Opponents of the Newland Sierra, Warner Ranch and Lilac Hills Ranch projects are encouraged by a court decision that they believe could force the County to ramp back approvals of several large developments due to the inadequacy of its Climate Action Plan.
On December 21 Superior Court Judge Timothy Taylor issued tentative rulings on requests for an injunction in the case of Sierra Club v. County of San Diego, finding that the county’s Climate Action Plan (CAP) was invalid. It orders the County to stop using Mitigation Measure M-GHG-1, which requires General Plan Amendments to reduce their emissions to achieve green house gas emission targets by either “no net increase” or “net zero.” It’s not the goals of M-GHG-1 the judge takes issue with, but the way it does it.
Taylor ordered the County “to set aside its February 14, 2018 approval of the CAP and the SEIR. A permanent injunction is also issued essentially in accordance with the preliminary injunction granted on September 14, 2018 (ROA 321). The injunction does not prohibit all development projects in the County, only those projects reliant on the use of the program set forth in M-GHG-1. While the injunction is in place, the County may consider any project that does not depend on the use of the M-GHG-1 program. The $5000.00 bond used to support the preliminary injunction is exonerated. Counsel for petitioners are directed to submit to the court for signature a peremptory writ of mandate and injunction consistent with the foregoing.”
Mark Jackson, the leader of the coalition opposing Lilac Hills Ranch hailed the judge’s action: “This is really good news! The Court found that the County Climate Action Plan is invalid. The top level flaw is that increased greenhouse gases generated by sprawl developments with commuters driving cars can’t be offset by loosely regulated or unregulated offset credits purchased outside the County and State of California.”
George Courser, chairman of the Conservation Committee Sierra Club San Diego, commented, “Today, the people of San Diego County and the environment were the big winners in the Sierra Club’s successful lawsuit against the County of San Diego for its Climate Action Plan (‘CAP’).” He added, “This decision was the latest in a series of defeats by the County and victories for the Sierra Club in challenges to the County’s CAP. . .”
Judge Taylor ruled that the County’s out-of-County offset provision was inconsistent with the County’s General Plan, and that the County violated the California Environmental Quality Act (CEQA) by allowing out-of- County offsets without sufficient analysis. The court also found that the County’s environmental impact report (EIR) was inadequate for several other reasons, including because it failed to analyze how facilitating developments in rural lands far from transit and often in high fire hazard zones could impact achievement of SANDAG’s regional plans for smart growth. The court also faulted the County for failing to adequately respond to comments by the public about methods to reduce GHG’s, as required by CEQA.
Judge Taylor’s ruling stated, “the County failed to adequately respond to comments, thereby violating CEQA. Comments are an integral part of the EIR and should be relied upon by the decisionmakers.” He included this example: “Sempra commented that only 13% of CAP GHG reductions would come from a transportation sector that emits 45% of County GHGs and advocated decreasing VMT through the County’s comprehensive planning powers. AR 16:15041-42. The County’s ‘response’ was that it will explore increasing the use of electric vehicles, which was nonresponsive.”
The judge continues, “Response 9 admits that transportation sector reductions are proportionally low, but does not explain why transportation reductions were not included in the alternatives analysis . . . Master Responses 2 and 5 are likewise nonresponsive and rely on data that does not include VMT generated by GPAs under consideration and the ones that are likely to be submitted for County review. These are not adequate responses under CEQA.”
Newland Sierra contends that the ruling does apply to it. Rita Brandin, vice president, Newland Communities, commented to the Times-Advocate, “Our greenhouse gas analysis and mitigation measures were established before the county’s CAP (Climate Action Plan) ever came out.” She added, “We don’t rely on or use the county’s climate action plan. We have our own mitigation, and see no impediment to moving forward with our project.”
We asked for a comment from Lilac Hills Ranch, but an automatic reply from Project Manager Jon Rilling indicated that his offices are closed until January 2.
Acknowledging Newland Sierra’s point of view, Jackson commented, “But, the Project offers mitigation that is sooooo similar to the County’s CAP — buying offshore carbon offset credits for cheap.” Jackson added, “Lilac Hills Ranch took a similar approach — a ‘spin job’ to offer the essence of the County Climate Action Plan but call it something different to try and avoid getting stopped by a Court Order.”
Jackson concludes, “Boiling it down to what it means to Lilac Hills Ranch requires a legal interpretation of the ruling, a guess at how County elected officials and staff will implement the ruling, and a guess at whether or not and when the County or a coalition of Development interests will appeal the Court’s decision.”
Judge Taylor held the County’s Climate Action Plan invalid because it relies in part on offsetting green house gas emissions from developments by relying on offset credits purchased outside the County and State of California.
The judge states: “The County’s General Plan in its 2011 format stated that the CAP should achieve GHG [Green House Gases] emissions from the ‘unincorporated County’ and from ‘County operations,’ and yet 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, in the discretion of the Director of a County department.”
The judge ruled “The petitions are granted, and the County is ordered to set aside its February 14, 2018 approval of the 2018 CAP and the Supplemental EIR (SEIR) on which the 2018 CAP is based.”
The judge states, “The court knows full well that, when it decides to do so, the County knows how to prepare a lawful and valid EIR . . . In finding that the County did not do so when it approved the 2018 CAP, the court does not write on a clean slate. The County’s efforts to comply with the statewide GHG/global warming requirements summarized in part IIA of the Court of Appeal’s September 28, 2018 opinion in Consolidated Case Nos. D072406 and D072433 have given rise to several decisions by the court, and two by the Court of Appeal. Virtually every decision has found the County’s efforts wanting; this is particularly true in connection with the County’s penchant for proceeding in the absence of substantial evidence.”
The Judge will issue a permanent injunction prohibiting any future General Plan Amendment that relies on the current County Climate Action Plan. The judge did not overturn the Newland Sierra, Valiano, or Harmony Grove Village South approved General Plan amendments. But there are CEQA lawsuits filed against all three projects that seek to invalidate the Board of Supervisors General Plan Amendment approval for the projects. All three projects use out-of- State (and international) carbon offset programs.
Jackson said his group will consult with its attorneys in January on how this ruling could relate to Lilac Hills Ranch. “Boiling it down to what it means to Lilac Hills Ranch requires a legal interpretation of the ruling, a guess at how County elected officials and staff will implement the ruling, and a guess at whether or not and when the County or a coalition of Development interests will appeal the Court’s decision.”
He added, “Also in early January, we will contact the County staff and see how the County plans to deal with Lilac Hills Ranch.”
One local observer and activist in many such cases over the years, Patsy Fritz of Pauma Valley commented, “This means that the County cannot approve any GPA [General Plan Amendment] that relies on its defective Climate Action Plan (“CAP”), which would have allowed developers to purchase offsite mitigation for greenhouse gas production – INTERNATIONAL offsite mitigation to ‘the satisfaction of the Department of Planning and Development Services’ and at the lowest cost to the developer … while we would get all the smog, air pollution and GHG (greenhouse gases) locally that these long-haul ‘commuter communities would produce — Lilac Hills Ranch, Newland Sierra (“Merriam Mountain” in the old days), Warner Ranch, etc. An overwhelming victory! The County may use your tax dollars to appeal — but this shoots down every one of their arguments.”