Filed 9/28/18

                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



GOLDEN DOOR PROPERTIES, LLC,                     D072406

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. 37-2016-00037402-
                                                 CU-TT-CTL)
COUNTY OF SAN DIEGO,

        Defendant and Appellant.

SIERRA CLUB, LLC,                                D072433

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. 37-2012-00101054-
                                                 CU-TT-CTL)
COUNTY OF SAN DIEGO,

        Defendant and Appellant.


        CONSOLIDATED APPEALS from a judgment of the Superior Court of San

Diego County, Timothy B. Taylor, Judge. Affirmed.



        Thomas E. Montgomery, County Counsel, and Claudia Gacitua Silva, Assistant

County Counsel, for Defendants and Appellants.
       Chatten-Brown & Carstens, Jan Chatten-Brown, and Joshua Randall Chatten-

Brown for Plaintiff and Respondent Sierra Club.

       Latham & Watkins, Andrew D. Yancey, Samantha K. Seikkula and

Christopher W. Garrett for Plaintiff and Respondent Golden Door Properties, LLC.

                                               I

                                     INTRODUCTION

       The County of San Diego (the County) challenges a peremptory writ of mandate

and injunction, along with a judgment directing it to set aside and vacate the "2016

Climate Change Analysis Guidance Recommended Content and Format for Climate

Change Analysis Reports in Support of CEQA Document" (the 2016 Guidance

Document or Guidance Document) and prohibiting it from using the Guidance Document

or the "Efficiency Metric" defined in it as part of its California Environmental Quality

Act (CEQA) review of greenhouse gas (GHG) impacts for development proposals in

unincorporated areas of San Diego County. The County contends the matter is not

justiciable because it is not ripe and the Guidance Document does not establish a

threshold of significance for use in environmental review, nor does its use violate CEQA.

The County further contends its separate development of a Climate Action Plan (CAP)

and threshold of significance is evidence the Guidance Document does not violate a

previous writ or use piecemeal environmental review. We disagree with the County and

affirm the trial court writ and judgment in their entirety.




                                              2
                                            II

                                    BACKGROUND

       A. Legal Principles

       In June 2005, Governor Arnold Schwarzenegger signed Executive Order S-3-05,

establishing GHG reduction targets to 2000 levels by 2010, to 1990 levels by 2020, and

to 80 percent below 1990 levels by 2050. (Sen. Rules Com., Off. of Sen. Floor Analyses,

Sen. Bill No. 32 (2015-2016 Reg. Sess.) as amended Aug. 19, 2016, p. 4, no. 3.) The

following year, California Assembly Bill No. 32 (A.B. 32), California's Global Warming

Solutions Act of 2006, established a statewide goal of achieving substantial reduction in

the emission of gases contributing to global warming, including the reduction of GHG

emissions to 1990 levels by 2020. (Health & Saf. Code, §§ 38500 et seq., 38550; Center

for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th

204, 215 (Biological Diversity).) It also ordered the preparation and approval of a

scoping plan for achieving the "maximum technologically feasible and cost-effective

reductions in greenhouse gas emissions" by 2020. (Health & Saf. Code, § 38561,

subd. (a).) The 2008 scoping plan identified cuts of approximately 30 percent from the

business as usual emission levels predicted for 2020, which was about a 15 percent

reduction from the 2008 levels.1 (Biological Diversity, at p. 216.)




1      The business as usual model evaluated emissions assuming no GHG reduction
action. (Biological Diversity, supra, 62 Cal.4th at p. 216.)

                                            3
       In 2010, a new CEQA Guideline on Determining the Significance of Impacts from

Greenhouse Gas Emissions gave lead agencies discretion for estimating the amount of

GHG a project will emit and offered three factors for consideration: (1) the extent to

which the project may increase or reduce GHG emissions as compared to the existing

environmental setting; (2) whether project emissions exceed a threshold of significance

the lead agency deems applicable; and (3) the extent to which the project complies with

regulations or requirements implementing a statewide, regional, or local plan to reduce or

mitigate GHG emissions. (Cal. Code Regs., tit. 14, § 15064.4, subd. (b);2 Biological

Diversity, supra, 62 Cal.4th at p. 217.) These requirements "must be adopted by the

relevant public agency through a public review process and must reduce or mitigate the

project's incremental contribution of greenhouse gas emissions. If there is substantial

evidence that the possible effects of a particular project are still cumulatively

considerable notwithstanding compliance with the adopted regulations or requirements,

an EIR [environmental impact report] must be prepared for the project." (§ 15064.4,

subd. (b)(3).)

