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