The stakes are rising in a legal battle over whether San Diego County will be able to approve thousands of new housing units in wildfire-prone areas far from urban job centers using carbon offsets.
The Sierra Club spearheaded the legal challenge last year with support from other environmental groups, including the Center for Biological Diversity, the San Diego-based Climate Action Campaign and Cleveland National Forest Foundation.
While county governments across the state came out early this month in support of San Diego County’s offset plan, state Atty. Gen. Xavier Becerra’s office blasted the idea — saying it could undercut California’s internationally lauded strategy to reduce planet-warming emissions.
Legal scholars watching the case said the court’s decision, which could come as soon as the spring, has the potential to set a major precedent affecting California’s fight against climate change.
“That’s why you’re seeing the attorney general’s office weigh in,” said Ethan Elkind, director of UC Berkeley’s Center for Law, Energy and the Environment. “They recognize the stakes here. If San Diego’s approach is allowed to go forward, you’re going to see a lot of carbon offsets, especially in rural counties where growth means a lot more vehicle miles traveled, a lot higher emissions.”
The state’s pledge to cut greenhouse gases 40% over the next decade relies heavily on getting people out of their cars by forcing new development into urban neighborhoods served by clean-running transit. Nearly 30% of the state’s emissions come from personal automobiles.
In a strongly worded amicus brief recently submitted to the 4th District Court of Appeal in San Diego, Becerra argued that the county’s offset strategy would “perpetuate current sprawling development patterns, which will impede the ability of the region and state to reach their long-term climate objectives.”
“Without significant [vehicle miles traveled] reductions across the state, California simply will not be able to achieve its [greenhouse gas] reduction targets,” the 33-page document said.
Lawyers for San Diego County rejected the idea that the plan would put California’s climate strategy in jeopardy, saying in an email: “Our plan will help meet state targets.” County counsel declined to elaborate on the claim.
The county and its supporters — which include the California Building Industry Assn. and the California State Assn. of Counties — have maintained that purchasing carbon offsets is just as effective at fighting climate change as limiting tailpipe emissions within a particular jurisdiction.
Carbon offsets can be bought through online storefronts known as registries that fund environmental projects such as land conservation and sustainable agricultural and logging practices. In exchange for payments, purchasers claim the emissions reductions as their own.
“While [greenhouse gas] emissions are local, their climate change impacts are not,” said lawyers for the building industry in an amicus brief also recently submitted to the appellate court. “In fact, climate change impacts are so globally dispersed it is nearly impossible to calculate the local climate effects of … emissions.”
That and other arguments proved unconvincing to Superior Court Judge Timothy B. Taylor, who in January sided with the Sierra Club and issued a stinging rebuke of the offset scheme.
Taylor found the county’s program lacked oversight and violated a 2011 update to the agency’s general plan that called for reducing climate pollution locally.
The five-member county Board of Supervisors voted 3 to 2 to appeal the decision, with Supervisors Dianne Jacob and Nathan Fletcher in opposition.
Fletcher, who also sits on the influential California Air Resources Board, the agency largely responsible for designing the state’s climate plan, declined to be interviewed, citing the ongoing litigation.
While the question of whether the county is required to make emissions cuts within its jurisdiction is still being debated, another perhaps more profound question has come into focus.
How will new housing developments in San Diego County approved using carbon credits — such as Newland Sierra, Adara at Otay Ranch and others — affect the ability of other jurisdictions in the region to meet state requirements for reducing greenhouse gases from driving?
Specifically, the San Diego Assn. of Governments, like other major metropolitan planning organizations in California, is required by law, under Senate Bill 375, to reduce tailpipe and other emissions 19% below a 2005 benchmark by 2035.
SANDAG Executive Director Hasan Ikhrata said the agency will need to make dramatic investments in a new rail system and potentially institute widespread tolling on highways to meet the mandate.
Lawyers for the region’s top planning and transportation agency sent a sternly worded letter to the county in September saying that although the agency had yet to take a position on the offset program, it would be looking into the issue closely.
The attorney general’s position was much more clear, saying the county’s offset plan would result in “inconsistencies with Senate Bill 375 … a state law designed to reduce vehicle-related [greenhouse gas] emissions through smart growth land use planning and transportation design.”
Although the county’s plan allows it to cancel out new car pollution using offsets, SANDAG would be left on the hook for the emissions under state law.
In response, county officials and their supporters have pointed out that the state air board, which is responsible for implementing the bill, has in the past recognized the use of carbon offsets in the approval of a specific housing project, such as Newhall Ranch in Los Angeles.
The offset program was “based on guidance from the state and other stakeholders, including California’s Air Resources Board and the attorney general,” county counsel said in an email.
Top air quality regulators in Sacramento have in recent years spent considerable time helping to develop a private market for carbon offsets through online registries, such as Climate Action Reserve, American Carbon Registry and Verified Carbon Standard.
The state even allows businesses regulated under the cap-and-trade program to buy offsets as part of maintaining compliance with the program.
In September, the air board voted to approve a controversial carbon offset blueprint designed by the agency for use by other governments and corporations, which could end up funneling billions of dollars to South America, Africa and Asia to try to prevent deforestation.
But the state does not recognize offsets when calculating its own carbon footprint, meaning that even if a particular housing project is approved using offset credits, the state will still get dinged for the emissions when trying to meet its climate goals.
Smith writes for the San Diego Union-Tribune.