The Alameda County Superior Court recently struck down the Bay Area Air Quality Management District’s (BAAQMD) controversial CEQA Guidelines (Guidelines) – including significance thresholds for greenhouse gas (GHG) emissions and toxic air contaminants – on the grounds that the Guidelines themselves must first undergo review under the California Environmental Quality Act (CEQA). Although the Court has not yet issued a written order, it is expected to set aside the Guidelines unless and until BAAQMD conducts CEQA review. This is a significant development for lead agencies and project proponents in the Bay Area, particularly as the Guidelines contained very conservative and stringent standards. While the decision may provide greater flexibility with respect to analyzing air quality impacts, the lack of clear standards and procedures creates uncertainty in the near term.

In June 2010, BAAQMD adopted new guidelines (updated in May 2011) for addressing air quality impacts. This action was taken without first conducting any CEQA review. While the Guidelines covered several air quality issues, the thresholds of significance set for GHG emissions and toxic air contaminants have caused considerable controversy and difficulty in implementation – and also triggered the lawsuit. For GHG emissions from land use development projects, the Guidelines set the threshold at a hard number of 1,100 metric tons per year (MT/yr) of CO2E or an “efficiency” metric of 4.6 MT/yr of CO2E per service population. More detail on the GHG threshold can be found in our earlier Client Alert. As a general matter, only transit-oriented, infill projects with extensive green building features were below the threshold. The toxic air contaminant threshold proved to be even more problematic, as it required that projects conduct a burdensome health risk assessment accounting for sources of toxic air contaminants within 1,000 feet of the project, such as freeways. According to the lawsuit, this effectively created swaths of “EIR Only Zones” that also coincided with many of the best transit-oriented, infill locations.