On September 9, 2016, the First District Court of Appeal (Division 5) filed an “Order Modifying Opinion and Denying Rehearing [No Change In Judgment]” in California Building Industry Association v. Bay Area Air Quality Management District, Case. Nos. A135335 & A136212. My post on the Court of Appeal’s published opinion in the case, which was filed on August 12, 2015 following remand from a landmark Supreme Court decision holding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents” (California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 392), can be found here.

The Court of Appeal’s four-page Order adds text that is consistent with, but which modifies its opinion in three substantive respects to reject arguments made by BAAQMD in its rehearing petition:

  • In modifying the paragraph of its Opinion following the heading stating “A Lead Agency Cannot Require an EIR or Mitigation Measures Based Solely on a Determination a Project Will Have a Significant Effect Upon a New Receptor,” the Court of Appeal added: “District’s suggestion that local agencies could impose such a requirement by virtue of their police powers, if not under CEQA, raises an issue not properly before us because this case concerns only the scope of environmental review under CEQA.”
  • In rejecting BAAQMD’s argument that “writ relief is inappropriate because the District Guidelines are a nonbinding, advisory document and their review is premature given the lack of a specific controversy[,]” the Court of Appeal held that a mandamus remedy was proper. Noting BAAQMD’s “reli[ance] on inapposite case law in which the courts declined to use the remedy of mandamus to set aside interim actions by an agency during a multilayered review process[,]” it held: “The District Guidelines are not interim steps in a larger review process; rather, they are interpretive guidelines for CEQA analyses promulgated by an air district that acts as either the lead agency or a responsible agency on projects within its jurisdictional boundaries.”
  • Finally, in rejecting BAAQMD’s argument that CBIA’s challenge to its Receptor Thresholds and Guidelines was unripe, the Court of Appeal invoked the standards governing ripeness set forth by the Supreme Court in Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 172-174. Per the Court of Appeal: “Unlike the Coastal Commission guidelines at issue in Pacific Legal Foundation, the District Guidelines do not call for the Receptor Thresholds to be applied to projects on a case-by-case basis. Instead, they suggest a routine analysis of whether new receptors will be exposed to specific amounts of toxic air contaminants. Given the clarity of the Supreme Court’s decision that such an analysis oversteps the bounds of CEQA except in specified circumstances (Building Association, supra, 62 Cal.4th at p. 392), the issue is fit for judicial determination. The ripeness requirement “should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially where there is a widespread public interest in the answer to a particular legal question.”” (Quoting Pacific Legal Foundation, supra, 33 Cal.3d at 170.)

In reflecting on the course of this landmark CEQA litigation, which is now headed back to the trial court for issuance of a writ of mandate and determination of prevailing party CBIA’s request for attorneys’ fees under the private attorney general statute (Code Civ. Proc., § 1021.5), one cannot help but be struck by the contrast between the tenor of the earlier arguments made by BAAQMD to the Court of Appeal and Supreme Court and those now being advanced. For whatever reason, BAAQMD tried through this case to effect a major paradigm shift in the fundamental scope of CEQA review, such that CEQA analysis of the impacts of the existing environment on future projects and their users would be required as a matter of course in all cases. Having (thankfully) failed in that effort – which would have imposed intractable (not to mention unconstitutional) burdens on public agencies and applicants seeking discretionary project approvals – it now argues its challenged guidelines were merely advisory and nonbinding, could be imposed by local agencies in non-CEQA contexts, and that the case isn’t really even ripe.

Perhaps BAAQMD has taken the counsel of Ralph Waldo Emerson, who famously wrote: “A foolish consistency is the hobgoblin of little minds, adored by little statesman and philosophers and divines. With consistency a great soul has simply nothing to do…. To be great is to be misunderstood.” With due respect to Emerson, and great souls everywhere, it seems to me that the need for consistent and clearly understood legal rules governing the analysis required by CEQA has never been greater.