I’m working on developing an affordable housing project in the bay area and the city wants me to assess the impact of existing air quality on my project’s future residents as part of my CEQA review. Is this necessary?
Answer: No. Air quality impacts on a project’s future residents is an example of an impact of the environment on a project. The California Environmental Quality Act is concerned with assessing and mitigating the impact of projects on the environment, NOT the impact of the environment on projects. However there has been some confusion generated recently by the promulgation by the Bay Area Air Quality Management District (BAAQMD) of CEQA “significance thresholds” specifically designed and intended to aid in the CEQA review of impacts from existing sources of toxic air contaminants (“TACs”) on future residents of proposed projects. These thresholds, however, directly conflict with well-established case law; four courts of appeal have now ruled unequivocally that CEQA is concerned with impacts of proposed projects on the environment, not the impacts of the environment on proposed projects.
In the first of these cases, Baird v. County of Contra Cost (1st Dist. 1995) 32 Cal.App.4th 1464, opponents of a proposed addiction treatment facility argued that CEQA required the County to prepare an EIR to study the impacts of odors from an existing nearby sewage treatment facility. The court rejected this argument, stating that “[t]he purpose of CEQA is to protect the environment from proposed projects, not to protect proposed projects from the existing environment.”
The most recent case, Ballona Wetlands Land Trust, et al. v. City of Los Angeles (2nd Dist., Nov. 9, 2011) Cal.App.4th, centered on the question of whether or not a proposed mixed-use development project must include in its CEQA review analysis (and possibly mitigation) of the impact of future sea level rise (caused by global climate change) on the project. In this case, not only did the court uphold the Baird case precedent and reject sea level rise as an impact requiring CEQA review, but it also threw out whole sections of the state CEQA guidelines as being inconsistent with (and thus invalid) under CEQA.
Although BAAQMD’s thresholds fall into the same category of impacts that these cases say should not be subject to CEQA review, none of the existing case law deals directly with the impact of TACs on a new project. Thus the thresholds remain in effect and cities feel obligated to apply them to CEQA reviews of all new projects.
Despite the dubious legal grounds upon which BAAQMD’s CEQA thresholds stand, many cities feel constrained to follow them, thus prolonging the entitlement process and encouraging lawsuits that delay projects and act as a drain on public and private resources, without any corresponding environmental benefit.
Fortunately there is now a case pending in front of the California Supreme Court that could put this issue to rest. The Supreme Court has agreed to review a suit brought by the Building Industry Association against BAAQMD regarding their thresholds, specifically to resolve the question of whether or not CEQA law allows for analysis of the impact of existing environmental conditions on a proposed project. A ruling is expected by the end of 2014.
So if CEQA is not the appropriate tool for ensuring that your new development is not exposing residents or workers to unhealthy air, what is the right tool? Cities already have at their disposal a much more efficient and effective tool to control the impact of TACs on new residents: local ordinances.
A local ordinance allows the community to combine air quality data with localized knowledge and development priorities to identify those areas of their community where extra measures are necessary to protect the health of new residents. In addition, those measures are spelled out, giving developers the certainty they need to design a project that is both health-protective and economically feasible.