHG-1 is consistent with the Regional Plan and Sen.
Bill No. 375 targets, stating: "[I]ncorporation of M-GHG-1 would ensure that GPAs are
mitigating their emissions such that they would not conflict with the Regional Plan and
Sen. Bill No. 375 targets . . . ." Plaintiffs challenge this finding, asserting it is not
supported by substantial evidence and that as a result, the SEIR fails as an informational
document. We agree.
43 The Attorney General filed an amicus curiae brief under California Rules of Court,
rule 8.200(c)(7).
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An EIR must "discuss any inconsistencies between the proposed project
and . . . regional plans" including "regional transportation plans." (Guidelines, § 15125,
subd. (d).) This determination must be supported by substantial evidence. (See Oakland
Heritage, supra, 195 Cal.App.4th at p. 898.) "In reviewing the record for substantial
evidence, we presume the agency's findings are correct and resolve all conflicts and
reasonable doubts in favor of the findings." (Citizens for Positive Growth &
Preservation v. City of Sacramento (2019) 43 Cal. App. 5th 609, 629.) Substantial
evidence in a CEQA case is "enough relevant information and reasonable inferences from
this information that a fair argument can be made to support a conclusion, even though
other conclusions might also be reached. . . . Substantial evidence shall include facts,
reasonable assumptions predicated upon facts, and expert opinion supported by facts."
(Guidelines, § 15384, subds. (a) & (b).)
2. The SEIR's consistency finding is not supported by substantial evidence
a. Improper analysis of GPAs
The SEIR's consistency finding is flawed because it makes unwarranted
conclusions about GHG impacts from GPAs. For example, the SEIR states that projected
GHG emissions from GPAs would be consistent with the Regional Plan because "the
County provided SANDAG land use forecasts based on the GPU, which SANDAG then
incorporated into the adopted Regional Plan" to create VMT projections that "align with
the 2011 GPU." The defect in this analysis is that by definition, land uses allowed under
the GPU do not include GPAs (which increase density or intensity of use beyond that
94
allowed under the GPU). Thus, if VMT projections are based on GPU land uses (as the
County claims), then necessarily those projections exclude VMT from in-process GPAs.
The County makes a similar error in contending that CAP GHG reduction
measures will reduce VMT as contemplated in the Regional Plan. The CAP's GHG
emission forecasts are based on land use allowed under the GPU only and assume that in-
process and future GPAs will mitigate GHG emissions to zero above CAP projections
under M-GHG-1. Therefore, the fact that the CAP itself is consistent with VMT
reductions in the SCS does not support a finding that VMT impacts by in-process and
future GPAs will be consistent with the Regional Plan.
b. The County's GPA arguments are misleading
Not only does the County make unwarranted conclusions about GHG impacts
from GPAs, but when the County does address VMT impacts from GPAs, its arguments
are misleading. For example, the County contends that the "SEIR also includes projected
GHG emissions from [GPAs] approved through the time of the draft SEIR and
reasonably foreseeable [GPAs] . . . which captured in broad strokes the GHG from VMT
associated with these cumulative projects." However, the CAP's GHG projections
include emissions only from those GPAs that the County had adopted between August
2011 and August 2017. In other words, those GHG projections exclude emissions from
the 21 in-process GPAs. The County's assertion that the SEIR includes GHG emissions
from "reasonably foreseeable" GPAs is true only if "reasonably foreseeable" excludes in-
process GPAs. Yet in its opening brief, the County concedes that in-process GPAs are
"reasonably foreseeable."
95
In a related argument, the County states that GPU policies designed to reduce
VMT also apply to GPAs. However, this too is misleading. Measures to reduce GHG
emissions for projects with land use consistent with the GPU are found in the CAP. To
the extent GPAs increase density or intensity of land use beyond that allowed under the
GPU, those projects do not mitigate GHG emissions under the CAP, but rather under
M-GHG-1. Indeed, in arguing that the CAP is consistent with the GPU, the County
insisted on this very point—that "GPAs are not part of the project emissions of the CAP
because they are part of the cumulative impact analysis in the SEIR." Therefore, the
County's assertion—that GPU policies designed to reduce VMT also apply to GPAs—is
true only to the limited extent that the GPA project's proposed land use is consistent with
the GPU.
The County also contends substantial evidence supports the SEIR's consistency
finding because "future General Plan amendments are not part of the Project . . . ."
However, the CAP is part of the Project—and the CAP's GHG emission projections
assume that in-process and future GPAs will implement M-GHG-1 to mitigate GHG
emissions to zero above CAP GHG targets.
c. The consistency finding is properly considered
Last, the County makes several arguments in an attempt to remove the entire issue
of consistency with the Regional Plan from the case.
First, the County contends Plaintiffs' argument improperly "conflate[s] VMTs with
GHG emissions." However, "Generally, vehicle miles traveled is the most appropriate
measure of transportation impacts." (Guidelines, §15064.3, subd. (a).) At oral argument,
96
the County also asserted that VMT is "just coming into play." However, VMT has often
been used in California's regulation of air quality and GHG impacts:
"California legislation related to air pollution began to refer to
vehicle miles traveled measurements of traffic flows in the context
of travel demand management in the 1990s. In 1988, enactment of
[Assem. Bill No. 4420] (Sher) directed the California Energy
Commission to study the potential impacts of global climate change
on the state, including its transportation system.[] The Energy
Commission's 1991 report, Global Climate Change: Potential
Impacts and Policy Recommendation, suggested a broad range of
policies and strategies for reducing greenhouse gases.[] The eighth
of the Energy Commission's recommended strategies was 'Reducing
vehicle miles traveled in personal vehicles, through promoting
improved and expanded transportation alternatives, vehicle miles
traveled fees, and other highway use fees. . . .' After publication of
the California Energy Commission's 1991 report, reducing vehicle
miles traveled was widely considered to be a potential regulatory
means for greenhouse gas emission reduction." (Dorothy J. Glancy,
Vehicle Miles Traveled and Sustainable Communities, 46 McGeorge
L. Rev. 23, 52-53 (2014).)
The County next contends that the SCS "does not require VMT reductions." But
this assertion distorts the record. The Regional Plan states: "Reducing the number of
miles that people travel in their cars is an important goal for our Regional Plan" and that
"[l]and use decisions made at the local level can impact nearly all sources of emissions—
for better and for worse. Development guided by smart growth principles—remember:
more compact communities, less suburban sprawl—brings people closer to more
destinations. It also encourages alternative travel choices, such as public transit,
carpooling, walking and biking, which cut greenhouse gas emissions and other forms of
pollution."
97
The County further contends it is SANDAG's obligation to make the Regional
Plan consistent with the GPU, and not the SEIR's obligation to explain any
inconsistencies with the Regional Plan. This argument is untenable. Guidelines section
15125, subdivision (d) states that an EIR "shall discuss any inconsistencies between the
proposed project and applicable . . . regional plans."
Last, citing Environmental Council of Sacramento v. County of Sacramento (2020)
45 Cal. App. 5th 1020 (Environmental Council of Sacramento), the County asserts that
CEQA does not require analysis of consistency with a sustainable communities strategy.
In that case, the plaintiff challenged an EIR for failing to address whether it was
consistent with the Sacramento Area Council of Government's (SACOG) metropolitan
transportation plans/sustainable communities strategy (MTP/SCS). The Court of Appeal
rejected that argument because plaintiff failed to (1) exhaust administrative remedies; and
(2) "cite any evidence that a project must be evaluated under CEQA for consistency with
an SCS." (Environmental Council of Sacramento, at p. 1037.) In contrast here, Plaintiffs
exhausted administrative remedies. The SEIR acknowledges that "[m]any comments"
expressed concern that proposed GHG reduction measures would not meet VMT
reduction targets established by SANDAG's RTP/SCS. Moreover, unlike Environmental
Council of Sacramento, here the SEIR does address consistency between the CAP and the
RTP/SCS.
