Carbon-offset ruling may have statewide impact

SAN DIEGO -- Several large housing projects in San Diego County might be put on hold following a tentative ruling in a lawsuit challenging the county's approval of three developments that rely on carbon-offset programs outside the county.

In his tentative ruling, San Diego County Superior Court Judge Timothy Taylor said he was inclined to grant motions for a stay and a preliminary injunction that would prohibit the county from using out-of-county offsets, a strategy the jurisdiction introduced as part of its 2018 Climate Action Plan.

The Sierra Club, which has been engaged in several years-long disputes with the county over its greenhouse-gas mitigation policies, filed its latest lawsuit last month. The suit claims the county ran afoul of state environmental laws when it approved three projects that would add nearly 3,000 housing units in unincorporated areas in the county.

As part of its 2011 General Plan Update, the county committed to GHG-emissions reductions of 17 percent in county operations-related emissions from 2006 levels by 2020 and a 9 percent reduction in community emissions from 2006 levels by 2020.

Sierra Club attorney Josh Chatten-Brown said that, despite those goals, the county's new climate action plan walked back those targets and allowed developers to use carbon offsets in other counties, states or even countries.

"The new plan provided even fewer reductions and also eliminated the requirement for those reductions to happen in the county," said Chatten-Brown, an attorney with Chatten-Brown & Carstens LLP. "So essentially, the county was allowing unlimited development provided that carbon offsets were provided from projects anywhere in the world."

Because the projects rely heavily on out-of-county offsets, Taylor said he was inclined to grant the motion for a stay "to ensure the carbon offset program ... is consistent with the County's General Plan that requires GHG reductions to occur within the County," according to his tentative ruling.

The judge indicated during a hearing Friday that he intended to grant a stay, Chatten-Brown said.

"He made it abundantly clear that he would be enjoining the use of out-of-county offsets, but he had to make minor modifications to the orders," Chatten-Brown said.

The suit also claims the county is evading a state law that limits so-called general plan amendments to four per year.

Sierra Club argues that each of the three projects -- as well as another project approved earlier in the year and one that is scheduled to be reviewed in the coming weeks -- represent a general plan amendment. By reviewing all three projects as one amendment during a June 25 county supervisors meeting, the plaintiffs state, the county is attempting to skirt the law.

"The county is trying to evade state law by taking large-scale projects that will add significant greenhouse gas emissions and trying to avoid the [amendment limit] by batching them together," Chatten-Brown said.

The Sierra Club is therefore claiming that the county has reached its limit of general plan amendments, which would preclude it from reviewing a 2,100-unit project known as Newland Sierra later this year.

While Chatten-Brown said he is unsure how a forthcoming injunction would affect the review of Newland Sierra, he said the tentative ruling would prohibit the use of foreign offsets until a final ruling is made.

"The court made it very clear that it would be enjoining the use of out-of-county offsets," he said.

Borre Winckel, president and CEO of the Building Industry Association of San Diego County, said that delaying the projects would only exacerbate the county's housing shortage.

"This ruling could impact a large number of projects that were already approved or in the pipeline that rely on the county's climate action plan," Winckel said. "It would concern us greatly if this puts the kibosh on the timetable of a lot of projects when we need those projects the most."