       In April 2015, Governor Edmond G. Brown, Jr. signed executive order B-30-15,

which added a reduction target of 40 percent below 1990 levels by 2030. (Sen. Rules

Com., Off. of Sen. Floor Analyses, Sen. Bill No. 32 (2015-2016 Reg. Sess.) as amended

Aug. 19, 2016, p. 4, no. 3.) Executive Order B-30-15 was codified by Senate Bill No. 32,

which was signed into law September 8, 2016.


2     Subsequent section references are to the CEQA Guidelines, California Code of
Regulations, title 14, unless otherwise specified.
                                              4
       B. Factual and Procedural Background

       In August 2011, the County updated its 1978 General Plan. The corresponding

environmental impact report (EIR) incorporated mitigation measures to address GHG

emissions. The mitigation measures were intended to reduce the impact County

operations would have on the environment. Mitigation Measure CC-1.2 required the

County to prepare a CAP, including an update on the baseline inventory of GHG from all

sources.3 It also required GHG emission targets and deadlines for achieving the

reductions in County operations and the community. Mitigation Measure CC-1.8

required the County to "[r]evise County Guidelines for Determining Significance based

on the Climate Change Action Plan." Thus, to comply with the General Plan Update, the

County needed to adopt a CAP and develop thresholds for determining significance based

on the CAP.

       The County subsequently developed and adopted a CAP in 2012, which the Sierra

Club challenged via a petition for a writ of mandate, arguing it violated CEQA. The trial

court issued the writ in April 2013 and, while the appeal in that matter was pending, the

County adopted the 2013 Guidelines for Determining Significance for Climate Change

(2013 Guidelines). Sierra Club filed a supplemental petition for writ of mandate in




3      The CAP initially had four purposes: reducing GHG emissions consistent with
A.B. 32, Executive Order S-3-05, and CEQA Guidelines; allowing lead agency to adopt a
plan or program addressing the cumulative impacts of projects; providing a mechanism
for subsequent projects to use to address GHG impact; and complying with mitigation
measure CC-1.2. (Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152,
1160 (Sierra Club).)
                                             5
February 2014, seeking to set aside the 2013 Guidelines. The parties entered a stipulation

staying the supplemental petition pending the outcome of the appeal.

       In 2014, we issued our decision affirming the original writ of mandate in Sierra

Club, supra, 231 Cal.App.4th 1152. The trial court subsequently entered a supplemental

writ of mandate (Supplemental Writ) directing the County to set aside the 2012 CAP and

environmental findings, as well as the 2013 Guidelines. The court also ordered the

County to design a schedule for preparing a new CAP and new guidelines for

determining significance for GHG emissions in compliance with CEQA, and it retained

jurisdiction until it determines compliance with CEQA. The County complied with the

Supplemental Writ requirements, including designating a timeline for the development of

the CAP.

       While separately developing the CAP, in July 2016 the County published the 2016

Guidance Document. In September 2016, Sierra Club filed a second amended petition

for a writ of mandate challenging the adoption of the Guidance Document. While the

matter was pending, Golden Door Properties, LLC (Golden Door) filed a petition and

complaint for injunctive and declaratory relief related to the 2016 Guidance Document.

In January 2017, the trial court granted a stipulation permitting the Golden Door v.

County of San Diego, Case No. 37-2016-00037402-CU-TT-CTL, case to be heard with

the Sierra Club matter.4



4      Golden Door and Sierra Club filed separate appeals, which were consolidated
upon Golden Door's request. Golden Door and Sierra Club are collectively referred
herein as Plaintiffs.
                                             6
       The trial court concluded the claims were ripe, the 2016 Guidance Document

creates a threshold of significance under CEQA, the Guidance Document violates the

County's Mitigation Measures CC-1.2 and CC-1.8, and it is not based on substantial

evidence. The trial court further concluded the County was out of compliance with the

writ of mandate because the 2016 Guidance Document constitutes piecemeal

environmental review. The court granted a second supplemental peremptory writ of

mandate and injunction and entered judgment "prohibiting the County from using the

2016 Guidance Document and its 'County Efficiency Metric' for CEQA review of GHG

impacts for development proposals on undeveloped land in San Diego County." The

County now challenges the writ and judgment.

