California Court of Appeals, Fourth District, First Division
APPEAL fro a judgment of the Superior Court of San Diego County, No. 37-2012-00101054- CU-TT-CTL Timothy Taylor, Judge.
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Thomas E. Montgomery, County Counsel, and C. Ellen Pilsecker, Chief Deputy County Counsel, for Defendant and Appellant.
Law Office of Malinda R. Dickenson, Malinda R. Dickenson; Chatten-Brown & Carstens, Jan Chatten-Brown, Douglas P. Carstens and Josh Chatten-Brown for Plaintiff and Respondent.
This action arises out of the County of San Diego's (County's) 2011 general plan update, wherein the County issued a program environmental impact report (PEIR), and adopted various related mitigation measures. In this action the Sierra Club sought, in a petition for writ of mandate, to enforce one mitigation measure adopted by the County: climate change mitigation measure CC-1.2 (Mitigation Measure CC-1.2). With Mitigation Measure CC-1.2, the County committed to preparing a climate change action plan with "more detailed greenhouse gas [(GHG)] emissions reduction [(GHG)] targets and deadlines" and "comprehensive and enforceable GHG emissions reductions measures that will achieve" specified quantities of GHG reductions by the year 2020.
However, the Sierra Club alleged that instead of preparing a climate change action plan that included comprehensive and enforceable greenhouse gas (GHG) emission reduction measures that would achieve GHG reductions by 2020, the County prepared a climate action plan (CAP) as a plan-level document that expressly "does not ensure reductions." The County also developed associated guidelines for determining significance (Thresholds). According to the Sierra Club, review of the CAP and Thresholds project under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) was performed after the fact, using an addendum to the general plan update PEIR, without public review, without addressing the concept of tiering, without addressing the County's failure to comply with the
express language of Mitigation Measure CC-1.2, and without a meaningful analysis of the environmental impacts of the CAP and Thresholds project.
The court granted the petition, concluding that the County's CAP did not comply with the requirements of Mitigation Measure CC-1.2 and thus violated CEQA. The court found that the CAP did not contain enforceable GHG reduction measures that would achieve the specified emissions reductions.
The County appeals, asserting (1) the statute of limitations bars the claim that the mitigation measures are not enforceable; (2) the CAP met the requirements of Mitigation Measure CC-1.2; and (3) that the trial court erred in finding that a supplemental environmental impact report (EIR) was required. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Executive Order S-3-05
In 2005 then-California Governor Arnold Schwarzenegger issued Executive Order No. S-3-05,  which acknowledged California's vulnerability to the effects of climate change and established targets for reducing GHG emissions in California over time. Specifically, Executive Order No. S-3-05 set statewide targets for three points in time: 2010, 2020, and 2050. The target for 2010 (2010 Target) was to reduce emissions to the levels they were at in the year 2000. The target for 2020 is to reduce emissions to the levels they were at in 1990 (2020 Target). The target for 2050 is that emissions be 80 percent below the levels they were at in 1990 (2050 Target).
Executive Order No. S-3-05 was based on then-available climate science and represented California's share of worldwide GHG reductions necessary to stabilize climate. As the Attorney General explained, "Executive Order [No.] S-3-05 is an official policy of the State of California, established by gubernatorial order in 2005, and designed to meet the environmental objective that is relevant under CEQA (climate stabilization)."
B. The Legislature Addresses the Need for GHG Emission Reductions
In response to Executive Order No. S-3-05, the California Legislature enacted the California Global Warming Solutions Action of 2006, Assembly Bill No. 32 (2005-2006 Reg. Sess.) (Assembly Bill No. 32). (Health & Saf.
Code, § 38500 et seq.) Consistent with Executive Order No. S-3-05, Assembly Bill No. 32 required the State Air Resources Board (CARB) to determine 1990 levels of GHG emissions and then to establish "a statewide greenhouse gas emissions limit that is equivalent to that level, to be achieved by 2020." (Health & Saf. Code, § 38550.) Assembly Bill No. 32 also stated that GHG reductions must continue after 2020, requiring that the statewide GHG emissions limit established by CARB "remain in effect unless otherwise amended or repealed" (Health & Saf. Code, § 38551, subd. (a)) and further that "[i]t is the intent of the Legislature that the statewide greenhouse gas emissions limit continue in existence and be used to maintain and continue reductions in emissions of greenhouse gases beyond 2020." (Health & Saf. Code, § 38551, subd. (b).) Assembly Bill No. 32 also required that CARB "prepare and approve a scoping plan [for] achieving the maximum technologically feasible and cost-effective reductions in greenhouse gas emissions by 2020." (Health & Saf. Code, § 38561, subd. (a).)
In December 2008 CARB approved the scoping plan. The scoping plan "identifies California's cities and counties as 'essential partners' within the overall statewide effort, and recommends that local governments set a GHG reduction target of 15% below 2005-2008 levels by 2020." Thus, it was acknowledged that CARB would accept this target as a substitute for the 1990 level referenced in Assembly Bill No. 32 and Executive Order No. S-3-05.
C. The County's General Plan Update PEIR
The County acknowledged in the general plan update PEIR that it needed to "reduce GHG emissions to 1990 levels by 2020" and that changes were required both in the community and in the County's operations, buildings, vehicle fleet, and with respect to its employee commutes, water, and waste.