Moreover, we disagree with the dicta in Environmental Council of Sacramento,
supra, 45 Cal.App.5th at page 1037 that CEQA does not require this consistency
analysis. Sen. Bill No. 375 requires regional planning agencies to include a sustainable
98
communities strategy in their regional transportation plans. (Gov. Code, § 65080,
subd.(b)(2)(B).) As noted, Guidelines section 15125, subdivision (d) provides that an
EIR "shall discuss any inconsistencies between the proposed project and . . . regional
plans. Such regional plans include . . . regional transportation plans." Accordingly,
CEQA requires analysis of "any inconsistencies" between the Project and the Regional
Plan.
d. The impact of CARB's 2017 Scoping Plan
The Regional Plan states, "Reducing the number of miles that people travel in
their cars is an important goal for our Regional Plan." One of the five Regional Plan
"building blocks" is implementing "measures designed to reduce the number of miles
people travel in their vehicles." The Regional Plan consistently emphasizes the necessity
for "[d]evelopment guided by smart growth principles . . . more compact communities,
less suburban sprawl" to reduce GHG emissions to Sen. Bill No. 375 targets. Thus, the
County's failure to analyze and disclose VMT impacts caused by GPAs threatens
achieving state-mandated GHG emission reduction targets.
The seriousness of this deficiency is underscored by the 2017 CARB Scoping
Plan, which is the state's blueprint for meeting GHG emission reduction targets. (Center
for Biological Diversity, supra, 62 Cal.4th at p. 220.) The Scoping Plan recognizes that
in the past, "development patterns have led to sprawling suburban neighborhoods, a vast
highway system, growth in automobile ownership, and under-prioritization of
infrastructure for public transit and active transportation." The Scoping Plan states,
"VMT reductions are necessary to achieve the 2030 target and must be part of any
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strategy evaluated in this Plan." (Italics added.) The Scoping Plan emphasizes that
"California must reduce demand for driving" and "lower-VMT future development
patterns are essential to achieving public health, equity, economic, and conservation
goals."
"Local land use decisions play a particularly critical role in
reducing GHG emissions associated with the transportation
sector . . . .
"While the State can do more to accelerate and incentivize these
local decisions, local actions that reduce VMT are also necessary to
meet transportation sector-specific goals and achieve the 2030 target
under [Sen. Bill No. 32.] Through developing the Scoping Plan,
CARB staff is more convinced than ever that, in addition to
achieving GHG reductions from cleaner fuels and vehicles,
California must also reduce VMT." (Italics added.)
VMT reduction is an integral part of California's strategy to reach 2030 and 2050
GHG emission reduction targets. However, M-GHG-1 would potentially allow GPAs to
mitigate 100 percent of their in-County GHG emissions by purchasing out-of-County
(including international) originating offsets. In so doing, M-GHG-1 is inconsistent with
the Regional Plan because it ignores whether GPAs are located consistent with smart
growth policies.
e. Failure to fulfill informational role
" '[A]n EIR is required to provide the information needed to alert the public and
the decision makers of the significant problems a project would create and to discuss
currently feasible mitigation measures.' [Citation.] To fulfill the EIR's informational
role, the discussion of the mitigation measures must contain facts and analysis, not bare
conclusions and opinions. [Citation.] The level of detail CEQA requires in the EIR's
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discussion of facts and analysis of the mitigation measures depends on 'whether the EIR
includes enough detail "to enable those who did not participate in its preparation to
understand and to consider meaningfully the issues raised by the proposed project.' "
(King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal. App. 5th 814, 869.)
The SEIR fails to comply with these informational standards. For example, at one
place the SEIR claims no VMT analysis is even necessary because "M-GHG-1 would
ensure that GPAs are mitigating their emissions such that they would not conflict with the
Regional Plan and Sen. Bill No. 375 targets on this issue." This explanation—that it is
unnecessary to consider whether GPAs using M-GHG-1 will increase VMTs because
GPAs will use M-GHG-1—is meaningless.
In a response to a comment, the SEIR also states it is too "speculative" to
presuppose approval of future and proposed GPA projects, including the GHG emissions
and VMT from these future projects. But this argument is untenable because, as noted
ante in the cumulative impacts discussion, many of the in-process GPAs were well into
the planning process, and yet the SEIR does not analyze or discuss VMT impacts of any
of them. (See Banning Ranch, supra, 2 Cal.5th at pp. 938-939.) "[T]here was no
practical or reasonable barrier to [the] disclosure and inclusion" of projects currently
under an agency's own environmental review." (SFRG, supra, 151 Cal.App.3d at p. 74.)
Even if more precise information may be available during project-specific review, the
County must still provide reasonably obtainable information, or explain (supported by
substantial evidence) why it cannot do so. "[I]f known impacts are not analyzed and
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addressed in a program EIR, they may potentially escape analysis in a later-tier EIR."
(Forest Foundation, supra, 17 Cal.App.5th at p. 440.)
V.
THE SEIR FAILED TO ANALYZE A REASONABLE RANGE OF ALTERNATIVES
A. Background
An EIR "shall describe a range of reasonable alternatives to the project . . . which
would feasibly attain most of the basic objectives of the project but would avoid or
substantially lessen any of the significant effects of the project, and evaluate the
comparative merits of the alternatives. An EIR need not consider every conceivable
alternative to a project. Rather, it must consider a reasonable range of potentially feasible
alternatives that will foster informed decisionmaking and public participation."
(Guidelines, § 15126.6, subd. (a).)
The SEIR analyzed four project alternatives:
1. A no-project alternative, which assumed the CAP, GPA, GHG
thresholds, and Guidelines for Significance would not be
implemented;
2. An "enhanced direct investment" alternative, in which the
County would pursue the direct investment reduction measure
(T-4.1) to a greater degree than currently proposed in the CAP, and
without a renewable energy target;
3. A 100 percent renewable energy alternative that would
implement the CAP with increased reliance on renewable energy to
meet GHG reduction targets;
4. An alternative that would increase the solid waste diversion
rate from 75 percent to 80 percent by 2030.
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Although the CAP recognizes that on-road transportation is the largest source of
GHG emissions in the County (45 percent of the GHG inventory), no alternative
addresses VMT or transportation-related GHG emissions. Plaintiffs contend that the
County violated CEQA by failing to consider smart-growth alternatives aimed at
reducing VMT. As explained post, we agree.
B. The SEIR's Discussion of Project Alternatives is Deficient
The "core of an EIR is the mitigation and alternatives sections." (Citizens of
Goleta Valley, supra, 52 Cal.3d at p. 564.) An agency may not approve a project that
will have significant environmental impacts if there are feasible alternatives that would
substantially lessen those effects. (Pub. Resources Code, § 21002; Guidelines, §§ 15002,
subd. (a)(3), 15021, subd. (a)(2).)
" ' "There is no ironclad rule governing the nature or scope of the alternatives to be
discussed other than the rule of reason." [Citation.] The rule of reason "requires the EIR
to set forth only those alternatives necessary to permit a reasoned choice" and to
"examine in detail only the ones that the lead agency determines could feasibly attain
most of the basic objectives of the project." [Citation.] An EIR does not have to consider
alternatives "whose effect cannot be reasonably ascertained and whose implementation is
remote and speculative." ' [Citation.] A court will uphold the selection of project
alternatives unless the challenger demonstrates ' "that the alternatives are manifestly
unreasonable and that they do not contribute to a reasonable range of alternatives." ' "
(Forest Foundation, supra, 17 Cal.App.5th at p. 436.)
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Examining alternatives begins with project objectives because it is these objectives
that a proposed alternative must be designed to meet. (San Franciscans for Livable
Neighborhoods v. City and County of San Francisco (2018) 26 Cal. App. 5th 596, 632.)
The SEIR identifies these Project objectives:
1. Reduce community and County operations GHG emissions to
meet 2020 and 2030 reduction targets, and provide a mechanism to
meet the County's 2050 goal;
2. Identify GHG reduction strategies and measures that reduce
GHG emissions from activities in the unincorporated areas;
3. Update the General Plan and GPU to incorporate and reflect
the GHG reduction targets, strategies, and measures for the reduction
of GHG emissions because of buildout of the General Plan;
4. Prepare a County baseline GHG emissions inventory, and
analyze the potential growth of these emissions over time; and
5. Establish a comprehensive approach to reduce County GHG
emissions by incorporating feasible and effective GHG emission
reduction measures.
