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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

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Tina Thomas and Thomas Law Group Attorneys Named Top Environmental and Land Use/Zoning Lawyers

Saturday, September 1st, 2018

Tina Thomas and Thomas Law Group attorneys have been recognized anew in 2018 as top attorneys in environmental, land use, and zoning law and litigation.

Sacramento Magazine named a number of Thomas Law Group attorneys as “Top Lawyers,” an honor given only to a handful of attorneys with the highest number of peers’ votes. Tina Thomas was recognized as a top lawyer in both the environmental law and land use and zoning law categories. Nicholas Avdis, Of Counsel, and Chris Butcher were each recognized as top lawyers in land use and zoning law. Leslie Z. Walker, Of Counsel, was named a top lawyer in state, local, and municipal law.

U.S. News and World Report again ranked Tina Thomas as a “Best Lawyer” in environmental law, land use and zoning law, and land use and zoning litigation. She has consistently achieved this honor since 2008. The publication further announced Thomas Law Group as a top law firm in Sacramento for Environmental Law, Land Use and Zoning Law, and Land Use and Zoning Litigation.

Super Lawyers, a national publication of attorneys who exhibit excellence in practice, named Tina Thomas as a Super Lawyer in Environmental Law, a ranking she has consistently held since 2005. Nicholas Avdis was named as a top rated attorney in Land Use and Zoning Law. He was previously named as a rising star from 2009 to 2015.

Sacramento Business Journal named Tina Thomas as part of the “Best of the Bar” in 2018 for her work in environmental land use and natural resource litigation, including issues related to CEQA, NEPA, the Subdivision Map Act, and the California Endangered Species Act. Nicholas Avdis was also recognized for his work in land use, government affairs, regulatory law and entitlement processing. Nominations were vetted by a panel of peers, awarding points for expertise in the field, community reputation in the legal profession, and other factors.

We congratulate these Thomas Law Group attorneys on their accomplishments!

The Rose Foundation Releases Report on CEQA Economic Impact

Thursday, August 18th, 2016

CEQA has been in effect since 1970, when it was signed into law by Governor Ronald Regan. Over the past 46 years, there have been many debates about the effect CEQA has on the California economy. In response to recent analyses that link CEQA to economic challenges in the State, the Rose Foundation for Communities and the Environment released a report on August 15, 2016 entitled “CEQA in the 21st Century: Environmental Quality, Economic Prosperity, and Sustainable Development in California.”

Key findings of the report include:

  • Since 2002, the state has averaged 195 CEQA lawsuits a year.
  • Lawsuits were filed for less than 1 out of every 100 projects reviewed under CEQA that were not considered exempt.
  • In San Francisco, only 14 environmental impact reports (EIRs) were prepared in the past three years (less than 5 EIRs per year).
  • Because California consistently ranks among the top states in terms of economic prosperity and development, the report concludes that the State’s environmental protections, including CEQA, have not constrained growth.

The full report can be accessed at:

Thomas Law Group Associates Present “CEQA Streamlining” to Association of Environmental Professionals at May 2016 Program

Wednesday, April 27th, 2016

Thomas Law Group Associates Chris Butcher and Ashle Crocker will host a special presentation on CEQA Streamlining at the Superior California Chapter of the Association of Environmental Professionals May 2016 Program on May 17, 2015 from 11:30 to 1:00 pm.

The program will be at Blue Prynt Restaurant, 815 11th Street, Sacramento, CA 95814 and include a networking session, full lunch service, and a speaker presentation.

For more information, visit: or email Marieka at

2016 May AEP Program

For more information, email the link in the poster.

Thomas Law Group Associates Present “CEQA Streamlining” to Professionals Involved in the Environmental Review Process

Friday, March 18th, 2016

Thomas Law Group Associates Chris Butcher and Ashle Crocker will host a special presentation on CEQA Streamlining as part of the curriculum developed specifically for professionals involved in the Environmental Review Process on May 17, 2015 from 8:00 to 9:30 am.

The program will be at North Coast Builders Exchange, 1030 Apollo Way, Santa Rosa.

For more information, call the North Coast Builders’ Association headquarters at 542-9502 or email We look forward to seeing you there!

CEQA seminar flyer

CEQA Streamlining Panel Friday, April 22, 2016.

