In Golden Door Properties, LLC v. County of San Diego (2018) _ Cal.App.5th _ (Case No. D072406—consolidated with Case No. D072433), Division One of the Fourth District Court of Appeal upheld the trial court’s determination that the County of San Diego’s “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (“2016 GHG Guidance”) was ripe for adjudication, constituted piecemeal environmental review, and contained an improper threshold of significance, in violation of CEQA and a previously-issued writ of mandate.

In 2011, the county updated its general plan. The Environmental Impact Report for the update incorporated mitigation measures to address greenhouse gas emissions from county operations. Two such measures are at issue here. First, Mitigation Measure CC-1.2 required the county to prepare a Climate Action Plan (CAP), and to adopt GHG emission targets and deadlines for achieving the targets. Second, Mitigation Measure CC-1.8 required the county to revise its guidelines for determining GHG significance based on the CAP. The county adopted a CAP, which was set aside when the court granted a petition for writ of mandate filed by the Sierra Club. While that case was on appeal, the county adopted the “2013 Guidelines for Determining Significance for Climate Change” (“2013 Guidelines”). Sierra Club challenged the 2013 Guidelines through a supplemental petition, which the parties stipulated to stay pending the appeal. In 2014, the court of appeal upheld the trial court’s decision to set aside the CAP. On remand, the trial court issued a supplemental writ directing the county to set aside both the CAP and the 2013 Guidelines and retained jurisdiction to ensure compliance.

In 2016, while in the process of developing the CAP, the county published the 2016 GHG Guidance. In one section, the county stated that it represented “one potential set of criteria and methodologies, along with supporting evidence that would be appropriate for Climate Change Analysis,” while in another section it stated that “[t]he County Efficiency Metric is the recognized and recommended method by which a project may make impact significance determinations.” Sierra Club filed a second amended petition in the trial court, and Golden Door Properties, LLC filed a separate challenge to the 2016 GHG Guidance. The cases were consolidated through a stipulation and the trial court determined that the claims were ripe, that the 2016 GHG Guidance created a threshold of significance, violated Mitigation Measures CC-1.2 and CC-1.8, was not supported by substantial evidence, and violated the previous writ of mandate because it constituted piecemeal review. The county appealed.

First, the court addressed the issue of ripeness. The county argued that the action was not ripe because it was still developing the CAP and because the controversy did not involve a specific set of facts (that is, no project using the 2016 GHG Guidance to perform Climate Change Analysis had been challenged). The court disagreed, finding that the situation here involved a threshold of significance that would “be used routinely to determine environmental effects…” and thus generally applicable. The court distinguished Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158 because that case involved a challenge to policies in a guidance document, under which the Commission might impose certain permit conditions should any of the landowner/plaintiffs apply for such a permit. The court found that, although the 2016 GHG Guidance acknowledged that other methods for determining significance may apply, the efficiency metric was stated to be “the recognized and recommended method” for determining GHG significance, making it generally applicable and thus justiciable.

The county argued that the 2016 GHG Guidance did not set a threshold of significance, but instead, provided a recommended method for evaluating GHG emissions. The court disagreed and found that, because the 2016 GHG Guidance provided one “recognized and recommended” efficiency metric to measure the significance of a project’s GHG emissions, the efficiency metric was a threshold of significance. That the county’s 2013 Guidelines were more explicit than the 2016 GHG Guidance did not make the efficiency metric any less of a threshold of significance. The court found that the metric violated CEQA because the county had failed to follow the adoption procedures for such thresholds laid out in CEQA Guidelines section 15064.7, which required formal action by the county after a public review period. The court also found that Mitigation Measure CC-1.8 required the county to adopt the CAP before updating its guidance documents because Measure CC-1.8 required the updated guidance to be based on the CAP.

The court also found that the threshold of significance was not supported by substantial evidence. Specifically, the court held that the county needed to support the efficiency metric with substantial evidence establishing a relationship between the statewide data used to establish the metric and the county’s reduction targets. The 2016 GHG Guidance stated that the efficiency metric represented the county’s “fair share” of statewide emissions mandates, but did not explain why that was so. Additionally, the efficiency metric was recommended for all projects, but the 2016 GHG Guidance did not explain why the efficiency metric (based on service population) would be appropriate across all project types.

The court also agreed with the plaintiffs that the county had “piecemealed” its environmental review because the 2016 GHG Guidance preceded the completion of the CAP. The county argued that, because the CAP was on schedule to be released in compliance with the previous writ, the 2016 GHG Guidance did not violate the writ. The court applied the law-of-the-case doctrine and stated that its previous decision held that the CAP and the updated county guidance were a single project for CEQA purposes. For that reason, the CAP and updated guidance must be publicly reviewed and adopted by the county together. Because the CAP had not been adopted when the 2016 GHG Guidance was issued by the county, the 2016 GHG Guidance violated the writ.