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One Meter Sea Level Rise at Richardson Bay C
Unfortunate 'No-CEQA-In-Reverse' California Supreme Court Ruling
Unfortunately, the California Supreme Court recently ruled that the California Environmental Quality Act (CEQA) does not apply in reverse. What this means is that, with few exceptions, CEQA analysis must be limited to the project's impacts on the environment but NOT the environment's impact on the project or the project's future inhabitants. This is a potentially terrible outcome for future environmental review of proposed development in many parts of Marin, depending on the lead agency involved.
The specific case that received the California Supreme Court ruling was the California Building Industry Association (CBIA) v. the Bay Area Quality Management District (BAAQMD). CBIA brought suit against BAAQMD disputing BAAQMD’s ability to impose thresholds of significance for certain air pollutants. In 2010, BAAQMD adopted a rule that projects sited in areas that would expose new occupants to toxic air contaminants (TACs) in excess of established thresholds would be found to have significant environmental impacts. For infill and transit-oriented development, frequently sited close to freeways and heavily-developed areas, the thresholds would require many more projects to prepare Environmental Impact Reports (EIRs) and could prevent some projects from being approved.
The ruling is welcome news for infill housing developers and other project proponents. However, it is very concerning for the health and safety of future residents. Without a CEQA evaluation of the effects of existing hazards on future users of a proposed project, the project could have the effect of attracting people to the location and exposing them to the hazards found there.
As an example, consider all the many environmental hazards that exist in the Tam Junction area of Unincorporated Mill Valley: Projected sea level rise, High air pollution (Air pollution experts found that the Toxic Air Contaminants near Hwy 101 and along Hwy 1 in Tam Junction far exceed the threshold that the Bay area Air Quality Management District deems to be safe), High subsidence and Mud displacement, etc. The ruling suggests that a CEQA analysis cannot analyze and mitigate the effect of these existing environmental hazards on a proposed project or the project's future users or residents, unless the project potentially exacerbates those environmental hazards.
Although insufficient, there are exceptions to the "No-CEQA-In-Reverse" rule for airport-related safety hazards and noise problems (Public Resources Code Section 21096), schools located in close proximity to hazards, waste, or freeways that might emit hazardous substances (Section 21151.8), and housing developments located close to hazardous substances and sites subject to wildland fire, seismic, landslide, or flood hazards (Section 21159 and Section 21155.)
Remarkably, the Court still invited lead agencies to continue to impose analysis of the effects on future residents or users, whether CEQA requires it or not. In a footnote, the Court clarified that CEQA does not “prohibit an agency from considering- as part of an environmental review for a project it proposes to undertake – how existing conditions might impact a project’s future uses or residents.”
Hence, the ruling will provide support to project proponents’ demands to forgo Environmental Impact Reports that include ‘reverse CEQA’ studies and analysis. However, the ultimate decision of whether or not to fully evaluate the impacts of existing conditions is in the hands of the lead agencies.
For more information, please click here to read the article by Morrison and Foerster LLP entitled; "CEQA Doesn’t Operate in ‘Reverse’ (Usually)".
The case, California Building Industry Association v. Bay Area Air Quality Management District, can be found in the below PDF.