CEQA-In-Reverse Case Opening Brief Filed In California Supreme Court

by Miller Starr Regalia
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The California Building Industry Association (CBIA) laid out its case that CEQA contains no general directive requiring analysis of the existing environment’s impacts on a future project in a 50-page opening brief filed in the California Supreme Court on January 10, 2014. California Building Industry Association v. Bay Area Quality Management District, Supreme Court Case No. S213478. The Supreme Court recently granted review of the case, which involves the CBIA’s challenge to BAAQMD’s 2010 CEQA Thresholds of Significance and implementing guidelines For Toxic Air Contaminants (TACs) and particulate matter (PM2.5), limited solely to the “CEQA-in-reverse” issue. (See “Supreme Court Will Review “CEQA-In-Reverse” Issue in CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines,” by Arthur F. Coon, posted 12/9/13.)

The CBIA’s opening brief points out that BAAQMD’s TAC thresholds can be triggered by “impacts that the existing environment may have on future occupants of a project.”  The TAC thresholds generally provide that “new receptor” projects – e.g., new residential, hospital, school, daycare, park and nursing home developments – will be considered to have potentially significant impact for CEQA purposes if located within areas where BAAQMD’s data predicts increases in certain health risks due to existing emissions sources surrounding a project site.  For example, developing near freeways, major roadways, or heavily urbanized areas – which, incidentally and ironically, are prime locations for “smart growth” urban infill and transit-oriented development projects that reduce vehicle miles travelled (VMT) and GHG emissions – will trigger “significant impact” determinations that require the developer to mitigate impacts from the existing environment (e.g., by buffer or setback areas, site redesign, or, perhaps, developing at an alternative location).

The CBIA brief’s CEQA argument is straightforward, and can be summarized as follows:

  • The general rule is that the purpose of CEQA – its “whole thrust” – is to protect the environment from physical changes wrought by a project, not to protect projects from the environment, as confirmed by the statute’s plain language and an unbroken line of appellate decisions.
  • Situations in which CEQA requires a reverse analysis are strictly limited, policy-based exceptions to the general rule that are explicitly codified in CEQA itself, i.e., Pub. Resources Code, § 21151.8(a) (requiring analysis of all sources of hazardous waste emissions within quarter mile of school site); § 21096 (requiring lead agency to address airport-related safety hazard and noise problems in EIR).
  • While the Legislature could create new and additional policy exceptions, it has not done so, and courts cannot interpret CEQA “in a manner which imposes procedural or substantive requirements beyond those explicitly stated in” CEQA or its Guidelines. (Pub. Resources Code, § 21083.1.)
  • In fact, two bills (AB 953 and SB 617) proposed in 2013 would have abrogated the “no CEQA-in-reverse” line of cases and established a contrary general rule for CEQA analysis, but the Legislature rejected them.
  • As recognized by the existing caselaw, portions of CEQA Guidelines § 15126.2(a) and the Appendix G “Environmental Checklist Form” improperly call for unauthorized applications of CEQA to analyze the effect of the existing environment on users of a project; these regulations are invalid because unauthorized by the CEQA statute.
  • There are a host of other laws that already address the impacts of the environment on a project – CBIA’s brief contains a 6-page section listing over two dozen state and federal laws so doing – thus obviating any need to stretch CEQA beyond its plain language in violation of the mandate contained in Public Resources Code § 21083.1.

The CBIA’s brief – particularly the last-noted section – causes the reader to ponder issues beyond “CEQA-in-reverse,” such as whether and how CEQA may evolve through legislative action or judicial decisions to address duplicative CEQA review and reliance on compliance with other mandatory environmental laws and regulations as “mitigation” for a project’s impacts. In any event, with briefing now underway before the Supreme Court in a case presenting an opportunity for clarification and judicial “reform” with respect to a very significant and fundamental CEQA issue, the New Year is off to an interesting start.

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Miller Starr Regalia
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