By William W. Abbott
Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152.
As with many cities and counties updating their general plans, the County of San Diego committed to adopting a climate action strategy. This commitment was formulated in 2011 as part of the county’s general plan update, based upon a program EIR (PEIR). In 2012, county staff advanced a Climate Action Plan (CAP) along with suggested thresholds of significance which would apply to the processing of later projects. The county relied upon an addendum to its 2011 general plan PEIR. The Sierra Club sued. The trial court agreed that the county had violated CEQA. The county appealed and the appellate court affirmed that the county violated CEQA. Where did the county go wrong?
At the time of its general plan update, the county adopted a number of mitigation measures relating to climate change. One measure called for a County Climate Change Action Plan which included program commitments. The Mitigation Monitoring and Reporting Program reflected that county would achieve the 2020 targets and committed to compliance with the Executive Order No. S-3-05. The Sierra Club disputed the 2012 CAP as not meeting the scope and action commitment reflected in the mitigation measures previously adopted as part of the 2011 general plan. The trial court and court of appeal agreed. First, the 2012 CAP failed to include “more detailed greenhouse gas and emission targets….” as specified by one of the earlier mitigation measures. The CAP also failed to include more detailed deadlines as required by the prior mitigation measure. Second, the county erred when it concluded that the CAP and CEQA thresholds were the same as the project considered as part of the general plan update and PEIR. Relying in part on Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156, the appellate court concluded that the PEIR had not examined the CAP or CEQA thresholds, and therefore, was a separate project requiring a supplemental EIR. In a related matter, the court then concluded that the CAP was improperly adopted because feasible mitigation measures had not been incorporated into the CAP. Finally, the appellate court concluded that regardless of whether a court applied the “fair argument” or “substantial evidence” test to the determination of whether a supplemental EIR was required, there was insufficient evidence to support the County’s determination to not prepare as subsequent or supplemental EIR.
Comment: For many cities and counties, the impact of this case in terms of general plan practice alone is quite significant. In light of the CEQA expense and litigation risk associated with developing and adopting implementation measures as part of a general plan, this case and others suggest that it is prudent for cities and counties, when adopting a general plan update, to assess its projected financial ability to implement the general plan. Based upon information available to each city and county as it goes through its annual budget process, the agency can develop a financial forecast as to the funds reasonably foreseeable that can be allocated to general plan implementation (including CEQA review.) If the estimated costs of the draft implementation measures exceed contemplated resources, then the city or county has a basis to scale back its general plan and related CEQA measures to that which it can prudently implement. This information would directly relate to the financial feasibility of mitigation measures identified during the preparation of the EIR on the general plan. Stated another way, when adopting a general plan, don’t promise to mitigate what, in practicality you cannot deliver.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.