Cal. Bldg. Indus. Ass'n v. Bay Area Air Quality Mgmt. Dist.

2 Cal.App.5th 1067

207 Cal.Rptr.3d 911

CALIFORNIA BUILDING INDUSTRY ASSOCIATION, Plaintiff and Respondent,

v.BAY AREA AIR QUALITY MANAGEMENT DISTRICT, Defendant and Appellant.

A135335

A136212

Court of Appeal, First District, Division 5, California.

Filed August 12, 2016

As Modified on Denial of Rehearing September 9, 2016

Shute, Mihaly & Weinberger, Ellison Folk, Erin B. Chalmers and Brian C. Bunger, San Francisco, for Defendant and Appellant.

Ruby R. Fernandez for South Coast Air Quality District as Amicus Curiae on behalf of Defendant and Appellant.

Paula A. Forbis for County of San Diego as Amicus Curiae on behalf of Defendant and Appellant.

Matthew D. Vespa for Sierra Club and Center for Biological Diversity as Amicus Curiae on behalf of Defendant and Appellant.

Burke, Williams & Sorensen and Thomas B. Brown for League of California Cities and California State Association of Counties as Amicus Curiae on behalf of Defendant and Appellant.

Cox, Castle & Nicholson, Andrew B. Sabey, Christian Cebrian, Michael H. Zischke and Bradley B. Brownlow, San Francisco, for Plaintiff and Respondent.

Perkins Coie and Geoffrey L. Robinson, San Francisco, for Center for Creative Land Recycling as Amicus Curiae on behalf Plaintiff and Respondent.

NEEDHAM, J.

The California Environmental Quality Act (CEQA; Pub. Res. Code, § 21000 et seq. ) requires public agencies to conduct an environmental review of discretionary projects they carry out or approve and to prepare an environmental impact report (EIR) for any project that may have a significant effect on the environment. (Pub. Res. Code, §§ 21151, 21100, 21080, 21082.2.) The CEQA Guidelines¹ encourage public agencies to develop and publish “thresholds of significance” to assist in determining whether a project's effect will be deemed significant. (CEQA Guidelines, § 15064.7.) “A threshold of significance is an identifiable quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which mean the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.” (Id ., subd. (a).)

Following a grant of review of our previous opinion in this case, the Supreme Court held CEQA “does not generally require an agency to consider the effects of existing environmental conditions on a proposed project's future users or residents.” (California Building Industry Assn. v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, 392, 196 Cal.Rptr.3d 94, 362 P.3d 792 (Building Association ).) It remanded the case to this court to consider whether thresholds of significance adopted by appellant Bay Area Air Quality Management District (District) ran afoul of this principle and the extent to which respondent California Building Industry Association (CBIA) was entitled to relief. (Id . at pp. 392–393, 196 Cal.Rptr.3d 94, 362 P.3d 792.) We conclude the challenged thresholds are not invalid on their face, but may not be used for the primary purpose envisioned by District, namely, to routinely assess the effect of existing environmental conditions on future users or occupants of a project. District's suggestion that local agencies could impose such a requirement by virtue of their police powers, if not under CEQA, raises an issue not properly before us because this case concerns only the scope of environmental review under CEQA.

I. BACKGROUND

A. The Thresholds and District Guidelines

District is a regional agency charged with limiting nonvehicular air pollution in the San Francisco Bay Area. It is authorized to adopt and enforce rules and regulations regarding the emission of pollutants, and to ensure state and federal ambient air quality standards are met. (Health & Saf. Code, §§ 39002, 40000, 40001, subd. (a), 40200.) Among its other activities, District monitors air quality, engages in public outreach campaigns, issues permits to certain emitters of air pollution, and promulgates rules to control emissions. (Health & Saf. Code, §§ 42300, 42301.5, 42315.)

In 1999, District published thresholds of significance concerning certain air pollutants, along with guidelines concerning their use and the analysis of air quality issues, in general, under CEQA. District's 1999 thresholds and guidelines were intended to serve as a guide for those who prepare or evaluate air quality impact analyses for projects and plans in the San Francisco Bay Area, and set forth the levels at which toxic air contaminants (TACs) and certain types of particulate matter would be deemed environmentally significant.

