Best Practices in Local Climate Action Planning. Part III: Common Shortcomings and a California Case Study in Litigation

Wednesday, January 19, 2022
Cynthia R. Harris

Staff Attorney; Director of Tribal Programs; Deputy Director of the Center for State, Tribal, and Local Environmental Programs

Part II of this four-part blog series distinguished between the elements of mitigation and adaptation plans. This article dives into common shortcomings to avoid and summarizes legal challenges to two county-level climate action plans in California.

(Read Part I and Part II.)

Common Shortcomings

Climate action plans vary in detail and robustness. Small municipalities may lack technical expertise, administrative capacity, or financial resources necessary to develop and implement a comprehensive climate action plan. However, some of these obstacles can be overcome through regional collaboration and strategic partnerships with key stakeholders.

Skyscrapers surrounded by Earth and leaves

Climate action plans often serve as unenforceable advisory documents and may fail to describe the key assets and processes necessary for effective implementation, including budgetary and human resources and implementation authority. At times, climate plans may simply recite existing programs, policies, and plans developed for reasons other than climate mitigation or adaptation. Few adaptation plans address cultural resources or certain economic sectors likely to be severely impacted by climate change, such as agriculture and tourism.

Drafters can be hesitant to propose substantive policy changes and infrastructure projects. Action items may be overly vague, directing agencies to develop additional planning documents or explore possible options. Action items may also assume certain efforts will be undertaken by other levels of government. However, it is important to note that some matters are impacted by higher levels of government. This includes preemption and the removal of economic incentives for renewable power generation.

A significant issue can be a failure to quantify implementation costs and identify the most probable funding sources. Well-drafted plans, in contrast, estimate the funding resources needed for maximum implementation, identify specific and viable funding sources, explain the specific action needed to secure that funding, and set forth a time line for doing so. The planning process itself may offer limited community engagement and outreach, with little opportunity for substantive comment and feedback, and the implementation phase may lack accountability measures.

Litigation: A California Case Study

Procedural deficits in developing a climate action plan, or substantial deficiencies in the plan itself, may give rise to a citizen suit depending on the jurisdiction.

In the United States, where there is no federal mandate—and rarely a state mandate—to develop local climate action plans, local climate plans are generally advisory planning documents rather than setting forth legally enforceable requirements. Examples of citizen suits, therefore, are typically limited to California, where the legislature first passed a law, AB 32 (Global Warming Solutions Act), establishing a statewide goal of achieving 1990-level GHG impacts by 2020 and later enacted SB 32, raising the goal to 40% reduction of GHG below 1990 levels by 2030.

All suits involving climate action plans relate to the California Environmental Quality Act (CEQA), the state law requiring environmental assessments and mitigation of significant impacts. CEQA includes informational requirements for informed public participation and decisionmaking. Importantly, CEQA permits “tiering” of programmatic environmental documents, with the first tier environmental impact report (EIR) focusing on an overall plan or policy. Subsequent projects can incorporate by reference that first tier EIR’s analysis and requirements into narrower, project-specific environmental review documents and focus on effects not analyzed or mitigated in the prior EIR. This substantially streamlines the environmental review process.

CEQA Guidelines require preparation of an EIR if there is substantial evidence a project’s GHG emissions would be cumulatively considerable. CEQA Guidelines also allow climate action plans, as programmatic plans for GHG reduction, to be used in tiering—that is, to be incorporated by reference in a later project’s environmental review document. The first-tier EIR, issued with the climate action plan, serves to govern analysis and control of GHG emissions to comply with statewide GHG reduction mandates. If the project conforms with the plan—including its GHG mitigation measures—that eliminates any need to conduct additional, independent GHG analysis of cumulatively significant GHG emissions associated with the project. The project is deemed as not producing a cumulatively significant impact with regard to GHG emissions.

NGOs have prevailed in lawsuits challenging the validity of climate action plans and their associated EIRs. The key argument is the documents contain unenforceable mitigation measures and that projected GHG emission levels are not based on substantial evidence. This renders the climate action plan and EIR unable to be used to provide the basis for CEQA review of GHG impacts of development proposals in the applicable jurisdiction.

Two significant cases involve judgments invalidating the climate action plans developed by the counties of Sonoma and San Diego.

California River Watch v. County of Sonoma involved the Sonoma County Regional Climate Protection Authority, which adopted its plan, Climate Action 2020, and associated EIR in 2016. The plan applied to nine municipalities and the county government and targeted 25% GHG emissions reduction below 1990 levels by 2020. In 2017, the Superior Court found the county’s Programmatic EIR (PEIR) and approval of the climate action plan violated CEQA. The opinion explained the PEIR’s GHG inventory was based on insufficient information. Specifically, the county limited the range of VMTs associated with land-use activities in the county to and from 18 nearby regional locations and did not include all VMTs generated by trips associated with activities in the county (specifically, global distribution of Sonoma County wines and global travel to wine country tourist destinations). The county admitted, in its response to comments, that methodologies to quantify those additional GHG sources existed, but it decided not to use them due to the effort and purported difficulty involved. The PEIR also lacked “effectively enforceable, clearly defined performance standards” for GHG mitigation, and failed to develop and comprehensively analyze a reasonable range of alternatives. These deficiencies meant the PEIR could not fulfill its basic CEQA purpose as an information document adequate to allow both the agency and the public to make informed decisions. The county decided not to appeal the judgment and the parties reached a settlement: River Watch agreed not to challenge the settlement, the local jurisdictions did not formally adopt the regional plan, and project proponents could not rely on it for tiering purposes, rendering the plan an advisory document without legal force.

In the 2020 Golden Door Properties, LLC v. County of San Diego decision, several environmental NGOs led by the Sierra Club challenged the County of San Diego’s 2018 Climate Action Plan and supplemental environmental impact report (SEIR). The primary issue was whether a key GHG mitigation measure in the SEIR, M-GHG-1, was CEQA-compliant. M-GHG-1 involved projects that increased land use density or intensity beyond what was allowed in the county’s General Plan Update (used to guide future land use and transportation planning), creating GHG emissions in excess of those accounted for. The measure allowed these projects to mitigate their in-county GHG emissions by purchasing carbon offsets originating elsewhere, including internationally. The court found this measure not compliant with CEQA. While the opinion did not constitute a blanket prohibition on using carbon offsets outside of local jurisdiction, M-GHG-1 contained unenforceable performance standards and improperly deferred and delegated mitigation.

This rendered the climate action plan invalid because it relied on mitigation measures contained in the SEIR. The climate action plan established GHG emission targets, as well as mitigation measures required of development projects conforming to land uses allowed under county’s General Plan Update, to meet those GHG emission targets. GHG emissions projections assumed that projects requiring an amendment to the General Plan Update—meaning those with emissions in excess of those projected by the climate action plan—would undertake mitigation measures provided for in the SEIR. As M-GHG-1, a key mitigation measure, was unenforceable, the court found the plan’s projected GHG emissions were not supported by substantial evidence.

The appellate court affirmed the lower court’s judgment that the county must set aside and vacate its approval of the climate action plan, meaning the plan could not be used to provide the basis for CEQA review of GHG impacts of development proposals in the county. San Diego County is currently in the process of developing an entirely new climate action plan, making it the county’s fourth attempt to adopt a viable plan.

On the adaptation front, California’s Senate Bill 379 requires localities to update the safety element of their General Plans with climate adaptation and resiliency strategies. Cities and counties are adopting climate adaptation plans to fulfill that role, and it merits watching to see what litigation may arise from these efforts.

Part IV will look forward at new developments in local climate action planning.

Visit the ELI Center on State, Tribal, and Local Environmental Programs.