A GHG emissions inventory was prepared as a special appendix (Appendix K). Appendix K set forth projected emissions reductions and assumptions then-available, and promised that the "Greenhouse Gas Reduction/Climate Action Plan, which will be prepared as an implementation strategy, will further detail the County's GHG emissions and how those reductions will occur."
There was extensive public comment on the general plan update, including from the California Attorney General:
"[W]e encourage the County to (1) commit in the General Plan to adopt by a date certain a CAP with defined attributes (targets, enforceable measures to meet those targets, monitoring and reporting, and mechanisms to revise the CAP as necessary) that will be integrated into the General Plan; (2) incorporate into the General Plan interim
policies to ensure that any projects considered before completion of the CAP will not undermine the objectives of the CAP; and (3) for all GHG impacts the County has designated as significant, adopt feasible mitigation measures that can be identified today and that do not require further analysis." (Fn. omitted.)
D. Mitigation Measures
The County thereafter promised to take a series of additional actions. These promises took the form of a group of climate change-related mitigation measures: mitigation measures CC-1.1 through CC-1.19 (the Mitigation Measures). The Mitigation Measures included requirements to update, review, and implement County programs; implement a strategic energy plan; revise the zoning ordinance; coordinate with other entities; educate the public; reduce vehicle miles traveled and encourage alternative modes of transportation; and, based thereon, to revise the County guidelines for determining significance.
The County made the following finding with regard to Mitigation Measure CC-1.2:
"[Mitigation Measure] CC-1.2 requires the preparation of a County Climate Change Action Plan within six months from the adoption date of the General Plan Update. The Climate Change Action Plan will include a baseline inventory of greenhouse gas emissions from all sources and more detailed greenhouse gas emissions reduction targets and deadlines. The County Climate Change Action Plan will achieve comprehensive and enforceable GHG emissions reduction of 17% (totaling 23, 572 MTC02E) from County operations from 2006 by 2020 and 9% reduction (totaling 479, 717 MTC02E) in community emissions from 2006 by 2020. Implementation of this Climate Change Action Plan will contribute to meeting the [Assembly Bill No.] 32 goals, in addition to the State regulatory requirements noted above." (Italics added.)
Mitigation Measure CC-1.2 formed the basis for Mitigation Measure CC-1.8, which required "revision of the County Guidelines for Determining Significance based on the Climate Change Action Plan."
Mitigation Measure CC-1.8, in turn, formed the basis for Mitigation Measure CC-1.7, which required that the County guidelines for determining significance anticipated by Mitigation Measure CC-1.8 incorporate CARB's recommendation for a threshold for determining significance of impacts on climate change. Should the recommendation "not be released in a timely manner, " the County would "prepare its own threshold."
As required by CEQA (Pub. Res. Code, § 21081.6), the County incorporated a mitigation monitoring and reporting program (MMRP) into the general plan update PEIR.
Included in the MMRP was a promise to achieve GHG reductions by 2020 through comprehensive and enforceable GHG emission reduction measures. In addition to committing to the 2020 Target, the County also committed to compliance with the Executive Order No. S-3-05 trajectory. The County found "significant impacts associated with substantial climate-related risks" such as those "on water supply, wildfires, energy needs, and impacts to public health" would occur as a result of its general plan update. However, as a result of its commitment to adopt a CAP and Thresholds, and other mitigation measures, the County was able to make a finding that the climate change impacts anticipated by the general plan update PEIR would be avoided or substantially lessened.
E. The CAP and Thresholds Project
According to the County, the CAP was prepared for the following purposes:
1. To mitigate the impacts of climate change by achieving meaningful GHG reductions within the County, consistent with Assembly Bill No. 32, the governor's Executive Order S-3-05, and CEQA guidelines (Cal. Code Regs., tit. 14, § 15000 et seq. [CEQA Guidelines]).
2. To allow lead agencies to adopt a plan or program that addresses the cumulative impacts of a project.
3. To provide a mechanism that subsequent projects may use as a means to address GHG impacts under CEQA.
4. To comply with the 2011 adopted County general plan environmental impact report (EIR) Mitigation Measure CC-1.2, preparation of a climate action plan.
Although compliance with Mitigation Measure CC-1.2 was one purpose of the CAP, two of the four purposes relate to preparation of the CAP as a plan-level document so that environmental review could be avoided on future projects that were determined to be below specified ''thresholds.'' (See CEQA Guidelines, § 15183.5.) However, the CAP did not mitigate climate change impacts consistent with Assembly Bill No. 32 and Executive Order No. S-3-05, did not satisfy the plan-level requirements of CEQA Guidelines section 15183.5, and it did not meet the requirements of Mitigation Measure CC-1.2
Instead, the CAP expressly acknowledged the possibility that "community-wide inventories will indicate that the community is not achieving its reduction targets" and admitted that the CAP "does not ensure reductions."
Further, the CAP did not include a meaningful analysis of "measures that extend beyond the year 2020." Rather, the County documented that instead of continuing to reduce GHG emissions after 2020, GHG emissions allowed as a result of the general ...