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A county that has talked for years about building more housing on undeveloped land is hampered from doing just that until it overhauls county environmental policies – or can find an appellate court that will agree with its repeatedly rejected arguments.
On June 20, 2012, the five-member San Diego County Board of Supervisors voted to approve the first of several weak attempts to fight climate change. They may not have realized the stakes.
Over six years and three lost court battles later, a frustrated judge on Christmas Eve rendered nearly impotent the supervisors’ ability to approve new housing subdivisions in rural parts of the county. The judge also strongly suggested other local judges should consider blocking construction of some already-approved subdivisions, like the controversial Newland Sierra project.
Now, a county that has talked and talked about building more housing on undeveloped land is hampered from doing just that until the board overhauls county environmental policies – or can find an appellate court that will agree with its repeatedly rejected arguments.
All this is the result of what would otherwise be an obscure but powerful document, the county’s climate action plan. Local governments across the state, like the city of San Diego, have their own climate plans because of state climate mandates.
San Diego County’s is, like the others, supposed to use all the powers of government to curb the region’s contribution to climate change – that now ever-present malevolence that is helping droughts to last longer, fires to spread farther and seas to rise higher.
Without a climate action plan that shows new homes can be built without contributing to climate change, the county isn’t allowed to approve certain kinds of new developments, particularly large subdivisions in rural areas. Far-flung houses can be particularly harmful to the environment because people drive to and from them in cars.
But courts have repeatedly found the county’s plan to be illegal in some way or another – improperly prepared at best and obviously disingenuous at worst.
That means major new housing developments are now in limbo.
An early sign the county was going to run into trouble came in August 2010.
AECOM, a consultant the county hired to review its draft climate action plan, warned county officials that the plan could be legally indefensible.
The draft plan, “neglects to describe how the county will monitor the effectiveness of the plan and its component measures over time,” the consultant wrote to county staff.
Several years later, AECOM’s warning would be cited in the first of several court rulings striking down the county’s climate action plan.
Indeed, the first plan supervisors eventually approved in June 2012 allowed greenhouse gas emissions to increase. The whole point of these climate action plans, known as CAPs, is to decrease the release of these heat-trapping gases.
That’s because the County Board of Supervisors did not seem to heed AECOM’s warnings. Indeed, at least one member of the board didn’t even believe in the whole premise of a climate action plan – climate change.
At the 2012 meeting, Supervisor Bill Horn made clear he was voting for a climate action plan only because it was something the state was making the board do.
The law at the time required emissions to return to 1990 levels by 2020. The idea was that higher-mileage vehicles and a greener energy supply could allow humans to curb climate change while still generating economic growth.
But Horn said he wasn’t a “big believer” that climate change was caused by human activity, though overwhelming scientific evidence shows that it is.
“The climate is changing but I don’t think man has anything to do with it,” he said. “We happen to live on a living planet. I know it makes for a mess occasionally, but I don’t think man – either your car or your smokestack or your barbecue – have anything to do with whether the climate is going to get warmer or colder.”
At the same meeting, Supervisor Ron Roberts, then the board’s chairman, didn’t attack climate science, but he did wonder why Californians – San Diegans, in particular – were being pushed so hard to reduce their emissions when climate change is a global problem.
“If California is the only place in the world doing this, it isn’t going to make even one little bit of difference, that is what is so frustrating,” Roberts said.
At the time, some environmentalists seemed happy the county – then led by five Republicans – was doing anything at all.
When Matthew Adams from the Building Industry Association came to speak in favor of the plan, he joked he must have been in the wrong line. That’s because he had been standing behind someone from the Environmental Health Coalition who also spoke in favor of the plan – though the group did still harbor some “serious concerns,” namely that the county was planning for emissions to increase after 2020 rather than fall.
But the Sierra Club didn’t play that game. The nation’s oldest environmental group had already laid out the problems with the plan in a letter to the board and was not going to give the county much credit just for passing something.
The supervisors approved the plan.
A month later, on July 20, the Sierra Club made the depth of its ire known. It sued the county, arguing “the San Diego region’s most powerful public agency has taken the position that it will not do its part to stabilize the climate.”
Cory Briggs, a public interest attorney who handled the earliest part of the case for Sierra Club, said he knew from the start that county officials had created a giant mess for themselves.
“Everyone – repeat: everyone – knew this would turn into a total CF,” Briggs said in an email, using an abbreviation for clusterfuck.
