Petition for Review Granted

November 26, 2013

Current Status

Fully briefed by the parties as of March 17, 2014.

Amicus briefing complete as of May 28, 2014.

Court’s Statement of Issue(s) Presented

Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq., hereinafter CEQA) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

Summary of the Parties’ Arguments

California Building Industry Association (BIA) argues Toxic Air Contaminant (TAC) Receptor Thresholds established by Bay Area Air Quality Management District (BAAQMD) are impermissible because they require an analysis of the impact of the environment on a project and its future users.  BIA argues that the purpose of CEQA is to protect the environment, not to protect projects from the environment.  BIA cites “an unbroken line of cases” that support this position, and cites a “host of other laws” aside from CEQA that protect future users of a project from the environment.  BIA acknowledges that an analysis of impacts of the environment on a project are sometimes required by CEQA in specific situations, but there is currently no general mandate to analyze those impacts, and it is up to the Legislature to create such a mandate if it chooses.  Additionally, BIA argues that CEQA Guidelines section 15126.2(a) and Appendix G, both of which are relied on by BAAQMD, distort the purpose and scope of CEQA, and should thus be rejected.

BAAQMD counters that CEQA properly applies to any project that may expose users to “disagreeable conditions,” regardless of whether the project contributes to those conditions or not.  As relates to its TAC Receptor Thresholds, BAAQMD argues that siting a development in an area with existing odors and high levels of TACs requires the lead agency to analyze those issues and impose mitigation measures to alleviate them, even if the new project makes no contribution to the existing environmental effects.

Parties/Counsel

Plaintiff and Respondent:

• California Building Industry Association, Represented by Cox Castle and Nicholson LLp

Defendant and Appellant:

• Bay Area Air Quality Management District, Represented by Bay Area Quality Management District Office of Legal Counsel and Shute Mihaly and Weinberger LLP

Procedural History

BAAQMD formally adopted a series of CEQA thresholds of significance for air contaminants and greenhouse gasses without first conducting CEQA analysis.  BIA filed a petition, challenging the thresholds and the lack of analysis.  The trial court issued a writ of mandate invalidating BAAQMD’s TAC thresholds, agreeing with BIA that adoption of the thresholds was a “project” under CEQA and thus BAAQMD should have conducted environmental review.

The First Appellate District Court reversed the trial court’s holding, finding that the TAC thresholds were not subject to CEQA review for two reasons.  First, the CEQA Guidelines establish the required procedure for enacting generally applicable thresholds of significance, and a prior CEQA review is not part of that process.  Second, the thresholds were not a “project” because the “environmental change” argued by BIA was speculative and not reasonably foreseeable.  The court also held that the TAC Receptor thresholds were not facially invalid and BAAQMD’s approval of them was not arbitrary and capricious because they were supported by substantial evidence.

Amicus Curiae Briefs

• League of California Cities, County of Tulare, County of Kings, and County of Solano, in Support of Neither Party;  Amici argue CEQA does not require lead agencies to analyze the impacts of the existing environment on projects and their future users.  Amici allege requiring such an analysis would be unnecessary as a policy matter because such impacts are addressed through several other laws and through the exercise of a local public agency’s police power and land use regulations.  Lastly, amici urge the court to affirm the appellate court’s ruling that respondent’s TAC Receptor Threshold do have potentially valid applications.
• Communities for a Better Environment, in Support of Defendant and Appellant;  Amicus argues CEQA requires an analysis of “existing environmental conditions” where they may have substantial adverse impacts on future users of the project.  Amicus also argues the analysis used for the TAC Receptor Thresholds is an appropriate use of BAAQMD’s authority.  CEQA is a critical tool, both in serving as a venue for communities to participate in decisions that impact them, and in providing a process to ensure informed and well-reasoned decisions are made.  Amicus urges the court to uphold BAAQMD’s interpretation of CEQA, because that would ensure CEQA’s protections extend to all future and existing members of communities suffering from environmental injustice.
• California Chapter of the American Planning Association and California Association of Environmental Professionals, in Support of Defendant and Appellant;  Amici argue that CEQA’s plain language and clear legislative intent cover human exposure to hazardous or unhealthy environmental conditions.  CEQA provides a clear systematic framework for lead agencies to disclose significant adverse impacts of the existing environment on future users, and lead agencies have been performing this analysis for decades.  Amici argue eliminating this protection by not requiring such an analysis would take away the critically important role CEQA has of maintaining “a quality environment for the people of this state now and in the future.”
• South Coast Air Quality Management District, in Support of Defendant and Appellant;  Amicus urges the court to conclude that the risk of exposure to TACs should be analyzed under CEQA for a project that proposes to place receptors closer to such risks.  Amicus argues that people living and working near sources of TACs have higher health risks when compared to the general population, and policies promoting infill development can adversely impact environmental justice communities.  Amicus further argues that analyzing the impacts associated with exposing users of a project to TACs is consistent with the requirements of CEQA, as CEQA is full of policies that are specifically aimed at protecting public health and safety.  According to amicus, failing to require such an analysis under CEQA is a lost opportunity to mitigate those impacts.    

Case Implications

If the court rules in favor of BIA, lead agencies would have certainty that they are not required to examine existing environmental effects on a project’s future users, consistent with a long line of cases supporting this position.  A ruling in favor of BAAQMD would add to the analysis lead agencies must undertake to determine a project’s impacts, to also determine whether there will be environmental impacts on project users, arguably an impermissible expansion of the scope of CEQA.

Key Cases that May be Affected by the Court’s Ruling

• Baird v. County of Contra Coast (1995) 32 Cal.App.4th 1464;  The court held that CEQA does not require an EIR for a project that “might be affected by preexisting conditions, but will not change those conditions or otherwise have a significant effect on the environment.” (Id. at p. 1466.)
• City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889;  The court stated that the purpose of the EIR under CEQA is to identify significant effects the project will have on the environment, not vice versa.  However, in this case, the school district did analyze risks of exposing staff and students to the existing air contamination because it was specifically required under CEQA section 21151.8.
• South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604;  The court rejected petitioners’ argument that the lead agency should be required to mitigate for existing odors from an adjacent sewage plant to protect the project’s future residents, stating that CEQA’s legislative intent is to protect the environment, not a project from the environment.
• Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455;  The court held that CEQA does not require the lead agency to identify environmental effects on the project and its users.  The court in this case also addressed CEQA Guidelines 15162.2(a), stating that it was only valid to the extent it would require analysis of “impacts on the environment caused by the development rather than impacts on the project caused by the environment.”  (Id. at p. 474, fn. 9.)