By Leslie Z. Walker
On January 9, 2012, the Alameda Superior Court heard and issued a ruling in a lawsuit filed by the California Building Industry Association (CBIA) challenging the Bay Area Air Quality Management District’s (“Air District”) CEQA thresholds of significance. (California Building Industry Association v. Bay Area Air Quality Management District, Alameda County Superior Court Case No. RG10548693.) The Air District adopted the first (and only) numeric greenhouse gas numeric thresholds in the State in June of 2010. The CBIA challenged those thresholds, claiming that the Air District violated CEQA by failing to treat the thresholds as a project under CEQA and to conduct the requisite environmental review for the project. The court ruled that the adoption of the thresholds was a project under CEQA and made no further findings or rulings.
While the Public Resources Code requires that public agencies adopt procedures for the evaluation of projects and the preparation of environmental impact reports and negative declarations (Pub. Resources Code, § 21082), as a matter of practice not all agencies do. In fact, the Guidelines indicate that public agencies are only “encouraged” to develop such thresholds. (Guidelines, § 15064.7.) Nonetheless, adopting thresholds of significance promotes consistency in significance determination and integration of CEQA environmental review activities with other environmental program planning. (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1107.)
What does the decision mean for existing and proposed projects relying on the thresholds? For approved projects for which the applicable statute of limitations has passed, the decision will have no effect. Projects beginning or in the middle of environmental review may still rely on the Air District’s thresholds but should take care to include an explanation of why the Air District thresholds are the appropriate threshold for determining whether the impact is significant. (Guidelines, §15064.7.)
Leslie Z. Walker is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.