Sierra Club v. County of San Diego CA4/1

Filed 12/21/21 Sierra Club v. County of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Calif ornia Rules of Court, rule 8.1115(a), prohibits courts and parties f rom citing or relying on opinions not certif ied f or publication or
ordered published, except as specif ied by rule 8.1115(b). This opinion has not been certif ied f or publication or or dered published f or
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SIERRA CLUB, D077548, D077972
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2018-
00043084-CU-TT-CTL)
COUNTY OF SAN DIEGO,
Defendant and Appellant;
INTEGRAL COMMUNITIES, LLC et al.,
Real Parties in Interest and Appellants.
CONSOLIDATED APPEALS from a judgment of the Superior Court of
San Diego County, Katherine A. Bacal, Judge. Affirmed.
Hecht Solberg Robinson Goldberg & Bagley, Richard A. Schulman,
Beth Abramson, Sadaf Behdin; Richard A. Schulman for Real Party in
Interest and Appellant RCS‒Harmony Partners, LLC.
Sheppard, Mullin, Richter & Hampton, John R. Ponder, Karin Dougan
Vogel, Whitney A. Hodges, and Dana Dunwoody for Real Party in Interest
and Appellants Integral Communities LLC and The Eden Hills Project
Owner, LLC.
Chatten-Brown Carstens & Minteer, Amy Minteer, Josh Chatten-
Brown, Michelle Black, and Sunjana Supekar for Plaintiff and Respondent
Sierra Club.
In the trial court, Sierra Club challenged the County of San Diego’s
(County) approval of three housing developments proposed for undeveloped
portions of the county. The three developments are known as Harmony
Grove Village South (Harmony Grove), Valiano, and Otay 250.) A primary
basis for Sierra Club’s petition for writ of mandate was its assertion that the
approvals were made in violation of the California Environmental Quality
Act (Pub. Resources Code,1 § 21000 et seq., CEQA) because they did not
adequately mitigate the projects’ expected greenhouse gas (GHG) emissions.
Sierra Club’s challenge followed its successful separate litigation (with
other environmental organizations) challenging the County’s Climate Action
Plan (CAP) under CEQA based on the County’s failure to incorporate
sufficient GHG mitigation measures in the Environmental Impact Report
(EIR) for the CAP. That case precipitated changes to the CAP, which were
again successfully challenged for continuing to provide insufficient GHG
emission mitigation. The County’s appeal to this court of that second
challenge to the CAP was pending at the time the litigation in this case was
proceeding in the trial court.
Before the hearing on the Sierra Club’s petition in this case, the
Otay 250 developers reached a settlement and were dismissed from the case.
1 Subsequent undesignated statutory references are to the Public
Resources Code.
2
After the hearing, the trial court found the County’s approvals of Harmony
Grove and Valiano were invalid because the GHG mitigation measures in
those projects’ EIRs failed to satisfy CEQA and were inconsistent with the
County’s General Plan. The developers of Harmony Grove and Valiano, who
are the real parties in interest, and the County filed notices of appeal from
the order granting in part Sierra Club’s petition.
Before judgment was entered, this court affirmed the trial court’s
decision in the earlier litigation finding the GHG mitigation measures in the
EIR for the revised version of the CAP were insufficient under CEQA.
(Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th
467 (Golden Door II).) Thereafter, final judgment in this case was entered by
the trial court.
Before briefing, the County dismissed its appeal. The Harmony Grove
and Valiano developers, however, continued their challenges. Harmony
Grove’s developer, RCS‒Harmony Partners, RCS (Harmony), argues the
judgment must be reversed because its GHG emission mitigation measures
are consistent with our decision in Golden Door II and because the County’s
approval of those measures is supported by substantial evidence. The
Valiano appeal is narrower. Its developers, Integral Communities LLC and
The Eden Hills Project Owner, LLC (collectively, Integral), concede the GHG
mitigation measures contained in its EIR are insufficient to satisfy CEQA.
Integral contends, however, that the trial court’s judgment should be
reversed and remanded with directions for the court to direct the County to
reinstate its approval and simply modify the GHG mitigation measures to
conform with Golden Door II.
For the reasons discussed herein, we reject both Harmony’s and
Integral’s appellate contentions and affirm the judgment.
3
FACTUAL AND PROCEDURAL BACKGROUND
A. Harmony Grove Administrative Proceedings
Harmony Grove is a proposed extension of an existing development
located in the northeast part of San Diego County. The project, situated on
111 acres, is approximately two and half miles west of Interstate 15 and a
little over two and half miles south of State Route 78. The proposed project
consists of 453 dwelling units, both single family and multi-family residences,
and 5,000 square feet of commercial and civic use space. The project also
includes 75 acres of outdoor recreational space and undeveloped open space.
After preliminary meetings with the County in 2014, on March 25,
2015, Harmony submitted its initial application for approval of the project,
including an amendment to the County’s General Plan. The County
published a draft EIR on April 20, 2017 soliciting public comment. In
response to comment and the separate Sierra Club challenge to the CAP
discussed in the introduction (Superior Court in Sierra Club v. County of San
Diego, Case No. 2012-0101054/Golden Door Properties LLC v. County of San
Diego, Case No. 2016-0037402 (April 28, 2017)), which invalidated the GHG
metric used in Harmony Grove’s draft EIR,2 the document was revised and
published for a second time on February 22, 2018 for public comment on the
revised portions.
The revised draft EIR explained that the project had been modified to
reach a threshold of net zero GHG emissions in compliance with CEQA. The
document explained the revised GHG analysis was not based on the
invalidated CAP, but was consistent with the revised County CAP currently
pending approval because the mitigation measures proposed for the
2 The decision was affirmed by this court in Golden Door Properties, LLC
v. County of San Diego (2018) 27 Cal.App.5th 892 (Golden Door I).
4
development made the project carbon neutral. Specifically, the revised draft
EIR stated its “Mitigation Measures M-GHG-1 and M-GHG-2 that require
the Project to purchase and retire carbon offsets in a quantity sufficient to
reduce emissions effects to net zero, is in accord with the Mitigation Measure
M-GHG-1 from the County’s Final Supplemental EIR (SCH No. 2016101055)
for its CAP.” The document also set forth a list of the design features the
project would incorporate to mitigate GHG emissions, and which were
included as conditions of approval, such as charging infrastructure for zero
emission vehicles and solar/photovoltaic systems in all residential units and
energy efficiency best practices.
By way of resolution, the County’s Board of Supervisors certified the
revised draft EIR and the Harmony Grove project’s other entitlements on
July 25, 2018.