Please Join AEP & APA North Bay For A Workshop CEQA Streamlining Processes

Thursday, February 18th, 2016

Thomas Law Group Associates Chris Butcher and Ashle Crocker will host a special presentation on CEQA Streamlining Process for the Association of Environmental Professionals and the California chapter of the American Planning Association on Thursday, April 7, 2016.

The program will be at 2235 Mercury Way, Suite 150, Santa Rosa, California. Lunch will be provided.

For more information and to RSVP contact Carrie Lukacic at


Join us! Contact Carrie at

LSNC 13th Annual Race for Justice Valentine Run/Walk

Tuesday, February 16th, 2016

Thomas Law Group won “Best Dressed” at Legal Services of Northern California 13th Annual Race for Justice Valentine Run/Walk! Friends and family of Thomas Law Group all dressed in costume to match TLG team members as all participated int he annual community fundraiser for the legal services organization.



Team Thomas Law Group showing off their award-winning costumes.


Thomas Law Group’s youngest entrant, Collette, in her race attire.



Tuesday, January 26th, 2016

On January 20, 2016, the Governor’s Office of Planning and Research (“OPR”) released a Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts. This follows a preliminary discussion draft that was released in August 2014. See more on the earlier draft at:

SB 743 (Steinberg, 2013), which shifted the focus of the transportation analysis from the reduction of traffic delay to the reduction of greenhouse gas emissions, creation of multimodal networks, and promotion of a mix of land uses, required OPR to undertake this effort to update the CEQA Guidelines.

OPR proposes to add a new section to the CEQA Guidelines – 15064.3 – that will address how to determine the significance of transportation impacts. The proposed Guideline contains three subdivisions:

  • Subdivision (a): Purpose – states that “generally, vehicle miles traveled [VMT] is the most appropriate measure of a project’s potential transportation impacts.” The Guideline notes that lead agencies can also consider effects on transit, non-motorized travel, and safety of all travelers. A project’s effect on automobile delay, however, cannot constitute a significant environmental impact.
  • Subdivision (b): Criteria for Analyzing Transportation Impacts – outlines specific criteria for determining the significance of transportation impacts. This section is further subdivided into: (1) VMT and land use projects, (2) induced travel and transportation projects, (3) qualitative analysis, and (4) methodology. A subsection in the previous draft that focused on traffic safety has been replaced with the subsection on qualitative analysis. The new proposed subsection states: “If existing models or methods are not available to estimate VMT for the particular project being considered, a lead agency may analyze the project’s VMT qualitatively.” Where a lead agency undertakes a qualitative analysis, the subdivision recommends the agency look at factors such as availability of transit, proximity to other destinations, area demographics, etc.
  • Subdivision (c) Applicability – notes that the changes will apply prospectively – two years from adoption date – though agencies can elect to be governed by the new guideline immediately if the agency has updated its procedures to conform to the new Guideline.

A controversial subdivision from the earlier draft of the Guidelines that would have amended Appendix F (Energy Conservation) to provide suggestions of potential mitigation measures and alternatives has been removed.  Instead, OPR has created a non-regulatory technical advisory that can be altered and updated at any time and addresses methodological considerations in more detail. The technical advisory includes recommended significance thresholds (though it notes that for rural areas, it might be best to determine thresholds on case by case basis):

  • For residential projects, exceeding both existing city household VMT per capital minus 15 percent and existing regional household VMT per capita minus 15 percent may indicate a significant transportation impact. For residential development in unincorporated county areas, a project that exceeds 15 percent below VMT per capita in the aggregate of all unincorporated jurisdictions in that county and exceeds 15 percent below regional VMT per capita may indicate a significant transportation impact.
  • For office projects, exceeding a level of 15 percent below existing regional VMT per employee may indicate a significant transportation impact.
  • For retail projects, OPR recommends analyzing whether there is a net increase in total VMT because retail typically redistributes trips rather than creating new ones.


  • For transportation projects, OPR recommends creating a project-level threshold that is derived from CARB’s estimate that statewide VMT can increase no more than 4 percent over 2014 levels in order for California to meet the emissions goals set in Execute Order B-30-15.

