Court of Appeal Reinstates Regional Air Quality Thresholds for Greenhouse Gas Emissions

by Wendel, Rosen, Black & Dean LLP

On August 13, 2013, the First District Court of Appeal reinstated controversial air quality guidelines adopted by the Bay Area Air Quality Management District (the District), including numeric greenhouse gas (GHG) thresholds of significance.

The court in California Building Industry Association v. Bay Area Air Quality Management District, ___ Cal.App.4th ___, (Court of Appeal Case No. A136212) (click here to read the full decision) found that the District’s adoption of thresholds of significance for its California Environmental Quality Act (CEQA) Guidelines was not a “project” subject to CEQA.  It determined that the state’s CEQA Guidelines contained an alternative process for public review and adoption of thresholds of significance that the District followed, making a review under CEQA “absurd.”  Second, it rejected as speculative and not reasonably foreseeable, CBIA’s contention that the adoption of the District’s thresholds was a project that indirectly affects the physical environment by making infill development more difficult and encouraging suburban development with higher GHG emissions.

The court reversed a 2012 ruling by an Alameda County Superior Court judge invalidating the District’s thresholds of significance (Thresholds).  As a result, the Thresholds, originally adopted in 2010, may be used in analyzing environmental impacts of Bay Area development projects, including their requirement that projects assess potential health impacts on new residents from existing pollution sources such as nearby freeways.


In June 2010, the District adopted air quality thresholds for analyses by lead agencies under CEQA.  It marked the first time that a California air district set numeric thresholds of significance for evaluating environmental effects of GHG emissions from proposed projects.  Projects with emissions exceeding the Thresholds would result in a finding of a significant impact necessitating preparation of an environmental impact report (EIR) and adoption of mitigation measures.

The Thresholds also introduced a new requirement for projects proposed within 1,000 feet of existing pollution sources, including most freeways, major roads and transportation corridors.  Such projects were required to perform a community risk assessment to determine potential health impacts on new project residents from existing, background pollution.  Traditionally, CEQA examines a project’s impacts on the surrounding environment rather than the environment’s impact on a project and its residents.

On November 29, 2010, the California Building Industry Association (CBIA) sued, arguing that the Thresholds conflicted with the state's climate change goals, such as those found in SB 375, of reducing sprawl and encouraging infill and transit-oriented development.  CBIA alleged that the District failed to analyze the potential environmental impacts of the rules in violation of CEQA.

On March 5, 2012, Alameda County Superior Court Judge Frank Roesch found adoption of the Thresholds was a project under CEQA and ordered the District to withdraw the Thresholds until it studied their potential environmental impacts, including their potential effect on future development in the region.  Judge Roesch found that there was a fair argument that implementation of the Thresholds “may cause a reasonably foreseeable indirect change in the environment” and might discourage urban infill development while encouraging suburban development.  He also granted CBIA its attorneys’ fees.

For more information on the adoption of the thresholds and the lower court suit, see “Air Quality District’s CEQA Thresholds Invalidated” (5/10/12) >read, “BAAQMD District GHG Thresholds of Significance Will Have Wide Impact” (9/17/09) >read and “BAAQMD Update on CEQA Thresholds” (1/8/10) >read.


In addition to addressing whether adoption of the Thresholds was a project under CEQA, the Court of Appeal also considered CBIA’s other contentions that certain aspects of the Thresholds were arbitrary since they required analysis of the environment’s impact on a project, and that the Thresholds themselves were not supported by substantial evidence.

First, the Court determined that the District’s adoption of the Thresholds was not a project subject to CEQA for two reasons.  The Court found that under CEQA Guidelines section 15064.7, a public agency may adopt thresholds of significance through a public review process and supported by substantial evidence, but that an EIR or other CEQA review is not required because it would be duplicative of the required process.  In addition, the Court rejected as speculative CBIA’s claim that the Thresholds would make infill development more difficult and result in more housing to be built in suburban and rural areas.  The Court found such a scenario “possible” but not “reasonably foreseeable.”

Second, the Court rejected CBIA’s arguments that the Thresholds themselves were legally invalid.  CBIA argued that the Thresholds’ Risks and Hazards section requiring an analysis where a project will expose people to existing pollution was contrary to several cases stating that CEQA does not require analysis of the existing environment’s impacts on a project.  While the Court of Appeal did not directly disagree with those cases, it found that this aspect of the Thresholds facially valid since they would not conflict with CEQA’s provisions or case law in the majority of cases in which they would be applied.

Finally, the Court upheld the Thresholds’ limits on single source and cumulative toxic air contaminants based on increase in cancer risk.  CBIA objected that the single-source significance limit (increased cancer risk by 10 in a million assuming a 70-year exposure) was arbitrary and unsupported in light of the cumulative limit for contaminants from all sources (increased risk by 100 in a million).  The Court found CBIA had not carried its burden to show the District’s determinations were not supported by substantial evidence.  The Court also reversed the attorneys’ fee award.


The Court of Appeal’s decision upheld the validity of the District’s Thresholds.  While the Thresholds are not legally binding on other Bay Area agencies, they are widely used by cities and counties in evaluating projects for CEQA purposes.  Despite the superior court ruling in 2012, many agencies continued to voluntarily use the Thresholds in conducting CEQA analyses.  The Court of Appeal ruling will make such a choice more defensible.

The Thresholds help provide certainty regarding when a finding of significance will be triggered for GHG emissions.  However, a lingering concern is that stricter emission standards for GHGs and health risks will make it difficult to develop infill projects near existing pollution sources such as freeways and transit.

During the Thresholds’ approval, several cities, as well as development, transit and affordable housing advocates, criticized the Thresholds as being overly conservative and making infill “smart growth” development less feasible due to additional costs and the burden of preparing EIRs and health risk assessments.  Opponents asserted that the numeric standards were so low and restrictive that even transit villages planned adjacent to BART lines would be unable to avoid a significant impact finding for GHG emissions.

Under the Thresholds, GHG emissions of a project are presumed insignificant if the GHG emissions remain below quantitative thresholds or if the project complies with a “Qualified GHG Reduction Strategy.”  For residential, commercial, industrial, and public land-use projects, emissions greater than 1,100 metric tons of carbon dioxide equivalent (“CO2e”) per year or 4.6 metric tons of CO2e per year per person (residents and employees, known as “service population”) will be considered to have significant effects.

These thresholds correspond roughly to a 56-unit single-family housing project, an 83-room hotel, a general office building of 53,000 square feet, a regional shopping center of 19,000 square feet, or a 1,000 square foot fast-food restaurant.  For stationary-source projects, the threshold level is 10,000 metric tons of CO2e per year.

Local agencies that have adopted qualified GHG reduction strategies, such as a general plan climate change element or climate action plan, can find that a project’s GHG impacts are less than significant if the project is consistent with such a plan.

In upholding the validity of the Thresholds’ 1,000-foot community risk assessment zone, the Court of Appeal appeared to question the reasoning in a line of recent CEQA decisions that rejected the need to evaluate impacts of the surrounding environment on project residents.  (See Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455; South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604.)

The Court concluded that whether the application of the Thresholds would run afoul of the holding of those cases will have to wait until an actual dispute arises in their application to a particular development project.

It is not known whether CBIA will seek review of the Court of Appeal decision by the California Supreme Court.

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.

© Wendel, Rosen, Black & Dean LLP | Attorney Advertising

Written by:

Wendel, Rosen, Black & Dean LLP

Wendel, Rosen, Black & Dean LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.