In 2009, District drafted new proposed thresholds of significance, partly in response to the Legislature's adoption of laws addressing greenhouse gases (GHGs). It cited three factors justifying the new thresholds: (1) the enactment of more stringent state and federal air quality standards since the adoption of the earlier thresholds and the addition of PM2.5 (particulate matter with a diameter of 2.5 microns or less) to the substances regulated; (2) the discovery that TACs present an even greater health risk than previously thought; and (3) the growing concern with global climate change.

A number of organizations, businesses, and local governments participated in public hearings, meetings, and workshops held by District regarding the proposed revisions. One participant was CBIA, a statewide trade organization representing members involved in residential and light commercial construction, including homebuilders, architects, trade contractors, engineers, designers, and other building industry professionals. During the public hearing process, CBIA and other groups expressed concern the proposed thresholds and guidelines were too stringent and would make it difficult to complete urban infill projects close to existing sources of air pollution. According to these groups, EIRs would be required for many projects where they otherwise would not have been, and other projects would not be approved. If these infill projects were not feasible, they argued, developers would build in more suburban areas, thus (paradoxically) causing even more pollution due to automobile commuter traffic.

On June 2, 2010, District's board of directors passed resolution No. 2010–06 (Resolution), adopting new thresholds of significance for air pollutants, including GHGs, TACs and PM2.5 (the Thresholds). As set forth in the Resolution, the Thresholds “reflect the levels at which environmental effects should be considered ‘significant’ for purposes of CEQA, such that exceedance of the [T]hresholds will normally establish that the effect is ‘significant’ under CEQA and compliance with the [T]hresholds normally will establish that the effect is less than ‘significant’ under CEQA[.]”

The Thresholds, which were attached as Exhibit A to the Resolution, set “construction-related” and “operational-related” significance levels for TACs and PM2.5 emissions, broken down into four separate categories: (1) “Risks and Hazards—New Source (Individual Project);” (2) “Risks and Hazards—New Receptor (Individual Project);” (3) “Risks and Hazards—New Source (Cumulative Thresholds);” and (4) “Risks and Hazards—New Receptor (Cumulative Thresholds).” Relevant to this case are the significance levels applicable to a new receptor (Receptor Thresholds), as to which the Resolution states, “[I]t is the policy of the [District] that Lead agencies in the Bay Area apply the CEQA Thresholds of Significance for the Risk and Hazard thresholds for Receptor Projects for Notices of Preparation issued, and environmental analyses begun, after January 1, 2011.”²

Also in 2010, District published new “CEQA Air Quality Guidelines” (District Guidelines), which include the Thresholds and suggest methods of assessing and mitigating impacts found to be significant. The self-stated purpose of these District Guidelines “is to assist lead agencies in evaluating air quality impacts of projects and plans proposed in the San Francisco Bay Area Air Basin (SFBAAB). The [District] Guidelines provide[ ] [District]-recommended procedures for evaluating potential air quality impacts during the environmental review process consistent with CEQA requirements.... [¶] Land development plans and projects have the potential to generate harmful air pollutants that degrade air quality and increase local exposure. The [District] Guidelines contain instructions on how to evaluate, measure, and mitigate air quality impacts generated from land development construction and operation activities. The [District] Guidelines focus on criteria air pollutant, greenhouse gas (GHG), toxic air contaminant, and odor emissions generated from plans or projects. [¶] The [District] Guidelines are intended to help lead agencies navigate the CEQA process. The [District] Guidelines offer step-by-step procedures for a thorough environmental analysis of adverse air emissions due to land development in the Bay Area.” (District Guidelines, [¶] 1.1.)

Paragraph 5.2 of the District Guidelines directs the lead agency to “determine whether operational-related TAC and PM2.5 emissions generated as part of a proposed project siting a new source or receptor would expose existing or new receptors to levels that exceed [the District's] applicable Thresholds of Significance ....” Paragraph 5.2.5 of the District Guidelines, entitled “Siting a New Receptor,” states: “If a project is likely to be a place where people live, play, or convalesce, it should be considered a receptor. It should also be considered a receptor if sensitive individuals are likely to spend a significant amount of time there.... Examples of receptors include residences, schools and school yards, parks and play grounds, daycare centers, nursing homes, and medical facilities.... [¶] When siting a new receptor, a Lead Agency shall examine existing or future proposed sources of TAC and/or PM2.5 emissions that would adversely affect individuals within the...