The Bay Area Air District’s New CEQA Thresholds of Significance for Greenhouse Gas Emissions Answer Certain Questions, Raise Others

The Bay Area Air District’s New CEQA Thresholds of Significance for Greenhouse Gas Emissions Answer Certain Questions, Raise Others

On June 2, 2010, the Bay Area Air Quality Management District (“BAAQMD”) became the first regulatory agency in the nation to approve guidelines that establish thresholds of significance for greenhouse gas (“GHG”) emissions from proposed development projects.  The guidelines also establish levels of significance associated with other pollutant emissions.  These actions mark a significant development in the way GHG and other pollutant emissions are regulated indirectly in California through the project approval process.  The new GHG emissions thresholds (and other new regulations described below) are very strict, and, in the authors’ view, ultimately may work against other important community development policies, such as those promoting infill and transit-oriented residential development.

As readers may be aware, the process of directly regulating GHG emissions began in California with the adoption of AB 32 in 2006.  AB 32 requires the California Air Resources Board (“CARB”) to establish regulations designed to reduce California’s statewide GHG emissions to 1990 levels by 2020.  That effort is underway – although a statewide initiative to suspend the implementation of AB 32 until California’s unemployment rate drops to 5.5 percent or less for four consecutive quarters has qualified for the November ballot.  (The impact, if any, of voter approval of such an initiative on actions such as the BAAQMD’s adoption of CEQA thresholds for GHG emissions is uncertain at this point.)

Meanwhile, a debate has raged in the courts regarding the manner in which state and local agencies may, or must, evaluate the significance of GHG emissions from a project under the California Environmental Quality Act (“CEQA”).  CEQA requires lead agencies to identify the significant environmental effects of the projects they approve, undertake or fund.  When environmental effects are deemed to be “significant” (that is, they result in “a substantial or potentially substantial, adverse change in the environment”), CEQA generally requires that the lead agency identify “feasible” mitigation measures – based on considerations of available time, cost and other factors – to address these effects, and where such feasible measures exist, the project may not be approved without the imposition of such measures.

In 2007, the Legislature enacted SB 97, which required the California Natural Resources Agency to adopt new CEQA Guidelines to address the analysis and mitigation of the potential effects of GHG emissions in CEQA documents and processes.  This recent action by BAAQMD is the first attempt by an air district in California to establish quantifiable GHG emissions thresholds for use in CEQA documents to determine levels of significance in a GHG emissions analysis.  BAAQMD’s detailed CEQA Air Quality Guidelines are available on its website:

At the same time, BAAQMD also adopted new mechanisms for evaluating non-GHG related risk and hazard thresholds for the siting of new stationary sources and for new sensitive receptors.  It also adopted lower thresholds of significance for annual emissions of reactive organic gases (“ROG”), nitrogen oxides (“NOx”) and particulate matter (“PM-10”) for exhaust, and set a standard for exhaust-related particulates (PM-10 and “PM-2.5”) and for fugitive dust.  All of these new thresholds went into effect, along with the GHG thresholds, on June 2, 2010, except for the thresholds applicable to new receptors, which become legally effective on January 1, 2011.

After adopting the new CEQA thresholds, BAAQMD’s Board directed staff to track and regularly report to the Board on their implementation.  In addition, the Board directed staff to continue to work with the Metropolitan Transportation Commission and the Association of Bay Area Governments to ensure that implementation of the thresholds is consistent with the goals of SB 375, which establishes requirements for development of “sustainable communities strategies” with GHG emission reductions in mind.  One of the chief goals of SB 375’s sustainable communities strategies is to prioritize and facilitate infill and transit-oriented development.

The Board also directed staff to provide support and financial assistance to local governments for development and implementation of Community Risk Reduction Plans, implement screening processes to help local governments avoid preparing a full EIR (based on air quality impacts) for projects that meet the thresholds, and continue to develop standardized mitigation measures.

The new thresholds have potential application only to projects in the geographical jurisdiction of the BAAQMD, which includes San Francisco, Marin, San Mateo, Santa Clara, Alameda, Contra Costa, and Napa Counties, plus southwestern Solano County and southern Sonoma County, and they only apply on the rare occasions when the BAAQMD is the “lead agency” for CEQA purposes.  When the lead agency is not BAAQMD, the lead agency is not bound by these thresholds, and, so long as it bases its decision on substantial evidence, it may apply the BAAQMD thresholds, apply other numerical thresholds, or apply no numerical thresholds at all.

Although the BAAQMD is the first air district to adopt numerical thresholds for GHG emissions, other air quality management or air pollution control districts around the state may follow suit.  According to Jack Broadbent, executive officer of BAAQMD: “The Air District’s new comprehensive CEQA Guidelines provide tools for local agencies to use in making smart development decisions that protect residents from harmful air emissions and reduce greenhouse gases.”  The full practical effect of the significance thresholds remains to be seen, but at a minimum they are likely to result in new and more comprehensive levels of environmental analysis, and to encourage project proponents and planning agencies to try to streamline approval or adoption through the adoption of Qualified Greenhouse Gas Reduction Strategies.

Moreover, while BAAQMD’s adoption of its new CEQA guidelines answers certain questions about the treatment of GHG emissions under CEQA, BAAQMD’s actions also raise questions.  BAAQMD’s adoption of its new CEQA guidelines brings to light in yet another context the tension between two often competing community goals:  environmental protection and the provision of housing.  By now, most land use practitioners and community leaders are very familiar with the recurring conflict between these two laudable goals.  Unfortunately, the reality is that policies promoting one often work against the other.  In the present case, one must ask whether BAAQMD’s new CEQA guidelines, by requiring more stringent environmental review and setting difficult-to-attain emissions standards (both GHGs and other emissions), will ultimately work against other important policies, such as SB 375’s sustainable communities strategies, that promote the provision of housing.

The authors support “A healthy breathing environment for every Bay Area resident” (BAAQMD Mission Statement).  However, heaven and hell lie in the details.  The key in moving forward with BAAQMD’s new CEQA guidelines is to ensure that the application of the new guidelines and the achievement of BAAQMD’s mission are carefully integrated with the other important missions that guide our communities.

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