Best Best & Krieger News Feed

Air Quality District’s CEQA Thresholds Limited

18 Aug 2016 00:00:00 -0800

A significant new decision that could impact lead agencies’ California Environmental Quality Act analysis of toxic air contaminants was handed down this week by a California appellate court. The First District Court of Appeal upheld the CEQA thresholds of significance adopted by the Bay Area Air Quality Management District, which were challenged by a building industry group, but found that the thresholds — as to toxic air contaminants — may be used in only limited circumstances.

The decision comes in the wake of a California Supreme Court decision rendered late last year, which sent the case back to the lower appellate court. In 2010, the District adopted thresholds of significance that set a limit on the level of toxic air contaminants and particulate matter that could be experienced by residents and workers brought to an area as a result of a proposed project (“receptor thresholds”). The California Building Industry Association challenged these thresholds on grounds that CEQA does not require an analysis of an existing condition’s impact on a new project’s occupants.

Last year in California Building Industry Association v. Bay Area Air Quality Management District, the Supreme Court agreed with CBIA, finding that CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users and residents. The Court struck down a portion of State CEQA Guidelines section 15126.2(a) on grounds it was inconsistent with this general rule and therefore unauthorized by CEQA. The Court explained that the rule against requiring analysis of an existing condition’s impacts on a project’s users would not apply where a project could exacerbate existing environmental hazards. The Court remanded the case to the Court of Appeal to determine whether the District’s receptor thresholds were consistent with its decision.

On remand, the District acknowledged — and the appellate court agreed — that a lead agency cannot require a project proponent to obtain an EIR or implement mitigation measures based solely on the impact the existing environment would have upon future users or residents. Nonetheless, the District argued that the receptor thresholds did not need to be set aside because there were legitimate circumstances in which they could be utilized. The Court of Appeal ruled on each circumstance raised:

The voluntary use of receptor thresholds must be limited to an agency’s proposed projects, and cannot be imposed on third party project proponents.
Receptor thresholds can be applied to any new project to determine whether it would worsen existing conditions and thus affect future users of the project.
Receptor thresholds can be used by a school district acting as a lead agency to assess such hazards.
A lead agency charged with CEQA review of a project governed by certain housing development exemption provisions can apply the receptor thresholds to determine whether air quality posed a health risk to future occupants of such a qualifying housing project.
While the District argued the receptor thresholds could be used to determine whether a particular project is consistent with a general plan and the Court did not rule out the possibility, it declined to make such a determination because the District did not provide the Court with a concrete example of such a use.

For the above reasons, the Court concluded that a lead agency may rely on the receptor thresholds in certain circumstances. The Court remanded the case to the trial court with instructions to partially grant CBIA’s petition for writ of mandate, thereby invalidating that portion of the District’s CEQA Guidelines that suggest that lead agencies should apply the thresholds to “routinely assess the effect of existing environmental conditions on future users or occupants.”

If you have any questions about this opinion or how it may impact your city agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

EPA Issues New Regulation Governing Air Quality Standards for Ozone

13 Oct 2015 00:00:00 -0800

The United States Environmental Protection Agency issued a final rule earlier this month strengthening the National Ambient Air Quality Standards for ground-level ozone, changing it from 75 parts per billion to 70 ppb. EPA believes the updated standards will serve to protect the public from adverse health effects associated with long-term ozone exposure, such as asthma.

While the regulatory action may serve to protect public health, it could also prove costly for California’s public agencies. Since 2008, California has spent nearly $3 billion on funding innovative technologies to combat ozone pollution, such as zero-emission trucks and buses and near-zero emission freight equipment. Even with these investments, EPA believes California will likely need to undergo a “transformational change” to meet the updated standards. According to EPA, the State may need to “transition to largely zero or near-zero emission vehicle technologies.”