This court's decision in Forest Foundation, supra, 17 Cal. App. 5th 413 is closely
on point and compels the conclusion that the SEIR's alternatives section violates CEQA.
Forest Foundation involved a program EIR for SANDAG's 2011 RTP/SCS (called the
2050 Regional Transportation Plan).44 (Forest Foundation, at pp. 421, 425.) That EIR
analyzed GHG emissions impacts for years 2020, 2035, and 2050. (Id. at p. 430.) The
44 The 2050 RTP/SCS was adopted in 2011 and included a sustainable communities
strategy with transportation choices designed to reduce GHGs and meet state targets set
following passage of Sen. Bill No. 375. SANDAG updated the 2050 RTP four years
later, naming it the 2015 Regional Plan.
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EIR analyzed seven project alternatives, none of which involved reducing VMT. (Id. at
pp. 435-436.) This court held that omitting "an alternative which could significantly
reduce total vehicle miles traveled is inexplicable given SANDAG's acknowledgement in
its Climate Action Strategy that the state's efforts to reduce greenhouse gas emissions
from on road transportation will not succeed if the amount of driving, or vehicle miles
traveled, is not significantly reduced." (Id. at p. 436.) The court noted that the Climate
Action Strategy explained that lowering VMT can be accomplished through improved
land use and transportation planning. (Ibid.) The Climate Action Strategy recommended
increased funding and system investments for public transit, increased service on existing
routes, and infrastructure upgrades. (Id. at pp. 436-437.) We concluded, "Given these
recommendations, their purpose, and their source, it is reasonable to expect at least one
project alternative to have been focused primarily on significantly reducing vehicle trips."
(Id. at p. 437.)
Like the Climate Action Plan discussed in Forest Foundation, supra, 17
Cal. App. 5th 413, here too SANDAG states the "heart" of the RTP/SCS is to lower GHG
emissions "related to cars and light trucks" because "about a third of GHG emissions
generation" are attributable to "that sector alone." The 2015 RTP/SCS states, "Reducing
the number of miles that people travel in their cars is an important goal for our Regional
Plan." The Scoping Plan states, "VMT reductions are necessary . . . and must be part of
any strategy . . . ." CARB likewise states, "local actions that reduce VMT are also
necessary to meet transportation sector-specific goals and achieve the 2030 target under
Sen. Bill No. 32. . . . California must also reduce VMT." Indeed, CARB states, "It is
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important that VMT reducing strategies are implemented early because more time is
necessary to achieve the full climate, health, social, equity, and economic benefits from
these strategies." Thus, CARB recommends that agencies "prioritize onsite design
features that reduce emissions, especially from VMT . . . within the project's region. . . ."
In light of this consistently clear mandate to reduce VMT to help achieve target
GHG emission reductions, it is reasonable to expect at least one project alternative in the
SEIR to have been focused primarily on significantly reducing VMT.45 (Forest
Foundation, supra, 17 Cal.App.5th at p. 437.) The SEIR's failure to do so is prejudicial
because it precludes informed public participation and decisionmaking. (Ibid.)
Citing In re Bay-Delta Programmatic Environmental Impact Report Coordinated
Proceedings (2008) 43 Cal. 4th 1143 (Bay-Delta), the County contends that implementing
a smart-growth alternative would be inconsistent with project objectives, one of which is
to reduce GHG emissions from buildout of the General Plan, not an amended General
Plan. Bay-Delta involved a project to restore the Bay-Delta's ecological health and
improve management of Bay-Delta water for the various beneficial uses that depend on
it. (Id. at pp. 1151-1152.) The Supreme Court held the failure to examine a program
alternative requiring reduced water exports from the Bay-Delta was not an abuse of
45 In its response to the Attorney General's amicus brief, the County contends Forest
Foundation is distinguishable because that case concerned SANDAG's plan to reduce
GHG emissions from cars and light duty trucks. However, that reads Forest Foundation
too narrowly. As here, the RTP in Forest Foundation also included a SCS designed to
promote "a more sustainable future by integrating land use, housing, and transportation
planning to create a more sustainable, walkable, transit-oriented, compact development
patterns and communities . . . ." (Forest Foundation, supra, 17 Cal.App.5th at p. 429.)
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discretion because that alternative would not achieve the objective of water supply
reliability. (Id. at pp. 1163-1166.) In other words, an agency need not discuss
alternatives that cannot achieve the project's underlying purpose. (Id. at p. 1165.)
Here, Project objectives include (1) "[r]educe community and County operations
GHG emissions . . . and provide a mechanism to meet the County's projected 2050 goal";
(2) "[i]dentify GHG reduction strategies and measures that reduce GHG emissions from
activities in the unincorporated areas"; (3) "[p]repare a County baselines GHG emissions
inventory, which includes community and County operations emissions, and analyze the
potential growth of these emissions over time"; and (4) establish a comprehensive
approach to reduce County GHG emissions by incorporating feasible and effective GHG
emission reduction measures." Bay-Delta is materially distinguishable because here, a
smart growth alternative is consistent with achieving Project objectives.
Moreover, it is impossible to take M-GHG-1 (and, therefore, GPAs) completely
out of the CAP. As noted ante, the CAP achieves GHG reduction targets only by
excluding from its projections in-process GPA GHG emissions above the CAP—on the
assumption that GPAs will mitigate to zero-above-the-CAP under M-GHG-1. As a
result, a project alternative based on reducing GHG emissions by implementing smart
growth policies affecting GPAs is broadly consistent with CAP objectives.
Further, the GPU "includes specific goals and policies aimed at reducing GHG
emissions including growing in a compact and efficient manner, using energy more
efficiently, harnessing renewable energy to power buildings, improving waste recycling,
and improving access to sustainable transportation." The CAP, which is based on
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buildout under the GPU, recognizes that "[g]iven that the largest source of emissions in
the unincorporated county is the On-Road Transportation sector, the CAP proposes
several measures . . . to reduce the number and length of vehicle trips." Thus, there is no
conflict among (1) buildout under the GPU, (2) the CAP, and (3) an alternative that
would encourage smart growth and associated reduced VMT.
At oral argument, the County also asserted that the CAP is "not a land use plan,
but an emissions reduction plan" and, therefore, project alternatives should also be
focused on emission reduction, not land development as in a smart growth plan. This
argument is untenable, however, because the County overstates the purported distinction
between land use and GHG emissions. GHG emission reduction targeted by Assem. Bill
No. 32 and other legislation is concerned with human activities contributing to climate
change. To state the obvious, the amount of GHG emissions from agricultural land and
open space will be vastly different if that same land contains 14,000 homes, roads, and
infrastructure. Land use often drives GHG emission levels. Therefore, a smart growth
land use alternative is reasonably related to GHG emission reduction.
Also at oral argument, the County asserted that VMT reduction "was considered,"
noting that the "first two" CAP GHG reduction measures involve reducing VMT.
Counsel concluded, "When you're reducing VMT, you are offsetting an impact of a
proposed project . . . we have a plan that is already an emissions reduction plan and it
already includes VMT." However, on-road transportation accounts for 45 percent of the
County's greenhouse gas inventory (as of 2014) and produced 1,456,060 MTCO2e. Yet
the two CAP reduction measures counsel referenced are expected to collectively reduce
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2030 GHG emissions by 8,101 MTCO2e, or less than 1 percent of the on-road
transportation sector's contribution. Therefore, contrary to the County's contention, VMT
reduction in the CAP is not tantamount to a smart growth project alternative.
Finally, although this argument is not entirely clear, the County also contends its
failure to include an alternative aimed at reducing VMT was compelled by this court's
decision in Sierra Club I, supra, 231 Cal. App. 4th 1152. This argument is untenable.
Sierra Club I required the County to prepare the SEIR; however, we did not address the
CEQA-required content of the alternatives section in it.
VI.
