A recent court battle over burying power lines in San Diego neighborhoods unearthed a potentially large shortcoming in the city’s signature climate policy: The city isn’t tracking, and therefore attempting to reduce, tons of planet-warming gases created by infrastructure projects.
San Diego approved a batch of undergrounding projects across a handful of neighborhoods in early 2019, work that involved digging miles of 5-foot-deep and almost 3-foot-wide trenches and potential street tree removal along the public right of way, according to court records.
Kensington resident Margaret McCann in January 2020 sued the city to stop the undergrounding. She argued the city didn’t consider greenhouse gas emissions when it weighed the project’s environmental impact.
“That makes no sense,” said Todd Cardiff, an attorney representing McCann. “If you’re trenching and using excavating machinery five days a week (for undergrounding), eight hours a day you’re clearly creating significant motor emissions.”
Fourth District Court of Appeals Judge Judith Haller essentially agreed, joined by judges Judith McConnell and William Dato. The city, she ruled, exempts certain kinds of work from triggering a greenhouse gas emissions analysis under its Climate Action Plan, a policy document that’s supposed to guide San Diego toward cutting 50 percent of its greenhouse gas emissions by 2035. The city still has about 1,000 miles of overhead lines to bury with a goal of undergrounding 15 miles per year.
“Until such an analysis is completed, it is impossible for the city to know the environmental impact of its infrastructure projects,” the judge wrote in an Oct. 8 opinion.
The city assesses the environmental impacts of most development projects, like constructing an office or an apartment building, through a Climate Action Plan Consistency Checklist. The checklist asks whether the project could affect issues like air quality, tribal cultural resources, aesthetics and, of course, greenhouse gas emissions.
But a caveat exists for some projects like undergrounding, roads and pipelines, as Haller discovered in examining the checklists for the projects in question. A footnote within that checklist says projects that don’t require a “certificate of occupancy” don’t have to complete a greenhouse gas emissions analysis.
Certificates of occupancy are required for most buildings humans use, but that doesn’t include undergrounding work. Because the city doesn’t have to analyze its emissions under that rule, it concludes that there’s no significant emissions impact.
Haller took issue with that logic.
“The city’s distinction between projects that require a certificate of occupancy and projects that do not require a certificate of occupancy appears to have no rational basis,” the judge wrote. “The city may not conclude the projects are consistent with the Climate Action Plan simply by directing staff to skip the consistency analysis.”
In other words, if the city isn’t assessing the greenhouse gas impacts of its infrastructure projects, it can’t claim those projects are following the Climate Action Plan. And, the city likely isn’t working to mitigate those emissions.
McCann, who has long advocated for the city to preserve trees in her neighborhood, said she initially sued the city over this because she was upset about unsightly transformer boxes popping up near her property and the city removing trees without her knowledge.
“My concern initially was the trees. But that’s ridiculous,” McCann said, referring to what the case uncovered about the lack of emissions analysis.
The judge asked the city to go back and analyze whether the undergrounding projects are indeed consistent with the Climate Action Plan. But the city could argue that it doesn’t have to because these projects aren’t part of San Diego’s plan to cut greenhouse gas emissions anyway.
Tara Lewis, a spokeswoman for the city’s Sustainability Department which is responsible for the current Climate Action Plan passed in 2015, confirmed McCann’s case does have implications for how the city uses its checklist on public infrastructure projects.
“We are working on addressing this in the (Climate Action Plan) update and we are improving processes for those public infrastructure projects,” Lewis wrote.
A draft of the city’s Climate Action Plan update is due sometime this fall.
Correction: A previous version of this story identified Superior Court Judge Timothy Taylor as the judge who issued the ruling. The ruling came from Fourth District Court of Appeals Judge Judith Haller, joined by judges Judith McConnell and William Dato.