       C. The 2016 Guidance Document

       The County issued its 2016 Guidance Document on July 29, 2016. The

"Significance Criteria" section has "Guidelines for Determining Significance," which

"include[] identification and justification of the selected significance criteria used to

assess impacts." It contains the following language: "The significance criteria used in

the Climate Change Analysis should include a statement and supporting analysis as to

whether the subject project complies with GHG reduction requirements under AB 32, the

Global Warming Solutions Act of 2006 for the year 2020; and whether the subject project

is on the trajectory towards GHG emission reduction goals of Executive Orders S-3-05

and B-30-15 at buildout. Additional detail on the process to make the latter

determination is provided below. Due to the range of project types processed by the

County, significance criteria and analysis approaches may vary. The following sections

                                               7
identify one potential set of criteria and methodologies, along with supporting evidence

that would be appropriate for a Climate Change Analysis."

      In the subsequent "Significance Determination" section, the County explains:

"The County Efficiency Metric is the recognized and recommended method by which a

project may make impact significance determinations. The County is recommending a

quantitative GHG analysis be conducted and the significance of the impact determined

for project emissions at 2020 and buildout year (if post-2020). For a Climate Change

Analysis to be considered adequate, the County recommends quantification of GHG

emissions at 2020 and project buildout. The determination of a project's efficiency may

be determined by using applicable efficiency metrics derived for those specific years,

e.g. 2020 and project buildout (if post-2020). Other methods to determine the

significance impacts relative to project emissions at 2020 and buildout will be considered

on a case-by-case basis. All analysis (significance determination) results must be

supported with substantial evidence." The 2020 Efficiency Metric, which the County has

identified as "the recognized and recommended method," is 4.9 metric tons of CO2e per

service population per year for 2020.



                                            III

                                        DISCUSSION

      A. The Matter is Ripe for Consideration

      The County challenges the trial court's second supplemental writ as unripe for

adjudication because the County's CAP development is proceeding within the time frame

                                            8
laid out in its initial return on the Supplemental Writ. Additionally, the County contends

the controversy does not apply to a specific set of facts and so is akin to the situation in

Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158

(Pacific Legal), where the Supreme Court found the matter to be unripe. Plaintiffs

contend the 2016 Guidance Document requires application of a threshold of significance,

so California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2016)

2 Cal.App.5th 1067 (Cal BIA) is more analogous, and they seek a finding in favor of

justiciability issue here. We agree with Plaintiffs.

       Ripeness is "primarily bottomed on the recognition that judicial decisionmaking is

best conducted in the context of an actual set of facts so that the issues will be framed

with sufficient definiteness to enable the court to make a decree finally disposing of the

controversy." (Pacific Legal, supra, 33 Cal.3d at p. 170.) An " 'actual controversy' " is

"one which admits of definitive and conclusive relief by judgment within the field of

judicial administration, as distinguished from an advisory opinion upon a particular or

hypothetical state of facts. The judgment must decree, not suggest, what the parties may

or may not do. [Citations.]" (Selby Realty Co. v. City of Buenaventura (1973) 10 Cal.3d

110, 118; Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th

1559, 1573-1574.) Ripeness requirements "should not prevent courts from resolving

concrete disputes if the consequences of a deferred decision will be lingering uncertainty

in the law, especially when there is widespread public interest in the answer to a

particular legal question." (Pacific Legal, at p. 170.) Instead, courts should consider



                                              9
" ' both the fitness of the issues for judicial decision and the hardship to the parties of

withholding court consideration.' " (Id. at p. 171, italics omitted.)

       In Pacific Legal, the California Supreme Court considered a challenge to the

interpretation of the public beach access conditions on permit requests under the Coastal

Commission's guidelines interpreting the Coastal Act,5 and the court explained it could

not evaluate the consistency of the Commission's guidelines with the Coastal Act absent

application to specific facts.6 (Pacific Legal, supra, 33 Cal.3d at pp. 169-170, 172.) It

also explained the homeowners were not suffering any hardship, concluding they would

"eventually wish to make improvements on their property," but until they did and

challenged application of the guidelines, it would be "sheer guesswork to conclude that

the Commission [would] abuse its authority by imposing impermissible conditions on

any permits required." (Id. at pp. 172-174.) Accordingly, it determined the matter was

not ripe. (Ibid.)

