In Landmark Ruling, California Supreme Court Ends Reverse CEQA ‑ Confirms CEQA Generally Does Not Require an Analysis of the Environment’s Impact on a Project
By: Christian Cebrian
In a major decision interpreting the California Environmental Quality Act (CEQA), the California Supreme Court ruled unanimously that CEQA review is focused on a project’s impact on the environment “and not the environment’s impact on the project.” California Building Industry Association v. Bay Area Air Quality Management District (December 17, 2015, Case No. S213478). This decision will likely impact the scope of many environmental documents prepared under CEQA.
The underlying litigation involved the California Building Industry Association’s (CBIA) challenge to the Bay Area Air Quality Management District’s (BAAQMD) adoption of CEQA thresholds of significance that required an analysis of existing air quality impacts on new development. CBIA contended that BAAQMD’s thresholds of significance improperly expanded CEQA by requiring new projects to mitigate the impacts of previously existing environmental issues rather than mitigating only for the impacts created by the project.
CBIA prevailed at the trial court, but the Court of Appeal reversed. In doing so, the Court of Appeal questioned the reasoning of several cases holding that CEQA does not require that an environmental impact report analyze the impacts of the environment on a project, including South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604 (“SOCWA”), which held that a new residential project was not required to mitigate for the existing odor impacts caused by a nearby waste water treatment plant. In reversing the Court of Appeal, the Supreme Court made a number of important rulings:
CEQA Guideline 15126.2(a) is clearly erroneous in part. The Supreme Court affirmed the holding of SOCWA and similar cases and held that the Natural Resources Agency exceeded its statutory authority when adopting the CEQA Guideline on which BAAQMD relied to justify requiring new projects to mitigate for existing air quality issues. The Supreme Court held that it was improper for CEQA Guideline 15126.2(a) to suggest that an EIR should include analyses such as the significant effects to future occupants of a subdivision that is located astride an active fault. Instead, the Court confirmed that “agencies subject to CEQA generally are not required to analyze the impact of existing environmental conditions on a project’s future residents or users.”
Exacerbating effects should be analyzed. The opinion also holds that when a project has “potentially significant exacerbating effects on existing environmental hazards” those impacts are properly within the scope of CEQA because they can be viewed as impacts of the project on “existing conditions” rather than impacts of the environment on the project. The Supreme Court provided the example of a project that threatens to disperse existing buried environmental contaminants that would otherwise remain undisturbed. The Court concluded that it is proper under CEQA to undertake an analysis of the dispersal of existing contaminants because such an analysis would be focused on how the project “would worsen existing conditions.”
There are limited statutory exceptions to the rule. The court also agreed with CBIA that the limited number of express CEQA provisions that require analysis of the impacts of the existing environment on a project – such as impacts associated with school siting and airports – should be viewed as specific statutory exceptions to the general rule that such impacts are not properly within CEQA’s scope. The court rejected BAAQMD’s argument that these requirements were evidence that that the Legislature intended CEQA to generally require an analysis of the impacts of the environment on a project.
In addition to the SOCWA case, the Court concluded by expressly acknowledging that its analysis was consistent with prior case law, including Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464; City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889; and Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, all cases cited by CBIA. Combined with this decision, these cases, now clearly validated by the Supreme Court, provide guidance on what falls within CEQA’s scope of review and what is the subject of other regulatory review. One of the expected impacts of the decision is that CEQA documents should no longer be required to evaluate impacts of the existing environment on the project. Instead, those impacts would be addressed properly through planning and zoning laws and environmental laws, such as the Alquist-Priolo Earthquake Fault Zoning Act.
Note: Michael Zischke, Andrew Sabey and Christian Cebrian of Cox Castle represented the California Building Industry Association in this matter and Andrew Sabey argued the matter before the California Supreme Court.