CALIFORNIA BUILDING INDUSTRY ASSOCIATION v. BAY AREA AIR QUALITY MANAGEMENT DISTRICTAppellant’s Answer Brief on the MeritsCal.February 25, 2014Case No. 8213478 IN THE SUPREME COURT OF CALIFORNIA CALIFORNIA BUILDING INDUSTRY ASSOCIATION Plaintiff and Respondent, : Vv. BAY AREA AIR QUALITY MANAGEMENT DISTRICTSUE i= fle Defendant and Appellant. 8 i 3ot SB ! FEB 25 2014 After a Decision by the Court OfAppeal First Appellate District, Division One Frank A MetGuire Cleric Case Nos. A135335 & A136212 oO onDeputy Appeal from the Alameda County Superior Court, Case No. RG10548693 The Honorable Frank Roesch, Judge Presiding BAY AREA AIR QUALITY MANAGEMENTDISTRICT’S ANSWERINGBRIEF *Ellison Folk (SBN 149232) Brian C. Bunger (SBN 142001) Erin B. Chalmers (SBN 245907) Randi L. Wallach (SBN 241171) Shute, Mihaly & Weinberger LLP Bay Area Air Quality 396 Hayes Street ManagementDistrict San Francisco, CA 94102 939 Ellis Street San Francisco, CA 94901 Tel: (415) 552-7272 Fax: (415) 552-5816 Tel: (415) 749-4797 Email: folk@smwlaw.com Fax: (415) 928-8560 Email: bbunger@baaqmd.gov Attorneysfor Defendant and Appellant BAY AREA AIR QUALITY MANAGEMENTDISTRICT Case No. 8213478 IN THE SUPREME COURTOF CALIFORNIA CALIFORNIA BUILDING INDUSTRY ASSOCIATION Plaintiff and Respondent, Vv BAY AREA AIR QUALITY MANAGEMENTDISTRICT Defendant and Appellant. After a Decision by the Court OfAppeal First Appellate District, Division One _ -Case Nos. A135335 & A136212 Appeal from the Alameda County Superior Court, Case No. RG10548693 The Honorable Frank Roesch, Judge Presiding BAY AREA AIR QUALITY MANAGEMENTDISTRICT’S ANSWERING BRIEF *Ellison Folk (SBN 149232) Brian C. Bunger (SBN 142001) Erin B. Chalmers (SBN 245907) Randi L. Wallach (SBN 241171) Shute, Mihaly & Weinberger LLP Bay Area Air Quality 396 HayesStreet ManagementDistrict San Francisco, CA 94102 939 Ellis Street San Francisco, CA 94901 Tel: (415) 552-7272 Fax: (415) 552-5816 Tel: (415) 749-4797 Email: folk@smwlaw.com Fax: (415) 928-8560 Email: bbunger@baaqmd.gov Attorneysfor Defendant and Appellant - BAY AREA AIR QUALITY MANAGEMENTDISTRICT TABLE OF CONTENTS INTRODUCTION..000... cc ceccsessscssesesceeceeeeseneseeceneceeeseesceaseseaeesueeeseeesneesesensens 1 STATEMENTOF THE CASE...i ccceccscsseceeeeseeeeeeeneseeceaeenateseaeeeseeseecsaenees 5 I. Statement OfFacts...cceesceeseeeseeeceseseeeeeeseeseeeeeeeeseeeeeesaeeesneeseeeeees 5 A. The Air District’s Structure and Authority. .........0..ceecseeees 5 B. The Air District Updates Its Thresholds................cscesseeeeesees6 C. The Air District’s Toxic Air Contaminant Thresholds............ 8 Il. Procedural HIStory...........ccscesseceeseceeeceeeeeeeceeeeeeeeasesesasacereesneeseeneesns 11 STANDARD OF REVIEW......ccccccssssessecteteseseseeseceesesereeecneeeeuaceesseesateaseeses 13 ARGUMENT.......ceceeceeseseeeeesessesesseseseesenenseneanensseseeseeeeaeeeceeeneeeeeeaees 14 I. The Legislature Intended for CEQA to Protect New Users and Residents. of Projects from Existing and Reasonably Foreseeable Adverse Environmental Conditions. ..............c:cceeees 14 A. CEQA’s Plain Language Demonstrates that Exposing Human Beingsto “Substantial Adverse Effects,” Either Directly or Indirectly, Causes a “Significant - Effect on the Environment.” 