THE COUNTY ADEQUATELY RESPONDED TO COMMENTS ON THE DEIR
A. Legal Principles
Guidelines section 15088, subdivision (a) requires the agency to prepare a written
response to "comments on environmental issues" from persons who reviewed the draft
EIR. For "significant environmental issues raised" in such comments, the agency must
"describe the disposition" of such issues (for example, revisions to the proposed project)
in a "good faith, reasoned analysis in response." (Guidelines, § 15088, subd. (c).)
"Conclusory statements unsupported by factual information will not suffice." (Ibid.)
However, "the level of detail contained in the response . . . may correspond to the level of
detail provided in the comment." (Ibid.) A response may be sufficient if it refers to parts
of the draft EIR that analyzes the environmental impacts raised by the comment. (City of
Irvine v. County of Orange (2015) 238 Cal. App. 4th 526, 550 (City of Irvine).) "A
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general comment can be adequately met with a general response" and "[r]esponses need
not be exhaustive." (Ibid.)
B. Comments, Responses, and Analysis
There are several hundred comments on the draft SEIR. The superior court
singled out three as having inadequate responses. The County's opening brief challenges
only these three rulings, and there is no cross-appeal challenging the adequacy of any
other responses to comments. We discuss each of these three rulings next.
Comment O-21-4: Sempra Services Corporation commented that the CAP focuses
too little attention on reducing GHG emissions from the transportation sector.
Response to Comment O-21-4: The County responded by stating, "Please see
Master Response 9 and 6." Master Response 6 states in part, "Several comments assert
that the County underutilizes opportunities to reduce emissions in the transportation
sector, comparing the contribution of emissions from the transportation sector (45
[percent]) to [the] proportion of overall reductions from the Built Environment and
Transportation category (13 [percent]). . . . [¶] The County acknowledges the
disproportionality. . . . However . . . the nature of the unincorporated county is low-
density development that is not conducive to non-driving trips. . . . In addition the
County has limited jurisdiction in controlling transportation emissions apart from land
use and infrastructure planning. . . . While the nature of trips will likely continue to be
personal vehicle based, the fuel source and emissions factors of those trips can be
modified by switching to renewable sources including electricity. . . . In an effort to be
responsive to these comments, the County has added Measure T-3.5 to install 2,040 Level
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2 electric vehicle charging stations through public-private partnerships at priority
locations in the unincorporated county by 2030. Electrifying VMT allows for the use of
cleaner and renewable energy to power vehicles, and reduces GHG emissions associated
with gasoline-powered internal combustion engines. Investment in a larger charging
network than currently exists is needed to encourage EV use and achieve additional GHG
reductions beyond State goals."
Analysis of Response to Comment O-21-4: The response is adequate because it
directly addresses the question, explains the disparity between GHG emissions reduction
measures in transportation and electricity sectors, and describes revisions to the proposed
project (adding measure T-3.5) to address the objection. (Guidelines, § 15088, subd. (c).)
In ruling otherwise, the trial court erred by ignoring Master Response 6.
Comment O-22-19: The Sierra Club commented that the SEIR should include a
mitigation measure "of installing a car-parking system" that gives County employees
"more choice over how they spend their wages, while significantly reducing the
frequency of the choice of arriving at work in a single-occupancy vehicle."
Response to Comment O-22-19: The County determined that unbundling the cost
of parking from salaries would be infeasible because County employees work in diverse
locations where parking is either free and plentiful or expensive and rare. Calculating a
fair unbundled charge applicable to all County employees would be "virtually impossible
under these varied conditions." The response also explained that "to institute such a
policy would affect County employees' Terms and Conditions of Employment, which
would require negotiation and agreement for each of the County's nine labor unions . . . .
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The majority of the County's employees are currently covered by collective bargaining
agreements, which are not open for negotiations until 2022. In addition, unbundling the
cost of parking would require both elimination of subsidies paid to some classes of
employees who park in paid lots, and charging employees who park for free in lots
owned by the County. This would potentially affect employee income. . . . [¶]
Additionally a policy to unbundle the cost of parking would need to be adopted for all
County facilities to ensure equal opportunities, benefits, and access for County
employees. However, this may have a disproportionate impact on employees that work
at facilities in more rural areas of the County, where there is no or limited public
transportation alternatives available."
Analysis of Response to Comment O-22-19: This response is adequate because it
explains why the lead agency's position disagrees with the recommendations and
objection raised in the comment. (Guidelines, § 15088, subd. (c).) The response contains
factual assertions (e.g., free or subsidized parking already provided; majority of County
employees under a collective bargaining agreement; unbundling parking would affect
employee compensation) and analysis based on those facts. The trial court erred in
determining that this response was too conclusory.
Comment L-4-3: SANDAG commented, "Please continue to take into
consideration consistency with guiding plans for the region. . . .
SANDAG . . . encourages smart, sustainable growth and reinforces principles set forth in
SANDAG's Regional Plan."
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Response to Comment -L4-3: In response, the County stated, "Section 2.10.4.2 of
the Draft SEIR evaluated the CAP's consistency with guiding plans for the region."
Analysis of Response to Comment L-4-3: SANDAG's comment that the County
"take into consideration" consistency with regional guiding plans is simply an exhortation
to comply with law. No response was necessary.
VII.
ISSUES INVOLVING EXHAUSTION OF ADMINISTRIVE REMEDIES
"Exhaustion of administrative remedies is a jurisdictional prerequisite to
maintenance of a CEQA action." (Bakersfield Citizens, supra, 124 Cal.App.4th at
p. 1199.) " 'That requirement is satisfied if "the alleged grounds for noncompliance with
[CEQA] were presented . . . by any person during the public comment period provided by
[CEQA] or prior to the close of the public hearing on the project before the issuance of
the notice of determination." ' " (City of Long Beach v. City of Los Angeles (2018)
19 Cal. App. 5th 465, 474.) " ' "To advance the exhaustion doctrine's purpose '[t]he ''exact
issue" must have been presented to the administrative agency. . . ." (Forest Foundation,
supra, 17 Cal.App.5th at p. 446.) The issue raised administratively must be
' "sufficiently specific" ' so that the agency has the opportunity to evaluate and
respond . . . ." (Ibid.)
A. The Challenge to the SEIR's Alternatives Analysis was Exhausted
The County contends that Plaintiffs did not adequately exhaust remedies with
respect to the SEIR's alternative projects analysis. However, a February 2018 letter from
Golden Door's attorneys to the County Board of Supervisors states in part, "The County
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should also study a mitigation measure or alternative to limit General Plan Amendments
to areas identified by SANDAG as 'smart growth' areas . . . . [I]t is vital to locate
unplanned residential development in smart growth areas near transit and jobs. Changing
land use patterns must favor smart growth over sprawl to be consistent with the
RTP/SCS." (Italics added.) Raising similar issues, a January 2018 letter from Sierra
Club's attorneys to the San Diego Planning Commission cites Forest Foundation, supra,
17 Cal. App. 5th 431 and states, " 'The omission of an alternative which could significantly
reduce total vehicle miles traveled is inexplicable given SANDAG's
acknowledgements . . . that the state's efforts to reduce greenhouse gas emissions from
on-road transportation will not succeed if the amount of driving, or vehicle miles
traveled, is not reduced.' "
The purpose of requiring exhaustion is to afford an agency an opportunity to
address contentions and possibly render litigation unnecessary. Here, that policy was
fulfilled when Plaintiffs urged the County to consider an "alternative" to limit GPAs to
"smart growth areas near transit and jobs" to be "consistent with the RTP/SCS."
Plaintiffs' attorneys even cited one of the leading cases supporting their position. This is
far from the perfunctory "skeleton showing" the County claims. Rather, Plaintiffs
reasonably alerted the County to consider whether the SEIR violated CEQA by failing to
analyze a smart-growth alternative aimed at reducing VMT.
B. Environmental Justice
Government Code section 65302 identifies required "elements" in a general plan.
