Calif. Supreme Court Denies Expansion of Environmental Impact Reports

By Bay City News Service:

The California Supreme Court declined last week to expand a state law that requires environmental impact reports on proposed development projects undertaken or approved by public agencies.

The seven-member court unanimously said Thursday the reports required by the California Environmental Quality Act don’t automatically have to consider the effect of already existing environmental conditions or hazards on future residents or users of a project.

Instead, the panel said, the law intends that reports should focus primarily on the changes a project would make in the existing physical environment.

“We conclude that CEQA generally does not require an analysis of how existing environmental conditions will impact a project’s future users or residents,” wrote Justice Mariano-Florentino Cuéllar wrote.

The court ruled at its San Francisco headquarters in a lawsuit originally filed in Alameda County Superior Court by the California Building Industry Association.

The association challenged guidelines set by the Bay Area Air Quality Management District to aid agencies in determining when toxic air contaminants reached a level of significant environmental harm. The California high court overruled a decision in which a state appeals court in San Francisco upheld the use of the guidelines.

The panel sent the case back to the appeals court for further proceedings.

While saying there is no blanket requirement that EIRs must look at the effects of existing environmental hazards on residents and users of a building project, the court also said the state law establishes exceptions allowing such review for certain types of building projects.

The exceptions apply to projects near airports; school sites near hazardous waste dumps or freeways; and housing projects located in areas where wildfires, earthquakes, landslides or floods could expose existing hazardous contamination that is currently contained.

The court also created an additional exception for situations in which a project would intensify an existing hazard.

“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,” Cuellar wrote.

Cuellar gave as an example the case of an abandoned gas station where the contaminant MTBE is now safely locked in place underground, but where project construction could disperse the chemical into groundwater used as drinking water.

Both sides in the dispute found a partial victory in the decision.

The CBIA said in a statement, “We are pleased the court ruled that CEQA generally does not require a project to evaluate and mitigate impacts that the existing environment has on the project. “That will help to keep CEQA to is original mission -- evaluating the impacts of a project on the environment. There are other statutes and regulatory programs that deal with existing environmental issues,” the association said.

Air district officials said they believe the agency’s air quality guidelines remain relevant because new development often exacerbates existing air pollution and thus falls into the exception created by the court.

“The air district’s thresholds that were challenged are designed to address existing air quality hazards and in most cases, new development will contribute additional air pollution that will exacerbate those conditions. Therefore, we believe that the thresholds are consistent with the Supreme Court’s holding,” the district management said in a statement.

Kevin Bundy, a lawyer who co-authored a friend-of-the-court brief for the Center for Biological Diversity, the Sierra Club and two other groups, said that while the decision allows some scrutiny of existing hazards, it could permit existing risks to be “swept under the rug” in some cases. “The decision leaves some gaps that may have to be filled by the Legislature,” he said.

(Patch file photo by Renee Schiavone)