It's Official: CEQA Does Not Apply to CEQA
The First District Court of Appeal has batted down an attempt by the California Building Industry Association to turn CEQA on its head, saying that the passage of significance thresholds is not a project under the environmental law. In so doing, the court concluded that an environmental analysis is not required to examine the environmental impact of the standards used to conduct environmental analysis and assess environmental impact.
In other words, the appellate court ruled that CEQA does not apply to CEQA – at least not in this case.
In CBIA v. BAAQMD, CBIA filed a lawsuit under the California Environmental Quality Act after the Bay Area Air Quality Management District adopted new significance thresholds for several pollutants, including a significance threshold for greenhouse gas emissions. The GHG threshold for development projects is 1,100 metric tons of carbon dioxide equivalent or 4.6 metric tons per service population per year.
CBIA sued, arguing most importantly that the adoption of significance thresholds is a project under CEQA and therefore should have triggered a CEQA analysis. Alameda County Superior Court Judge Frank Roesch ruled in favor of CBIA, concluding that significance thresholds are “a discretionary activity directly undertaken by a public agency which may cause a reasonably foreseeable indirect physical change in the environment.” He agreed with CBIA’s claim that the evidence in the record supports the argument that the Thresholds “might discourage infill development, encourage suburban development or change land use patterns. . .”
The First Appellate District, Division Five, reversed Roesch’s ruling, on two grounds. First, the court concluded that the CEQA Guidelines already lay out a process for public review of significance thresholds and a CEQA review – with an initial study and possibly an environmental impact report – would be duplicative. And second, the court said that there was not enough evidence in the record to support CBIA’s contention that the thresholds would not discourage infill development.
On the first point, Justice Henry Needham, writing for a unanimous three-judge panel, cited Guidelines Section Section 15064.7(b), which lays out the process by which thresholds should be adopted. “The District drafted proposed revised thresholds of significance in 2009, utilizing the scientific and administrative expertise of its staff,” Needham wrote. “It then conducted public hearings, outreach, and workshops for more than a year. The administrative record, which contains staff reports, scientific reports and protocols, analyses of the effect the proposed thresholds would have on various projects, letters from interested parties, responses by the District, transcripts of hearings, and records from various workshops, is in excess of 7000 pages. CBIA and other groups with similar concerns about the proposed thresholds and their effects participated in that process. The District took the comments of such groups into consideration before adopting the?2010 Thresholds.”
Requiring the air district to also conduct a CEQA analysis “would result in a duplication of effort, at taxpayer expense and to little if any purpose.”
Needham also concluded that the record did not prove that adoption of the significance thresholds would discourage infill development or encourage sprawl. “Teasing out the extent to which undefined future projects might be built or abandoned as a result of the Thresholds, and the extent to which land development projects might be relocated to a more suburban location, would require a prescience we cannot reasonably demand of the District. No public agency other than the District is committed to using the Thresholds, and the District does not act as the lead agency for the type of residential and commercial projects CBIA alleges will be displaced,” Needham wrote.