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| High-Impact CEQA Decisions | January 2012 |
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Greetings!
 The courts have continued to be active with land use and California Environmental Quality Act (CEQA) decisions, and a number of recent rulings have the potential to significantly affect environmental review of new development. Based on several conversations last week, many of you are already aware of these recent court rulings, but if not, you won't want to miss the short items provided in this issue of our periodic eAlerts, intended to help keep our clients and colleagues informed on the latest land use, planning, and CEQA developments. Sincerely,
Doug Herring, AICP
Photography by Doug Herring
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Impacts of the Environment on a Project Not Covered Under CEQA?
Last month the Court of Appeal ruled that an environmental impact report (EIR) is not required to address impacts of the environment on a proposed project--only the impacts of the project on the environment. Huh? I've been writing EIRs for well over 20 years, and all of them have addressed potential impacts on the project occupants extensively. Some EIR topical chapters, such as those addressing geology or hazards, seem almost exclusively concerned with such considerations.
Nonetheless, that was the ruling by the Second Appellate District Court in the Ballona Wetland Land Trust v. City of Los Angeles decision published in December. Despite court deferrals in many past court rulings to the CEQA Guidelines published by the California Resources Agency, the Court suggested in the Ballona ruling that Section 15126.2(a) of the Guidelines oversteps the CEQA statute. That section explicitly states that an EIR should address impacts associated with locating development in areas susceptible to hazardous conditions, such as flood hazards, wildfire risk, and more.
This decision has us scratching our heads and wondering if the Resources Agency is now going to substantially rewrite the CEQA Guidelines, the effective Bible of environmental review in California, or if the Legislature will enact clarifying legislation. Or perhaps this case will be appealed to the Supreme Court. In the meantime, lead agencies will need to make some challenging judgment calls when embarking on CEQA review of new projects.
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New Air District CEQA Guidelines Struck Down
This decision isn't such a head-scratcher, but it sure throws a new wrench into the already clogged machinery (I wanted to say "murky waters" but decided to spare you the mixed metaphors) of analyzing impacts from greenhouse gas (GHG) emissions. In June 2010, following several years of work, the Bay Area Air Quality Management District (BAAQMD) adopted new comprehensive CEQA Air Quality Guidelines, including revised significance thresholds for criteria air pollutants and new significance thresholds for GHG emissions. Additional thresholds for toxic air contaminants were phased in in May 2011. (Details about the new guidelines were provided in our June 2010 eAlert, which you can read here: June 2010 eAlert.)
This month the Alameda County Superior Court determined that the Air District failed to comply with CEQA, and indicated that it will strike down the BAAQMD's new CEQA Guidelines unless and until it conducts CEQA review of the guidelines. This will also invalidate the District's new significance thresholds for GHGs and TACs. Many of us in the CEQA community believed that the GHG thresholds were unduly stringent. But until this is resolved, Bay Area lead agencies will have another judgment call to make when it comes to evaluating air quality and GHG impacts.
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SB 375 Plan Challenged On Monday the California Attorney General and the Sierra Club joined a lawsuit challenging the Regional Transportation Plan/Sustainable Communities Strategy adopted last October by the San Diego Association of Governments (SANDAG). This was the first such plan adopted since Senate Bill 375 was passed in 2008. Among other provisions, SB 375 requires the State's 18 Metropolitan Planning Organizations to develop regional transportation plans that incorporate a "sustainable communities strategy" (SCS) that will enable the affected region to achieve the GHG reduction goals established by Assembly Bill 32, passed in 2006. The plaintiffs assert that SANDAG's plan does not meet the requirements of SB 375 (because GHG emissions will actually increase over the life of the plan), and that the EIR prepared on the plan was inadequate. |
Who Is Douglas Herring & Associates?
Douglas Herring & Associates (DHA) works with public agencies, developers, and other businesses in California to expertly obtain the environmental and planning approvals needed to move projects from the conceptual stage to physical, benefit-generating reality in an efficient and cost-effective manner. Since 1997, DHA has helped dozens of California cities and counties and scores of other businesses and organizations save money while obtaining high-quality planning and legally defensible environmental analysis services necessary to get their projects expeditiously approved and built. Learn more on our website: Douglas Herring & Associates.
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