In a published decision filed August 12, 2016, following remand from the California Supreme Court after its landmark “CEQA-in-reverse” decision, the First District Court of Appeal reversed the trial court’s judgment and remanded with directions to issue an order partially granting CBIA’s writ of mandate and to consider CBIA’s requests for declaratory relief and attorneys’ fees. California Building Industry Association v. Bay Area Air Quality Management District (1st Dist., Div. 5, 2016) ____ Cal.App.4th ____, 2016 WL ____________.

The opinion reaches the same general conclusion as the Court of Appeal’s previous opinion in the matter (my blog post on which can be found here) – i.e., that BAAQMD’s 2010 Toxic Air Contaminants (TAC) Thresholds of Significance (i.e., for air pollutants including TACs and PM 2.5) are not facially invalid, because not invalid in all their potential applications. However, following the holding of the Supreme Court’s opinion (my blog post on which can be found here), the Court of Appeal importantly clarifies that the TAC Thresholds “may not be used for the primary purpose envisioned by District, namely, to routinely assess the effect of existing environmental conditions on future users or occupants of a project.”

Consistent with CEQA’s standard definition of “thresholds of significance,” BAAQMD’s 2010 Resolution had stated the TAC Thresholds “reflect the levels at which environmental effects should be considered ‘significant’ for purposes of CEQA, such that exceedance of the [T]hresholds will normally establish that the effect is ‘significant’ under CEQA and compliance with the [T]hresholds normally will establish that the effect is less than ‘significant’ under CEQA[.]” The incorporated TAC Thresholds set forth construction and operational-related significance levels for the covered emissions, in individual and cumulative categories, for both “new source” and “new receptor” projects, and stated BAAQMD’s “policy … that lead agencies in the Bay Area apply the CEQA Thresholds of Significance for the Risk and Hazard thresholds for Receptor Projects” where NOPs were issued or environmental analyses begun after January 1, 2011. For “Receptor” projects these thresholds were deemed exceeded (and impacts therefore deemed significant) if, within a “1,000-foot zone of influence” the “targeted emissions [would] exceed compliance with a qualified community risk reduction plan;” “cumulative emissions from all sources … [would] expose [project] occupants to an increased cancer risk greater than 100 in a million” or “single source [emissions would] expose [them] to an increased cancer risk greater than 10 in a million;” or incremental annual average PM 2.5 increases exceeded specified levels. (The same measures of significance were set for new sources, as well as “receptor” projects.) Related Guidelines also made clear BAAQMD’s direction to lead agencies “siting a new receptor [to identify all TAC and PM 2.5 emissions sources within a 1,000-foot radius and to] … examine existing or future proposed sources of TAC and/or PM 2.5 emissions that would adversely affect individuals within the planned project.”

Key takeaways from the Court of Appeal’s opinion on remand include:

