Greenhouse Gas and Toxic Air Contaminant CEQA Thresholds May Soon Be Reinstated

In California Building Industry Association v. Bay Area Air Quality Management District (filed August 13, 2013) (“CBIA”) , the First District Court of Appeal concluded that an agency’s approval of CEQA significance thresholds does not constitute a “project” under CEQA, and consequently, does not require CEQA review.

In 2012, the Alameda Superior Court invalidated the Bay Area Air Quality Management District’s ( “District”) adoption of CEQA significance thresholds for certain air pollutants and greenhouse gasses, which the District had adopted in response to new greenhouse gas legislation, including the Global Warming Solutions Act of 2006, among other things.

In reversing the Superior Court, the Court of Appeal found that the District’s CEQA significance thresholds were not a “project” subject to CEQA review for two reasons: (1) the CEQA Guidelines establish the required procedure for enacting generally applicable thresholds of significance and prior CEQA review of the thresholds is not part of this procedure; and (2) the environmental change posited by petitioner California Building Industry Association (CBIA) as the basis for CEQA review was not reasonably foreseeable based on the evidence in the record.

First, CEQA Guidelines § 15064.7 encourages public agencies to develop and publish thresholds of significance for use in determining the significance of environmental effects. This section does not explicitly call for CEQA review as a prerequisite for promulgating such threshold, however, and such a process would duplicate the public review process and substantial evidence standard set out under § 15064.7(b), which the District had complied with when formulating the thresholds.

Second, the appellate court also found the environmental effect that CBIA asserted would result from the thresholds was too speculative to cause a “reasonably foreseeable” indirect change in the environment. CEQA Guidelines § 15378(a) (defining a “project” as one that (1) is “an activity directly undertaken by any public agency” and (2) “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.”). While the Court of Appeal acknowledged that the CBIA’s prediction of indirect physical change in the environment due to District’s adoption of the Thresholds “is possible,” it found them to be “too attenuated and speculative to be reasonably foreseeable.” Slip. Opin. at 16 (emphasis in the original).

Although the superior court had not addressed CBIA’s substantive challenges to the District’s thresholds, the Court of Appeal did so. The appellate court found, however, that CBIA’s arguments did not justify overturning the District’s adoption of its thresholds.

Stoel Rives attorneys are closely monitoring the District’s next steps with respect to its CEQA significance thresholds. Please direct any questions to Allison Smith (916.319.4759).