The proposed changes to Appendix G have been revised as well. The language now specifically excludes level of service when determining whether there will be a conflict with a circulation policy. The new language states: “Conflict with a plan, ordinance or policy addressing the safety or performance of the circulation system, including transit, roadways, bicycle lanes and pedestrian paths (except for automobile level of service).” Additionally, the Appendix G questions concerning unsafe conditions for pedestrians, bicyclists, transit users, motorists or other users of public rights of way has been deleted.

OPR is requesting public review and comment of the Preliminary Discussion Draft. A copy of the Preliminary Discussion Draft is available at:

All comments should be submitted by February 29, 2016 at 5:00 pm to

Friends of the Eel River v. North Coast Railroad Authority, S222472. (A139222; 230 Cal.App.4th 85; Marin County Superior Court; CV1103591, CV1103605.)

Wednesday, July 8th, 2015

Petition for Review Granted

December 10, 2014

Current Status

Fully briefed by the parties as of April 30, 2015.

Amicus briefing in progress.

Court’s Statement of Issues Presented

The court will consider two issues:

  1. Does the Interstate Commerce Commission Termination Act (ICCTA) (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)?
  2. Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state-owned rail line and/or leasing state-owned property?

Summary of the Parties’ Arguments

Plaintiffs and Appellants, Friends of the Eel River, et al. (Friends) argue that the ICCTA does not preempt the North Coast Railroad Authority’s (NCRA) actions. Friends argue that in enacting the ICCTA, Congress did not expressly or impliedly preempt any state laws. Rather, they argue, ICCTA only prohibits states from regulating rail transportation, thus furthering the ICCTA’s purpose of deregulating the railroad industry and centralizing the economic regulation of rail transportation. Friends argue that three doctrines defeat federal preemption. First, courts are to construe federal preemption statutes to preserve states’ plenary control over their subdivisions absent an “unmistakably clear” statement that Congress intended to intrude on that sovereign function. Here, California’s Legislature exercised its sovereign power over public agencies, such as NCRA, to conduct CEQA review before carrying out a project. Second, under the market participant doctrine, courts should not infer federal preemption of a state’s proprietary non-regulatory actions. In this matter, California’s requirement of CEQA compliance and enforcement are a proprietary component of an internal business decision involving state funding and the management of state-owned property. Third, Friends argue that federal law does not preempt an entity’s voluntary commitments because self-imposed obligations are not considered regulatory. Here, CEQA was self-imposed and not preempted.

Defendants and Respondents, NCRA, et al. (NCRA) counter that consistent with ICCTA’s plain language, legislative history, and the interpretation of that language by other courts and the Federal Surface Transportation Board (STB), the ICCTA preempts CEQA’s application. NCRA argues that Friends fails to lay out the relevant facts, including the fact that Friends seeks to use CEQA as a state permitting or preclearance law to shut down a privately operated railroad that is currently transporting goods in interstate commerce. NCRA argues that applying CEQA would delay or deny NCRA the ability to conduct its activities, thus interfering with the STB’s jurisdiction, and with the maintenance and operation of rail transportation. NCRA further argues the ICCTA’s preemption of CEQA is not defeated by the market participation doctrine. First, this doctrine does not work as an exception to an express preemption, and second CEQA is regulatory, as it requires public agencies to comply when it chooses to undertake a project; NCRA explains that CEQA “is not narrowly focused on market-oriented actions.” Finally, NCRA argues that their voluntary agreement is not binding and that they did not agree to waive the ICCTA preemption. Rather, the NCRA “mistakenly, but in good faith, believe[d] that it needed to complete” an EIR for resumed rail operations, but had since determined that the ICCTA expressly preempted application of CEQA to the project.


Plaintiffs and Appellants:

  • Friends of the Eel River, Represented by Shute Mihaly & Weinberger
  • Californians for Alternatives to Toxics, Represented by Law Offices of Sharon E. Duggan, Klamath Environmental Law Center, Environmental Law and Justice Clinic at Golden Gate University School of Law, Environmental Law Clinic and Mills Legal Clinic at Stanford Law School, Klamath Environmental Law Center

Defendants and Respondents:

  • North Coast Railroad Authority, Represented by North Coast Railroad Authority and Cox Castle and Nicholson LLP
  • Board of Directors of North Coast Railroad Authority, Represented by Christopher J. Neary

Real Party in Interest and Respondent:

  • Real Party in Interest and Respondent Northwestern Pacific Railroad Company, Represented by Cox, Castle & Nicholson

Procedural History

Two environmental groups, Friends of the Eel River and Californians for Alternatives to Toxics, filed petitions for writ of mandate under CEQA to challenge the certification of an EIR and approval of a railroad company’s freight operations by NCRA.  The trial court denied the petitions for writ of mandate, holding that CEQA review was preempted by the ICCTA, and that NCRA and the railroad company were not estopped from claiming federal preemption.

