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CEQA
Supreme Court ruling changes CEQA protections for development in hazardous areas
The Governor’s Office of Planning and Research is currently seeking input on proposed revisions to Section 15126.2(a) of the CEQA Guidelines.
In response to the California Supreme Court’s decision in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal. 4th 369 the Governor's Office of Planning and Research is proposing changes to the California Environmental Quality Act ("CEQA").
The BIA suit specifically challenged the requirement for considering the impacts of putting future residents in harms way, and the Court appears to have agreed that these potentially dangerous impacts on residents do not need to be considered.
These proposed revisions address the requirement to analyze hazards when a new development project may risk exacerbating those hazards, but not how those hazards if not exacerbated, may impact future residents who will be in harm's way due to the new development.
The text of the proposed changes can be found by clicking here
Per the Court: “In light of CEQA’s text, statutory structure, and purpose, we conclude that agencies generally subject to CEQA are not required to analyze the impact of existing environmental conditions on a project’s future users or residents. But when a proposed project risks exacerbating those environmental hazards or conditions that already exist, an agency must analyze the potential impact of such hazards on future residents or users. In those specific instances, it is the project’s impact on the environment – and not the environment’s impact on the project – that compels an evaluation of how future residents or users could be affected by exacerbated conditions.” Notwithstanding “special CEQA requirements [that] apply to certain airport, school and housing construction projects[,]” the Court held “that ordinary CEQA analysis is concerned with a project’s impact on the environment, rather than with the environment’s impact on a projects and its users or residents.” (Miller Starr Regalia)
An example of the types of hazards that the Court's decision would preclude from required analysis, by a city or a developer, would be new development in flood zones. In other words, the Court appears to be saying that the "environment" should be protected, and that new development should not harm the environment or increase hazards to the environment, but what might happen in the future to people and property (i.e., due to sea level rise, air pollution, etc.) does not matter or warrant analysis unless the development increases those hazards.
Though the concept that harm to people's lives is not considered an important impact is extremely discouraging, it may work in reverse for some proposed developments in Marin.
For example, in the case of the proposal to construct a commercial sports complex at Hamilton Field, a known toxic waste dump site, it would now be harder for the developer to argue that the disturbance of the soil and site required to construct the facility will not increase the potential hazardous impacts to existing or new residents.
In any case, Marin Planners and advocacy groups and their legal counsel would be wise to submit comments to the Governor’s Office of Planning and Research.