Legal Alerts

California Appellate Court Weighs in Following State Supreme Court Decision

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.