  • The Supreme Court’s limited grant of review of the issues in CBIA’s petition did not extend to or disturb the initial Court of Appeal opinion’s holding – implicitly reaffirmed here – that “the Thresholds [themselves] were not a project requiring CEQA review prior to their promulgation.” If CEQA review were required prior to adoption of the Thresholds by BAAQMD, the Court of Appeal would presumably have invalidated or suspended operation of the Thresholds for all purposes pending CEQA compliance, rather than upholding their application in some instances (i.e., to new source projects) while invalidating them as applied to new receptor projects. This holding is somewhat of a “sleeper,” but should inure to the benefit of lead agencies adopting environmentally protective thresholds of significance for general use in compliance with the public process described in the Guidelines by cutting out the unnecessary and cumbersome “red tape” of redundant CEQA review. Per the Court: “Under CEQA Guidelines section 15064.7, “(a) Each public agency is encouraged to develop and publish thresholds of significance that the agency uses in the determination of the significance of environmental effects. A threshold of significance is an identifiable quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant. [¶] (b) Thresholds of significance to be adopted for general use as part of the lead agency’s environmental review process must be adopted by ordinance, resolution, rule, or regulation, and developed through a public review process and be supported by substantial evidence.” Such thresholds may be employed at various stages of CEQA review, but are not determinative and “cannot be applied in a way that would foreclose the consideration of other substantial evidence tending to show the environmental effect to which the threshold relates might be significant.”” (Citing Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109.)
  • The Court of Appeal explained, and limited the scope of potential application of, certain statements in footnote 12 of the Supreme Court’s opinion concerning voluntary CEQA-in-reverse analysis by public agencies. (See California Building Industry Assn. v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, 388, fn. 12.) It agreed with BAAQMD that “while CEQA does not generally require an evaluation of existing conditions upon future occupants or users of a proposed project, a public agency retains the discretion to make such an evaluation when conducting an analysis of its own project” and “that in such cases, the Receptor Thresholds provide an appropriate measure of existing air pollution.” In reconciling the Supreme Court’s footnote 12 statements with the main thrust of its opinion, the Court of Appeal stated: “We … construe footnote 12 of the Building Association decision to mean that while CEQA cannot be used by a lead agency to require a developer or other agency to obtain an EIR or implement mitigation measures solely because the occupants or users of a new project would be subjected to the levels of emissions specified, an agency may do so voluntarily on its own project and may use the Receptor Thresholds for guidance. (See Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, 700-701 [county not precluded from arguing it had voluntarily undertaken environmental review not required by CEQA].)”
  • The Court only briefly discussed the parties’ opposing arguments on whether the Receptor Thresholds – as opposed to the Source Thresholds – could “be applied to any new project to determine whether it would worsen [i.e., exacerbate] existing conditions and thus affect future users of the project.” Per the Court: “We agree that conceptually, a proposed project that would itself worsen environmental conditions would be a source – but it would also be a receptor to the extent it brought users or occupants to the site. The Source Thresholds and Receptor Thresholds are numerically identical, and would presumably yield the same result when applied to a project likely to worsen environmental conditions. But while this might render the Receptor Thresholds redundant in certain cases, it does not mean they could not be used as a component in measuring the effects of such a project, as discussed in Building Association.”
  • “[T]he Receptor Thresholds could be used by a school district acting as a lead agency to determine … hazards” “on future users of … certain school projects” under the provisions of Public Resources Code § 21151.8(a), which “requires the school district to consider whether specified existing sources of pollution are an “endangerment of public health” of persons at the school site, whether corrective measures could mitigate this danger, and whether air quality poses “significant health risks” to students.”
  • “Another exception to the general rule that CEQA does not require an evaluation of the effects of existing hazards on future [project] users … is Pub[l]ic Resources Code section 21096 …, which describes the procedures for “a project situated within airport land use compatibility plan boundaries, or … for a project within two nautical miles [of] an airport [where no plan has been adopted] ….”
  • CEQA’s qualified statutory exemptions for certain housing development and transit priority projects (see Pub. Resources Code, §§ 21159.21(f), 21159.22(b)(3), 21159.23(a)(2)(A), 21159.24(a)(1), (3), 21155.1(a)(4)(B)) also constitute “exceptions to the general rule that CEQA [does] not require an evaluation of existing hazards on future users of a proposed project.” CEQA directs with respect to these exceptions that: “If a potential for exposure to significant hazards from surrounding properties or activities is found to exist, the effects of such exposure shall be mitigated to a level of insignificance in compliance with state and federal requirements.” (Quoting Pub. Resources Code, § 21159.21(f)(2).) Per the Court: “A lead agency charged with CEQA review of a project governed by these statutes could apply the Receptor Thresholds to determine whether air quality posed a health risk to future occupants of a qualifying housing project. [¶] … Here, we are concerned not with the need for an EIR on a specific project, but with whether the significance levels set forth in the Receptor Thresholds may be used to evaluate whether a housing project was exempt from CEQA review. Consistent with the reasoning in Building Association, they may be used for this purpose.”
  • The Court rejected, as essentially unripe and unsupported by concrete examples, BAAQMD’s arguments that the Receptor Thresholds should also be upheld to the extent that they might “be used to determine whether a particular project is consistent with a general plan.” It further noted that “[a] project’s inconsistency with a general plan does not itself mandate a finding the project will a have a significant effect on the environment[.]” (Citing Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1207.)
  • In summing up its substantive conclusions and reasoning in support of its partial invalidation of the Receptor Thresholds, the Court of Appeal stated: “We have concluded a local agency might permissibly apply the measurements contained in the Receptor Thresholds to an environmental review conducted under CEQA in certain cases, even though the Receptor Thresholds cannot be used to require an EIR or the implementation of mitigation measures based solely on the impact the existing environment will have on future users or occupants of a project. …. [¶] The Receptor Thresholds are simply numbers indicating when a project will ordinarily pose a risk to human health that will be deemed environmentally significant for CEQA purposes. CEQA requires or allows such an analysis with respect to the receptors of certain projects at various junctures in the environmental review process, but does not require such an analysis in other contexts. The Receptor Thresholds may be used by lead agencies to the extent permissible under CEQA, but any effort by an agency to require an EIR, mitigating measures, or other CEQA review under the Receptor Thresholds when one is not authorized would be subject to a strong legal challenge. [¶] …. [T]he District Guidelines are misleading to the extent they contemplate an application of the Receptor Thresholds to evaluate the effect of the existing environment on all new receptors as a matter of course, a use that would be inconsistent with CEQA[.]”