B. Valiano Administrative Proceedings
The proposed Valiano project is located on 239 acres in an
unincorporated portion of the county within the San Dieguito Community
Planning area. The Valiano site is close to Harmony Grove; located
approximately two and half miles west of Interstate 15 and one and a half
miles south of State Route 78. The project includes 326 dwelling units and 54
accessory dwelling units in five new neighborhood configurations, which have
varying densities, lot sizes, and architectural styles. The project includes 149
acres of open space, including outdoor recreational space, an agricultural
easement, and undeveloped open space.
Integral applied to the County for project approval (which included
amendment to the General Plan, adoption of a specific plan, and a vesting
tentative map to divide the property) on February 28, 2013. The draft EIR
for the project was circulated for public comment from April 30, 2015 to June
5
15, 2015. In response to comments and changes in decisional law related to
GHG emissions, the document was modified and circulated again for public
comment from December 8, 2016 to January 30, 2017.
As with the Harmony Grove project, in response to comments and
Sierra Club’s separate successful legal challenge to the CAP invalidating the
GHG metric used in Valiano’s draft EIR, the document was revised again.
Unlike Harmony Grove, there was no additional public recirculation of the
revised Valiano EIR and it became the final EIR for the project. The revised
report explained that a supplemental analysis “was prepared to utilize the
significance criteria in Appendix G of the CEQA Guidelines related to GHG
emissions to evaluate the project’s GHG emissions. The [s]upplement
augmented the previous analysis, did not change the focus of the GHG
Emissions Analysis or F[inal] EIR, or the existing Project Design Features
resulting in less than significant GHG emissions, including independently
committing to offsetting 100 percent of Project electrical uses through
measures including on-site photovoltaic (PV; solar) panels.” In addition, the
final EIR explained that Integral “voluntarily committed to attaining net zero
emissions; which further reduces the less than significant impacts identified”
in the earlier versions of the EIR.
On May 11, 2018, the County Planning Commission recommended
approval of the Valiano project after a noticed public hearing. On July 25,
2018, the County Board of Supervisors certified the EIR and approved the
related project entitlements. The approval included mitigation measure M-
GHG-1 to address the project’s GHG emissions, both during construction and
throughout the development’s 30-year lifespan. The measure requires the
developer to provide the County with evidence of its “one-time purchase of
carbon credits sufficient to reduce the contribution of construction-related
6
GHG emissions to zero.” 3 Likewise, with respect to operational emissions,
i.e. emissions occurring after the completion of construction and during the
life of the development, the measure requires the developer, “prior to
recordation of the first building permit,” to provide evidence to the County
that it “obtained carbon credits for the incremental portion of the [p]roject
within the Site Plan in a quantity sufficient to offset, for a 30-year period, the
operational GHG emissions from that incremental amount of development to
net zero …. The amount of carbon offsets required for each implementing
Site Plan shall be based on the GHG emissions for each land use within the
implementing Site Plan ….”
The mitigation measure mandates that the carbon credits “be
purchased through: (i) a [California Air Resources Board (CARB)]-approved
registry, such as the Climate Action Reserve, the American Carbon Registry,
and the Verified Carbon Standard; (ii) through CAPCOA GHG Rx; 4 or, (iii) if
no registry is in existence as identified above, then any other reputable
registry or entity that issues carbon offsets consistent with Cal. Health &
Safety Code section 38562[, subd.] (d)(1), to the satisfaction of the [County]
Director of [Planning and Development Services (PDS)].”
C. Present Litigation
On August 23, 2018, Sierra Club filed a petition for writ of mandate
and complaint for declaratory relief challenging the County’s approval of the
3 The measure defines construction-related emissions as those generated
from “grading, site preparation, building construction, architectural coatings-
related emissions, and the one-time loss of carbon sequestered in existing on-
site vegetation.”
4 The California Air Pollution Control Officers Association Greenhouse
Gas Reduction Exchange.
7
Harmony Grove, Valiano, and Otay 250 developments. The petition sought a
writ of mandate ordering the County’s approvals of the developments to be
set aside for failing to comply with its obligations under CEQA and for
improperly amending its General Plan. The petition also challenged the
County’s document retention practices in CEQA proceedings.
The petition explicitly referenced the earlier litigation successfully
challenging the CAP. It asserted the revised CAP, adopted by the County
after the invalidation of the earlier version, continued to violate state law.
Specifically, the CAP did not satisfy Mitigation Measure CC-1.2, related to
GHG emissions, contained in the Program Environmental Impact Report
(PEIR) for the County’s 2011 General Plan Update. Sierra Club explained
that because that litigation was not resolved, it was necessary to challenge
the County’s approvals of these developments as well.
The petition asserted the approvals were invalid because they failed to
adequately mitigate the GHG emissions that would be created by the
projects. The petition contended the GHG mitigation measures adopted by
the County for the projects were not sufficient to satisfy either CEQA or the
General Plan because they allowed for GHG emission offsets outside of the
County and because “[v]erification of the amount [of the offsets] and the
efficacy of these offsets need be shown only ‘to the satisfaction’ of the
[County’s] Director of PDS, without written or duly adopted standards for
determining such satisfaction.”
The County certified the administrative record on August 12, 2019, and
it was lodged with the trial court shortly after. Thereafter, the parties
submitted briefing on the petition. Before the hearing on the petition on
January 27, 2020, Sierra Club and the Otay 250 developers informed the
court they had reached a settlement. The initial hearing took place on
8
January 27, 2020 as scheduled and was continued for the court to receive
additional briefing on the impact of the Otay 250 settlement. The continued
hearing took place on February 21, 2020. After additional argument from the
parties, the trial court took the matter under submission.
On April 27, 2020, the court issued a minute order granting Sierra
Club’s petition for writ of mandate and directing the County to set aside its
approvals of the Harmony Grove and Valiano projects. The court agreed with
Sierra Club that the GHG mitigation measures “violate CEQA because [they]
are inconsistent with the General Plan and fail to comply with CEQA’s
standard for ensuring the mitigation is fully enforceable.” The court rejected
Sierra Club’s claims that the County had violated Government Code
section 65358, which prohibits excessive General Plan amendments, and
denied Sierra Club’s claim the approvals should be set aside because the
County’s document retention policy resulted in deletion of documents
required for the court’s CEQA review.
The County, Harmony, and Integral filed notices of appeal from the
court’s minute order, which directed the preparation of a final judgment in
the matter.5 On June 12, 2020, this court issued its opinion in Golden Door
II, concluding the GHG emission mitigation measure contained in the CAP,
titled M-GHG-1, violates CEQA because it “lacks objective criteria to ensure
the [PDS] Director’s exercise of that discretion will result in GHG reduction
that is real, permanent, quantifiable, verifiable, enforceable, and additional.”
(Golden Door II, supra, 50 Cal.App.5th at p. 525.) We also held the measure
violated CEQA because it improperly deferred mitigation. (Ibid.)
5 This court exercises its discretion to construe the notices of appeal as
taken from the later entered judgment. (Dominguez v. Financial Indemnity
Co. (2010) 183 Cal.App.4th 388, 391, fn. 1.)