       In contrast, in Cal BIA, the court considered district guidelines that provided

thresholds of significance which could be used "to routinely assess the effect of existing

5       Pacific Legal Foundation's original lawsuit "did not challenge any individual
permit condition; rather it attacked the general access policies of the Commission."
(Pacific Legal, supra, 33 Cal.3d at p. 163.) The appeal initially included a second action,
filed by two homeowners over the application of the access provision to a particular
permit application. (Id. at pp. 163-164.) After completing briefing, the Commission
moved to dismiss the homeowners' matter with prejudice. (Id. at p. 164.) The dismissal
eliminated the need to address the merits of that matter, leaving only the facial challenge.
(Id. at pp. 166-167.)

6      The court also noted application to a specific set of facts would be the best way to
examine injury to property rights. (Pacific Legal, supra, 33 Cal.3d. at pp. 170, fn. 6 &
172, fn.7.)
                                              10
environmental conditions on future users or occupants of a project." (Cal BIA, supra,

2 Cal.App.5th at p. 1088.) Unlike the question of whether the guidelines would be

applied during a permitting process that might or might not ever occur in Pacific Legal,

the guidelines at issue in Cal BIA established thresholds of significance which were to be

used routinely to determine environmental effects of a project. (Cal BIA, at p. 1088;

see Pacific Legal, supra, 33 Cal.3d at pp. 169-170.) Though the district argued the

guidelines were merely advisory and nonbinding, the court concluded they were

nonetheless "interpretive guidelines for CEQA analyses promulgated by an air district

that acts as either the lead agency or a responsible agency on projects within its

jurisdictional boundaries," and thus the matter was "fit for judicial determination." (Cal

BIA, at pp. 1088-1089.) The general application of the guidelines persuaded the court the

controversy was ripe. (See ibid.)

       The language in the 2016 Guidance Document is similar to language found in the

guidelines at issue in Cal BIA. For example, in Cal BIA, the guidelines "recommend that

lead agencies . . . use the threshold of significance" supplied by the guidelines, but also

explained it did "not believe there [was] only one threshold for GHG emissions that

[could] be supported by substantial evidence." And rather than mandating the use of the

interim GHG threshold, the guidelines simply stated that the threshold "can be used by

lead agencies within the Bay Area." Similarly here, the County noted "alternative

approaches to evaluating GHG emissions may be utilized," and "[d]ue to the range of

project types processed by the County, significance criteria and analysis approaches may

vary." Nonetheless, the 2016 Guidance Document also provided an Efficiency Metric it

                                             11
described as "the recognized and recommended method by which a project may make

impact significance determinations." The possibility that an alternative method for

determining significance may apply does not change the general applicability of the

Efficiency Metric. Instead, just like the guidelines in Cal BIA, the 2016 Guidance

Document provides a threshold of significance, which the Agency would be generally

applying to project proposals, as discussed more fully post.

       Moreover, the matter before us will resolve an active dispute about the County's

compliance with an earlier writ, as well as whether its actions comply with CEQA, issues

of public interest. (See Cal BIA, supra, 2 Cal.App.5th at p. 1089; see also Pacific Legal,

supra, 33 Cal.3d at p. 171.)

       Finally, the County's argument the matter is unripe because it has followed its

timeline for completion of a CAP and thresholds of significance mandated by the

Supplemental Writ is unpersuasive. As we explain more fully post, the separate adoption

of the 2016 Guidance Document violates the Supplemental Writ, thereby creating a

controversy ripe for review.




      B. The 2016 Guidance Document Violates CEQA, County Guidelines, and the
Supplemental Writ

       Plaintiffs challenge the County's failure to comply with CEQA's procedures. They

also contend the County did not support its 2016 Guidance Document with substantial

evidence. The County admits the 2016 Guidance Document was not formally adopted


                                            12
and was not subject to a public review process. Thus, a finding that the document

establishes a threshold of significance for general use means the County is out of

compliance with the CEQA requirement that a threshold of significance be adopted "by

ordinance, resolution, rule, or regulation, and [be] developed through a public review

process." (§ 15064.7, subd. (b).)