0000.0... cceeeseeseeeseeesteseeesseseees 15 B. For the Past Forty Years, the California Resources Agency HasInterpreted CEQA to Require Analysis of the Impacts ofLocating Development in Areas Subject to Adverse Environmental Conditions.............::cccccsessreeeseees 18 1. The CEQA Guidelines.Require Analysis ofthe Impacts of Exposing People to Adverse Environmental Conditions, ............:ccccsscccssseeeeseessseeees 19 2. The Resources Agency Provided a Reasoned Explanation for Its Guidelines. .........0.eset C. Courts Have Repeatedly Acknowledged that CEQA Requires Agencies to Analyze the Impacts ofExposing People to Adverse Environmental Conditions..................00.24 D. CEQA’s Requirement to Analyze Impacts ofAdverse Environmental Conditions on Project Users Is A General Rule, Not An Exception..............c::ccccsssssssssseessesecees27 1. Noise and Safety Impacts From Existing AULIPOTts. ...eeececescsssceccessessessecseeeeeeecesseessesesssessssssssseseess28 2. Health and Safety Impacts at Schools.......0.....cccce30 3. Exemptions for Housing Development........deseseaeaeeees 32 4. CBIA’s Reliance On the Legislative History of Recent, Un-enacted Bills Is Misplaced..................000.33 II. This Court Should Overrule Baird and Subsequent Cases. ..ceeseeeee-36 A. The Baird Cases Are Not Consistent with this Court’s Direction that CEQABeInterpreted Broadly to Effect Its PULPOSES.000...eee esececesecesteneeeseeenecaeeesesseesuecsseessesesseeesees 37 1. The Early Baird Cases Did Not Address CEQA’sStatutory Language or the CEQA Guidelines.0...eeeceseeesessseeseessseeeesseeeseesseessesseeseees 37 2. The Baird Cases Do Not Provide A Reasoned Basis For Overturning Guidelines Section B. The Baird Cases Could Have Been Resolved By Applying CEQA’s Plain Language Rather Than Making Sweeping Pronouncements Aboutthe Law’ S SCOPE. ...cecccscessecceseeseecneeseenseneesessteseesecesesesseceecsesucsesseeenees43 1. CEQA’s Plain Language Establishes the Scope ° of the Requirement to Evaluate Impacts Associated with Exposing People to Adverse Environmental Conditions...............0.cc0cceeeeeneeneceens43 2. The Baird Cases Could Have Reached the Same Result By Applying CEQA’s General Requirement. 02.0... cccccsccssescesecsseceesseeeseenscesceevasesseases46 C. Compliance with Other Laws Does NotSubstitute for Compliance with CEQA..0..cccccesscsseeesscessecesscescssesssaseneeares48 D. Analyzing and Mitigating the Impacts ofAdverse Environmental Conditions Would Not Require Unconstitutional Mitigation............cccccscsssssecsssescsesseccseeees 51 Ill. ‘The Court Should Uphold theAir District’s Receptor Thresholds Regardless ofHow It Rules onn the Broader Question of CEQA’S SCOPE. ...cccccccsccseelecescessesssesesesacsesecssssessseseees 53 A. CBIA Bears the Burden ofDemonstrating the. Thresholds Are Invalid in All of Their Applications............ 53 B. CBIA’s Facial Challenge Fails Because the Receptor Thresholds Can Be Validly Applied in Numerous SitUaAtiONS. oo. eeeeeeeeceeseeessseesseseesecaeesesseecsssssssesssvensescateateas 55 1. Agencies May Use the Challenged Thresholds to Carry Out Specific CEQA Provisions. ........00.0...0... 55 2. Agencies May Choose to Employ the ' Challenged Thresholds Even ifCEQA Does Not Require Them to Analyze the Impacts of Exposing Project Residents to Adverse Environmental Conditions. ............cccccccsssseseceeeesens 58 CONCLUSION...vcccccecccsscessesescssescssssvecscssssssssesecsascesecelseseelecececsesececceceseec. 61 TABLE OF AUTHORITIES Page(s) California Cases Apartment Association ofGreater Los Angeles v. City ofLos Angeles (2001) 90 Cal.App.4th 1162.00. ccecssecsseeseessesseessessecesseeseessecseenes44 Association ofCalifornia Insurance Companies v. Poizner (2009) 180 Cal.App.4th 1029 oo.ceeccsesstecseeesseessssseesessesseesesssesesenes54 Baird v. County ofContra Costa, (1995) 32 Cal.App.4th 1464 ooo... eeeccccecsssneeesseeeesssessssceseessnenees passim Ballona Wetlands Land Trust v. City ofLos Angeles (2011) 201 Cal.App.4th 455 ooo.cccccessseeesseeeenseesseeseeseees 3, 35, 41, 46 Berkeley Keep Jets Over the Bay Committee v. Board ofPort Commissioners (2001) 91 CalApp.4th 1344...cccssccceccesssseeceesssessesssseneseees 21, 45 Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263 