9
On July 27, 2020, the trial court entered its final judgment in this case
granting a peremptory writ of mandate directing the County to vacate its
certifications of the EIRs and approvals of the Harmony Grove and Valiano
projects. On February 10, 2021, the County requested dismissal of its appeal,
and on February 22, 2021 this court issued an order granting the request.
DISCUSSION
As noted, both developers challenge the judgment granting Sierra’s
Club petition and issuing a writ of mandate directing the County to vacate its
certifications of the projects’ EIRs and related approvals. However, their
appellate contentions differ. Harmony asserts the GHG emission mitigation
measures contained in its project EIR are consistent with our holding in
Golden Door II and that the County’s approval of the measures was
supported by substantial evidence. Integral, on the other hand, concedes the
mitigation measure in its project EIR is substantially the same as the CAP
version invalidated in Golden Door II, but argues reversal and remand with
directions to reinstate a modified version of the measure is the appropriate
course of action. Because we conclude both projects’ GHG emission
mitigation measures are flawed in the same ways as the CAP version, we
begin with a brief overview of CEQA and an explanation of the portions of the
Golden Door II opinion that are relevant to our decision. We then address
each developers’ appellate arguments.
I
A
Overview of CEQA
“CEQA was enacted to advance four related purposes: to (1) inform the
government and public about a proposed activity’s potential environmental
impacts; (2) identify ways to reduce, or avoid, environmental damage;
10
(3) prevent environmental damage by requiring project changes via
alternatives or mitigation measures when feasible; and (4) disclose to the
public the rationale for governmental approval of a project that may
significantly impact the environment.” (California Building Industry Assn. v.
Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382.)
The law is designed “ ‘to “[e]nsure that the long-term protection of the
environment shall be the guiding criterion in public decisions.” ’ ” (Friends of
College of San Mateo Gardens v. San Mateo County Community College Dist.
(2016) 1 Cal.5th 937, 944.) “ ‘ “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.’ ” [Citation.] “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. [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.” ’ ” (Golden Door II, supra, 50 Cal.App.5th at
pp. 503–504, quoting Sierra Club v. County of Fresno (2018) 6 Cal.5th 502,
511–512.)
11
CEQA precludes public agencies from approving “ ‘projects as proposed
if there are feasible alternatives or feasible mitigation measures available
which would substantially lessen the significant environmental effects of
such projects.’ (Pub. Resources Code, § 21002.) ‘A “mitigation measure” is a
suggestion or change that would reduce or minimize significant adverse
impacts on the environment caused by the project as proposed.’ ” (Sierra
Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1165.) “If the
agency finds that mitigation measures have been incorporated into the
project to mitigate or avoid a project’s significant effects, a ‘public agency
shall adopt a reporting or monitoring program for the changes made to the
project or conditions of project approval, adopted in order to mitigate or avoid
significant effects on the environment. The reporting or monitoring program
shall be designed to ensure compliance during project implementation.’ (Pub.
Resources Code, § 21081.6, subd. (a)(1).)” (Sierra Club v. County of San
Diego, at p. 1165.) Further, “[i]f a mitigation measure later becomes
‘impracticable or unworkable,’ the ‘governing body must state a legitimate
reason for deleting an earlier adopted mitigation measure, and must support
that statement of reason with substantial evidence.’ ” (Id. at pp. 1165‒1166.)
Under the CEQA Guidelines,6 GHG emission mitigation measures
must actually avoid, lessen, or rectify the impact they are intended to
6 “The term ‘CEQA Guidelines’ refers to the regulations for the
implementation of CEQA authorized by the Legislature (Pub. Resources
Code, § 21083), codified in title 14, section 15000 et seq. of the California
Code of Regulations, and ‘prescribed by the Secretary of Resources to be
followed by all state and local agencies in California in the implementation of
[CEQA].’ (CEQA Guidelines, § 15000.) In interpreting CEQA, we accord the
CEQA Guidelines great weight except where they are clearly unauthorized or
erroneous.” (Muzzy Ranch Co. v. Solano County Airport Land Use Com’n
(2007) 41 Cal.4th 372, 380, fn. 2.)
12
mitigate. (Cal. Code Regs., tit. 14, § 15370.) “ ‘Mitigating conditions are not
mere expressions of hope.’ ” (Sierra Club v. County of San Diego, supra, 231
Cal.App.4th at p. 1167.) They “must be fully enforceable through permit
conditions, agreements, or other legally-binding instruments.” (Cal. Code
Regs., tit. 14, § 15126.4, subd. (a)(2).) The Guidelines permit off-site
mitigation of GHG emissions so long as the measures are supported by
“substantial evidence and subject to monitoring or reporting.” (Id., § 15126.4,
subd. (c).) In addition, under the Guidelines, “[f]ormulation of mitigation
measures shall not be deferred until some future time.” (Guidelines,
§ 15126.4, subd. (a)(1)(B).)
B
Golden Door II7
After the trial court invalidated the County’s approvals of the Harmony
Grove and Valiano projects, this court issued its opinion in Golden Door II,
concluding that the GHG mitigation measure contained in the supplemental
7 Golden Door II contains a comprehensive history and explanation of the
County’s efforts to meet state GHG targets and the California legislation
creating those targets. (Golden Door II, supra, 50 Cal.App.5th at pp. 486‒
496.) The County’s 2011 General Plan Update is a “comprehensive, long-
term plan for developing unincorporated areas of the County” and it “[c]alls
for reducing GHG emissions to meet state GHG targets, and requires
preparation of a [CAP] to achieve this reduction.” (Golden Door II, at p. 486.)
13
EIR8 (SEIR) for the County’s 2018 CAP, called M-GHG-1, was not CEQA-
compliant. (Golden Door II, supra, 50 Cal.App.5th at p. 482.) Golden Door II
explained the “SEIR acknowledge[d] that in-process [General Plan
Amendments (GPAs)] are reasonably foreseeable, could result in significant
GHG impacts and, therefore, are included in the SEIR’s cumulative GHG
impacts analysis.” (Id. at p. 494.) Because the SEIR for the CAP did not
account for in-process and future GPAs, to the extent such projects “would
increase GHG emissions above projected CAP levels [of GHG emissions],
their impact would be significant (i.e., inconsistent with the CAP)” and the
8 “CEQA authorizes the preparation of various kinds of EIRs depending
upon the situation, such as the subsequent EIR, a supplemental EIR, and a
tiered EIR. (Pub. Resources Code, §§ 21166, 21068.5, 21093, 21094.)
Whereas the subsequent EIR and supplemental EIR are used to analyze
modifications to a particular project, a tiered EIR is used to analyze the
impacts of a later project that is consistent with an EIR prepared for a
general plan, policy, or program. (CEQA Guidelines, § 15385; compare Pub.