              1. Standards of Review

       When a public agency takes a quasi-legislative action, judicial review of the action

for CEQA compliance evaluates whether there was a prejudicial abuse of discretion.

(Pub. Resources Code, § 21168.5.) "Abuse of discretion is established if the agency has

not proceeded in a manner required by law or if the determination or decision is not

supported by substantial evidence." (Ibid.; see Vineyard Area for Citizens for

Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426

(Vineyard).) We conduct an independent review to assess whether the public agency

proceeded in the manner the law requires. (Vineyard, at pp. 426, 435; Citizens of Goleta

Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 [courts "scrupulously enforce

all legislatively mandated CEQA requirements"].) While we review de novo, we also

afford deference to factual conclusions, as long as they are supported by substantial

evidence. (Vineyard, at p. 435.) Substantial evidence exists when there is "enough

relevant information and reasonable inferences from this information that a fair argument

can be made to support a conclusion, even though other conclusions might also be

reached." (§ 15384; see Laurel Heights Improvement Assn. v. Regents of University of

California (1993) 6 Cal.4th 1112, 1133.) Thus, we review the allegations regarding

                                            13
procedural compliance de novo and the substantive allegations under a substantial

evidence standard.

              2. The Efficiency Metric Establishes a Threshold of Significance

       A threshold of significance is "an identifiable, quantitative, qualitative or

performance level of a particular environmental effect, non-compliance with which

means the effect will normally be determined to be significant by the agency and

compliance with which means the effect normally will be determined to be less than

significant." (§ 15064.7, subd. (a).) In defining a threshold of significance, the CEQA

Guidelines do not ask whether the agency normally applies the threshold of significance

but instead asks whether the criteria, when applied, normally determines the impact to be

significant.7 (See § 15064.7, subd. (a).) When deviation from a threshold of significance

must be documented and justified, the threshold becomes a presumptive threshold. (See

Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1068

(Save Cuyama).) A threshold of significance that is "clearly erroneous and unauthorized"

under CEQA must be set aside. (Cal BIA, supra, 2 Cal.App.5th at p. 1088.)

       The County contends the Efficiency Metric does not establish a threshold of

significance because it is recommended, not required, and so is not "normally . . . used to

determine the significance of a project's GHG emissions." Instead, the County contends



7      The County notes Cal BIA did not consider whether the guidelines there
established a threshold of significance because the court instead considered whether the
established thresholds were routinely applied. (See Cal BIA, supra, 2 Cal.App.5th at
pp. 1088-1089.) Our conclusion that the Efficiency Metric is a threshold of significance
does not rely on reasoning in Cal BIA.
                                             14
the 2016 Guidance Document recommends a methodology for evaluating GHG

emissions, which is distinct from a threshold for determining the significance of the GHG

emissions. We disagree.

       The 2016 Guidance Document's "recognized and recommended" Efficiency

Metric of 4.9 metric tons of CO2e per service population per year establishes the level

above which a project's GHG impact is significant and below which the impact will be

found less than significant. This number is an identifiable and quantitative performance

level of the particular environmental effect, and noncompliance with that amount will

normally mean the proposed project is significant, while compliance with that number

will normally mean the proposed project is less than significant. It is not a

"methodology," or a way to determine a threshold of significance; it is a single,

quantifiable volume of emissions. Accordingly, the County has set a threshold of

significance.

       The County contends the requirement emissions comply with A.B. 32, executive

orders, and any applicable plan or regulation means the 2016 Guidance document does

not supply a threshold of significance. It also contends the trial court's conclusion to the

contrary was the result of considering select phrases out of context. While the 2016

Guidance Document states, "significance criteria and analysis approaches may vary,"

and the "following sections identify one potential set of criteria and methodologies,"

these phrases are overshadowed by the language introducing the "Significance

Determination" section, which explains "[t]he County Efficiency Metric is the recognized



                                             15
and recommended method by which a project may make impact significance

determinations."

