January 18, 2021

Volume XI, Number 18


January 18, 2021

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Golden Door Slammed Shut on County’s CEQA Process Again

On June 12, 2020, the California Court of Appeal in Golden Door Properties, LLC v. County of San Diego, 2020 WL 3119041, handed San Diego County its third loss, by concluding that the County failed to adopt a Climate Action Plan (CAP) in compliance with CEQA.


The California Legislature has created programs to significantly reduce emissions of greenhouse gases (GHG) to help prevent global warming, including a cap-and-trade scheme. The California Environmental Quality Act (CEQA) requires lead agencies to, based upon facts and science, describe, calculate, or estimate the amount of GHG emissions that a proposed project will produce. As defined in the court’s opinion, the County’s CAP “[e]stablishes a baseline inventory of GHG emissions in the unincorporated County and from County operations[, p]rojects future GHG emissions and contains measures to meet state GHG reduction targets.”

The County has been involved in three separate cases over ten years trying to get its CAP in compliance with its General Plan Update (GPU) and CEQA. The County prepared a Supplemental Environmental Impact Report (SEIR) intending to document the environmental impacts of a multi-faceted project, including: (1) the Climate Action Plan; (2) a General Plan Amendment (GPA); (3) a threshold of significance for GHG emissions; and (4) Guidelines for Determining Climate Change. The SEIR contained a mitigation measure, the primary issue of contention in the case, called “M-GHG-1.” That mitigation measure would require certain projects to mitigate GHG emissions “through all feasible onsite design features.” If onsite features are insufficient to achieve sufficient GHG reductions, the project may then mitigate the additional emissions by way of offsite mitigation measures, including the purchase of carbon offset credits. The Climate Action Plan relied on the existence of M-GHG-1 to conclude that projects subject to the measure would necessarily properly mitigate GHG emissions.


The Court found that M-GHG-1 violates CEQA because it defers mitigation by not providing objective standards to determine which carbon offset programs qualify as producing a sufficiently “real, permanent, verifiable and enforceable” reductions in GHGs. There are no quantifiable measurements such as compliance with the offset protocols identified in AB 32, the California Global Warming Solutions Act of 2006, and also M-GHG-1 violates CEQA by allowing project applicants to offset GHG impacts through projects outside of California. While San Diego County had targeted carbon offset registries (entities that issue offset credits) that are used by the California Air Resources Board (CARB) in implementing the cap-and-trade program, these registries also issue other credits that are not necessarily compliant with CARB’s standards. CARB will only approve out-of-state credits if the offsets reflected by those credits are genuine, verifiable, and enforceable under law. However, M-GHG-1 does not have any of these requirements. Essentially, a project proponent in San Diego County could purchase second-rate credits that do not result in permanent GHG reductions. Furthermore, the Court stated that, “The CAP is substantively flawed because its projections depend upon the validity of M-GHG-1 to reduce GHG emissions for probable in-process and all future GPAs to zero-above-the-cap, and M-GHG-1 itself is invalid under CEQA.” Since the court found M-GHG-1 violates CEQA, it then held that the CAP’s reliance upon M-GHG-1 was not supported by substantial evidence and the CAP is therefore invalid.

While the Court of Appeal found that the SEIR violated CEQA on numerous other grounds (e.g., a flawed cumulative impacts analysis, the SEIR failed to analyze a smart-growth alternative, and the SEIR and CAP are inconsistent with one another), its holding in regards to M-GHG-1 as described above is notable. The Court heavily relied on actions taken by the CARB and veracity of its carbon offset credit model contained within the cap-and-trade program, a program that has been much scrutinized since its inception. Localities and project proponents in the future will be well-advised to seek using offset credits that are valid under the cap-and-trade program if GHG reductions are a project necessity.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 183



About this Author

David H. McCray Project & Infrastructure Development Attorney Beveridge & Diamond San Francisco, CA
Of Counsel

David's practice focuses on major project and infrastructure development, including environmental reviews, permitting and approvals from a wide range of federal and state natural resources agencies, and litigation of project decisions and policies.

He counsels clients on regulatory matters and litigation involving the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), climate change, water, wetlands, project mitigation, land use, air, and mobile source air toxics and related health impacts. He also works on cutting-edge technological advances...

Jacob P. Duginski Environmental Attorney Beveridge & Diamond San Francisco, CA

Jake maintains a diverse regulatory and litigation practice providing client-centered, solution-driven advice.

He litigates before California’s trial and appellate courts, advises on regulatory compliance with a focus on California-specific issues, and represents clients in various administrative enforcement settings. His practice philosophy is to provide sound, timely, actionable advice with sensitivity to each individual client’s business needs. 

Clean Air, Climate Change, and CEQA

Clients who operate in California routinely find themselves with...

Andrew A. Eberle Environmental Regulatory and Litigation Attorney Beveridge & Diamond Law Firm, Oregon

Andrew is not admitted to practice in California. He is admitted to practice only in Oregon.

Andrew maintains a diverse environmental regulatory and litigation practice, with a focus on product lifecycle, hazardous materials, and land use issues.

Prior to joining B&D, Andrew clerked in the U.S. District Court for the District of New Jersey for the Honorable Jerome B. Simandle, U.S.D.J., and the Honorable Ann Marie Donio, U.S.M.J. Earlier, he worked as a Law Clerk in the Environment &...

Kaitlyn D. Shannon Environmental Enforcement & Litigation Attorney Beveridge & Diamond San Francisco, CA

Kaitlyn Shannon focuses her practice on environmental enforcement and litigation across a range of industries and issues.

She is an experienced environmental litigator and regularly appears in California state and federal courts, and she is the deputy leader of the firm’s Litigation practice group. She has experience with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), including defending against natural resource damages claims. She is also well-versed in California state-law claims, including California’s Superfund program,...