San Diego is being sued over the medical marijuana ordinance it passed in March on grounds that it violates a California law governing pollution by limiting the number of pot shops without conducting a proper environmental study.
The Union of Medical Marijuana Patients (UMMP) argued in its lawsuit (pdf) filed last week in San Diego County Superior Court that the city failed to assess the impact of its restrictions that limit how many cooperatives can grow pot as required by the California Environmental Quality Act (CEQA).
The city responded that it has no such obligation.
CEQA is the landmark 1970 law that requires the ubiquitous environmental impact reports, which compel project developers to identify problems and mitigate them ahead of time. CEQA makes environmental protection part of every government decision at the state and local level by mandating a process of analysis, mitigation and transparency.
San Diego's ordinance limits the number of medical marijuana cooperatives to four per City Council district and 36 overall. The lawsuit says that an analysis by the San Diego Regional Planning Agency (SANDAG) indicates that three of the districts don't really have places for four cooperatives and the true total number is actually 30. Those cooperatives will be concentrated in a few areas.
That will result in “thousands of patients” having to drive great distances to buy pot, causing traffic and air pollution, and should have triggered an environmental impact report. Some areas will be more heavily impacted than others, with no mitigation measures in place to relieve the burden.
The city claims that the ordinance is not a “project” and, therefore, not subject to CEQA guidelines: “Adoption of the ordinance does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” It did say, however, that “future projects” will require CEQA review.
Courts have generally interpreted what constitutes a “project” broadly and may be the point upon which this case turns.
Limits on cooperatives growing pot will pressure patients to grow their own indoors, as permitted by ordinance, the suit contends. UMMP predicts the “proliferation of small indoor cultivation sites” will have significant environmental effects. Indoor cultivation uses a lot of energy, raises indoor carbon dioxide levels and increases the carbon footprint.
The lawsuit projects 26,451 home sites growing 19,838 pounds of pot a year and includes this little-known fact: “In California, the top-producing state, indoor cultivation is responsible for about 3% of all electricity use or 9% of household use. This corresponds to greenhouse-gas emissions equal to those from 1 million cars.”
Growing outdoors presents its own challenges. “These include deforestation; destruction of wetlands, runoff of soil, pesticides, insecticides, rodenticides and human waste; abandoned solid waste; and unpermitted impounding and withdrawals of surface water. These practices can compromise water quality, fisheries and other ecosystem services.”
UMMP Executive Director James Shaw told the San Diego Reader he sympathizes with cities grappling with producing an ordinance that protects the interests of both the government and patients. That's why he offered to help the city draft an ordinance that struck a balance. He said the city never responded.
The group now wants the ordinance put on the back burner until a CEQA review is completed. The city’s zoning plan restrictions must be approved by the California Coastal Commission and could be completed within 90 days.