       The County also compares its 2016 Guidance Document to its 2013 Guidelines to

argue the 2016 Guidance Document could not establish a threshold of significance

because it is not as explicit as the 2013 Guidelines. But the more explicit and

prescriptive nature of the previously vacated 2013 Guidelines does not make the 2016

Guidance Document compliant with CEQA or County CEQA Guidelines. Whether or

not the 2013 Guidelines were more explicit is not relevant to the conclusion the

Efficiency Metric establishes a threshold of significance.8

              3. The 2016 Guidance Document Violates CEQA

       Having determined the Efficiency Metric is a threshold of significance, we

conclude the 2016 Guidance Document "must be adopted by ordinance, resolution, rule,

or regulation, [be] developed through a public review process[,] and be supported by

substantial evidence." (§ 15064.7, subd. (b).) The County's reliance on Save

Cuyama, supra, 213 Cal.App.4th 1059 to argue CEQA compliance is unnecessary

because the threshold of significance is evaluated on a case-by-case basis does not

persuade us otherwise. Save Cuyama acknowledges a threshold for general use is subject

to CEQA public adoption guidelines. (Id. at p. 1068.) The purpose of the 2016 Guidance



8     In its opening brief, the County directly compares the language in its 2013
Guidelines to language in the 2016 Guidance Document. Then, in its reply brief, the
County argues the vacated 2013 Guidelines are immaterial to the analysis of the 2016
Guidance Document. For the reasons previously expressed, we agree the 2013
Guidelines are immaterial here.
                                            16
Document is to provide the "recognized and recommended method by which a project

may make impact significance determinations"; thus, compliance is required. The

County acknowledges the Efficiency Metric was not formally adopted by ordinance, rule,

resolution, or regulation and was not developed through a public review process.

Accordingly, the 2016 Guidance Document is out of compliance with state CEQA

requirements.

      Additionally, the County's General Plan Update EIR includes mitigation measures

CC-1.2, which requires the County to prepare a CAP, and CC-1.8, which requires the

County to revise its guidelines for determining significance based on the County's CAP.

County CEQA Guidelines adopted by the board of supervisors in 2009 require public

circulation and review before "any administrative guidance or revisions are approved by

the Processing Department."9 Here, no CAP was in place when the County published the

Guidance Document, and the document was not publicly circulated and reviewed before

the processing department approved it.



                4. The Significance Threshold is Not Supported by Substantial Evidence

      Plaintiffs contend the 2016 Guidance Document fails to provide substantial

evidence to support its recommended Efficiency Metric. The County distinguishes the

2016 Guidance Document from the project level environmental impact report in

Biological Diversity, supra, 62 Cal.4th 204, describing the Guidance Document as a

9      The County CEQA Guidelines define the " 'Processing Department' " as a "County
agency, department, or other division responsible for processing a permit or similar
entitlement, or for initiating a County project. . . ."
                                            17
method for assessing GHG efficiency on a case-by-case basis. However, the County fails

to address adequately the core concern raised by plaintiffs in the court below, which is

reliance on statewide data without evidence supporting its relationship to countywide

reductions fails to meet the substantial evidence standard. We agree.

        In Biological Diversity, the Supreme Court concluded the environmental impact

report's use of statewide emission reduction goals was a "permissible criterion of

significance." (Biological Diversity, supra, 62 Cal.4th at p. 213.) At the same time, the

court concluded the report did not provide substantial evidence to support the conclusion

the cumulative GHG emissions would be less than significant based on the project level

reduction of 31 percent, even though the amount was consistent with A.B. 32's statewide

goal of 29 percent. (Id. at p. 225.) The court acknowledged the required percentage

reduction for an individual project may not be the same as for the entire state population

and economy because "a greater degree of reduction may be needed from new land use

projects than from the economy as a whole." (Id. at p. 226.) In other words, using a

statewide criterion requires substantial evidence and reasoned explanation to close the

analytical gap left by the assumption that the "level of effort required in one [statewide]

context . . . will suffice in the other, a specific land use development." (Id. at p. 227.)

       The Efficiency Metric, which relies on statewide standards, must be justified by

substantial evidence to explain why it is sufficient for use in projects in San Diego

County. The 2016 Guidance Document explains the recommended Efficiency Metric

"represents the rate of emissions needed to achieve a fair share of the State's emissions

mandate embodied in AB 32 and Executive Orders B-30-15 and S-3-05." It identifies a

                                              18
quantitative efficiency metric for 2020 to be 4.9 MT CO2e per service population per

year. The County argues this supplies San Diego specific data. However, as noted by the

trial court, the service population number relies on statewide service population and GHG

inventory data; it does not address San Diego County specifically, and it does not explain

why using statewide data is appropriate for setting the metric for San Diego County.