As a result of this recent rulemaking, the California Air Resources Board will need to submit an Infrastructure State Implementation Plan to EPA. This I-SIP is due in 2018, and will detail the regulatory programs and resources California plans to utilize to implement the new ozone standards. While it is still early in the regulatory process, EPA estimates that a number of California counties will have attainment dates ranging from 2032 to 2037.

For more information or to discuss how these standards may affect your agency or CEQA process, please contact the attorney authors of this legal alert listed to the right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Trial Court Rescinds Voter-Approved Housing Cap; Orders City to Amend Land Use Plans

23 Mar 2010 00:00:00 -0800

In a recent ruling with potentially wide-ranging and immediate impacts on local land use authorities, the Alameda County Superior Court has ordered the City of Pleasanton to rescind its voter-approved housing cap on grounds that the cap violates state law and prevents the City from meeting state-mandated housing requirements.

The decision in Urban Habitat Program v. City of Pleasanton, Case No. RG06-293831 (March 12, 2010), involved Measure GG, a housing cap passed by the City’s voters in 1996. Measure GG limited the City to approving no more than 29,000 additional housing units. Urban Habitat Program argued that Measure GG conflicted with state law which allows local authorities to make land use decisions within their borders, provided that adequate provision is made for the housing needs of all economic segments of the community. The court held that, in order to meet these housing goals, cities, counties and other local land use authorities are required to maintain an inventory of land available for residential development and allow that land to be developed to the extent necessary to accommodate the Regional Housing Needs Allocation (RHNA). In 2003, the City adopted a general plan housing element which admitted that Measure GG prohibited the City from approving the number of housing units needed to comply with the RHNA.

Of note, the California Attorney General intervened in the case in support of Urban Habitat Program. He argued that by lifting the City’s cap on housing construction, it would allow the co-location of housing near the City’s many jobs. Specifically, the Attorney General argued that a reduction in greenhouse gas emissions would result if housing was provided for some or all of the 40,000 workers that currently commute to and from the City. His arguments echoed the requirements of recently enacted Senate Bill 375, which requires that planning decisions integrate the location of housing with existing and planned transit facilities and job-rich areas, thus reducing greenhouse gases caused by commuters and other traffic. In part, SB 375’s requirements would be implemented through adjustments periodically made to the RHNA.

Ultimately, the Superior Court ruled that Measure GG was void because it was in direct conflict with state law. Further, the court ordered the City to amend its zoning and land use plans to accommodate the unmet RHNA allocation for the 1999-2007 planning period. The court made no express ruling on the Attorney General’s arguments. However, this case promises to be one of many which ties the requirements of SB 375, RHNA allocations and land use decisions to global warming implications.

For more information on how this decision may impact your projects, please contact your Best Best & Krieger attorney, Beth Dorris or an attorney in the firm’s Environmental Law & Natural Resources practice group.

Disclaimer: BB&K e-Bulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

SB 375: Greenhouse Gas Relief or New Source of Indigestion?

16 Apr 2009 00:00:00 -0800

Please email Katey Lamke at Katey.Lamke@BBKlaw.com for a copy of the webinar recording.

The 90 minute webinar included:

Where does SB 375 fit within California's greenhouse gas regulatory formula?
What implications will SB 375 have on regional transportation and housing?
How will SB 375 interface with environmental review under CEQA?

Beth Dorris on Climate Change Panel at LACBA Environmental Symposium

27 Mar 2009 00:00:00 -0800

BB&K Partner Beth Dorris participated on a climate change panel at the LACBA's 23rd Annual Environmental Law Super Symposium. The panel, titled "A Climate Change Odyssey," discussed:

CARB's final AB 32 Scoping Plan, which contains main strategies California will use to reduce the GHGs that cause climate change, the implementation process and response to the Plan from environmentalists and industry representatives.
How will California achieve its carbon reduction goals by 2020? What are the implications for affected industries, the State's economy and lawyers counseling affected clients? What are the potential implications of federal GHG legislation?

For more information, visit the LACBA website.