A dispute has arisen in San Diego over whether or not developers should be able to offset their contribution to alleged greenhouse-gas (GHG) emissions. The contestants include, of course, developers, the County of San Diego and a sampling of California’s most aggressive environmentalists. And, to settle the argument the latter interests have chosen to sue.
Typical. Even before all else had failed, or even been tried, environmentalists – led by the extremely litigious Sierra Club – went to court. No mediation. No negotiations. No discussion. The groups are suing because it’s what they do. In fact, they’ve been victorious in a number of court clashes with the County in recent years over County obligations to limit greenhouse gases.
Sue first, ask questions later. After all, lawsuits make money for litigants. With environmental lawyers charging in excess of $400 per hour for legal services, it’s no wonder that between 2003 and 2007 non-profit environmental groups filed more than 1,500 lawsuits in federal court and, in turn, the government paid out more than $4.7 billion in taxpayer dollars in settlements and legal fees to litigants. Is it any surprise that this year’s combined budgets of California’s two premier environmental agencies – the Environmental Protection Agency and the Natural Resources Agency – was over $10 billion? One wonders how much of that $10 billion is going to settle lawsuits.
Nationwide, the Sierra Club Foundation earned nearly $94 million in revenues in 2016, according to tax returns filed that year. Most of the money is earned in a courthouse through an assortment of legal defense tactics. The game goes something like this: 1) the group files suit; 2) to line their pockets with billable hours, the attorneys demand extensive discovery motions; 3) those motions granted, environmental attorneys run up the case costs even more by entering studies into the record, by bringing in expert witnesses and through other litigation maneuvers; 4) they then play a stall game, all the while raising the defendants’ legal expenses; and 5) they settle and typically reap 100% of very substantial court costs – fees included – almost always awarded by the judge.
(Now comes word that the Natural Resources Defense Council (NRDC) is under investigation by the U.S. Congress for allegedly colluding with the People’s Republic of China in the filing of lawsuits against the U.S. military – risking national security. The lawsuits – one of which went all the way to the U.S. Supreme Court (“the Court”) – dealt with the use of sonar and explosives during maneuvers off waters along the west coast of the United States.)
Regarding the San Diego litigation, this time the complainants allege that the credit-swapping strategy to be adopted by county supervisors undermines the jurisdiction’s pledge to limit emissions within its borders. “This is just another way for the County to get around requirements that are very clear,” says Ruben Arizmendi, chair of the steering committee for Sierra Club’s San Diego chapter.
But, such a system – selling offsets to willing “polluters” – has been around for more than a decade. After all, the state’s “cap and trade” program does every year what the supervisors propose to initiate in their region. The credits the County intends to sell would be bought through accredited carbon registries, such as Climate Action Reserve, American Carbon Registry and Verified Carbon Standard – and could represent projects located anywhere in the world.
Those facts notwithstanding, the litigants are moving forward with their court action anyway. They assert the County’s plan has the potential to upend climate-change mitigation plans around the state, which have been largely focused on limiting suburban development and encouraging denser construction along transit corridors. They also say that the use of offsets could create significant challenges for government agencies adjacent to the County when trying to account for their reductions in climate emissions.
They say, for example, the City of San Diego could see its climate-change plan impacted by GHG-consequential “new vehicles trips” that the County is cancelling out in its new plan. Incidentally, the County’s plan is being put forward due to the region’s woeful lack of housing production in recent years.
In support of that plan, experts agree that the quality of carbon offsets has dramatically improved in recent years, and there are real benefits to be reaped from such investments.
“Some offsets are real,” said Mark Jacobsen, professor of economics at the University of California, San Diego, who studies environmental regulations. “There’s no question about that. The thing that worries people is the incentives for developers to look for cheaper offsets.”
God forbid business looking for the cheapest way out of governmental regulation.
Why are regulators worried about the private sector saving money? It’s because with the mitigation they and their environmental colleagues foresaw in the development of AB 32, the 2006 law that gave rise to offsets in the first place, they sought to not just tax but to punish business in California.
“Why should business profit off the degradation of the planet?” asked one of the environmental representatives during negotiations of AB 32.
More litigation is precisely what private-sector AB 32 negotiators worried the new law would produce. All over the state, the California Air Resources Board (CARB), joined by its environmental denizens, has plied lawsuits, injunctions and other court actions to thwart development plans in the name of global warming. And, as well-capitalized financially as they are, they usually prevail.
A mugging, indeed.