Environmentalists Beat San Diego County on CAP Again
- William Fulton
- Jun 16, 2020
- 4 min read
San Diego County’s program of permitting new development projects to mitigate their GHG impacts by buying carbon offsets elsewhere is too vague and violates the California Environmental Quality Act, the Fourth District Court of Appeal has ruled. But the court warned that its ruling is extremely narrow and does not rule out the possibility of using carbon offsets if the mitigation program is better constructed. The ruling came in a complicated 137-page opinion with two appendices, one of which is a glossary. The case involves the interplay between the county general plan and the county climate action plan, between projects anticipated by the general plan and projects that exceed the general plan’s expected development, and between onsite GHG mitigations and offsite mitigations including in some cases carbon offsets that can purchased anywhere in the world. The ruling was the third so far from the Fourth District in the case. (Previous CP&DR coverage can be found here and here.) and in the opinion a clearly exasperated Justice Joan Irion tried to provide a roadmap for the county’s compliance with CEQA and state climate law. The county’s climate action plan calls for a decrease of approximately 15% in greenhouse gas emissions between a 2014 baseline and buildout in 2030. This target includes additional development in unincorporated county territory as anticipated in the county general plan. To reduce GHGs, the CAP lays out 26 different strategies. Many of them are pretty standard (reducing vehicle miles traveled, building bike facilities) but one of them – T-4.1 – calls on the county to invest in projects that reduce GHGs, such as weatherization and urban tree planting, and track the GHG reductions from those projects. But the CAP also sought to address projects whose size would exceed the anticipated development in the general plan, including several pending major projects seeking general plan amendments, such as Lilac Hills Ranch and Newland Sierra. For these projects, the county required GHG emissions above the CAP limit to be reduced to zero and permitted a separate mitigation strategy to accomplish this goal. M-GHG-1, as the strategy was known, permitted developers to purchase carbon offsets anywhere in the world, subject to the discretionary approval of the county staff. In the litigation before the appellate court, a coalition of environmental groups argued that county’s climate action plan was inconsistent with the county general plan and that M-GHG-1 was a violation of CEQA. On the first question, the appellate court concluded that the CAP was not inconsistent with the general plan, but that the county abused its discretion in approving the CAP. But this finding was related to the question of M-GHG-1. “,There is nothing inherently unlawful under CEQA by delegating M-GHG-1 determinations to the Director,” wrote Justice Irion. “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.” Without such objective criteria, there is no guarantee that the emissions reductions sought using M-GHG-1 will be “real, permanent, quantifiable, verifiable, enforceable, and additional.” She also found that M-GHG-1 impermissibly defers CEQA mitigation into the future, basically for the same reason. In its appeal, the county relied heavily on Appendix B of its Supplemental Environmental Impact Report, which, the county claimed, “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, Irion wrote, “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.” She added: “lthough 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 additionally 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.” Because the whole M-GHG-1 regime was defective, substantive evidence did not exist that the GHG goals would be met, the county abused its discretion in approving the cap. Irion seemed to go out of her way to say that the ruling should not be widely cited – and also made it clear she and her colleagues do not want to see this particular dispute again. “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.,” she wrote. “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), the CAP is CEQA-compliant.” Noting that the case has been in the appellate court three times, she added, "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.”