Resources Code, § 21166 & CEQA Guidelines, §§ 15162, 15163, 15164
[referencing “the project”] with Pub. Resources Code, § 21093 [stating that
later projects may use tiering].)” (Sierra Club v. County of San Diego, supra,
231 Cal.App.4th at p. 1165.)
14
projects would be required to use the CAP’s “M-GHG-1 to mitigate GHG
emissions.”9 (Ibid.)
The CAP’s “M-GHG-1 ‘requires a [future] project that increases density
or intensity [of land use] above what is allowed in the [2011 General Plan
Update (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 affordable public transportation….’ 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.” (Golden Door II, supra, 50
Cal.App.5th at pp. 494‒495, fn. omitted.)
Under the CAP’s “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
9 The Golden Door II opinion addresses a separate violation of CEQA
based on the County’s failure to analyze the cumulative GHG effects for the
21 GPAs in process at the time of the challenged SEIR. Both the Harmony
Grove and Valiano GPAs were explicitly recognized in the CAP SEIR as in-
process and the projects’ GHG emissions and proposed mitigation strategies,
including the purchase of offsets in accordance with the CAP’s M-GHG-1
mitigation measure, were set forth in the CAP SEIR. (See Golden Door II,
supra, 50 Cal.App.5th at p. 532.) For purposes of its analysis of this issue,
the Golden Door II court “assume[d] without deciding that the GHG
mitigation measure(s) in the EIRs for th[e] in process GPAs [were] lawful.”
(Id. at p. 533, fn. 39.)
15
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….’ ” (Golden Door II, supra, 50 Cal.App.5th at p. 495.)
“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, would be allowed after all feasible
onsite design features and mitigation measures have been incorporated.”
(Golden Door II, supra, 50 Cal.App.5th at p. 495.) “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.” (Id. at p. 495.)
Sierra Club challenged the CAP on various grounds. In the trial court,
it obtained a writ of mandate requiring “the County to vacate its approvals of
the CAP, [the related] 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.” (Golden Door II, supra, 50
Cal.App.5th at p. 482.) The trial court’s decision was based both on its
findings that (1) the CAP was inconsistent with the 2011 GPU because the
GPU “required in-County GHG reductions” (id. at p. 498) and (2) M-GHG-1
16
violated CEQA because it had no geographic or duration limits on offset
purchases, contained “an ‘illusory’ geographic priority,” there was “no
evidence that out-of-County offsets [would] be enforceable, verifiable, and of
sufficient duration,” and it lacked “ ‘standards or criteria’ ” for the Director of
PDS to determine if a carbon offset registry “achiev[ed] the Director’s
‘ “satisfaction” ’ ” and was “sufficiently ‘reputable’ to substitute for” those
approved by the CARB for its cap-and-trade program (id. at pp. 503‒504).10
On appeal, this court disagreed with the trial court’s finding that the
CAP was inconsistent with the 2011 GPU, but affirmed the trial court’s
judgment on the grounds that the GHG mitigation measure, M-GHG-1,
violated CEQA in two ways (and on the grounds the CAP violated CEQA in
other, additional ways). First, we held that the measure was improper
because its performance standards were unenforceable. Specifically, the
10 “ ‘ “Cap-and-trade is a market-based approach to reducing pollution.
The ‘cap’ creates a limit on the total amount of emissions from a group of
regulated sources, and generally imposes no particular emissions limit on any
one firm or source.” ’ [Citation.] ‘ “The ‘trade’ … 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.” ’ [Citation.] [¶] 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.”
(Golden Door II, supra, 50 Cal.App.5th at p. 485.)
17
measure incorporates the requirements of section 38562, subdivision (d),
governing the GHG cap-and-trade program administered by CARB, which
requires offset credits “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.’ ”11 (Golden
Door II, supra, 50 Cal.App.5th at p. 506.)
The County argued that the measure was CEQA compliant because it
was substantially similar to the offsets requirements for the CARB cap-and-
trade program, and that the measure would “be ‘effective and enforceable’
because M-GHG-1 requires offsets to be purchased from registries that ‘meet
11 These terms are defined by regulation. “ ‘ “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 reservoirs
within the offset project boundary and account for uncertainty and the
potential for activity-shifting leakage and market-shifting leakage.’ (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.)”
(Golden Door II, supra, 50 Cal.App.5th at pp. 506–507, fn. omitted.)
18
the stringent requirements of … section 38562, subdivision (d)(1).’ ” (Golden
Door II, supra, 50 Cal.App.5th at p. 507.)
In rejecting the County’s position, this court examined in detail the
process used by CARB to ensure that the offset registries it approves for its
cap-and-trade program meet the requirements of section 38562, subdivision
(d)(1). The process includes CARB approval of the protocols underlying the
approved offset registries. The “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.’ ” (Golden Door II,
supra, 50 Cal.App.5th at p. 508.) Further, “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).)” (Id. at p. 509.) Also of note, for offset
projects outside of California, CARB’s cap-and-trade program includes
additional requirements through an extensive approval process called
“linkage” requiring the Governor to submit specified findings to the
Legislature. (Id. at p. 510.)
These approved protocols, we said, provide the enforcement mechanism
to ensure offsets are valid and, critically, were missing from the CAP SEIR’s
M-GHG-1: “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).) This
distinction is significant because some offset protocols administered by CARB-
19
approved registries are not Assembly Bill No. 32 compliant.[12] [¶]… [¶] The
CARB Protocols are the heart of cap-and-trade offsets—but the word
‘protocol’ is not even mentioned in M-GHG-1. ... 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.” (Golden Door II,
supra, 50 Cal.App.5th at pp. 511–512, fn. omitted.) Golden Door II also held
that unlike the cap-and-trade protocols, M-GHG-1 had no enforcement
mechanism to ensure that offsets are “additional ‘to any greenhouse gas
emission reduction otherwise required by law or regulation, and any other
greenhouse gas emission reduction that otherwise would occur.’ ” (Id. at
pp. 513‒514.) The additionality requirement is critical, the decision states,
“ ‘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.’ ” (Id. at p. 514.)
12 Assembly Bill No. 32 is “California’s ‘landmark legislation addressing
global climate change, the California Global Warming Solutions Act of
2006….’ ” (Golden Door II, supra, 50 Cal.App.5th at p. 488.) The law “calls
for reducing GHG emissions to 1990 levels by 2020.” (Ibid.) The law’s
mandate is incorporated into the County’s development requirements by the
General Plan’s goals and policies, which include “the ‘[r]eduction of local
GHG emissions contributing to climate change that meet or exceed
requirements of the Global Warming Solutions Act of 2006’ ” and “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.’ ” (Id. at p. 489.)
