They’re Back? First District Court of Appeal Paves the Way for Possible Reinstatement of Controversial Air Quality Thresholds

California’s First District Court of Appeal issued a decision on August 13 in California Building Industry Association v. Bay Area Air Quality Management District (“CBIA”) (Case No. A135335 (Cal. Ct. App. 1st, August 13, 2013)), laying the groundwork for the reinstatement of controversial air quality thresholds, including for greenhouse gas emissions and toxic air contaminants.

ADOPTION OF CEQA THRESHOLDS IS NOT ITSELF A “PROJECT” REQUIRING CEQA REVIEW -

In CBIA, the court overturned a decision by the Alameda Superior Court that invalidated the Bay Area Air Quality Management District’s (BAAQMD) guidelines for assessing air quality impacts under the California Environmental Quality Act (CEQA). While BAAQMD’s CEQA Guidelines (issued in June 2010 and updated in May 2011) covered several air quality issues, the thresholds of significance set for greenhouse gas emissions and toxic air contaminants were particularly problematic and difficult to implement. For example, the toxic air contaminant threshold required that residential projects conduct a burdensome health-risk assessment accounting for sources of toxic air contaminants within 1,000 feet of the project, such as freeways. Although the thresholds for greenhouse gas emissions initially were met with resistance and controversy, in practice, most infill projects have been able to meet the standards, particularly now that many cities have adopted climate action plans.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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