Judge James A. Mangione, Case Number: 37-2023-00008265-CU-TT-CTL, Date: 2024-06-14 Tentative Ruling

Judge: James A. Mangione, Case: 37-2023-00008265-CU-TT-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 14, 2024

06/14/2024 01:30:00 PM C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited Toxic Tort/Environmental Hearing on Petition 37-2023-00008265-CU-TT-CTL THE PROTECT OUR COMMUNITIES FOUNDATION VS COUNTY OF SAN DIEGO [E-FILE] CAUSAL DOCUMENT/DATE FILED:

The Court's tentative on Petitioner's Writ of Mandate is as follows: As to the First Cause of Action, the Court finds that Respondent did not violate the California Environmental Quality Act ('CEQA') and denies the writ.

'CEQA applies to activities proposed to be carried out or approved by a public agency that both (1) are discretionary and (2) satisfy the requirements for a project under [Public Resources Code] section 21065.' (Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1191.) As relevant here, a project under CEQA is defined as an 'activity directly undertaken by any public agency' 'which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment'. (Pub. Resources Code § 21065(a).) The term 'project' means 'the whole of an action' and is broadly interpreted. (POET, LLC v. State Air Resources Bd.

(2017) 12 Cal.App.5th 52, 73 (some quotation marks omitted) (citing Guidelines, § 15378(c)).) 'Whether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact.' (Union of Medical Marijuana Patients, 7 Cal.5th at 1195–1196 (quotation marks omitted).) '[A] 'reasonably foreseeable' indirect physical change is one that the activity is capable, at least in theory, of causing. (Guidelines, § 15064, subd. (d)(3).) Conversely, an indirect effect is not reasonably foreseeable if there is no causal connection between the proposed activity and the suggested environmental change or if the postulated causal mechanism connecting the activity and the effect is so attenuated as to be 'speculative.'' (Id. at 1197.) The petition defines the project as 'County's [August 31, 2022] decision to implement the Technical Report'. (ROA 1, ¶ 67.) Similarly, Petitioner's reply brief frames the project as 'announcing the Technical Report was final and directing staff to develop implementation plans based on its contents'. (See Pet.

Reply Br., pg. 8, fn. 1.) This type of claim 'is predominantly one of improper procedure [citation] to be decided by the courts independently.' (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 129 (quotation marks omitted).) Although Petitioner ardently challenges the accuracy of the findings within the Technical Report, the alleged CEQA violation is County's failure to conduct CEQA review rather than insufficiency of the review. As such, '[t]he claim goes not to the validity of the agency's factual conclusions but to the required timing of its actions.' (Id.) County contends that the completion of the Technical Report was simply an update on the Integrated Regional Decarbonization Framework ('RDF') and is exempt from CEQA review under Guidelines §§ 15060(c)(3) and 15378(b)(5) 'because receiving an update on the [RDF] is administrative in nature and Calendar No.: Event ID: TENTATIVE RULINGS

3080024 32 CASE NUMBER: CASE TITLE: THE PROTECT OUR COMMUNITIES FOUNDATION VS COUNTY OF SAN 37-2023-00008265-CU-TT-CTL is not a project as defined' by CEQA. (ROA 62, pgs. 15-16; AR 2.) County also contends that the August 31, 2022 Decision 'did not adopt, approve, or take any other action on the Technical Report'. (ROA 62, pg. 16 (citing AR 1-2).) The Court agrees with County's position. The Technical Report is one piece of the RDF, which is an overarching framework for tackling climate change. By its own terms, the Technical Report 'provides technical analysis and intends to inform decision making and implementation plans, but it is neither a decision-making document nor an implementation plan' and its findings 'are not recommendations to the County, any city, jurisdiction, municipality, government or agency.' (AR 83 (emphasis in original).) It is simply a collection and analysis of data. The Court has not been asked to determine, and does not opine, on whether the Implementation Playbook or the RDF are projects under CEQA. As such, the Court's review is limited to whether completion of the Technical Report 'may cause . . . a reasonably foreseeable indirect physical change in the environment'. (Pub. Resources Code § 21065(a).) For the reasons discussed above, the Court finds it will not.

The Court similarly finds that, even assuming the Technical Report was a project, there was no 'approval' of it by the Board. 'The CEQA Guidelines define 'approval' as 'the decision by a public agency which commits the agency to a definite course of action in regard to a project.'' (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 130 (citing Guidelines, § 15352(a)).) While it can sometimes be difficult to discern whether/when approval of a project occurs, courts should analyze 'the surrounding circumstances to determine whether, as a practical matter, the agency has committed itself to the project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project.' (Id. at pg. 139.) While the Technical Report is intended to be used to design the Implementation Playbook, it is only one of several sources the County is utilizing. (AR 898.) In addition to community outreach, supplemental research is ongoing. (AR 898; ROA 66, Pet. RJN, Ex. 1.) Furthermore, the Implementation Playbook itself 'is not a plan', has 'no enforceable mandates and milestones' and is intended to serve as 'the bridge between the studies and the implementation actions'. (AR 899.) As such, there is no evidence that the County has precluded any alternatives beyond summarily turning the Technical Report into the Implementation Playbook.

For the reasons discussed above, Petitioner's writ is denied as to the first cause of action.

As to the Second Cause of Action, the Court will hear from the parties as to the following: - Assuming arguendo that the single source contract with University of California San Diego School of Global Policy and Strategy ('UCSD GPS') was a violation of the competitive bidding requirements, what relief is warranted given that the contract is complete, and what is the practical effect of awarding that relief? - Does the instant writ also challenge the single source contract with Alliance for Sustainable Energy LLC ('Alliance') authorized by the Board on April 10, 2024? If so, what relief is warranted? - Under CCP § 1085, what, if any, deference does the Court owe to the County's factual findings underpinning its decision to award a single source contract? - What is the County's evidentiary and/or factual burden for determining that a single source contract should be awarded? Calendar No.: Event ID: TENTATIVE RULINGS

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