20
This court’s second basis for concluding the mitigation measure
violated CEQA was the measure’s improper deferral of mitigation. The
decision explains that M-GHG-1 gives the County Director of PDS the ability
to approve offset credits based on two determinations. First, the Director
determines if the registry or issuing entity is CARB-approved or “reputable”
and if it issues offsets that are consistent with section 38562,
subdivision (d)(1). Second, the director determines whether the offsets are
not available and/or not financially feasible in a location closer to the county
than the GHG emission offsets. Sierra Club argued, and this court agreed,
these determinations “violate[d] CEQA by improperly delegating and
deferring mitigation to these future determinations.” (Golden Door II, supra,
50 Cal.App.5th at p. 518.)
Under the CEQA Guidelines, “ ‘[f]ormulation 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 [be] considered, analyzed, and potentially
incorporated in the mitigation measure.’ ” (Golden Door II, supra, 50
Cal.App.5th at pp. 518–519.)
We held that the delegation and deferral in M-GHG-1 did not satisfy
this requirement because the measure set only a generalized goal—no net
increase or net-zero GHG emissions—the achievement of which “depends on
implementing unspecified and undefined offset protocols, occurring in
21
unspecified locations (including foreign countries), the specifics of which are
deferred to those meeting one person’s subjective satisfaction.” (Golden Door
II, supra, 50 Cal.App.5th at p. 520.) The PDS Director is entrusted with
determining “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,” but the measure “has no objective
criteria for making such findings.” (Id. at pp. 521–522.)
Golden Door II summarized the improper delegation and deferral issue
succinctly: “The problem is M-GHG-1 lacks objective criteria to ensure the
Director’s exercise of [his or her] discretion will result in GHG reduction that
is real, permanent, quantifiable, verifiable, enforceable, and additional.”
(Golden Door II, supra, 50 Cal.App.5th at p. 525.) We then held the
mitigation measure’s failure to comply with CEQA required invalidation of
the CAP, since it’s approval by the County was based on its unsupported
finding that in-process GPAs (including the Harmony Grove and Valiano
projects) and future GPAs would mitigate GHG emissions to zero since M-
GHG-1 did not have enforceable performance standards to ensure purchased
offsets were real. (Ibid.)
C
Standard of Review
The applicable standard of review is “nuanced. ‘The appellate court
reviews the agency’s action, not the trial court’s decision; in that sense
appellate judicial review under CEQA is de novo.’ [Citation.] [¶] The
County’s determinations as lead agency are reviewed for abuse of discretion.
[Citation.] ‘ “[A]n agency may abuse its discretion under CEQA either by
failing to proceed in the manner CEQA provides or by reaching factual
22
conclusions unsupported by substantial evidence.” ’ ” (Golden Door II, supra,
50 Cal.App.5th at p. 504.)
“[W]ithin 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.’ ” ’ ”
(Golden Door II, supra, 50 Cal.App.5th at pp. 504–505.)
II
The Harmony Grove Project
Harmony contends that unlike the mitigation measure invalidated in
Golden Door II, the GHG mitigation measure required by its project’s final
EIR contains “explicit, well-defined performance standards” that “meet the
Golden Door [II] standards requiring that any approved [offset] credits be
permanent, quantifiable, real, additional, enforceable, and verifiable.”
Harmony also argues the trial court erred because Golden Door II made clear
that offset credits from outside San Diego County are permissible and there
is no requirement in the applicable General Plan that offsets be local.
A
The Offset Mitigation Measures
Lack Enforceable Performance Standards
Harmony asserts that the GHG mitigation measures contained in its
EIR do not suffer from the same enforceability defect as the measure at issue
23
in Golden Door II because its measures contain the standards found absent in
that case. We disagree. The measures are substantially the same. As
Harmony points out, its projects’ two versions of the mitigation measure,
called M-GHG-1 (which applies to construction and vegetation removal
related to the project) and M-GHG-2 (which applies to project operations)
each contain a list of the standards that must be used to determine if an
offset is allowed. The two measures begin with slightly different introductory
paragraphs identifying the specific amount of carbon offsets required,
followed by the list of criteria the offsets must meet.
M-GHG-1 and M-GHG-2 for Harmony Grove state that prior to the
issuance of the first grading or building permit, the project applicant must
provide evidence to the County’s PDS that it has purchased and retired a
specified amount of carbon offsets, followed by this language:
“a. The carbon offsets that are purchased to reduce GHG
emissions shall achieve real, permanent, quantifiable, verifiable,
and enforceable reductions as set forth in Cal. Health & Saf.
Code Section 38562[, subd.] (d)(1).
b. One carbon offset credit shall mean the past reduction or
sequestration of one metric ton of carbon dioxide equivalent that
is ‘not otherwise required’ (CEQA Guidelines section
15126.4[c][3]).
c. Carbon offsets shall be purchased through a CARB-approved
registry, such as the Climate Action Reserve, American Carbon
Registry, or Verified Carbon Standard, or any registry approved
by CARB to act as a registry under the State’s cap-and-trade
program. If no CARB-approved registry is in existence, then the
Applicant or its designee shall purchase off-site carbon offset
credits from any other reputable registry or entity, to the
satisfaction of the Director of PDS.
d. The County will consider, to the satisfaction of the Director of
PDS, the following geographic priorities for GHG reduction
features, and off-site carbon offset projects: (1) Project design
24
features/on-site reduction measures; (2) off-site within the
unincorporated areas of the County of San Diego; (3) off-site
within the County of San Diego; (4) off-site within the State of
California; (5) off-site within the United States; and (6) off-site
internationally.”
These measures include the language, some verbatim, of the measure
rejected in Golden Door II. Subsections a, c, and d are taken directly from
the CAP M-GHG-1, though subsection a is separated from its placement in
subsection d in the CAP version, and the Harmony Grove measure adds
language taken from section 38562, subdivision (d)(1)— “[t]he greenhouse gas
emission reductions achieved are real, permanent, quantifiable, verifiable,
and enforceable”—to the measure. In contrast, the CAP version requires the
offsets to be “consistent with Cal. Health & Saf. Code section 38562[,
subd.] (d)(1).” Subsection b of the Harmony Grove measure, which includes
the additionality requirement, is absent from the CAP version.
Harmony asserts that inclusion of the statutory phrase “real,
permanent, quantifiable, verifiable, additional and enforceable reductions” in
the mitigation measure and the inclusion of the additionality requirement
save the provision from invalidation. However, this recitation of the
standards contained in section 38562, subdivision (d) does not cure the
defects found in Golden Door II. Like the CAP version, the measures do not
address the fundamental problem identified by this court, i.e., the measures
contain no mechanism for actual enforcement of these standards.
Specifically, like the CAP measure, the Harmony Grove (and Valiano)
GHG mitigation measures contain no protocols for ensuring the existence of
or for measuring offset credits. We explained in Golden Door II that the
protocol system used by CARB to qualify offsets from an approved registry
was the “heart” of the CARB cap-and-trade program. While the Harmony
Grove measures state credits are to be purchased from a CARB approved
25
registry (if one is available), as in the CAP version, “M-GHG-1 [and 2] say[]
nothing about the protocols that the identified registries must implement. ...
