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ON REMAND, DIVISION FIVE OF THE FIRST APPELLATE DISTRICT LIMITS APPLICABILITY OF BAAQMD RECEPTOR THRESHOLDS


The Bay Area Air Quality Management District’s (BAAQMD) “CEQA Air Quality Guidelines” have been the source of litigation since they were first adopted in 2010. Most recently, courts have grappled with certain thresholds for assessing the health risks of siting new sensitive receptors near existing sources of toxic air contaminants, often referred to as the “Receptor Thresholds.”

In California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the Supreme Court held that the scope of CEQA did not require lead agencies to consider the effect of the existing environment on a future users of a project unless the project will exacerbate those existing conditions. See http://www.thomaslaw.com/blog/supreme-court-strikes-down-reverse-ceqa-and-part-of-the-ceqa-guidelines/. The First Appellate District was tasked with determining on remand how that holding affected the Receptor Thresholds adopted by BAAQMD.

In California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 758, the appellate court considered BAAQMD’s argument that approval of the receptor thresholds did not need to be set aside because there were possible valid uses.  These uses included: (1) voluntary applications by a lead agency; (2) the determination of whether a project will exacerbate existing conditions; (3) the assessment of the health risks to students and staff at a proposed school site; and (4) the evaluation of whether a housing project is exempt from CEQA.

The Court agreed with BAAQMD, but cautioned 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.” The Court remanded the case to the trial court with instructions to issue an order invalidating the portions of the BAAQMD Guidelines that suggested that lead agencies should routinely assess the effect of existing environmental considerations on future users or occupants of a project.

BAAQMD subsequently filed a petition for rehearing and argued that writ relief was inappropriate because the Guidelines are a nonbinding, advisory document and any review was premature because there was no specific controversy regarding an application of the Guidelines. (See California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 752.) The Court disagreed and found BAAQMD’s Guidelines to be akin to the guidelines at issue in Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158. They were not “interim steps in a larger review process,” where a court may decline to use the remedy of mandamus. Therefore, the Court denied the petition for rehearing.



dateSeptember 29th, 2016byby


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