In California Building Industry Association v. Bay Area Air Quality Management District
(First Appellate District, August 13, 2013), the Court of Appeals ruled that adoption of environmental thresholds by a public agency following the provisions of CEQA Guidelines Section 15064.7 is not a “project” under CEQA. The decision upheld the process followed by the Bay Area Air Quality Management District (BAAQMD) to adopt its 2010 significance thresholds for criteria air pollutant emissions, toxic air contaminants (TAC), and greenhouse gases (GHGs). Also, the court confirmed the thresholds were valid, despite arguments by the California Building Industry Association (CBIA) that they constituted significance standards for effects of the environment on a project, which CBIA contended was contrary to the Ballona Wetlands
and other similar decisions. [The Ballona Wetlands
decision was the subject of an earlier Ascent white paper
.] The court stated that, related to the provisions of CEQA Section 21083: “A new project located in an area that will expose its occupants to preexisting dangerous pollutants can be said to have substantial adverse effect on human beings.”
This decision is important, because it reinforces the opportunity for public agencies to adopt significance thresholds in accordance with the CEQA Guidelines Section 15064.7, a long-existing, but seldom-used practice. Recognizing the recent debate about use of compliance with “standards” to streamline CEQA, perhaps this decision could empower more lead agencies to set significance thresholds that add certainty and efficiency to their environmental review processes.
It is also important, because it sheds new light on the confusion created by the Ballona Wetlands
decision regarding whether exposure of people to existing environmental hazards could be a significant effect under CEQA. While the appellate court did not seek to definitively settle the debate, its acknowledgement that exposure to “preexisting dangerous pollutants” can be a substantial adverse effect on human beings is a helpful clarification.
The ultimate status of BAAQMD’s significance thresholds is subject to completion of the legal process and the district’s administrative response thereto. The district’s CEQA Air Quality Guidelines
describe BAAQMD’s current environmental guidance. Ascent’s air quality and GHG specialists provided technical support to BAAQMD in its development of the 2010 thresholds.
Interested in hearing more about important cases from this year? Join the Superior California Chapter of the Association of Environmental Professionals and our friend, Jim Moose from Remy Moose Manley LLP, on August 29th for a Mid-Year Update of CEQA Case Law. More details are available here