Articles Tagged with Reverse CEQA

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. . . there’s something new on “Reverse CEQA.”  We discussed in a prior “Lay of the Land” post the Court of Appeal’s decision that the Bay Area Air Quality Management District cannot require an EIR simply because existing air contaminants may impact a project’s future users or residents. The Air District asked the Court of Appeal to reconsider its decision, arguing that it was improper to order the Air District to revise its thresholds to comply with the Supreme Court’s earlier holding that CEQA is ordinarily concerned with a project’s impact on the environment, and not the environment’s impact on the project.

On September 9, the Court of Appeal modified its published opinion to explain further why it rejected the Air District’s arguments. The Court held that the Air District’s thresholds of significance, which suggested a “routine analysis of whether new receptors will be exposed to specific amounts of toxic air contaminants,” needed to be revised “given the clarity of the Supreme Court’s decision that such an analysis oversteps the bounds of CEQA except in specified circumstances.”

The case will now return to the trial court for the issuance of a writ of mandate compelling revision of the thresholds.

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In a decision that should provide more certainty for the development of residential infill and transit-oriented projects, the Court of Appeal recently held that the California Environmental Quality Act (CEQA) “cannot be used by a lead agency to require a developer or other agency to obtain an EIR or implement mitigation measures solely because the occupants or users of a new project would be subjected to” contaminant levels above an air district’s thresholds of significance. Because residential infill and transit-oriented projects are often located near existing sources of air quality impacts (freeways, for example), this decision should help ensure that these much-needed housing projects don’t get mired unnecessarily in costly and time-consuming environmental review processes.

The California Supreme Court held last year in CBIA v BAAQMD that CEQA generally applies to a project’s impact on the environment, not the environment’s impact on the project.  While acknowledging that CEQA is concerned with human health, the Court agreed with the California Building Industry Association (CBIA) that CEQA’s relevant provisions “are best read to focus almost entirely on how projects affect the environment.” Stretching the definition of “environment” to include the future users of a project would allow CEQA to cover “nearly any effect a project has on a resident or user.” This led the Court to conclude that, generally, any requirement to analyze the “environment’s effects on a project” is invalid.

At the center of the litigation was the Bay Area Air Quality Management District’s “Receptor Thresholds” which sought to measure whether existing air quality issues would impact the future residents of new housing projects. CBIA and affordable housing advocates argued that the Receptor Thresholds discouraged infill housing close to transit because these projects are, by definition, located in urbanized areas where the air quality has already been impacted by existing development. Requiring projects to analyze and mitigate for existing impacts to which those projects did not contribute threatened to prevent much-needed infill development. After resolving the foundational question regarding the purpose of CEQA analysis, the Supreme Court remanded to the Court of Appeal the question of whether the Receptor Thresholds violated the general rule described in its opinion.

On August 12, 2016, the Court of Appeal determined that the Air District’s thresholds were “misleading to the extent they contemplate an application of the Receptor Thresholds to evaluate the effect of the existing environment on all new receptors as a matter of course. . . .”

Though the Court of Appeal identified specific circumstances where the Receptor Thresholds could be validly applied (e.g., in school siting decisions), the Court of Appeal warned that “any effort by an agency to require an EIR, mitigating measures, or other CEQA review under the Receptor Thresholds when one is not authorized would be subject to a strong legal challenge.”  To that end, the Court of Appeal held that the Receptor Thresholds cannot be used by a lead agency to require an EIR or to impose mitigation measures solely because the occupants or users of a new project would be subjected to contaminant levels above the Air District’s thresholds.

Existing air quality concerns can, of course, be addressed outside of CEQA. CBIA argued during the litigation that these sorts of concerns can be addressed through substantive rules and regulations. The Air District has recently gotten on board with this approach. The Air District finalized its “Planning Healthy Places” guidance document which recommends that local governments address existing air quality concerns through the Planning and Zoning Law. Planning Healthy Places provides an interactive map of where the Air District recommends projects implement best practices (e.g., air filters) and where, due to complex emissions sources, further air quality studies should be conducted. The Court of Appeal’s decision should result in cities and counties taking a more proactive, plan-level approach to addressing air quality concerns rather than the ad hoc approach previously recommended through the Air District’s Receptor Thresholds.

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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 →