In late April the Bay Area Air Quality Management District (“BAAQMD”) promulgated its revised 2022 CEQA Guidelines (“2022 Guidelines”), available here. Previously BAAQMD had published guidelines in 2012, which were the subject of litigation culminating in the California Supreme Court’s decision in California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, an important case delineating the scope of CEQA in which we represented several amici curiae and which we blogged about here.
In response to that case, BAAQMD put out new guidelines in 2017, but quickly determined those guidelines were out of date. In BAAQMD’s own words: “The 2017 revision did not address outdated references, analytical methodologies, or technical information improvements. Additionally, the Air District adopted new Climate Impact Thresholds on April 20, 2022, using performance-based standards requiring new guidance on evaluating the climate impacts of land use projects and plans.”
Thus, BAAQMD drafted the 2022 Guidelines (first blogged on here, which originally consisted of thresholds of significance but have now been substantially expanded and revised.
What’s New and/or Noteworthy
The 2022 Guidelines cover eight chapters, including thresholds of significance, guidance for assessing project- and plan-level air quality and climate change impacts, and proposed mitigation measures. As BAAQMD itself observes:
The 2022 Guidelines include a new chapter with best practices for centering Environmental Justice, health, and equity; a new appendix with the rationale for the recommended climate impacts thresholds of significance; a new appendix to assist with developing community-scale greenhouse gas (GHG) reduction strategies aligned with the State CEQA Guidelines and the Air District’s plan-level thresholds; an appendix with guidance on using the California Emissions Estimator Model (CalEEMod 2022) for Bay Area projects; and a new criteria pollutants and precursors screening tool for mixed land use projects.
There are a number of interesting components to the 2022 Guidelines. For instance, Chapter 2, entitled “Best Practices for Centering Environmental Justice, Health and Equity” adds a social justice gloss to analyzing and mitigating air quality impacts under CEQA. Whether that adds anything substantive to the analysis and mitigation remains to be seen, but attorneys and lead agencies should be attuned to this development.
Likewise, while the continuing validity of local all-electric reach codes is questionable given the Ninth Circuit’s recent decision in California Restaurant Association v. City of Berkeley (9th Cir. 2023) — F.4th — (No. 21-16278), the 2022 Guidelines may attain a similar result by establishing as a project-level threshold of significance the inclusion of gas appliances and plumbing in new development (as discussed in the May 2, 2022 blog post linked above). Thus, for projects where the 2022 Guidelines apply, developers will be incentivized to exclude gas appliances so as to avoid the need for mitigation. But BAAQMD has also gone with the belt-and-suspenders approach here, as the mitigation portion of the 2022 Guidelines (Chapter 8) includes as an example of mitigation an all-electric development requirement. (2022 Guidelines, p. 8-6.) The ability of jurisdictions to impose such mitigation may be cabined, however, by the aforementioned California Restaurant Association decision, which may make such measures legally infeasible. (See, for instance, Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17 Cal.App.5th 708 at page 752, blogged on here.)
The 15% VMT reduction threshold for residential and retail projects from the prior version of the 2022 Guidelines (also addressed in the May 2, 2022 blog post) remains in place.
Not surprisingly, BAAQMD remains focused on climate-related impacts, which the all-electric threshold is intended to address. BAAQMD does acknowledge, however, that consistency with a local greenhouse gas reduction strategy per CEQA Guidelines section 15183.5(b) remains a viable option. But BAAQMD clearly wants to go further than this, stating that “lead agencies are strongly encouraged to maximize GHG reduction as much as possible even if the land use project or plan is found to be less than significant.” (2022 Guidelines, p. 8-4.) However, BAAQMD does not offer any advice or opinion as to how, consistent with constitutional and statutory nexus requirements, agencies are to impose such reductions where they are not needed to mitigate otherwise significant project impacts.
Conclusion and Implications
The 2022 Guidelines are ambitious and in keeping with the tenor and tone of land use regulation in California at this point in time. Whether BAAQMD’s ambition actually leads to more environmental justice or averting climate change catastrophe remains to be seen, however.
Under CEQA, lead agencies have discretion in adopting applicable thresholds of significance, and while many will no doubt adopt BAAQMD’s expansive approach, others may be wary of embracing it. As per CEQA Guidelines section 15183.5(b), local strategizing may provide a clearer path for developers and agencies both as opposed to the breadth of the 2022 Guidelines. (Feedback from planners, developers, environmental consultants, and other “boots on the ground” in the ongoing CEQA saga is always welcome, so feel free to email the authors with any thoughts you might have on this front.)
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.