Big CEQA News for Bay Area             
August 2013
In This Issue
Court of Appeal Reverses Judgment Against CEQA
Who is Douglas Herring & Associates?


I wanted to be the first (perhaps) to tell you about some  important CEQA news for the Bay Area. Read all about it!  


Doug Herring, AICP

Archives:  Our previous eAlerts are now archived at:  DHA eAlerts Archive   
Photography by Doug Herring


Court of Appeal Reverses Judgment Against BAAQMD    

As we wrote in our January 2012 eAlert, that month an Alameda County Superior Court judge struck down the California Environmental Quality Act (CEQA) guidelines and thresholds adopted in June 2010 by the Bay Area Air Quality Management District (BAAQMD) for failing to comply with CEQA in adopting the thresholds. The revised BAAQMD CEQA guidelines established new significance thresholds for greenhouse gas (GHG) emissions and more stringent thresholds for criteria air pollutants. The Air District phased in additional thresholds for toxic air contaminants in May 2011. You can read more details about the updated BAAQMD CEQA guidelines in our June 2010 eAlert.


That court decision meant that there were no regional thresholds of significance for air quality and GHG impacts in place for the nine-county Bay Area. It was up to individual cities and counties to adopt and defend their own standards. Although lead agencies were not legally required to employ the previous BAAQMD thresholds, in our experience, all Bay Area jurisdictions did in fact rely on them for their CEQA reviews.

A decision rendered last week by the First District Court of Appeal reverses the earlier judgment. In California Building Industry Association v. Bay Area Air Quality Management District (1st Dist., Div. 5, 2013), the court rejected the trial court's determination that the adoption of thresholds for CEQA review constituted a project that was itself subject to CEQA review.

The appeal court found that Section 15064.7 of the Statewide CEQA Guidelines establish procedures for adopting thresholds of significance, and those procedures do not require a prior CEQA review of the thresholds. Furthermore, the BAAQMD had undertaken a lengthy public review process, which is required by Section 15064.7, and the decision was supported by substantial evidence. The Court of Appeal also found that BAAQMD's 2010 thresholds were not a CEQA "project" because they would not cause a direct or reasonably foreseeable indirect physical change in the environment.

The Court also addressed a highly controversial issue raised in the Ballona Wetlands Land Trust v. City of Los Angeles (2011) case that we wrote about in our January 2012 and May 2012 eAlerts. Despite the explicit provisions of CEQA Guidelines Section 15126.2(a), the Court in the Ballona case (among others) held that an EIR is not required to address the impacts of the environment on a proposed project; it is only required to address the impacts of a project on the environment. In last week's California Building Industry Association (CBIA) decision, the Court noted that CEQA defines "significant" impacts to include substantial adverse effects on human beings, either directly or indirectly. CBIA had claimed that the BAAQMD's thresholds would require a consideration of the adverse effects of air pollution on the occupants of a project, in violation of CEQA case law. However, the Court of Appeal declined to decide on the validity of the Ballona case and similar cases addressing this issue. Instead, it found that the thresholds are not invalid on their face, and setting them aside would be inappropriate.

You can read more of the nuances of the case in the full decision here: CBIA v. BAAQMD.
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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