Lay of the Land
Does CEQA require an evaluation not only of a proposed project’s potential impacts on the environment, but also of the potential impacts of the existing environment on the proposed project and its future residents or users? If the answer is “both,” then public agencies will be required to expand what has been the traditional scope of environmental review under CEQA. The practical effects would likely include an increase in the cost of preparation of CEQA documents, an expansion of the scope and cost of project mitigation measures, greater reliance by agencies on statements of overriding consideration, and enhanced litigation opportunities for project opponents.
This issue, which has come to be known by the shorthand expression “reverse CEQA,” is now under consideration by the California Supreme Court in California Building and Industry Association v. Bay Area Air Quality Management District. Oral arguments were heard on October 7, 2015, and a decision is expected by the first week of January 2016. Cox, Castle & Nicholson Partner Andrew Sabey argued before the Court on behalf of the California Building and Industry Association.
While the specific context of this case involves air-quality issues, during oral argument the Justices focused on the broader question of whether CEQA requires evaluation of those existing environmental conditions that may affect future residents or users of a proposed project. Depending on the scope and direction of the Court’s upcoming ruling, many existing conditions could become subject to CEQA evaluation, such as degraded air quality, odors, shadows from existing buildings, urban blight, impaired views, loss of night sky, noise, and so forth. Continue reading