By: Katherine A. McKitterick and Sean M. Sherlock
On October 29, 2014 the California Court of Appeal affirmed a trial court’s judgment enforcing a mitigation measure adopted by a county in its program environmental impact report (PEIR). As of the date of this blog post, this case is unpublished. Therefore, this case does not constitute precedent according to California law. Nevertheless, it provides valuable insight into legal claims that may arise after a project is approved, but when mitigation measures are not implemented.
In Sierra Club v. County of San Diego — Cal.Rptr.3d, 2014 WL 5465857 (Cal.App.4 Dist., Oct. 29, 2014), defendant San Diego County adopted various mitigation measures as part of a general plan update. In one mitigation measure, entitled the Climate Change Mitigation Measure CC-1.2, the County committed to prepare a climate change action plan (“CAP”) to reduce Greenhouse Gas (“GHG”) emissions by implementing specific “targets and deadlines,” in addition to “‘comprehensive and enforceable GHG emissions reductions measures that will achieve’ specified quantities of GHG reductions by the year 2020.” Following approval of the general plan, the County prepared the CAP, but the Sierra Club alleged that the CAP did not ensure the GHG reductions to which the County committed in Mitigation Measure CC-1.2. Plaintiff Sierra Club filed a lawsuit to enforce Mitigation Measure CC-1.2. The trial court ruled in favor of the Sierra Club, and ordered the County to adopt a supplemental EIR for the project. The Court of Appeal affirmed.
The Court of Appeal stated the problem as follows: “When [the County] adopted the general plan PEIR, the County promised to achieve specified GHG reductions by 2020. However, when it approved the CAP … the County stated that the CAP does not ensure the required GHG emissions reductions. Rather, the County described the strategies as recommendations.”
Citing Lincoln Place Tenants Assn. v. City of Los Angeles (2005) 130 Cal.App.4th 1491, 1508 (Lincoln Place I), the Court said that “mitigating conditions are not mere expressions of hope.” Further , “[o]nce incorporated, mitigation measures cannot be defeated by ignoring them or by ‘attempting to render them meaningless by moving ahead with the project in spite of them.’” Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 450 (Lincoln Place II). By failing to incorporate the detailed deadlines and enforcement mechanisms outlined in Mitigation Measure CC-1.2 in the CAP, the County did not fulfill its responsibility of incorporating the mitigation measure in the project. The Court noted that it was an abuse of discretion by the County to abandon mitigation measures without substantial evidence for doing so. Citing Lincoln Place I, the Court noted that if a mitigation measure later becomes “impractical or unworkable,” the “governing body must state a legitimate reason for deleting an earlier adopted mitigation measure, and must support that statement of reason with substantial evidence.” 130 Cal.App.4th at 1508-1509. A supplemental EIR must be prepared when a public agency determines a previously adopted mitigation measure is infeasible. Ibid. Therefore, the County violated the CEQA process, and the Court of Appeal affirmed the trial court’s judgment requiring the County to prepare a supplemental EIR.