[¶] Unlike M-GHG-1 [and 2], under cap-and-trade, it is not enough that the
registry be CARB-approved. Equally important, the protocol itself must be
CARB-approved.” (Golden Door II, supra, 50 Cal.App.5th at p. 511.) Unlike
the measure here and the CAP version, the cap-and-trade version “will not
approve a protocol unless its GHG reductions are permanent” and the system
has “legislative safeguards … to ensure that out-of-state offsets reflect
genuine GHG reductions.” (Id. at p. 512.) The protocols used by CARB for its
cap-and-trade program are the mechanism that provides enforceability for
the offset mitigation measure. The recitation of the standards of
section 38562, including a requirement of additionality, by the Harmony
Grove mitigation measures are not a substitute for the actual enforcement
mechanism of the protocols. In short, the measures lack enforceability and,
therefore, they are insufficient under CEQA.
B
Improper Delegation and Deferral of Mitigation
As in Golden Door II, the Harmony Grove mitigation measures also
impermissibly delegate and defer to the PDS Director the determination of
whether offsets purchased by the project developers are what they purport to
be. The Harmony Grove measures repeat the requirements that any offset be
real, permanent, quantifiable, verifiable, enforceable, and additional, but as
discussed, they do not provide any methodology to determine whether those
requirements are met. Rather, the measures “allow[] the Director to
determine whether any particular offset program is acceptable” at his or her
discretion. (Golden Door II, supra, 50 Cal.App.5th at p. 520.) The measures
“entrust[] to the ‘satisfaction of the Director’ whether the proposed offset
26
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 [and M-GHG-2 have] no objective criteria for making
such findings.” (Id. at pp. 521–522.)
Finally, as in Golden Door II, M-GHG-1 and M-GHG-2 contain “no
objective standards for the Director to apply in determining whether offsets
originating in foreign countries are real, permanent, verifiable, enforceable,
and additional.” (Golden Door II, supra, 50 Cal.App.5th at p. 521.) Harmony
again points to the inclusion of those general standards in the measure, but
the measure provides no method for the Director to determine if the
standards are satisfied. As we have explained, this problem is “especially
troubling” for the use of foreign offsets because “the ordinary challenges in
establishing that a domestic offset protocol meets these standards are
magnified in foreign countries” where the County has little ability to ensure
the offsets are real. (Ibid.) “These uncertainties are one of the reasons that
CARB limits the use of offsets in its Cap-and-Trade program to no more than
8 [percent] of the total.” (Ibid.) Here, the PDS Director’s findings of
unavailability in other geographic locations could allow the applicants “to
27
offset all project GHG emissions through credits originating in foreign
countries.”13 (Ibid., italics added.)
Harmony cites Save Cuyama Valley v. County of Santa Barbara (2013)
213 Cal.App.4th 1059 (Save Cuyama) and Gentry v. City of Murrieta (1995)
36 Cal.App.4th 1359 (Gentry) to support its assertion that the future
discretion afforded the PDS Director by the GHG mitigation measures is
permissible. Save Cuyama addressed a challenge to a mitigation measure
included in a conditional use permit for a hydraulic mining operation. The
mitigation measure required the operator to conduct a semi-annual survey of
the affected river bottoms and report its findings to the State’s Office of Mine
Reclamation and two county agencies for a determination of whether adverse
impacts to the area had developed or appeared to be developing as a result of
the operations, and then if necessary to confer with the county agencies to
modify the operations to avoid additional impacts. (Save Cuyama, at
p. 1065.) The plaintiff environmental organization argued the mitigation
measure was improperly deferred because it did not sufficiently “spell out the
criteria by which its effectiveness [would] be evaluated.” (Id. at p. 1071.)
13 In its briefing, Harmony cites to explanatory statements contained in
its final EIR, implying the statements are part of the final mitigation
measures adopted by the County. For instance, it asserts that its EIR
“required that any credits be affirmed by ‘Independent, Qualified Third-Party
Confirmation of Reduction or Sequestration,’ and that the registry have
‘adopted rules and procedures governing the retirement or cancellation of
offsets.’ ” This language is taken from the document’s response to a
commentator’s criticism that the GHG mitigation measures do not ensure
enforceability because they allow the purchase of credits from registries
whose protocols are adequately vetted. The cited language asserts simply
that carbon offset registries, in general, undertake such an approval process,
but it does not respond to the criticism that there is no way for the County to
enforce such a requirement or to ensure that offsets ultimately permitted by
the PDS Director will contain such safeguards.
28
The court rejected the argument, concluding the hydraulic impacts
were sufficiently defined by the mitigation measure because it incorporated
the Office of Mine Reclamation’s regulatory standards, contained in its
annual Surface Mining and Reclamation Act compliance review, to determine
if modifications were required. (Save Cuyama, supra, 213 Cal.App.4th at
pp. 1070‒1071.) Save Cuyama presented a deferral of action based on
objective regulatory standards. Here, in contrast, the mitigation standards
“allow[] the [PDS] Director to determine whether any particular offset
program is acceptable based on unidentified and subjective criteria.” (Golden
Door II, supra, 50 Cal.App.5th at pp. 520‒521.)
Gentry also offer no support for Harmony. On the contrary, its
discussion of deferred mitigation supports Sierra Club’s position. In Gentry,
the plaintiff “raise[d] virtually every conceivable objection under [CEQA] to
the approval by [the] respondent City” of a development project, including by
challenging 22 mitigation measures on the grounds they were improperly
deferred. (Gentry, supra, 36 Cal.App.4th at p. 1367.) The court concluded all
but one of the measures was not an improper deferral of mitigation because
the measures either (1) did not actually contain any deferral, (2) required the
developer and agency to comply with existing regulations with specific
performance criteria in approving future actions required by the mitigation
measures, or (3) required compliance with environmental regulations of other
agencies. (Id. at pp. 1395‒1396.)
The one improper deferral required the developer to obtain a report
related to the habitat of a protected animal and comply with any
recommendations developed in the future report. The court concluded this
was improper because it prevented public review of a mitigation measure of a
potentially significant impact. (Gentry, supra, 36 Cal.App.4th at p. 1396.)
29
The mitigation measures here, which lack objective criteria for the PDS
Director’s approval of offsets and thus fail to disclose the full basis for such
approval, are likewise an improper deferral of required mitigation.
