Bay Area Air District CEQA Significance Thresholds Survive Legal Challenge
In California Building Industry Association v. Bay Area Air Quality Management District (BAAQMD), the Court of Appeal upheld BAAQMD’s adoption of significance thresholds under the California Environmental Quality Act (CEQA) for air quality impacts. The trial court had struck down the Thresholds for failure of BAAQMD to conduct environmental review under CEQA.
The Court ruled that the adoption of the Thresholds was not a Project under CEQA. The Court held that BAAQMD satisfied all CEQA requirements by complying with CEQA Guidelines section 15064.7. Section 15064.7 requires CEQA significance thresholds to be adopted through a public review process and supported by substantial evidence. It does not require an EIR or other CEQA document as part of promulgating the regulation. The Court found that the preparation of an EIR or other CEQA document would be redundant of the Section 15064.7 process and would not add any new or different information than what was already required. Therefore, under this ruling, local agencies should follow the Section 15064.7 process in adopting local CEQA thresholds.
The Court also ruled that the Thresholds would not cause an indirect environmental effect under CEQA due to their impact on future development projects. The opponents argued that the Thresholds would make it more difficult to build infill projects in urban areas primarily due to the Thresholds for Toxic Air Contaminants (TACs). They argued that the Thresholds would discourage or delay urban development due to the likelihood of finding a potentially significant impact under CEQA which would require preparation of an EIR. This process would lead to more development and housing being built in suburban and rural areas which would have significant environmental impacts. The Court rejected this argument saying that such a scenario was too attenuated and speculative to be considered a reasonably foreseeable indirect impact of the adoption of the Thresholds themselves. The court opinion has an interesting and helpful discussion of the main CEQA cases addressing the standards for what constitutes a project under CEQA.
The Court also found that the Thresholds were supported by substantial evidence and not arbitrary and capricious. The BAAQMD adoption process was supported by detailed studies that provided the factual basis for the Thresholds. Interestingly, the Court avoided answering one of the main issues raised by the opponents with regard to the toxic air contaminants (TACs) and particulate matter (PM2.5) threshold – whether the analysis of the impact of the existing environment on the project is not required under CEQA. A series of Court of Appeal decisions have found that CEQA only requires the analysis of the impacts of the project on the environment, not the impacts of the environment on the project (see, Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th455). The Thresholds for TACs and PM2.5 defined a significant impact as exposure of occupants of a new project to a certain level of TACs and PM2.5 in the existing environment that would result in adverse health impacts. The court stated that this issue would be more properly addressed in a case where the TAC or PM2.5 Threshold was applied to a specific project. Since the issue before the Court was only the adoption of the Thresholds, the Court upheld them because they are not in “total and fatal” conflict with CEQA and will not violate CEQA in “the vast majority of their applications”.