Additionally, the Efficiency Metric "allows the threshold to be applied evenly to most

project types," but it does not account for variations between different types of

development; nor does it explain why the per person limit would be appropriately evenly

applied despite project differences. Without substantial evidence explaining why

statewide GHG reduction levels would be properly used in this context, the County fails

to comply with CEQA Guidelines. (See § 15064.7, subd. (c); see also Biological

Diversity, supra, 62 Cal.4th at p. 227.)

              5. The 2016 Guidance Document Piecemeals Environmental Review

       Plaintiffs contend the issuance and use of the 2016 Guidance Documents

undermines a comprehensive mitigation plan because the Guidance Document releases a

significance threshold without public review, resulting in piecemealing environmental

regulations in contradiction with state law. The County argues its development of a CAP

and thresholds of significance are proceeding according to schedule, so the 2016

Guidance Document does not violate our decision in Sierra Club, supra, 231 Cal.App.4th

1152 and the Supplemental Writ. To support its contention, the County argues the 2016

Guidance Document complies with Cleveland National Forest Foundation v. San Diego

Assn. of Governments (2017) 3 Cal.5th 497 (Cleveland National Forest) because it takes

                                             19
into consideration "evolving GHG emission reduction goals." This overstates the

applicability of Cleveland National Forest to the issues at hand.

       In Cleveland National Forest, the California Supreme Court considered whether

an environmental impact report for a regional transportation plan was required to analyze

its consistency with the GHG emission reduction goals detailed in Executive Order

No. S-3-05 for compliance with CEQA. (Cleveland National Forest, supra, 3 Cal.5th at

p. 510.) The court concluded it did not. (Id. at p. 518.) The Court commented that

planning agencies must stay "in step with evolving scientific knowledge and state

regulatory schemes." (Id. at p. 519.) While the County contends it does just this by

requiring a project specific analysis of GHG emissions, the general applicability of the

"recognized and recommended" Efficiency Metric demonstrates otherwise.

       In Sierra Club, we concluded the CAP and thresholds of significance based on the

CAP are a single project subject to environmental review.10 (Sierra Club, supra,

231 Cal.App.4th at p. 1175.) At the time the second supplemental writ issued here, the

County had not completed the CAP, so the 2016 Guidance Document did not comply

with the terms of the previous writ requiring compliance with the mitigation measures.

Moreover, the County did not conduct public review of the 2016 Guidance Document,

which identified a threshold of significance. Thus, the 2016 Guidance Document violates

the earlier writ and institutes piecemeal policies.



10     "Under the law-of-the-case doctrine, the determination by an appellate court of an
issue of law is conclusive in subsequent proceedings in the same case." (People v. Yokely
(2010) 183 Cal.App.4th 1264, 1273.)
                                              20
       The County attempts to rationalize its distribution and use of the 2016 Guidance

Document as necessary so development projects may continue to be processed by the

County and developers may conduct environmental reviews of GHG emissions.

However, the trial court's writ does not direct the County to halt development projects

from being processed; it vacates the Guidance Document and directs the Guidance

Document and the Efficiency Metric to not be used to provide the basis for CEQA review

of GHG impacts of development proposals on unincorporated County lands.

       C. Parties' Requests for Leave to File Sur-replies is Denied

       The County raises the argument for the first time in its reply brief, based on extra-

record evidence, that the 2016 Guidance Document has been superseded. Having

previously denied the requests for judicial notice upon which this claim relies, we decline

to entertain this argument. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th

1446, 1453.) Similarly, we deny plaintiffs' motions for leave to file sur-replies or in the

alternative to strike portions of the reply brief and appellant's combined opposition to the

motions, all of which similarly rely on evidence submitted with the previously denied

requests for judicial notice.




                                             21
                                   DISPOSITION

     The judgment is affirmed. Plaintiffs shall recover costs on appeal.




                                                                           HUFFMAN, J.

WE CONCUR:




McCONNELL, P. J.




NARES, J.




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