The First District Court of Appeal affirmed the judgement, holding that the ICCTA expressly preempted CEQA review of proposed railroad operations, and that the environmental groups’ CEQA claims fell within that preemption.  The appellate court additionally explained that the market participation doctrine found in Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314, could not be used to avoid such federal preemption.   In Town of Atherton, the California High Speed Rail Authority was taking proprietary actions in the market, acting as an owner of the property and not as a regulator; therefore, the market participation exception to preemption applied.  In contrast, NCRA acts in a regulatory capacity, thus the exception to preemption does not apply.  Lastly, the appellate court explained that while NCRA entered into an agreement with Caltrans, where it volunteered to comply with CEQA, the preemption analysis remains the same.  NCRA’s alleged voluntary agreement to comply with CEQA arose from its contract with the state (CalTrans), not from its acceptance of funds from a bond measure.  The agreement between these two parties does not unambiguously require environmental review for railroad operations where CEQA is preempted and the environmental groups do not have standing to enforce this contract.

Amicus Curiae Briefs – Briefing in Process, Check Back for Updates

  • South Coast Air Quality Management District, Bay Area Air Quality Management District, in support of Appellants;
  • Madera County Farm Bureau, Merced County Farm Bureau, in support of Appellants;
  • Town of Atherton, California Rail Foundation, Transportation Solutions Defense and Education Fund, Community Coalition on High-Speed Rail, Patricia Hogan-Giorni, in support of Appellants;
  • Sierra Club, Coalition for Clean Air, Natural Resources Defense Council, Planning and Conservation League, Communities for a Better Environment, in support of Appellants;
  • Center for Biological Diversity, in support of Appellants;
  • California Environmental Protection Agency, the California Natural Resources Agency, and their Departments and Boards in support of no party; and
  • California High Speed Rail Authority, in support of Respondents.

Case Implications

This case would have implications on federal preemption of CEQA under the ICCTA, as well as the market participant exception to preemption.

Regarding “preemption”:

  • The appellate court stated that whether the ICCTA generally preempts CEQA’s application to a project involving railroad operations is a pure question of law subject to de novo review.   If the California Supreme Court affirms the appellate court’s ruling, this would affirm the federal preemption of the ICCTA.

Regarding “market participant exception to preemption”:

  • In Town of Atherton, the market participant exception to preemption required the California High Speed Rail Authority (Authority) to comply with CEQA for a portion of the rail line.       This exception applied because the court found the Authority was acting in its capacity as the owner of property, not as a regulator. The Supreme Court may take this opportunity to restrict or expand the market participant exception set forth in Town of Atherton.

Key Cases that May be Affected by the Court’s Ruling

  • Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314;  The Court applied the market participant exception to the California High Speed Rail Authority because it was taking proprietary market actions, rather than acting in its regulatory capacity. Thus, the California High Speed Rail Authority was required to comply with CEQA for a portion of the rail line.
  • People v. Burlington N. Santa Fe R.R. (2012) 209 Cal.App.4th 1513; The Court held the ICCTA provides the STB exclusive jurisdiction with respect to the regulation of rail transportation. Thus a PUC general order issued to regulate the time a stopped train can occupy a public rail crossing is preempted by ICCTA, as it attempts to directly manage railroad operations.

Cleveland National Forest Foundation v. San Diego Association of Governments S223603 (D063288; 231 Cal.App.4th 1056; San Diego County Superior Court; 37-2011-00101593-CU-TT-CTL.)

Friday, June 26th, 2015

Petition for Review Granted

March 11, 2015

Current Status

Opening brief on the merits filed on May 8, 2015.

Answer brief on the merits is due on July 10, 2015.