Finally, Harmony restates its argument in terms of substantial
evidence, contending sufficient evidence supported the County’s certification
of the EIR. In support, Harmony quotes at length the discussion in the final
EIR concerning the effectiveness of the proposed GHG emission mitigation
measures. The quoted language, however, does not remedy the defects in the
measures set forth herein. Rather, it is merely an explanation of what
carbon offset registries are; the regulatory definitions of the terms real,
permanent, quantifiable, verifiable, additional, and enforceable; and a
description of several CARB-approved carbon registries. The discussion does
not provide sufficient evidence of the measures’ enforceability.
The Harmony Grove project’s attempt to use onsite mitigation
measures to reduce its operational GHG emissions is commendable.
However, the offset measures proposed to counteract emissions not mitigated
with installation of electric vehicle charging stations, solar power, and the
like fall short of satisfying CEQA. Accordingly, we agree with the trial court
that the County improperly certified Harmony Grove’s final EIR.14
14 Harmony also argues the trial court’s order was in error to the extent it
was based on a determination that the mitigation measures allowed the
purchase of offsets originating outside of San Diego County. Sierra Club
concedes that under Golden Door II, out of county offsets, as a general
matter, may be permissible. However, as discussed further in section III, A
and B, infra, reversal on this basis is not warranted because we affirm the
trial court’s determination that the measures are separately invalid under
CEQA.
30
III
The Valiano Project
Integral asserts Golden Door II held that the purchase of carbon offsets
originating outside of San Diego County does not violate CEQA so long as
certain performance standards are met. Integral also maintains that Golden
Door II terminated the applicability of the 2018 GPU, which the trial court
held required offsets to originate within the county. For these reasons,
Integral argues that the trial court’s determination that M-GHG-1 violates
CEQA and that the measure is inconsistent with the 2018 GPU must be
reversed. As we explain, we do not agree with Integral’s interpretation of
Golden Door II or the manner Integral asserts it applies to this case.
A
Local Offsets
In its briefing, Integral emphasizes a statement in the Golden Door II
opinion concerning the global nature of the climate issues that is contained in
the section of the opinion holding the CAP’s GHG mitigation measure is not
inconsistent with the 2011 GPU. The opinion states that the GPU’s carbon
emission policies should be “construed in light of science,” and “ ‘[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 impacts to be evaluated are also
global rather than local.’ ” (Golden Door II, supra, 50 Cal.App.5th at p. 501.)
“Thus,” we continued, “reducing or eliminating GHG emissions anywhere is a
benefit.” (Ibid.)
These statements are accurate but are not a part of the Golden Door II
holding directly relevant to issue before this court. As described, and as
Integral itself admits, Golden Door II invalidated the CAP’s version of
31
M-GHG-1 because it did not provide objective performance standards to
ensure that offset credits originating outside the County’s jurisdiction
actually delivered mitigation of the proposed developments’ emissions. As
the parties on appeal all agree, the fact that the offset credits originate
outside the country is not in and of itself problematic. Rather, it is the
mitigation measure’s lack of a sufficient enforcement mechanisms to ensure
the credits are actually eliminating GHG emissions that is problematic.
To bolster its argument for reversal, Integral also mischaracterizes the
trial court’s order granting Sierra Club’s petition. Integral implies the order
was based solely on the court’s determination that the mitigation measures
for Valiano and Harmony Grove violated CEQA because they allow offsets in
foreign jurisdictions. This is not accurate. The trial court’s determination
that the measures violated CEQA was also based on the measure’s lack of
standards for ensuring it is enforceable. The trial court did find that
Valiano’s version of “M-GHG-1 fails to ensure the GHG offsets will occur
within the County in accordance with Policy CO-20.1 of the 2018 General
Plan.” On appeal, however, Sierra Club does not dispute the general legality
of off-site offsets under CEQA.
Further, this court is tasked with de novo review of the County’s
determination. Even if the court had erred by finding the measure violated
CEQA because offsets may be purchased from sources originating outside the
county, affirmance based on our holding in Golden Door II on the distinct
issues of the mitigation measures’ lack of enforceability and improper
deferral of mitigation is appropriate. (See D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 18–19 [“ ‘The fact that the action of the court
may have been based upon an erroneous theory of the case, or upon an
improper or unsound course of reasoning, cannot determine the question of
32
its propriety. No rule of decision is better or more firmly established by
authority, nor one resting upon a sounder basis of reason and propriety, than
that a ruling or decision, itself correct in law, will not be disturbed on appeal
merely because given for a wrong reason.’ ”].)
B
Determination of Consistency With the GPU Is Not Necessary
Because of the litigation efforts of Sierra Club and others, the County’s
general plan as it relates to greenhouse gas emissions is in a state of flux.15
Integral asserts that because Golden Door II resulted in the County
rescinding and vacating the resolution adopting the 2018 GPU, “debate
whether the 2018 GPU is applicable to the [Valiano] Project is moot” and its
project “has a vested right to comply with the 2011 GPU, and not subsequent
iterations, as a matter of law.” Integral further contends its mitigation
measure M-GHG-1 is compliant with the earlier, purportedly operable 2011
GPU.
Sierra Club responds that the mitigation measure is inconsistent with
the 2011 and 2018 GPUs, both of which require local GHG reductions. Sierra
Club also argues that because the EIR for the project does not disclose the
inconsistency, the County’s approval violates CEQA’s mandate that the
approving agency disclose, analyze, and “bridge the ‘analytical gap’ between
the Project’s inconsistencies with General Plan provisions and the County’s
conclusion that the Project is consistent with all General Plan[] policies….”
15 Integral’s request for judicial notice of the County’s resolution vacating
the 2018 GPU in conformance with the writ of mandate issued in Golden
Door II is granted. Integral’s separate request for judicial notice of filings
and orders issued in the trial court case underlying Golden Door II is denied
as irrelevant.
33
As in Golden Door II, we conclude it is unnecessary to decide the issue
of whether the Valiano M-GHG-1 mitigation measure is consistent with
either the 2011 version, or the since-rescinded 2018 GPU that was
invalidated in that case. Because the measure is not CEQA-compliant, “it is
unnecessary to decide whether M-GHG-1 is invalid for other reasons.”
(Golden Door II, supra, 50 Cal.App.5th at p. 503; see also Communities for a
Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 101–102
[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].) Given the uncertainty that
surrounds the status of the County’s general plan as it relates to the issue of
greenhouse gas emissions, we decline to weigh in on this issue at this
juncture.16
16 Integral also argues that Golden Door II made clear that the CAP
version of the mitigation measure was not inconsistent with the 2011 GPU.
This argument is an oversimplification of Golden Door II’s holding, which
addressed the CAP’s overall consistency with the GPU, not just the offset
mitigation measure alone. The issue before the court was whether the
measure’s allowance of out of county offset purchases made the entire CAP
inconsistent with the GPU’s “policy to ‘reduce GHG emissions primarily
through minimizing vehicle trips and approving [sustainable] land use
patterns” and its directive 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….’ ” (Golden Door II, supra, 50
Cal.App.5th at pp. 501–502.) Golden Door II concluded the CAP was not
inconsistent with those policies because the use of the word “primarily” did
not mean all out of county GHG mitigation measures were excluded. (Ibid.)
