California Building Industry Association

By Marc Campopiano, Lucas I. Quass and Samantha Seikkula

In a published decision, following the Supreme Court’s decision in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the First District Court of Appeal upheld California Environmental Quality Act (CEQA) thresholds of significance adopted by the Bay Area Air Quality Management District (the District) in California Building Industry Association v. Bay Area Air Quality Management Dist. (2016) 2016 Cal. App. LEXIS 683. While the Court upheld limited use of the District’s thresholds, it determined that the thresholds “may not be used for the primary purpose envisioned by District, namely, to routinely assess the effect of existing environmental conditions on future users or occupants of a project.”

Adopted in 2010, the District’s thresholds set “construction-related” and “operational-related” significance levels for TACs and PM2.5 emissions, broken down into four separate categories, including categories for new receptors (Receptor Thresholds). The District also published new “CEQA Air Quality Guidelines” (District Guidelines), which include the thresholds and suggest methods of assessing and mitigating impacts found to be significant. The California Building Industry Association challenged the Receptor Thresholds on the grounds that CEQA does not require an analysis of an existing condition’s impact on a project’s future occupants. The Supreme Court agreed, finding that CEQA does not require an agency to consider a project’s existing conditions on future users and residents of a proposed project. The Supreme Court remanded the case to the Court of Appeal to determine whether the Receptor Thresholds were consistent with its decision.

By Chris Garrett, Shivaun Cooney and Shannon Lankenau

On October 7, 2015, the California Supreme Court heard oral argument in California Building Industry Association v. Bay Area Air Quality Management District (Supreme Court Case No. S213478), a case which calls into question the “continued vitality” of a line of appellate cases holding that the “reverse application” of the California Environmental Quality Act (CEQA) is inconsistent with the statute’s language and intent. While the California Building Industry Association’s (CBIA) challenge to the Bay Area Air Quality Management District’s (BAAQMD) guidelines raised numerous legal issues, the Supreme Court’s order granting review in the matter expressly limited briefing and argument to the following issue: “Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?” In other words, is CEQA review limited to an analysis of a project’s impact on the existing environment, or does it also require an analysis of the existing environment’s impact on the project and its future occupants and users?

CBIA’s Challenge to BAAQMD’s Thresholds of Significance

On November 29, 2010, CBIA filed a petition for writ of mandate challenging BAAQMD’s 2010 thresholds of significance for certain air contaminants (Thresholds), adopted pursuant to Section 15064.7 of the CEQA Guidelines. The trial court agreed with CBIA that BAAQMD should have conducted an environmental review under CEQA before issuing the Thresholds, but declined to address CBIA’s remaining arguments, including that the Thresholds were arbitrary and capricious to the extent they required an evaluation of the impacts the environment would have on a given project (referred to by some as CEQA in reverse).[i]

By Chris Garrett, Cindy Starrett and John Morris

Today, the California Supreme Court unanimously upheld the City of San Jose’s Inclusionary Housing Ordinance, rejecting a facial constitutional challenge brought in California Building Industry Association (CBIA) v. City of San Jose (Affordable Housing Network of Santa Clara County et al.), S212072. The Court determined that, contrary to CBIA’s position, conditions upon new development contained in San Jose’s Inclusionary Housing Ordinance did not need to be justified by the more