These include, among others, housing, conservation, open space, and noise. Effective in
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2017, the Legislature amended this statute to require "[a]n environmental justice
element . . . that identifies disadvantaged communities within the area covered by the
general plan . . . ." (Gov. Code, § 65302, subd. (h)(1) [Stats. 2016, ch. 587 (Sen. Bill
No. 1000), § 1.5].) The environmental justice element shall, among other things,
"[i]dentify objectives and policies to reduce the unique or compounded health risks in
disadvantaged communities by means that include, but are not limited to, the reduction of
pollution exposure, including the improvement of air quality . . . ." (Gov. Code, § 65302,
subd. (h)(1)(A).)
Addressing similar concerns, the California Environmental Protection Agency is
required to "[c]onduct its programs, policies, and activities that substantially affect
human health or the environment in a manner that ensures the fair treatment of people of
all races, cultures, and income levels, including minority populations and low-income
populations of the state." (Pub. Resources Code, § 71110, subd. (a).) And under Assem.
Bill No. 32, CARB "shall ensure that the greenhouse gas emission reduction rules,
regulations, programs, mechanisms, and incentives under its jurisdiction, where
applicable and to the extent feasible, direct public and private investment toward the most
disadvantaged communities in California . . . ." (Health & Safe. Code, § 38565.)
1. The SEIR
In the superior court, Plaintiffs asserted that the SEIR does not adequately evaluate
"impacts on environmental justice." The superior court agreed, ruling that the SEIR
"failed to address environmental justice" by making "no attempt to disclose the increased
health damage that could occur to the more vulnerable County residents (children, the ill,
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and disadvantaged communities) from the project 'increasing nonattainment criteria
pollutants' . . . , or from not requiring GHG offsets to be obtained in-County."
In its opening brief, the County challenges this ruling—but only in a footnote
under a heading entitled, "Petitioners Did Not Exhaust on Two Claims, Which Are
Waived." That footnote states: "CEQA does not require environmental justice analysis."
In support, the County cites Public Resources Code section 21083.1 (courts "shall not
interpret this division or the state guidelines . . . in a manner which imposes procedural or
substantive requirements beyond those explicitly stated in this division or in the state
guidelines") and Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal. 4th
1086, 1107, which states, "[T]he purpose of this statute was to 'limit judicial expansion of
CEQA requirements.' " The footnote also asserts that "any unique adverse health burden
from application of M-GHG-1 on disadvantaged communities would be too speculative
to analyze as discussed in Section C.1, supra."
On review of a CEQA action, our role is generally the same as the trial court.
(State Water Resources Control Bd. Cases (2006) 136 Cal. App. 4th 674, 836 (Water
Resources).) However, that means "only that we would not be bound by, or be required
to show any deference to, the trial court's conclusion" on the environmental justice issue.
(Ibid.) It does not mean that the County, as the appellant aggrieved by the trial court's
determination, is entitled to seek reversal by relegating an issue to argument in a footnote.
"Even when our review on appeal 'is de novo, it is limited to issues which have been
adequately raised and supported in [the appellant's opening] brief. [Citations.] Issues not
raised in an appellant's brief are deemed waived or abandoned.' " (Ibid.) To succeed
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here, the County must first establish error. And even in a CEQA case, " '[t]he most
fundamental rule of appellate review is that an appealed judgment or order is presumed to
be correct.' [Citation.] It is the appellant who bears the burden of overcoming that
presumption.' " (Ibid., italics omitted.)
The County has forfeited this argument. (Hall v. Department of Motor Vehicles
(2018) 26 Cal. App. 5th 182, 193 [argument in footnote forfeited]; Sabi v. Sterling (2010)
183 Cal. App. 4th 916, 947 ["Footnotes are not the appropriate vehicle for stating
contentions on appeal."]; Holden v. City of San Diego (2019) 43 Cal. App. 5th 404, 419-
420 [same, collecting cases].) Indeed, the County's challenge to the trial court's
environmental justice ruling is also forfeited because it is under a heading in the brief
challenging only administrative exhaustion. (Provost v. Regents of University of
California (2011) 201 Cal. App. 4th 1289, 1294 ["we do not consider all of the loose and
disparate arguments that are not clearly set out in a heading and supported by reasoned
legal argument"].) These well settled rules of appellate practice are not mere
technicalities. They ensure that opposing parties are fairly apprised of contentions so as
to afford a full and fair opportunity to respond.
Although we have discretion to overlook this forfeiture, prudential concerns
militate against doing so here. Whether CEQA may in some circumstances require an
environmental justice analysis is at least reasonably arguable. (See generally, Alan
Ramo, Environmental Justice as an Essential Tool in Environmental Review Statutes: A
New Look at Federal Policies and Civil Rights Protections and California's Recent
Initiatives, 19 Hastings W.-N.W. J. Envt'l. L. & Policy 41, 42 (2013) [noting that "[t]he
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California Attorney General's recent litigation involving . . . global warming emissions[]
affecting minority communities has sparked renewed interest in the relationship between
environmental review laws and the doctrine of environmental justice."].) However, the
County's brief lacks analysis from which our consideration of that issue could even
begin.46
2. Amendment to the General Plan
In the superior court, Golden Door asserted that when the County amended GPU
policy COS-20 and goal COS 20.1 in 2018, this triggered "a separate requirement" under
Government Code section 65302 to adopt an environmental justice element in the general
plan. The County contends Plaintiffs are precluded from making this assertion because it
was not first made "during the administrative process."
Assuming without deciding that the exhaustion doctrine applies to this non-CEQA
issue, it is unnecessary to consider it because Plaintiffs have abandoned the point in the
trial court. We have searched the trial court's 17-page single-spaced minute order and are
unable to find any ruling on Plaintiffs' claim that the amendments to COS 20 and COS
20.1 triggered the County's obligation to add an environmental justice element to the
general plan. In ruling on a complex case such as this one, many things may be
overlooked that would readily have been corrected had attention been called to them.
46 Except to the extent that this opinion has law-of-the-case and/or claim or issue
preclusion effect, we do not express any opinion on whether CEQA requires
environmental justice review.
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Where the court neither rules nor reserves its ruling for later, the party pressing the point
must make some effort to have the court actually rule. "If the point is not pressed and is
forgotten, [the party] may be deemed to have waived or abandoned it . . . ." (People v.
Braxton (2004) 34 Cal. 4th 798, 813.)47
C. Geographic Scope
Guidelines section 15130, subdivision (b)(3) provides that an EIR's cumulative
impacts analysis "should define the geographic scope of the area affected by the
cumulative effect and provide a reasonable explanation for the geographic limitation
used." Here, the SEIR states that the "cumulative impact analysis study area for GHG
emissions" is the "entire unincorporated county and County local government
operations." (Italics added.) The SEIR additionally states, "the issue of global climate
change is inherently a cumulative issue" and, therefore, the geographical scope of the
cumulative GHG analysis is global.
The superior court ruled that the SEIR violates CEQA by using "a geographic
scope that was inconsistent and alternated between a 'Countywide' geographic scope of
cumulative GHGs and a 'global' geographic scope." The court also determined that "the
issue of inconsistent geographic areas" was "exhausted."
47 Therefore, it is unnecessary to consider the County's argument that even if
Government Code section 65302 required adding an environmental justice element to the
General Plan, one was not required because "there were no disadvantaged communities in
the unincorporated County" when the County prepared the SEIR. This disposition also
renders moot the County's request for judicial notice of General Plan 2017 Guidelines
published by the Office of Planning and Research.
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The County contends this claim was never presented during administrative
proceedings. Plaintiffs do not address this issue in their appellate briefs.48 However, in
the trial court Golden Door asserted it raised the point in letters dated (1) January 16,
2018, expressing "concern[] about the CAP's mitigation measure for cumulative GHG
impacts caused by General Plan Amendment projects"; (2) February 8, 2018, raising
numerous objections to M-GHG-1; (3) February 13, 2018, objecting to various aspects of
M-GHG-1; and (4) September 25, 2017, asserting that the CAP must provide assurances
that the offset projects will achieve projected reductions.