During mandatory settlement talks between the Sierra Club and the county, Briggs said he explained to county staffers exactly why his client would win and how things play out over time if the county didn’t get its act together.
“What I did not foresee is the county embarrassing itself as badly as it has by trying to get the courts to save it from itself,” he said.
By April 2013, a judge had invalidated the county’s climate action plan, in large part because it didn’t actually require actions to fight climate change.
San Diego Superior Court Judge Timothy Taylor’s role in what was to come is hard to overstate.
After Taylor ruled against the county, the county appealed to the Fourth District Court of Appeal. The county lost.
Supervisors had to redo their climate action plan.
They also had to pay nearly $1 million to the Sierra Club in attorney’s fees.
The county’s temporary solution was to create an interim policy while it worked to create a whole other climate action plan.
The Sierra Club said the county had adopted this interim policy without going through the proper public process – a largely technical argument, but one that means something to the courts.
The judge agreed. The interim policy was invalid, too.
After Taylor ruled against the county again, the county again appealed to the Fourth District Court of Appeal. The county lost again.
Supervisors really needed to come up with a climate action plan.
They also had to pay several hundred thousand dollars more to the Sierra Club in attorney’s fees.
Finally, on Valentine’s Day 2018, the county was ready to roll out its new and supposedly improved climate action plan.
Except this time, nearly every single environmental group in the county had a problem with the plan. The biggest was that new developers could build subdivisions without much problem – as long as they bought credits to offset the gases they produce. There are markets set up to make this very thing possible. If a developer wants to make up for a ton of greenhouse gas it emits, it can pay someone to plant trees that will suck a ton of greenhouse gas out of the atmosphere.
But not all credits are created equal. Some offset options are on the other side of the world, others are nearby. The county says developers should buy credits for projects nearby, if feasible. Then they can look for credits within the state, then within in the country. If none of that is feasible, the developer can buy credits internationally.
Environmentalists argued this defeated the whole point of the county’s climate action plan. The county, they said, is supposed to be making sure emissions here fall.
When the Board of Supervisors met to approve the plan, they didn’t agree.
Horn was again irascible.
“We’re not going to get rid of the folks who want us to save every polar bear in town, but it’s not going to happen,” he said. Horn did say his biggest priority was to appease the courts so the county could move on.
Roberts argued that it doesn’t matter where greenhouse gas emissions go down, here or elsewhere, as long as they go down.
“I keep hearing, ‘It’s got to be done in San Diego County,’” he said. But he disagreed, “The priority should be get it done, period.”
That meant if a developer wanted to plant trees across the world, that would work.
Within months, the Sierra Club and the county were back in court. The Sierra Club argued that the county was ducking its obligations.
The judge agreed.
Taylor said the county’s offset standard was flawed, particularly because a developer could buy an unlimited number of carbon offsets so long as they satisfied the county’s planning director. That meant projects could emit greenhouse gases and then developers could convince one person they had a plan to offset them, without any standards guiding how to enforce or verify that was the case.
Under Taylor’s latest ruling, issued late last month, any housing development that relies on the carbon offset scheme is halted until the county can come up with a valid climate action plan.
The biggest project that planned to use offsets is Newland Sierra, a 2,100-unit development proposed near San Marcos. The head of the project, Rita Brandin, said the ruling doesn’t apply to Newland because, even though her project uses an offset plan similar to the county’s, it’s not the same.
The Sierra Club disagreed, and hoped Taylor would block construction on Newland and other projects.
Taylor declined to do that, but in a striking part of the ruling, urged other judges to sort out whether any projects are simply “a wolf in sheep’s clothing” because they use the same system but call it by another name.
Now, environmental groups will try to use that language to stop individual projects approved for rural areas. Already, county officials have shied away from approving other controversial subdivisions, like Lilac Hills Ranch, because of Taylor’s earlier rulings in the case.
“It’s so obvious for many years the county has been playing word games,” said Josh Chatten-Brown, the attorney for the Sierra Club who took over the case from Briggs.
Taylor’s latest major ruling, filed on Christmas Eve, also shows his frustration with the years of wrangling in front of him.
“Virtually every decision has found the county’s efforts wanting,” Taylor wrote “This is particularly true in connection with the county’s penchant for proceeding in the absence of substantial evidence and without adequate analysis.”
After Taylor ruled against the county for the third time, it’s unclear if the county will appeal.
“The county is disappointed in the court’s decision and is evaluating the ruling to determine next steps,” county spokeswoman Jessica Northrup said in an email.