This holding does not address the arguments advanced by Sierra Club in this
case, i.e., whether the mitigation measure as implemented in these projects is
(1) inconsistent with the applicable general plan and (2) whether it was
sufficiently disclosed and analyzed in the projects’ EIRs.
34
C
The Writ Relief Provided By the Trial Court
Was Not an Abuse of Discretion
Integral’s final contention is that the trial court abused its discretion
under section 21168.9 by issuing a writ of mandate requiring the County to
decertify the EIR and vacate all of the Valiano project’s entitlements.
Integral asserts the court should have allowed the County to modify
M-GHG-1 by way of an addendum to the EIR that adds specific performance
standards for the purchase of offsets that originate outside of the county.
Sierra Club responds that the relief granted by the trial court was within the
bounds of its discretion. We agree with Sierra Club.
“[An] agency initially must certify an entire EIR before approving a
project. (Cal. Code Regs., tit. 14, § 15004, subd. (a) (Guidelines) [‘Before
granting any approval of a project subject to CEQA, every lead agency …
shall consider a final EIR’]; Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 394....) However, a court has
additional options once it has found an agency’s EIR certification
noncompliant. Section 21168.9, subdivision (a) governs the writ of mandate
that a court issues after ‘trial, hearing, or remand from an appellate court’ to
remedy a CEQA violation.” (Center for Biological Diversity v. Department of
Fish & Wildlife (2017) 17 Cal.App.5th 1245, 1252.)
Under section 21168.9, “when a court finds an agency’s determination,
finding, or decision does not comply with CEQA, the court must enter an
order, in the form of a peremptory writ of mandate, containing one or more of
three specified mandates. (§ 21168.9, subds. (a) & (b).) The first mandate is
that the agency void the determination, finding, or decision in whole or in
part. (Id., subd. (a)(1).) The second mandate is that the agency suspend
35
specific project activities related to the determination, finding, or decision
that could adversely affect the physical environment until the agency takes
the action necessary for the determination, finding, or decision to comply
with CEQA. This mandate applies only if the trial court finds the specific
project activities will prejudice consideration or implementation of particular
mitigation measures or project alternatives. (§ 21168.9, subd. (a)(2).) The
final mandate is that the agency take the specific action necessary for the
determination, finding, or decision to comply with CEQA. (§ 21168.9,
subd. (a)(3).)” (Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th
260, 286–287, italics added (Preserve Wild Santee).)
“When a court voids an agency determination ‘in part,’ it must make
severance findings pursuant to section 21168.9, subdivision (b), to determine
whether the voided portions are severable, and whether the remainder will
be in full compliance with CEQA.” (Center for Biological Diversity v.
Department of Fish & Wildlife, supra, 17 Cal.App.5th at p. 1253.) A partial
mandate is available only “if the trial court finds that (1) the portion or
specific project activities are severable, (2) severance will not prejudice
complete and full compliance with CEQA, and (3) the trial court has not
found the remainder of the project to be in noncompliance with CEQA.
(§ 21168.9, subd. (b).)” (Preserve Wild Santee, supra, 210 Cal.App.4th at
p. 287.)
“In deciding which mandates to include in its order, a trial court relies
on equitable principles. [Citation.] However, the trial court may not direct
the agency to exercise its discretion in a particular way and may only include
the mandates necessary to achieve compliance with CEQA. (§ 21168.9,
subds. (b) & (c).)” (Preserve Wild Santee, supra, 210 Cal.App.4th at p. 287.)
36
“We review the trial court’s exercise of its equitable powers for abuse of
discretion.” (Ibid.)
Integral urges us to direct the trial court to issue a writ of mandate
requiring the County only “to revise M-GHG-1 to supply the necessary
protocols for carbon offsets originating outside of the county in accordance
with” Golden Door II. We decline to adopt this recommendation. As an
initial matter, the trial court did not make the severance findings that are
necessary for a partial writ under section 21168.9, subdivision (b).17
Further, we do not agree with Integral that severance is obviously
appropriate. As stated, it argues severance findings are warranted because
the mitigation measure can simply be revised to incorporate the
requirements of Golden Door II, bringing the offset purchases originating
outside of the county into compliance with CEQA. Sierra Club responds that
severance is not appropriate because (1) voiding the EIR in its entirety is the
“normal” procedure and (2) changes to the mitigation measure would impact
the CEQA analysis for the rest of the project and the County’s adoption of a
statement of overriding considerations.
We do not agree with Sierra Club that there is no abuse of discretion
because issuance of a writ mandating the agency decertify the EIR is the
“normal” resolution of a successful challenge under CEQA. The statute, and
the weight of authority thereunder, make clear that partial relief is available
where the violation can be severed in accordance with section 21168.9,
subdivision (b). (See Preserve Wild Santee, supra, 210 Cal.App.4th at p. 288
[“The Legislature amended section 21168.9 in 1993 to expand ‘the trial
court’s authority and “expressly authorized the court to fashion a remedy
17 No party indicates whether a request for severance findings was made
in the trial court, and we detect no such request in the record.
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that permits some part of the project to go forward while an agency seeks to
remedy its CEQA violations.” ’ ”]; Center for Biological Diversity v.
Department of Fish & Wildlife, supra, 17 Cal.App.5th at p. 1252 [“Section
21168.9, subdivision (a) clearly allows a court to order partial decertification
of an EIR following a trial, hearing, or remand.”].)
We do, however, agree with Sierra Club’s assertion that severance is
not appropriate here because the GHG emission mitigation measure is
intertwined with the EIR. As Sierra Club states, “upon reexamination of
mitigation measure M-GHG-1, the County may conclude additional
alternatives are feasible or must be analyzed. Changes to project
requirements driven by changes to [the measure] might require revision to
various impacts areas, including, for example, traffic and circulation and air
quality impacts.”
Although Integral argues the County can be directed to plug in the
directive of Golden Door II, that decision does not contain a straightforward
blueprint to fix the invalid measure. In addition, the status of the County’s
CAP and whether its version of M-GHG-1, which is the basis for the
measures at issue here, has been brought into compliance with CEQA,
replaced or eliminated is unknown. Further, if CEQA-compliant offsets are
not available, then the project would likely require modifications in other
areas. “Since the trial court’s judgment is presumed correct, it is the
appellant’s burden to establish error.” (Golden Door II, supra, 50
Cal.App.5th at p. 557.) Integral has not shown modifications to this measure
would not impact other areas and can be severed easily from the EIR.
Accordingly, we conclude that the remedy imposed by the trial court did not
constitute an abuse of discretion.
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DISPOSITION
The judgment is affirmed. Respondent is entitled to appellate costs.
McCONNELL, P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
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