To advance the exhaustion doctrine's purpose "[t]he 'exact issue' must have been
presented to the administrative agency . . . ." [Citation.] While ' "less specificity is
required to preserve an issue for appeal in an administrative proceeding than in a judicial
proceeding" ' . . . 'generalized environmental comments at public hearings,'
'relatively . . . bland and general references to environmental matters' [citation] or
'isolated and unelaborated comment[s]' [citation] will not suffice.' " (Sierra Club v. City
of Orange (2008) 163 Cal. App. 4th 523, 535-536.) Here, the cited letters contain general
criticisms of and objections to M-GHG-1. But none states that the DSEIR violates
CEQA by having an inconsistent geographical scope. Accordingly, the trial court erred
in determining this issue was exhausted. Necessarily, therefore, the court should not have
48 We nevertheless consider the point because a respondent's failure to address an
issue raised in the opening brief is not a concession. (Griffin v. The Haunted Hotel, Inc.
(2015) 242 Cal. App. 4th 490, 505.)
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reached the merits. Accordingly, the ruling that the SEIR's cumulative GHG impacts
discussion contains an inconsistent and flawed geographical scope must also be reversed.
VIII.
ENERGY ISSUE RULING FORFEITED
The trial court ruled that the County "failed to analyze potential energy impacts
that may result from GPAs and strategies to reduce energy impacts on such project sites"
and also "failed to evaluate the reasonably foreseeable impacts on energy usage in
allowing increased VMTs in exchange for GHG reduction through offsets." In a footnote
in its brief, Golden Door contends the County has forfeited this issue on appeal by failing
to address it in the opening brief. The County asserts that Golden Door itself has
forfeited the waiver argument by making it only in a footnote.
Since the trial court's judgment is presumed correct, it is the appellant's burden to
establish error. (Water Resources, supra, 136 Cal.App.4th at p. 836.) The County's
failure to address the energy impacts ruling in its opening brief compels the conclusion
the trial court's ruling on that point must be affirmed.49
49 Golden Door also asserts (again, in a footnote) that the County did not raise any
issue in its opening brief that M-GHG-1 is or is not mandatory. We agree with the
County that it is unclear what Golden Door claims to be forfeited and, therefore, do not
consider the point further.
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IX.
INCONSISTENCY BETWEEN THE CAP AND SEIR
The SEIR must explain project impacts in a manner "reasonably calculated to
inform the public . . . ." (Sierra Club, supra, 6 Cal.5th at p. 520.) The CAP states that its
2014 inventory of GHG emissions does not include emissions from GPAs that were
adopted, but not constructed, as of 2014:
"Even though there were GPAs that were adopted between 2011
(adoption of 2011 General Plan Update) and 2014 (inventory
baseline year), none of these GPAs were constructed by 2014 and;
therefore, their GHG emissions are not included in the 2014
inventory. The 2014 inventory is based on emissions-generating
activities that existed on the ground in 2014." (Italics added.)
However, a portion of the SEIR states that the CAP's GHG emissions inventory
includes GPAs adopted between August 2011 and March 28, 2017:
"[T]he Draft CAP's GHG inventory includes GPAs adopted
between August 2011 (adoption of 2011 GPU) and March 28, 2017
(date at which the inventory technical reports were prepared)."
(Italics added.)
These are inconsistent. The first states that the inventory excludes GPAs not
constructed by 2014. The second states that the inventory includes GPAs adopted by
March 2017.50
To avoid inconsistency, the County contends we should read "inventory" as used
in the first quotation (from the CAP) to mean projected future GHG emissions. This
50 We discovered this inconsistency on our own and invited supplemental briefs on
the issue, which we have considered.
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argument is untenable, however, because "inventory" is consistently used in the CAP and
elsewhere in the SEIR to mean existing emissions, not future projections.
X.
REMEDIES
For the first time in its reply brief, and citing Public Resources Code section
21168.9, the County contends that even if M-GHG-1 violates CEQA, we should
"nonetheless allow the CAP to stand under CEQA's provisions for severable remedies.51
The County asserts this remedy is particularly appropriate here because the CAP is not
"tainted by any CEQA violation found with respect to M-GHG-1" and "M-GHG-1 is not
required for the CAP . . . ." This argument fails for two reasons. First, the County has
forfeited this argument by not asserting it in the opening brief. "We will not ordinarily
consider issues raised for the first time in a reply brief. [Citation.] An issue is new if it
51 Public Resources Code section 21168.9 provides in part: "(a) If a court
finds, . . . that any determination, finding, or decision of a public agency has been made
without compliance with this division, the court shall enter an order that includes one or
more of the following: [¶] (1) A mandate that the determination, finding, or decision be
voided by the public agency, in whole or in part. [¶] . . . [¶] (3) A mandate that the
public agency take specific action as may be necessary to bring the determination,
finding, or decision into compliance with this division. [¶] (b) Any order pursuant to
subdivision (a) shall include only those mandates which are necessary to achieve
compliance with this division and only those specific project activities in noncompliance
with this division. The order shall be made by the issuance of a peremptory writ of
mandate specifying what action by the public agency is necessary to comply with this
division. However, the order shall be limited to that portion of a determination, finding,
or decision or the specific project activity or activities found to be in noncompliance only
if a court finds that (1) the portion or specific project activity or activities are severable,
(2) severance will not prejudice complete and full compliance with this division, and (3)
the court has not found the remainder of the project to be in noncompliance with this
division."
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does more than elaborate on issues raised in the opening brief or rebut arguments made
by the respondent in respondent's brief. Fairness militates against allowing an appellant
to raise an issue for the first time in a reply brief because consideration of the issue
deprives the respondent of the opportunity to counter the appellant by raising opposing
arguments about the new issue." (American Indian Model Schools v. Oakland Unified
School Dist. (2014) 227 Cal. App. 4th 258, 275-276.)
Moreover, even if not forfeited, we would reject the argument. " 'Directing an
agency to void its approval of the project is a typical remedy . . . for a CEQA violation.' "
(John R. Lawson Rock & Oil, Inc. v. State Air Resources Bd. (2018) 20 Cal. App. 5th 77,
102.) As explained ante, to the extent the CAP's GHG emission projections for GPAs
assume mitigation to zero or net zero under M-GHG-1, the CAP's projection is
unsupported by substantial evidence. Severing the CAP from M-GHG-1 would not result
in "complete and full compliance" with CEQA and is, therefore, not authorized by Public
Resources Code section 21168.9, subdivision (b).
Citing POET, LLC v. State Air Resources Bd. (2013) 218 Cal. App. 4th 681
(POET), the County contends the court should allow the CAP to remain in effect even if
M-GHG-1 is invalid. At oral argument, the County asserted that "all of the work that
went into the CAP is something that should be preserved."
We disagree. The CAP's strategies and measures are designed to reduce GHG
emissions for build-out under the GPU. The CAP does so by (1) calculating a baseline
GHG emissions level as of 2014; and (2) estimating future GHG emissions under a
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business as usual standard; and (3) implementing state mandated GHG reduction targets.
If any one of these calculations is erroneous, the CAP fails to accomplish its purpose.
In addition to the inconsistency between the CAP and SEIR discussed ante in part
IX, the problem here is with the CAP's GHG projections. The projections assume that
in-process and future GPAs will mitigate to zero-above-the-CAP under M-GHG-1.
Because M-GHG-1 is invalid, these projections are not accurate. There is no assurance
that in-process and future GPAs will in fact mitigate to net zero. Thus, there is no
evidence that the CAP's reduction measures will achieve the stated reduction targets,
even for projects consistent with the GPU. In sum, it is impossible to surgically excise
M-GHG-1 from the CAP to produce a valid stand-alone climate action plan.
The County's reliance on POET is not persuasive. There, the CEQA project was a
statewide regulation concerning low carbon fuel standards. CARB's low carbon fuel
standards regulations satisfied "a vast majority of the applicable legal requirements, but
ran afoul of several procedural requirements . . . ." (POET, supra, 217 Cal.App.4th at
p. 697.) The appellate court determined that in the "extraordinary case" before it,
suspending the fuel standards regulations would do more environmental harm than
allowing them to remain in effect pending the completion of CARB's corrective action.
(Id. at pp. 697, 761.) Accordingly, the appellate court exercised its inherent equitable
authority to maintain the status quo and allow the regulations to remain operative. (Id. at
p. 761.)
