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Court holds that where an environmental assessment determines there are no significant impacts, the EA functions as a mitigated negative declaration and thus no mitigation or alternatives analysis is required. In W.M. Barr & Company, INC. v. South Coast Air Quality Management District, (2012) 2012 Cal.App.Lexis 759, the California Court of Appeal, Second District, addressed the South Coast Air Quality Management District’s (SCAQMD) Rule 1143 (Rule), which requires manufactures of consumer paint thinner and solvent products to limit volatile organic compounds (VOCs) in their products, consequentially resulting in more flammable products. The Rule also requires manufacturers to include product hangtags to alert consumers of the increased flammability. The court held the Rule was neither preempted by the Federal Hazardous Substances Act (FHSA) nor California State Air Resources Board (CARB) regulations. Additionally, the court held the district’s environmental assessment prepared for the Rule did not have to consider alternatives or mitigation measures under CEQA.

The lawsuit arose when petitioner, a Tennessee retail supplier of solvents, challenged SCAQMD’s Rule designed to reduce VOCs in consumer solvents and paint thinners. An environmental assessment revealed that the Rule would result in more flammable products to which consumers, familiar with the old, less flammable products, would not be accustomed, thereby increasing fire hazards. The Rule was therefore amended to require the products include hangtags to alert consumers of the changes. A supplemental environmental assessment concluded the amended Rule adequately addressed the fire hazards, reducing the Rule’s impacts to less than significant. Petitioner claimed the Rule was preempted by federal and state labeling laws and that SCAQMD did not comply with CEQA because its environmental assessment failed to consider alternatives or mitigation measures. The court reviewed those arguments on appeal.

Petitioner first claimed that the FHSA expressly preempted the Rule because it precludes states from establishing labeling requirements for hazardous substances that are designed to protect against the same risk that a federal requirement seeks to protect, unless the labeling requirement is identical to the federal requirement. In rejecting this claim, the court reasoned the hangtags required by the Rule did not interfere with the federally required labels and would even draw attention to them. Moreover, the hangtags were designed to address the risk that consumers may not be familiar with based on the reformulated product, and not the risk of fire hazards the federal label sought to address. Therefore, the FHSA did not expressly preempt the Rule because the Rule addressed a different risk than the FHSA requirements.

Petitioner next claimed that CARB’s subsequently enacted regulation pertaining to general purpose cleaners preempted SCAQMD’s Rule. Prior to SCAQMD’s adoption of the Rule, CARB advised SCAQMD that its governing preemption laws would not restrict SCAQMD’s authority to regulate a particular consumer product category, unless it had already been regulated by CARB. CARB specifically explained it had not yet adopted regulatory requirements for paint thinners and multipurpose solvents, so SCAQMD could adopt its own requirements. Pursuant to principles of statutory construction, the court gave great weight to CARB’s interpretation of its governing statute and agreed with its interpretation. SCAQMD’s Rule, therefore, was not preempted by state law.

Finally, the court concluded CEQA did not require SCAQMD to analyze alternatives or mitigation measures for the Rule. The Secretary for Resources has determined that the portion of SCAQMD’s regulatory program involving the adoption, amendment, and repeal of regulations pursuant to the provisions of the Health and Safety Code is a certified regulatory program under CEQA. (CEQA Guidelines, § 15251, subd. (l).) SCAQMD, therefore, analyzed the potential environmental impacts of the Rule pursuant to its certified regulatory program. SCAQMD produced a supplemental environmental assessment for the Rule, which concluded all potential environmental impacts of the Rule would be less than significant with hangtags on the affected products. The court found that substantial evidence supported this conclusion. Because the Rule as proposed did not have the potential to result in any significant environmental impacts, the court determined that the supplemental environmental assessment functioned as a mitigated negative declaration rather than an EIR. As such, the document was not required to include feasible alternatives and mitigation measures under CEQA.

Key Point:

Where an environmental analysis prepared under a certified regulatory program properly serves as the functional equivalent of a mitigated negative declaration, as opposed to an EIR, the analysis is not required to include a discussion of feasible alternatives or further mitigation measures.

Written By: Tina Thomas, Amy Higuera and Grant Taylor (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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