On December 17, 2015, the Supreme Court filed a unanimous opinion in California Building Industry Association v. Bay Area Air Quality Management District (S213478). Interestingly, this is the first CEQA opinion to be drafted by the recently appointed Justice Cuéllar. This case pertains to the adoption of thresholds of significance for greenhouse gas emissions and toxic air contaminants by the Bay Area Air Quality Management District (BAAQMD). Some of these thresholds required lead agencies to analyze how toxic air contaminants would affect the residents and workers who would be brought to the area as a result of the proposed project.
Initially, the litigation concerned whether BAAQMD’s adoption of these thresholds was a “project” subject to CEQA review. The trial court found that it was and issued a writ of mandate invalidating the thresholds for failure to comply with CEQA. The First District Court of Appeal reversed, finding that the 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 prior CEQA review is not part of that process. Second, the thresholds were not a “project” because the “environmental change” alleged by California Building Industry Association (CBIA) was speculative and not reasonably foreseeable. The Supreme Court did not grant review over this issue and thus the Court of Appeal’s holding that the act of adopting thresholds is not a project under CEQA stands.
The Supreme Court granted review only on the narrow issue of whether CEQA requires an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project. At the appellate court, BIA had raised a facial challenge against BAAQMD’s air pollution thresholds, arguing they were contrary to a line of cases holding that CEQA does not require lead agencies to evaluate impacts of the environment on the proposed project — the so-called ‘CEQA in reverse’ issue. The First District dodged the larger issue and held that the receptor thresholds have valid applications irrespective of whether CEQA requires an analysis of how existing environmental conditions impact a project’s future residents or users, and therefore were not facially invalid. The Supreme Court chose not to review this holding.
The Supreme Court’s opinion centers on the amount of deference that should be given to the CEQA Guidelines. Specifically, Guidelines section 15126.2(a), which indicates with the following language that CEQA requires an evaluation of environmental conditions on a proposed project site if those conditions may cause substantial adverse impacts to future users of the project:
“The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected. For example, an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there. Similarly, the EIR should evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or in land use plans addressing such hazards areas.”
CBIA argued that this Guideline went beyond the scope of CEQA’s statutory language and should be struck down by the Court as invalid. The Court first held that Guidelines were entitled to great weight because of the Natural Resources Agency’s CEQA expertise and because the Natural Resources Agency adopted the Guidelines pursuant to the Administrative Procedures Act, with its inherent safeguards of notice and comment. But this deference does not extend to provisions that are “clearly unauthorized or erroneous” under CEQA.
Any statutory support for this Guideline would be found in Public Resources Code section 21083(b)(3), which states that “a project may have ‘a significant effect on the environment’” if “[t]he environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.” Despite the deference owed to the Natural Resources Agency’s interpretation of CEQA, the court found that section 21083 “does not contain language directing agencies to analyze the environment’s effects on a project” and that “[r]equiring such an evaluation in all circumstances would impermissibly expand the scope of CEQA.”
The court was also not persuaded that special CEQA requirements to consider the existing environment for certain airport, school, and housing construction projects evidenced a larger rule. Instead, the court viewed these as exceptions to the general rule that CEQA’s analysis is concerned with the project’s impact on the environment rather than with the environment’s impact on a project or its users.
However, the court found that in certain instances, a project may exacerbate the environmental hazards or conditions that already exist, and in those instances an agency must analyze the potential impact of such hazards on future residents. The court characterized this as a situation in which the project was affecting the environment by exacerbating these existing hazards.
The court found that some of the language in Guidelines section 15126.2(a) could be read as requiring an agency to consider this exacerbation issue; however, other language could not. Accordingly, the court invalidated the following language: “an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.”
As for the BAAQMD “receptor” thresholds, they will be considered on remand by the appellate court in light of the Supreme Court’s holding.
Key Point: Going forward, agencies are not prohibited from considering how existing conditions might impact a project’s future users or residents, but there is no longer a requirement to do so unless the project may exacerbate an existing onsite hazard.
Leave a Reply