Legal Alerts Dec 21, 2015

California Supreme Court Addresses the “Reverse CEQA” Problem

CEQA Does Not Require Agencies to Consider the Impact of Existing Conditions on Future Project Users — Except in Certain Circumstances

California Supreme Court Addresses the “Reverse CEQA” Problem

Under what circumstances, if any, does the California Environmental Quality Act require an analysis of how existing environmental conditions will impact future residents or users of a proposed project? In last week’s unanimous decision, California Building Industry Association v. Bay Area Air Quality Management District, the California Supreme Court concluded that, generally, agencies are not required to analyze the impact of existing conditions on a project’s future users or residents. The exception is when a project risks exacerbating existing hazards or conditions; then, an agency must analyze the potential impact of such hazards on future residents or users.

At issue in the case was BAAQMD’s proposed “receptor thresholds” of significance, which set a limit on the level of toxic air contaminants and particulate matter that may be experienced by residents and workers brought to an area as a result of a proposed project. CBIA challenged these new thresholds on grounds that CEQA does not require analysis of an existing condition’s impact on a new project’s occupants. 

The Court sided with CBIA, holding that CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users and residents. However, the Court went on to state that this general rule would not apply where a project could exacerbate existing environmental hazards. The Court provided an illustrative example: a project is proposed next to a long-abandoned gas station that leached MTBE into the surrounding soil. Without the new development, the MTBE might remain locked in place within the soil, impacting no one. However, the new development would disturb soil, which would have the potential to disperse the settled MTBE and exacerbate the existing contamination. In such a situation, the agency would have to evaluate the existing condition, and the condition’s impacts, as exacerbated by the project, as part of its environmental review.

The Court also noted that certain statutes governing school, airport and certain types of housing projects provide express and specific exceptions to the general rule requiring consideration only of a project’s effect on the environment. For example, under Public Resources Code section 21151.8, an agency must determine if school sites are located on or near hazardous substances or waste.

If you have any questions about this case or how it might impact your organization, please contact one of the authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

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