Court’s Statement of Issues Presented

Must the environmental impact report (EIR) for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)?

Summary of the Parties’ Arguments

In their Petition for Review, the San Diego Association of Governments (SANDAG) argues that the EIR fully and adequately analyzed the project’s greenhouse gas impacts.  The EIR contains a 39-page analysis of the existing greenhouse gas emission levels and impacts expected to occur from both transportation and non-transportation sources under the project.   SANDAG further argues the analysis complies with CEQA Guidelines, section 15064.4, and SANDAG did not abuse its discretion by relying on that section for the significance criteria used in the EIR’s analysis of greenhouse gas impacts.  SANDAG asserts that the EIR does not omit critical factual information on greenhouse gas emissions and it was not required to include an analysis of the project’s consistency with Executive Order S-03-05 because there is no legal authority requiring such an analysis in the EIR.

In their Answer to Petition for Review, plaintiffs Cleveland National Forest Foundation, et al. (CNFF) argue the Court of Appeal’s decision requiring consideration of Executive Order S-3-05 is firmly grounded in settled CEQA principles.  CNFF assert that SANDAG violated CEQA by failing to analyze its regional transportation plan’s inconsistency with the long-range emissions reduction goals expressed in Executive Order S-3-05.  CNFF argues the EIR’s purpose is to serve as an informational document, and SANDAG’s failure to include such an analysis in the EIR deprived the public and decisionmakers of relevant information.  CNFF also argues the Court of Appeal’s opinion does not create confusion or conflicts of law.  According to CNFF, the case simply involves an agency failing to disclose and analyze a project’s long-term impacts, as required by CEQA.  CNFF further argues the Court of Appeal’s opinion does not undercut agency discretion to determine significance thresholds; it only requires agencies to exercise their discretion in light of CEQA’s fundamental informational purpose.


Plaintiffs and Respondents:

  • Cleveland National Forest Foundation, Represented by Shute, Mihaly & Weinberger and Daniel P. Selmi
  • Sierra Club, Represented by Shute, Mihaly & Weinberger and Daniel P. Selmi
  • Center for Biological Diversity, Represented by Center for Biological Diversity
  • Creed-21, Represented by Briggs Law Corp
  • Affordable Housing Coalition of San Diego County, Represented by Briggs Law Corp

Defendants and Appellants:

  • San Diego Association of Governments, Represented by Sohagi Law Group, LLP
  • San Diego Association of Governments Board of Directors, Represented by Sohagi Law Group, LLP

Intervener and Appellant:

  • The People of the State of California, Represented by The Attorney General

Procedural History

SANDAG certified an EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (the transportation plan) in October, 2011.  CNFF, et al. filed petitions for writ of mandate, challenging the EIR as insufficient under CEQA.  The Attorney General thereafter moved to intervene on behalf of the People of the State of California.

The Superior Court of San Diego County consolidated the cases and granted the petitions in part, finding the EIR violated CEQA because it failed to: (1) analyze the inconsistency between the transportation plan’s greenhouse gas emissions impacts after 2020 and the state’s policy goals presented in Executive Order S-3-05; and (2) adequately address mitigation measures for the transportation plan’s greenhouse gas emissions impacts.  After making those two findings, the trial court declined to address plaintiff’s other challenges.

On appeal, SANDAG argued the EIR complied with CEQA in both respects above.  CNFF cross-appealed arguing the EIR further violated CEQA by failing to: (1) analyze a reasonable range of alternatives; (2) adequately analyze and mitigate the transportation plan’s air quality impacts; and (3) adequately disclose the transportation plan’s impacts on agriculture.  The People cross-appealed, also arguing the EIR violated CEQA because it did not analyze or mitigate the transportation plan’s impacts from particulate matter pollution.

The Fourth District Court of Appeal agreed with CNFF’s and the People’s arguments, holding the EIR violated CEQA for all of the identified reasons above.  Focusing specifically on the EIR’s analysis of the transportation plan’s greenhouse gas impacts, the court held SANDAG prejudicially abused its discretion by omitting from the EIR a discussion of the transportation plan’s consistency with the state climate policy of continual greenhouse gas emissions reductions, presented in Executive Order S-3-05.  According to the court, failing to include such an analysis deprived the public and decisionmakers of important information regarding the project’s greenhouse gas emissions.  The court additionally found no substantial evidence supported the agency’s determination the EIR adequately addressed mitigation for the transportation plan’s greenhouse gas emissions impacts.

