City Attorney Candidate Backs Off Climate Plan Claim But Leaves
a Giant Question Lingering
By Andrew Keatts | May 17, 2016
City Attorney Mara Elliott made a bold claim last week about
the Climate Action Plan. Contrary to popular belief, she said,
residents wont be able to sue over it if the city fails
to meet the ambitious standards it set.
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 cant picture how anyone
could hold the city accountable under the plans terms.
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.
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 attorneys office that people could sue the
city if it doesnt cut greenhouse reductions 15 percent
by 2020 and 50 percent by 2035.
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, itll 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, Elliotts 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.
Faulconers office and City Attorney Jan Goldsmith agree
that citizens can sue if the city doesnt meet its overall
greenhouse gas reduction targets, but that all the individual
steps described in the plan are fundamentally optional. Thats
always been Faulconers case.
In terms of the citys legal liability, all that matters
is the overall emissions reductions.
The city attorneys office never issued an official
legal opinion on the issue. After Elliotts statements,
Faulconers office said it would request clarification.
But since the city wont be held accountable until its
already too late when it has already emitted more greenhouse
gasses than it said it would its clear the plan
needs to be stronger, Rottenstreich said.
If you dont want action on climate, the plan
as it stands now is fine, he said.
Other plaintiffs attorneys in the area who often sue
cities over failure to comply with the California Environmental
Quality Act recognize the uncertain situation the citys
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
Law is full of gray areas, and were definitely
entering some gray areas here, said Everett DeLano,
an Escondido-based CEQA attorney.
DeLano, though, said its 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.
Lets say you have 10 requirements, and the city
accomplishes eight of them, but they still meet their reduction
targets, DeLano said. Thats a tough call.
Thats where youd 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 arent engineers, he said. They
arent 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 werent met.
She said its 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, its too late.
I mean, whats the judge going to say? said
Chatten-Brown. Go back to the drawing board? Thats
why its so important to have specific deadlines that
means you dont 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 citys 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
Thats the remedy I think a plaintiffs attorney
would seek, she said. I couldnt 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 doesnt 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 isnt 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 cant 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 theyre 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
Parsing the details of how lawyers could structure hypothetical
lawsuits misses the point, Rottenstreich said.
What Maras saying is, we need more action,
he said. Without more action, the city wont achieve
its climate goals.