Unlike POET, the CEQA defect in the CAP is not procedural. The CAP is
substantively flawed because its projections depend upon the validity of M-GHG-1 to
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reduce GHG emissions for probable in-process and all future GPAs to zero-above-the-
cap, and M-GHG-1 itself is invalid under CEQA.
XI.
NO SPECIAL MASTER
Citing Legislature of California v. Reinecke (1973) 9 Cal. 3d 166 and Wilson v. Eu
(1991) 54 Cal. 3d 471, Golden Door asks us to appoint a special master to "work with all
interested parties to assure the County expeditiously prepares an adequate CAP and
accompanying SEIR . . . ." However, both cited cases involve legislative impasse in
enacting reapportionment plans. The Court intervened in those cases and appointed
special masters because the legislative impasse might continue indefinitely, the Court's
duty to ensure equal protection of the laws was implicated, and electoral rights would be
irretrievably lost if no action were taken. (Wilson, at p. 473.) Especially given the
existing injunction prohibiting the County from relying on M-GHG-1 during CEQA
review of GHG emissions impacts of development proposals on unincorporated County
lands, similar exigent circumstances are lacking here.
XII.
THE COURT DECLINES TO PROVIDE AN ADVISORY OPINION
Citing no authority, Sierra Club asks that we provide "a clear declaration that no
out-of-County offsets are permitted under the current General Plan. Sierra Club also asks
that we "further declare that before the County could reauthorize out-of-County offsets,
the County would have to adequately analyze the direct and cumulative impacts of such a
program under CEQA, determine that in-County reductions are not available and cannot
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be made available through a County or APCD program, and conduct the appropriate
process to amend its General Plan."
Essentially, Sierra Club's request is for advisory opinions on mitigation measures
and environmental analysis not before us in this case. It remains to be seen how the
County will amend the CAP, the SEIR, and M-GHG-1 to comply with this opinion.
Accordingly, we decline to issue advisory opinions to forestall hypothetical events that
may never occur. (Teachers' Retirement Bd. v. Genest (2007) 154 Cal. App. 4th 1012,
1044.)
XIII.
SUMMARY OF HOLDINGS
A. The 2018 Climate Action Plan (CAP)
The CAP is not inconsistent with the General Plan. Nevertheless, 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 holding (C)(4) post), the CAP is
CEQA-compliant.
B. M-GHG-1 is Invalid under CEQA
Generally speaking, CEQA permits mitigation measures for GHG emissions to
include offsite measures, including purchasing offsets. However, M-GHG-1 violates
CEQA because M-GHG-1 does not require that (1) offset protocols meet Assem. Bill
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No. 32 criteria as established in the California Code of Regulations, title 17, section
95972; (2) greenhouse gas emission reductions achieved are additional within the
meaning of Health and Safety Code section 38562, subdivisions (d)(1) and (d)(2) and
California Code of Regulations, title 17, section 95802, subdivision (a); and (3) offsets
originating outside California have GHG emissions programs equivalent to or stricter
than California's program.
Additionally, M-GHG-1 violates CEQA because (1) it would allow a project
applicant to offset 100 percent of its GHG emissions through offset projects originating
outside of California; and (2) it allows a County official to determine whether any
particular offset program is feasible and otherwise appropriate, with no objective criteria
to guide the exercise of that discretion. M-GHG-1, therefore, lacks performance
standards to ensure the mitigation goal will be achieved. Therefore, the judgment
directing the County to set aside and vacate its approval of the CAP and SEIR is
affirmed.
C. SEIR Holdings
1. The cumulative impacts analysis violates CEQA
The SEIR's cumulative impacts analysis violates CEQA because it excludes GHG
impacts from in-process GPAs.
2. The finding that M-GHG-1 is consistent with the Regional Plan is not
supported by substantial evidence
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The SEIR's finding that M-GHG-1 is consistent with the Regional Plan is not
supported by substantial evidence. Therefore, the County abused its discretion in
certifying the SEIR. (Golden Door I, supra, 27 Cal.App.5th at p. 901.)
3. The failure to analyze a smart-growth alternative
The SEIR violates CEQA because it fails to analyze a smart-growth alternative to
the Project.
4. Inconsistency with the CAP
The CAP and SEIR are inconsistent with each other. The CAP states that its 2014
inventory of GHG emissions excludes emissions from GPAs that were adopted, but not
constructed as of 2014. However, the SEIR states that the same inventory includes GPAs
adopted between August 2011 and March 28, 2017.
For these additional reasons, the judgment directing the County to set aside and
vacate its approval of the CAP and SEIR is affirmed.
5. Thirty-year shelf-life
The SEIR adequately discloses that M-GHG-1 requires offsets for only 30 years.
6. Response to comments
The County's response to comments on the DSEIR is adequate.
7. Geographic scope
The trial court erred in determining that the SEIR contains an inconsistent
geographic scope because Plaintiffs failed to adequately exhaust administrative remedies
on that issue (see below).
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D. Exhaustion of Remedies
Plaintiffs adequately exhausted administrative remedies on all issues addressed by
the trial court except that of geographical scope.
E. Environmental Justice Holdings
The County has forfeited the argument that the trial court erred in determining that
the SEIR violates CEQA by failing to address environment justice impacts.
Plaintiffs have forfeited the argument that the 2011 amendment to the General
Plan triggered a separate requirement to adopt an environmental justice element in the
general plan.
F. Energy Impacts
The County has forfeited any argument that the trial court erred in determining
that the SEIR failed to adequately analyze impacts to energy from GPAs and increased
VMTs in exchange for GHG reduction through offsets.
G. No Special Master Nor Advisory Opinion
The court declines to (1) appoint a special master to oversee CEQA compliance on
remand; and (2) issue an advisory opinion regarding CEQA compliance.
DISPOSITION
The trial court erred in determining that (1) the CAP is inconsistent with the GPU;
(2) the County's response to comments violates CEQA; and (3) the SEIR has an
inconsistent geographical scope for cumulative impacts.
The trial court did not err in concluding that "during CEQA review of GHG
emissions impacts of development proposals on unincorporated County lands and the
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issuance of any permits or entitlements for any General Plan amendment projects
approved on or after February 14, 2018, the County, its agencies, agents, employees,
representatives, supervisors, or other personnel should not have relied on Mitigation
Measure M-GHG-1, which is contained within the County of San Diego Supplement to
the 2011 General Plan Update Program Environmental Impact Report, dated January
2018."
The trial court also did not err in issuing a writ of mandate directing the County to
set aside and vacate the February 14, 2018, approvals of the 2018 Climate Action Plan
and the certification of the Final Supplemental Environmental Impact Report and
approvals listed as specified in the final judgment filed January 16, 2019.
Furthermore, the trial court did not err in issuing an injunction stating that during
review of GHG emission impacts of development proposals on unincorporated County
lands under CEQA, including the review of such impacts prior to the issuance of any
permits or entitlements for any General Plan amendment projects approved on or after
February 14, 2018, the County, its agencies, agents, employees, representatives,
supervisors, or other personnel, shall not rely on Mitigation Measure M-GHG-1.
Additionally, because M-GHG-1 is invalid under CEQA, the trial court did not err
in declaring that the February 2018 Climate Action Plan and the certification of the Final
SEIR to the 2011 General Plan Update Program EIR are legally inadequate and may not
be used to provide the basis for CEQA review of GHG impacts of development proposals
in the unincorporated County.
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Because the final judgment is expressly based on findings and determinations
made in the trial court's December 24, 2018 minute order, on remand the trial court is
directed to (1) amend that minute order; (2) issue a new writ of mandate, injunction, and
judgment; and (3) conduct further proceedings—all of which are to be consistent with
this opinion. In the interests of justice, the parties shall bear their own costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(5).)
