The Supreme Court of California recently reversed the Court of Appeal decision in California Building Industry Association v. Bay Area Air Quality Management District (December 17, 2015, Case No. S213478, “CBIA”). At issue in CBIA was the interpretation of Section 21083(b) of the California Environmental Quality Act (“CEQA”), which provides criteria for determining whether or not a proposed project may have a “significant effect on the environment.”
In adopting new thresholds of significance for air pollutants, the Bay Area Air Quality Management District (the “District”), interpreted Section 21083(b) to require an evaluation of the impact of existing air quality on “new receptors”, the future residents of proposed projects.
The California Building Industry Association (CBIA) challenged the proposed thresholds on a number of grounds, including that such a broad analysis is not required under CEQA or its Guidelines. CBIA argued that interpreting CEQA so broadly would push infill urban development located near existing sources of air pollution into more suburban areas, resulting in further environmental impacts such as by increasing commuter traffic.
The Court agreed, concluding that CEQA does not require agencies to analyze the environment’s effects on a project; requiring such an analysis in all circumstances would impermissibly expand the scope of CEQA. Specifically, the court held that the last two sentences of Section 15126.2(a) of the CEQA Guidelines are clearly erroneous and unauthorized under CEQA: “[A]n EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.”
The Court went on to note, however, that Section 15126.2(a) is valid to the extent it requires analysis of how a project might worsen existing conditions as that is entirely consistent with the purpose of CEQA.
Lastly, the Court upheld the validity of the CEQA sections that require an evaluation of the effects of existing hazards on future users of proposed projects in specific contexts, including certain airport and school construction projects. The Court also upheld the sections that limit the availability of CEQA exemptions where future residents or users of certain housing development projects and transit priority projects.
Take away: There are limited circumstances where CEQA requires an evaluation of whether existing environmental conditions might harm those who intend to occupy or use a project site in the specific circumstances. There is no overarching, general requirement for an analysis of existing environmental conditions in every project where they pose a risk to the future residents or users of a project.
Avneet Sidhu advises both private and public clients on matters involving real property acquisition, sale, environmental compliance, land use entitlement, and development.
Ms. Sidhu is a member of the LAND practice group.