Case Implications

If the Court of Appeal’s opinion is upheld, local agencies would be required to consider consistency with EO S-3-05 and other executive orders related to climate change when analyzing a project’s greenhouse gas impacts.  This interpretation would impose on local agencies new obligations that are not supported by CEQA, the CEQA Guidelines, or California case law.  Requiring agencies to comply with executive orders, specifically EO S-3-05, would take away their discretion to establish their own significance thresholds and to rely on AB 32 when evaluating a project’s greenhouse gas impacts.

Key Cases that May be Affected by the Court’s Ruling

  • Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, Professional Engineers in Cal. Gov’t v. Schwarzenegger (2010) 50 Cal.4th 989;  Here the court held that “it is for the Legislature to make public policy,” rather than the Governor via executive order.
  • Carmel Valley Fire Protection Dist. v. State of Cal. (1987) 190 Cal.App.3d 521;  Here, the court held that executive orders establish state policy and are not binding on local districts.
  • Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327;  The court evaluated the use of AB 32 as a CEQA significance threshold for a project’s greenhouse gas impacts.
  • Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059;  The court discussed the discretion CEQA grants agencies to develop their own significance thresholds.
  • Sacramento Old City Ass’n. v. City Council (1991) 229 Cal.App.3d 1011, Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99;  Here, the court held that the courts may not overturn an agency’s discretionary decisions and substitute their own judgment.

California Building Industry Assn. v. Bay Area Air Quality Management Dist., S213478. (A135335, A136212; 218 Cal.App.4th 1171; Alameda County Superior Court; RG10548693.)

Friday, June 26th, 2015

Petition for Review Granted

November 26, 2013

Current Status

Fully briefed by the parties as of March 17, 2014.

Amicus briefing complete as of May 28, 2014.

Court’s Statement of Issue(s) Presented

Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq., hereinafter CEQA) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

Summary of the Parties’ Arguments

California Building Industry Association (BIA) argues Toxic Air Contaminant (TAC) Receptor Thresholds established by Bay Area Air Quality Management District (BAAQMD) are impermissible because they require an analysis of the impact of the environment on a project and its future users.  BIA argues that the purpose of CEQA is to protect the environment, not to protect projects from the environment.  BIA cites “an unbroken line of cases” that support this position, and cites a “host of other laws” aside from CEQA that protect future users of a project from the environment.  BIA acknowledges that an analysis of impacts of the environment on a project are sometimes required by CEQA in specific situations, but there is currently no general mandate to analyze those impacts, and it is up to the Legislature to create such a mandate if it chooses.  Additionally, BIA argues that CEQA Guidelines section 15126.2(a) and Appendix G, both of which are relied on by BAAQMD, distort the purpose and scope of CEQA, and should thus be rejected.

BAAQMD counters that CEQA properly applies to any project that may expose users to “disagreeable conditions,” regardless of whether the project contributes to those conditions or not.  As relates to its TAC Receptor Thresholds, BAAQMD argues that siting a development in an area with existing odors and high levels of TACs requires the lead agency to analyze those issues and impose mitigation measures to alleviate them, even if the new project makes no contribution to the existing environmental effects.


Plaintiff and Respondent:

  • California Building Industry Association, Represented by Cox Castle and Nicholson LLp

Defendant and Appellant:

  • Bay Area Air Quality Management District, Represented by Bay Area Quality Management District Office of Legal Counsel and Shute Mihaly and Weinberger LLP

Procedural History

BAAQMD formally adopted a series of CEQA thresholds of significance for air contaminants and greenhouse gasses without first conducting CEQA analysis.  BIA filed a petition, challenging the thresholds and the lack of analysis.  The trial court issued a writ of mandate invalidating BAAQMD’s TAC thresholds, agreeing with BIA that adoption of the thresholds was a “project” under CEQA and thus BAAQMD should have conducted environmental review.

