Car Exhaust in TrafficOn remand from the California Supreme Court, the First Appellate District has issued its second ruling in California Building Industry Assn. v. Bay Area Air Quality Management District. In this case, CBIA challenged BAAQMD’s 2010 “CEQA Air Quality Guidelines”—specifically, the Guidelines’ thresholds and methods for assessing the effects of siting new sensitive receptors (residences) near existing sources of toxic air contaminants and other harmful air emissions, such as freeways. Last year, the California Supreme Court held that CEQA “does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents” (so-called ‘CEQA-in-Reverse’). Requiring analysis of the existing environment’s effects on a project, the Supreme Court emphasized, would “impermissibly expand the scope of CEQA.” The Supreme Court remanded the case to the First District Court of Appeal to apply its general ruling to the specific aspects of the BAAQMD Guidelines still in dispute.

BAAQMD argued on remand that despite the Supreme Court’s ruling, the receptor thresholds adopted by BAAQMD did not need to be set aside “because there are legitimate circumstances in which they could be utilized during the CEQA process.” The appeals court agreed, holding that:

  • While the Supreme Court’s ruling forecloses an agency from requiring private applicants or other agencies to apply the thresholds, “an agency may do so voluntarily on its own project and may use the Receptor Thresholds for guidance”;
  • Agencies can rely on the receptor thresholds to address the degree to which a project might worsen (or “exacerbate”) environmental conditions;
  • Agencies can rely on the receptor thresholds to “assess the health risks to students and employees at a proposed school site,” a circumstance in which the CEQA statute specifically requires consideration of the environmental effects of locating new receptors at a proposed project site; and
  • The thresholds may be used to “evaluate whether a housing project [is] exempt from CEQA review.”

BAAQMD further argued that the threshold could be used to “determine whether a particular project is consistent with a general plan.” The court declined to rely on this reasoning, as it was too speculative.

Ultimately, the court ruled that, “[b]ecause the Receptor Thresholds themselves may be used under certain circumstances consistent with CEQA, they . . . need not be set aside in their entirety.” Nevertheless, because BAAQMD’s Guidelines remained “misleading” in scope, the court instructed the trial court to partially grant the writ and invalidate those portions of the Guidelines “suggesting that lead agencies should apply the Receptor Thresholds to routinely assess the effect of existing environmental conditions on future users or occupants of a project.”

Finally, with respect to an award of attorneys’ fees, the court noted that CBIA had now “prevailed in part on one of the issues it raised in this proceeding” and that “[p]artially successful plaintiffs may recover attorney fees under Code of Civil Procedure section 1021.5.” Therefore, on remand, the trial court would need to “determine CBIA’s entitlement to attorney fees on appeal and the amount of any such fees (including fees for proceedings in the Supreme Court), in addition to the fees it awards, if any, for the litigation in the trial court.”