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California Court of Appeal Invalidates County’s CEQA Guidance For Greenhouse Gas Impacts

Affirming a trial court judgment, the Fourth District Court of Appeal invalidated a document adopted by the County of San Diego that was intended as guidance for California Environmental Quality Act (CEQA) review of greenhouse gas (GHG) impacts. Finding the document established a generally applicable threshold of significance for GHG impacts, the court held that the county violated CEQA because the threshold was not formally adopted by ordinance, rule, resolution or regulation through a public review process, and because the threshold was not supported by substantial evidence. The court also held that the county’s adoption of the threshold in advance of its required Climate Action Plan constituted improper “piecemealing” in violation of a previously issued writ of mandate, and rejected the county’s claim that its adoption of the guidance was not ripe for judicial review. [Golden Door Properties, Inc. v. County of San Diego, ___Cal.App.5th___, Case No. D072406, (4th Dist. Sept. 28, 2018).]


 Factual and Procedural Background

In 2011, the county updated its General Plan. The Environmental Impact Report (EIR) for the General Plan update incorporated mitigation measures to address GHG emissions. 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. Mitigation Measure CC-1.8 required the county to revise its guidelines for determining GHG significance based on the CAP.

The county subsequently developed and adopted a CAP in 2012, which was set aside when the court granted a petition for writ of mandate challenging its approval. While that case was on appeal, the county adopted a document called “2013 Guidelines for Determining Significance for Climate Change” (2013 Guidelines), which were challenged through a supplemental petition. The parties agreed to stay the second action while the appeal was pending in the first action. 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 a new CAP, the county adopted a document called “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis in Support of CEQA Document” (2016 Guidance Document). The 2016 Guidance Document included an efficiency metric of 4.9 metric tons of CO2e per service population per year for 2020, and described that metric as“the recognized and recommended method by which a project may make impact significance determinations.”

The 2016 Guidance Document was challenged by petition for writ of mandate. Granting the petition, the court concluded that the claims were ripe for review, the 2016 Guidance Document created a threshold of significance under CEQA without following required procedures, violated Mitigation Measures CC-1.2 and CC-1.8, and was not based on substantial evidence. The trial court further concluded the 2016 Guidance Document constituted “piecemeal” environmental review in violation of the previous writ of mandate. The county appealed.


The Court of Appeal’s Decision


The county first argued that challenge to its 2016 Guidance Document was not ripe because it was still developing a CAP and because the controversy did not involve a specific set of facts (that is, no project using the 2016 GHG Guidance Document to analyze GHG impacts had been challenged). The court disagreed, finding that 2016 Guidance Document established a threshold of significance that would “be used routinely to determine environmental effects” and thus generally applicable to project proposals. Although the document acknowledged that other methods for determining significance could potentially be used, it stated that the efficiency metric was “the recognized and recommended method” for determining GHG significance. Since the efficiency metric was generally applicable, it was ripe for review regardless of whether it had been used for any specific projects.


 Efficiency Metric Was a Threshold of Significance Adopted in Violation of CEQA

Addressing the first substantive claim, the court held that the county violated CEQA because the 2016 Guidance Document established a threshold of significance for GHG emissions without following the required procedures.

The county argued that the efficiency metric was not a threshold of significance because it was only recommended, not required, and so was not “normally … used to determine the significance of a project’s GHG emissions.” Instead, the county argued that the 2016 Guidance Document merely recommended a methodology for evaluating GHG emissions, which is distinct from a threshold for determining the significance of the GHG emissions. The court disagreed, finding that because the 2016 GHG Guidance provided a “recognized and recommended” quantifiable efficiency metric to measure the significance of a project’s GHG emissions, the efficiency metric was a threshold of significance.

Having determined that the efficiency metric was a threshold of significance, the court then found that the metric violated CEQA because the county failed to follow the adoption procedures for such thresholds laid out in CEQA Guidelines § 15064.7, which requires formal action after a public review period.


Threshold of Significance Was Not Supported by Substantial Evidence

The court next found that the threshold of significance provide by the efficiency metric 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-specific reduction targets. The 2016 GHG 2016 Guidance Document 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 Document did not explain why the efficiency metric (based on service population) would be appropriate across all project types.


The CAP and the 2016 GHG Guidance Document Constituted a Single Project

The court also agreed with the petitioners that the county had “piecemealed” its environmental review by adopting the 2016 GHG Guidance Document before it completed the CAP, I violation of both CEQA and the previously issued writ. The county argued that, because the CAP was on schedule to be released in compliance with the previous writ, the 2016 GHG Guidance Document did not violate the writ. The court applied the “law-of-the-case” doctrine and stated that under its previous decision, the CAP and the updated county guidance were a single project for CEQA purposes. For that reason, the CAP and updated guidance were required to be reviewed and adopted together as a single project.


Conclusion and Implications

This case reiterates several important CEQA principles regarding thresholds of significance, both generally and in the specific context of GHGs. First, when an agency adopts thresholds of significance for “general use” as part of the agency’s environmental review process, they must be adopted by ordinance, resolution, rule, or regulation, and developed through a public review process, and must also be supported by substantial evidence. Agencies cannot avoid this process by styling a threshold of significance as merely a recommended methodology or guidance. Second, although use of statewide emission reduction goals may be a permissible threshold of significance for GHG emissions, the use of statewide standards for this purpose must be justified by substantial evidence to explain why it is sufficient for use in a particular area or for the particular type of project under review.

The opinion is available at:

(Nathan George, Sara Dudley)