The First Appellate District Court reversed the trial court’s holding, finding that the TAC thresholds were not subject to CEQA review for two reasons.  First, the CEQA Guidelines establish the required procedure for enacting generally applicable thresholds of significance, and a prior CEQA review is not part of that process.  Second, the thresholds were not a “project” because the “environmental change” argued by BIA was speculative and not reasonably foreseeable.  The court also held that the TAC Receptor thresholds were not facially invalid and BAAQMD’s approval of them was not arbitrary and capricious because they were supported by substantial evidence.

Amicus Curiae Briefs

  • League of California Cities, County of Tulare, County of Kings, and County of Solano, in Support of Neither Party;  Amici argue CEQA does not require lead agencies to analyze the impacts of the existing environment on projects and their future users.  Amici allege requiring such an analysis would be unnecessary as a policy matter because such impacts are addressed through several other laws and through the exercise of a local public agency’s police power and land use regulations.  Lastly, amici urge the court to affirm the appellate court’s ruling that respondent’s TAC Receptor Threshold do have potentially valid applications.
  • Communities for a Better Environment, in Support of Defendant and Appellant;  Amicus argues CEQA requires an analysis of “existing environmental conditions” where they may have substantial adverse impacts on future users of the project.  Amicus also argues the analysis used for the TAC Receptor Thresholds is an appropriate use of BAAQMD’s authority.  CEQA is a critical tool, both in serving as a venue for communities to participate in decisions that impact them, and in providing a process to ensure informed and well-reasoned decisions are made.  Amicus urges the court to uphold BAAQMD’s interpretation of CEQA, because that would ensure CEQA’s protections extend to all future and existing members of communities suffering from environmental injustice.
  • California Chapter of the American Planning Association and California Association of Environmental Professionals, in Support of Defendant and Appellant;  Amici argue that CEQA’s plain language and clear legislative intent cover human exposure to hazardous or unhealthy environmental conditions.  CEQA provides a clear systematic framework for lead agencies to disclose significant adverse impacts of the existing environment on future users, and lead agencies have been performing this analysis for decades.  Amici argue eliminating this protection by not requiring such an analysis would take away the critically important role CEQA has of maintaining “a quality environment for the people of this state now and in the future.”
  • South Coast Air Quality Management District, in Support of Defendant and Appellant;  Amicus urges the court to conclude that the risk of exposure to TACs should be analyzed under CEQA for a project that proposes to place receptors closer to such risks.  Amicus argues that people living and working near sources of TACs have higher health risks when compared to the general population, and policies promoting infill development can adversely impact environmental justice communities.  Amicus further argues that analyzing the impacts associated with exposing users of a project to TACs is consistent with the requirements of CEQA, as CEQA is full of policies that are specifically aimed at protecting public health and safety.  According to amicus, failing to require such an analysis under CEQA is a lost opportunity to mitigate those impacts.    

Case Implications

If the court rules in favor of BIA, lead agencies would have certainty that they are not required to examine existing environmental effects on a project’s future users, consistent with a long line of cases supporting this position.  A ruling in favor of BAAQMD would add to the analysis lead agencies must undertake to determine a project’s impacts, to also determine whether there will be environmental impacts on project users, arguably an impermissible expansion of the scope of CEQA.

Key Cases that May be Affected by the Court’s Ruling

  • Baird v. County of Contra Coast (1995) 32 Cal.App.4th 1464;  The court held that CEQA does not require an EIR for a project that “might be affected by preexisting conditions, but will not change those conditions or otherwise have a significant effect on the environment.” (Id. at p. 1466.)
  • City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889;  The court stated that the purpose of the EIR under CEQA is to identify significant effects the project will have on the environment, not vice versa.  However, in this case, the school district did analyze risks of exposing staff and students to the existing air contamination because it was specifically required under CEQA section 21151.8.
  • South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604;  The court rejected petitioners’ argument that the lead agency should be required to mitigate for existing odors from an adjacent sewage plant to protect the project’s future residents, stating that CEQA’s legislative intent is to protect the environment, not a project from the environment.
  • Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455;  The court held that CEQA does not require the lead agency to identify environmental effects on the project and its users.  The court in this case also addressed CEQA Guidelines 15162.2(a), stating that it was only valid to the extent it would require analysis of “impacts on the environment caused by the development rather than impacts on the project caused by the environment.”  (Id. at p. 474, fn. 9.)