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
APPENDIX 1
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Assembly Bill No. 32 .................................. Global Warming Solutions Act of 2006
APCD........................................................................... Air Pollution Control District
CAP ........................................................................................... Climate Action Plan
CAPCOA .............................. California Air Pollution Control Officers Association
CAPCOA GHG Rx ................................... California Air Pollution Control Officers
Association Greenhouse Gas Reduction Exchange
CARB ...................................................................... California Air Resources Board
CARB Protocol .............................. Compliance Offset Protocols adopted by CARB
CHECKLIST .......................................................... The CAP Consistency Checklist
EIR .............................................................................. Environmental Impact Report
MTCO2e................................................................ A measure of the global warming
potential of a greenhouse gas
DSEIR ................................................................ Draft Environmental Impact Report
GHG.................................................................................................. Greenhouse Gas
GPA ..................................................... A proposed project requiring a General Plan
amendment because of increased density or intensity
of land use beyond that allowed under the GPU
GPU ..................................................................................2011 General Plan Update
M-GHG-1 .....................................................Mitigation Measure Greenhouse Gas-1
MPO.................................................................. Metropolitan Planning Organization
OPR ....................................................................................... Offset Project Registry
PEIR............................................................. Program Environmental Impact Report
RTP (aka Regional Plan) ............................................. Regional Transportation Plan
SANDAG .................................................... San Diego Association of Governments
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Senate Bill No. 32 ........................................ 2016 legislation setting GHG reduction
goal of 40% below 1990 level
Senate Bill No. 375 ............................................ 2008 Sustainable Communities and
Climate Protection Act
SEIR..................................................... Supplemental Environmental Impact Report
SCS ......................................................................Sustainable Communities Strategy
VMT ..................................................................................... Vehicle Miles Traveled
APPENDIX 2
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"CAP Mitigation Measure M-GHG-1: The County shall require in-process and
future GPAs to reduce their emissions to ensure that CAP emission forecasts are not
substantially altered such that attainment of GHG reduction targets could not be achieved
Project applicants for in-process and future GPAs could accomplish this through two
options, as outlined below.
"Option 1 (No Net Increase): GPA project applicants shall achieve no net increase
in GHG emissions from additional density above the 2011 GPU. Applicants shall be
required in their respective CEQA documents to quantify the GHG emissions from their
projects that exceed the GHG emissions for the 2011 GPU density or intensity forming
the basis of the CAP emission forecasts (i.e., projections). This increase in emissions
shall be reduced through onsite design features and mitigation measures and offsite
mitigation, including purchase of carbon offset credits by the applicant. Applicants shall
demonstrate compliance with relevant CAP measures as identified in the "CAP
Consistency Review Checklist" in addition to all feasible onsite design features and
mitigation measures. Offsite mitigation, including purchase of carbon offset credits,
would be allowed after all feasible onsite design features and mitigation measures have
been incorporated.
"For example, if 400 residential units were allowed under the 2011 GPU and a
GPA proposes 500 residential units, the emissions for the additional 100 units would be
calculated and offset through compliance with the CAP Consistency Review Checklist
and additional feasible onsite measures and offsite measures, including the use of carbon
offsets. The emissions associated with the allowable density of 400 units would be
mitigated through compliance with the CAP Consistency Review Checklist.
"The County will consider, to the satisfaction of the Director of Planning
Development Services (PDS), the following geographic priorities for GHG reduction
features and GHG reduction projects and programs: 1) project design features/onsite
reduction measures; 2) offsite within the unincorporated areas of the County of San
Diego; 3) offsite within the County of San Diego; 4) offsite within the State of California;
5) offsite within the United States; and 6) offsite internationally.
"Geographic priorities would focus first on local reduction features (including
projects and programs that would reduce GHG emissions) to ensure that reduction efforts
achieved locally would provide co-benefits. Depending on the carbon offset credit
utilized, co-benefits may include reductions in criteria air pollutants, toxic air
contaminants, energy demand, water consumption, health benefits, social benefits, and
economic benefits. The GPA applicant or its designee shall first pursue offset projects
and programs locally within unincorporated areas of the County of San Diego to the
extent such carbon offset credits are available and are financially feasible, as reasonably
determined by the Director of PDS.
135
"If carbon offset credits are provided as mitigation, the GPA applicant, or its
designee, shall purchase and retire carbon offsets in a quantity sufficient to offset the net
increase from GHG emissions above the density or intensity allowed in the 2011 GPU.
This includes all GHG emissions from construction (including sequestration loss from
vegetation removal) and operations.
"For the net increase of construction and operations GHG emissions prior to
County's issuance of the project's first grading permit (for construction GHG emissions)
or first building permit (for operations GHG emissions) the GPA applicant, or its
designee, shall provide evidence to the satisfaction of the Director PDS that the project
applicant or its designee has purchased and retired carbon offsets credits in a quantity
sufficient to offset the net increase of construction and operations GHG emissions
generated by the project. Operations emissions may be offset in phases commensurate
with the overall phasing of the project.
"Carbon offset credits must be purchased through any of the following: (i) a
CARB-approved registry, such as the Climate Action Reserve, the American Carbon
Registry, and the Verified Carbon Standard, (ii) any registry approved by CARB to
act as a registry under the state's cap and trade program, (iii) through the CAPCOA GHG
Rx and the SDAPCD, or (iv) if no registry is in existence as identified in options (i), (ii).
or (iii) above, then any other reputable registry or entity that issues carbon offsets
consistent with Cal Health & Saf. Code section 38562(d)(1)), to the satisfaction of the
Director of PDS.
"Option 2 Net Zero: GPA project applicants shall reduce all project GHG
emissions to zero to achieve no net increase over baseline conditions (carbon neutrality).
Project emissions shall be reduced to zero through onsite design features and mitigation
measures and offsite mitigation, including purchase of carbon offset credits by the
applicant or its designee. Applicants shall demonstrate compliance with relevant CAP
measures as identified in the 'CAP Consistency Review Checklist' before considering
additional feasible onsite design features and mitigation measures. Offsite mitigation,
including purchase of carbon offset credits would be allowed after all feasible onsite
design features and mitigation measures have been incorporated.
"The County will consider to the satisfaction of the Director of Planning &
Development Services (PDS), the following geographic priorities for GHG reduction
features, and GHG reduction projects and programs: 1) project design features/onsite
reduction measures; 2) offsite within the unincorporated areas of the County of San
Diego; 3) offsite within the County of San Diego; 4) offsite within the State of California;
5) offsite within the United States; and 6) offsite internationally.
"Geographic priorities would focus first on local reduction features (including
projects and programs that would reduce GHG emissions) to ensure that reduction efforts
achieved locally would provide co-benefits. Depending on the carbon offset credit
136
utilized, co-benefits may include reductions in criteria air pollutants, toxic air
contaminants, energy demand, water consumption, health benefits, social benefits, and
economic benefits. The GPA applicant or its designee shall first pursue offset projects
and programs locally within unincorporated areas of the County of San Diego to the
extent such carbon offset credits are available and are financially feasible, as reasonably
determined by the Director of PDS.
"If carbon offset credits are provided as mitigation, the GPA applicant, or its
designee, shall purchase and retire carbon offsets in a quantity sufficient to offset all
GHG emissions from the project. This includes all GHG emissions from construction
(including sequestration loss from vegetation removal) and operations.
"Prior to the County's issuance of the project's first grading permit (for
construction GHG emissions) or first building permit (for operations GHG emissions) the
GPA applicant, or its designee, shall provide evidence to the satisfaction of the Director
of PDS that the project applicant or its designee has purchased and retired carbon offset
credits in a quantity sufficient to offset all construction and operations GHG emissions
generated by the project. Operations emissions may be offset in phases, commensurate
with the overall phasing of the project.
"Carbon offset credits must be purchased through any of the following: (i) a
CARB-approved registry, such as the Climate Action Reserve, the American Carbon
Registry, and the Verified Carbon Standard, (ii) any registry approved by CARB to act as
a registry under the state's cap and trade program, (iii) through the CAPCOA GHG Rx
and the SDAPCD, or (iv) if no registry is in existence as identified in options (i), (ii). or
(iii) above, then any other reputable registry or entity that issues carbon offsets consistent
with Cal Health & Saf. Code section 38562(d)(1)), to the satisfaction of the Director of
PDS."
137