San Diego’s mayor and City Council have been getting national attention for their landmark Climate Action Plan, precisely for one simple characteristic of it: It is legally enforceable.
But Mara Elliott, a city attorney candidate who as a chief deputy city attorney oversaw the vetting of the policy, says that’s just not true.
“The entire policy right now is, frankly, a dream until they find ways to implement it,” she said.
The city committed to cutting in half its greenhouse gas emissions over the next 20 years by adopting the plan. Unlike other cities with similar climate policies, though, San Diego wrote the plan so it was legally enforceable. Citizens could sue the city if it failed to make those emissions cuts.
At least, that was the idea. Elliott says it is a fiction.
It’s quite a departure from the popular understanding of the plan.
Mayor Kevin Faulconer has touted his decision to make a legally enforceable commitment – and been praised for doing so by environmentalists who aren’t part of his typical support base. Plan supporters have likewise emphasized the city’s need to revolutionize its transportation and energy systems to avoid legal challenges brought on by the plan.
Nicole Capretz, who helped usher the plan through City Hall as a staffer and now runs the nonprofit Climate Action Campaign, initially said Elliot was dead wrong.
Then she gave the plan another look.
“In doing a deeper analysis of the resolution – or even just taking Mara’s interpretation seriously – it looks like we do need clarification and likely need to fix any weaknesses in the existing language to ensure there is no legal question about whether the (climate plan) is enforceable,” she said.
The city attorney’s office never issued a legal memo stating whether the plan was in fact legally enforceable. Elliott said that was a mistake.
“I do think we should issue a legal opinion on that, because that’s repeated over and over in the press and I don’t think it’s accurate,” she said.
Capretz agreed. The plan was sold in clear terms: If the city didn’t take clear and meaningful action to slash its greenhouse gas emissions, it would suffer the consequences in court.
It’s time to figure out if that’s actually true, she said.
“The mayor should immediately ask the city attorney for a full legal analysis of the (plan’s) vulnerabilities and how to fix any that exist,” Capretz said. “(Elliott) should be one of the signers, and the memo should be made public.”
It isn’t just the press that has repeated the idea that the plan is legally enforceable. The mayor’s office, Capretz, other environmentalists and multiple Council offices have as well. That the city could be sued if it fails to cut its carbon footprint has become an article of faith at City Hall.
Elliott, though, says her understanding is that the Climate Action Plan is just an outline of future steps the city should take to reduce carbon emissions; until those steps are taken, the plan’s legal value is up in the air.
“I would say their intent is to create a legally binding plan,” she said. “But that all rests on implementation. And that’s why Nicole [Capretz] gets so excited about implementation, because she knows that’s where the teeth are. The policy itself is direction, but none of us know how that’s going to be implemented.”
The issue came up at a debate in Oak Park among all five city attorney candidates last week.
Gil Cabrera, one of Elliott’s opponents and former chairman of the city’s Ethics Commission, said the city attorney will play a critical role on the Climate Action Plan because it would be legally enforceable by citizens.
“If we are not meeting our targets, the citizenry can actually sue the city to go forward and enforce that plan,” Cabrera said. “That’s one of the things where it’s going to be important for the city attorney to, from a risk management perspective, avoid those types of risks and move forward. That’s a fairly critical role the city attorney is going to be playing.”
As Cabrera answered, Elliott mouthed the words, “That’s not true.”
Later, she specified what she meant.
“He was incorrect,” she said. “He said something to the effect that it gives individuals the private right of action against the city. The Climate Action Plan itself does not do that. And that’s the way he presented it. And that’s nonsense.”
To make the Climate Action Plan enforceable, the city tied it to the general plan, the city’s long-term outline for future growth and development.
Since the Climate Action Plan is part of the general plan, if the city doesn’t follow it, lawyers and their clients can sue to force compliance.
Or, in legal jargon: “the CAP mitigates the cumulatively significant global warming impacts of the general plan and provides a framework for mitigation of future projects,” as the plan reads.
Since citizens can already sue the city over the general plan, that opportunity now extends to the goals outlined in the climate plan.
Other cities have adopted climate action plans without including language that tied them to the general plan.
That’s what made San Diego’s different, and that’s the whole reason it got national attention.
While city staffers were writing the plan, Capretz said, the city attorney’s office gave policymakers a clear choice – follow what other cities had done, or make the plan legally enforceable. They chose to make it legally enforceable.
“They were insisting it did not need to be legally binding, that we had a choice,” she said. “We made a choice. The Climate Action Plan includes specific language reflecting that choice.”
Elliott, however, reiterated that her interpretation is that private individuals cannot try to sue the city to enforce the plan.
Rather, she said the Climate Action Plan can’t be enforced until the City Council begins adopting laws around it. Each action the city takes to cut greenhouse gases would become law and would be a requirement. But the plan itself is just a guide.
As an example, she pointed to the plan’s plan call to eliminate food waste. Once the city adopts an ordinance on that, it becomes part of the municipal code. If restaurants keep dumping their food in the garbage, they could be cited.
This, though, is a fundamental departure from what is understood about the plan and popularized by the mayor and press reports about it. It would change the power of the plan importantly if the enforceability of it is dependent on future laws being passed.
But that’s exactly Elliott’s point.
“I think there’s crafty ways the public will find to try to hold us accountable, but it concerns me when a city attorney candidate is making a global statement like that, which is essentially inviting people to sue the city,” she said. “I know that’s (Cabrera’s) base and that’s what they want him to say, but I think he needs to do his homework.”
Cabrera said Elliott is off base. He pointed to an analysis from Columbia Law School titled “San Diego’s Climate Action Plan is ambitious and enforceable.”
“A climate law fellow with the Columbia Law School Sabin Center on Climate Change Law disagrees with her, as does, in my opinion, the California Court of Appeal,” Cabrera said.
Faulconer’s office stood by the popular understanding of the plan.
“The city specifically included language in the Climate Action Plan that requires city leaders to take certain actions to address climate change,” mayoral spokesman Craig Gustafson said in a statement. “It also provides for amending the plan in the future if annual monitoring shows the city is falling short of its ambitious goals.”
Likewise, the city attorney’s office stood by previous public statements. A spokesman in the office produced an email the spokesman had sent another reporter in December stating the climate plan was an extension of the city’s general plan and therefore needs to comply with relevant state and federal laws.
Someone is wrong.
If it’s Elliott, it’s an attorney who supervises the team who vetted the plan.
If it’s Cabrera, the mayor’s office and everyone else who supports the plan, plenty of San Diegans have been misled into thinking the city has taken a bolder stance on climate change than it really has.
“I don’t know what’s in the mind of (Faulconer),” Elliott said. “But he is a politician. It is certainly a popular position. And I should not have said anything at the debate, but I’m just sick of it.”