The Morning Report
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Deputy City Attorney Mara Elliott made a bold claim last week about the Climate Action Plan. Contrary to popular belief, she said, residents won’t be able to sue over it if the city fails to meet the ambitious standards it set.
Elliott oversaw the legal vetting of the plan and is now running for city attorney herself. So her claim lit up social media and the discussion around city politics and the race. Now, a rival claims she was right and he can’t picture how anyone could hold the city accountable under the plans terms.
Elliott has since changed her mind but she might have, in the process, revealed just how hard it would be for any group of lawyers and their clients to sue the city and win.
Elliott began backing off the claim when she told the San Diego Union-Tribune last week she agrees with Mayor Kevin Faulconer and her boss in the city attorney’s office that people could sue the city if it doesn’t cut greenhouse reductions 15 percent by 2020 and 50 percent by 2035.
When one of her opponents in the race to be the next city attorney made the same claim, she called it nonsense. In an interview, she said it was not her understanding that the city connected its Climate Action Plan to its general plan, thereby making the main climate goals legally enforceable.
Now, Elliott is saying something different.
Even if anyone can sue the city for failing to meet its greenhouse gas reduction targets, it’ll be really tough for a judge to figure out how to make the city atone for its failure.
“Is a court going to say, ‘You should really have a Climate Action Plan to deal with this?’” said Dan Rottenstreich, Elliott’s campaign adviser.
He said the very fact that it is difficult to imagine how a court would force the city to fix things shows the problem with the way the plan is structured.
Faulconer’s office and City Attorney Jan Goldsmith agree that citizens can sue if the city doesn’t meet its overall greenhouse gas reduction targets, but that all the individual steps described in the plan are fundamentally optional. That’s always been Faulconer’s case.
In terms of the city’s legal liability, all that matters is the overall emissions reductions.
The city attorney’s office never issued an official legal opinion on the issue. After Elliott’s statements, Faulconer’s office said it would request clarification.
But since the city won’t be held accountable until it’s already too late – when it has already emitted more greenhouse gasses than it said it would – it’s clear the plan needs to be stronger, Rottenstreich said.
“If you don’t want action on climate, the plan as it stands now is fine,” he said.
Other plaintiffs attorney’s in the area who often sue cities over failure to comply with the California Environmental Quality Act recognize the uncertain situation the city’s plan is in.
State law on emissions reductions is in flux. San Diego is one of the first cities to tie its climate plan to its general plan.
“Law is full of gray areas, and we’re definitely entering some gray areas here,” said Everett DeLano, an Escondido-based CEQA attorney.
DeLano, though, said it’s reasonable to say the city could be sued for failing to meet its emissions reductions, while still giving the city flexibility on each individual action it is meant to take.
“Let’s say you have 10 requirements, and the city accomplishes eight of them, but they still meet their reduction targets,” DeLano said. “That’s a tough call. That’s where you’d have to ask your client, ‘Do we really want to enforce this?’”
If a plaintiff won a suit against the city for its failure to meet reduction targets, DeLano said he imagined a judge would instruct the city to come back in a few months with some sort of clear plan for how it would deal with the issue.
“Judges aren’t engineers,” he said. “They aren’t going to say, ‘Put this device, with this capacity, in this location.’ It would be more about bringing back a revised plan.”
Jan Chatten-Brown was one of the lawyers who, on behalf of the Sierra Club, successfully sued San Diego County because its Climate Action Plan was just a non-binding goal, instead of one connected to the general plan that allowed citizens to bring lawsuits if its goals weren’t met.
She said it’s important citizens can hold the city accountable for taking each specific actions laid out in the plan because otherwise it would be too hard for a court to set it straight. Once the emissions are in the air, it’s too late.
“I mean, what’s the judge going to say?” said Chatten-Brown. “Go back to the drawing board? That’s why it’s so important to have specific deadlines that means you don’t have to wait until 2020 to bring a lawsuit.”
Nicole Capretz, who now runs the Climate Action Campaign and was a vocal champion of the city’s plan when she was a city staffer, said her vision of a legal remedy from the court, if the city fails to meet its goals, would be to mandate the city to fund specific actions in the plan.
Before the city started making discretionary budget decisions, a certain number of climate-friendly plans would already be funded.
“That’s the remedy I think a plaintiff’s attorney would seek,” she said. “I couldn’t imagine a lawsuit seeking to penalize the city. It would be about righting the ship.”
Environmental attorney Bryan Pease – also a city attorney candidate – said he doesn’t see a way he could bring a lawsuit against the city over the Climate Action Plan in the first place.
Pease is exactly the type of attorney who normally brings those sorts of public accountability suits against cities.
In his interpretation, the state already has emissions reductions requirements, so the city isn’t doing anything special. And since the plan has specific language specifying the city is required to propose certain actions – like a zero-waste policy, or transitioning the city to an electric vehicle fleet – but not adopt them, he can’t imagine how to structure the type of lawsuit plan supporters say is possible.
“What Capretz has been claiming is the local aspects of the law – like (transitioning to) 100 percent renewable (energy), are enforceable through some private right of action, but they’re not. We need concrete steps now, not the threat of a future lawsuit,” he wrote in an email.
After her statements last week, Elliott is now sounding the same alarm.
Parsing the details of how lawyers could structure hypothetical lawsuits misses the point, Rottenstreich said.
“What Mara’s saying is, we need more action,” he said. “Without more action, the city won’t achieve its climate goals.”