ooo. ccccssssecsecseeessecseeeeessresssesssseseecsseeeessseees 17, 19 Cadiz Land Company, Inc. v. Rail Cycle, L.P. (2000) 83 Cal.App.4th 74ou.ccccsccssssecececeesseeseccsssscessasecsesessssnecceses26 California Oaks Foundation v. Regents ofthe University of California (2010) 188 Cal.App.4th 227 0... ececeessseesenesenessssseenesssescsseseseates 26, 50 Citizen Action to Serve All Students v. Thornley (1990) 222 CalApp.3d 748 uu... cceccccccsecsseccesssetssesessscssscssscersssseeceensens26 Citizensfor East Shore Parks v. State Lands Commission (2011) 202 Cal.App.4th 549oocccseeccesecsssceseesecsecseesessesscsesssssseeseaees25 City ofAntioch vy. City Council (1986) 187 CalApp.3d 1325 ooo.cceccscssecsssscssecsscesecsscssscsessscscesseneens 51 City ofLong Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889 0...cccccccecscseseeseesecseessesseceseeeanes passim City ofMaywoodv. Los Angeles Unified School District (2012) 208 Cal.App.4th 362 20... eccccescessesssscessessecesecsecseccscsuvesessseessens 25 Committeefor a Better Environmentv. California Resources Agency (2002) 103 Cal.App.4th 98 oo...cccccscsesssssscsscssscecseeceecensanearacs passim Committeefor Green Foothills v. Santa Clara County Board ofSupervisors (2010) 48 Cal.4th 320...eeccccccccssecsscsecssesscsccessssctecsesssssaceeseeesaees passim Communitiesfor a Better Environment v. South Coast Air Quality ManagementDistrict (2010) 48 Cal.4th 310...cccesscescssssessesessssessessecsecseessessvsssecaseeecees 52 Ebbetts Pass Forest Watch v. California Department of Forestry and Fire Protection (2008) 43 Cal.4th 936.0... cecccssessssssscsscesssesscseesssescsssscsssssscasssesscasareecatees49 Environmental Protection Information Centerv. California Department ofForestry and Fire Protection (2008) 44 Cal.4th 459icccsscesscssesessscssesesseesssessessseseessseaseeceeeeeeres61 Eureka Citizensfor Responsible Governmentv. City of Eureka (2007) 147 CalApp.4th 357 oo... ccccccesecsessceserscsssscssesecseccssssecsesseessaeeaes29 Friends ofMammoth v. Board ofSupervisors (1972) 8 Cal.3d 247 oo ecccccsssceesesesessesssecsecsesessessescsssesesesesseecaeaseeeetaas 14 Grupe Development Company v. Superior Court (1993) 4 Cal.4th 911occcccscsscsesseesessesessssssesscscsscseceeseeceaeaes 33, 36 Guardians ofTurlock’s Integrity v. Turlock City Council (1983) 149 Cal.App.3d 584... cccccsccsesssssssecsssscsesessesercreeecsscsaranscsaaees 9 Laurel Heights Improvement Association v. Regents ofUniv. ofCalifornia (1988) 47 Cal.3d 376.0... ececcseereeeessesesceecsatecceeeaeeseeessaeeeeeseatesensens 14,19 Lighthouse Field Beach Rescue v. City ofSanta Cruz | (2005) 131 CalApp.4th 1170.00...cc ccccccsessecscsssesesssececsesstscseseseeesees 57 Marina Point, Ltd. v. Wolfson, (1982) 30 Cal.3d 720 occccececccccesseceeseuscesssseserssesesscssesecceeeesececsecees36 Martin v. City and County ofSan Francisco (2005) 135 CalApp.4th 392occccccccccececscscsssscscsesseessveecceeecestavscansens45 Muzzy Ranch v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372...ceccccccssscsscssecsseccsceccecessesscsssencecesteesecseseaues 15 Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439ooeccseeesecseeeeeesesesaeeeeesseeeeseeeees 19, 48, 58, 59 Oakland Heritage Alliance v. City ofOakland (2011) 195 CalApp.4th 884 ooo. eeceecseeeeceseeeseceessecesesseeesenessesseees 6, 26 Oro Fino Gold Mining Corporation v. County ofEl Dorado (1990) 225 CalApp.3d 872 oo... cecccececcesceeeseseseesseceeeerseeeesaeseesseseeeees+90 Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 CalApp.4th 768 .0......ceecccscecesseecesceteeeeeeeeeesseaeessesaeeeees 47, 48 People v. County ofKern (1974) 39 Cal.App.3d 8300...testeenesnenseneneeneennensneene25 People v. County ofKern (1976) 62 Cal.App.3d 761... ceeccceccsscesccsssseeeseseseeeecseessatecseeeaeseseseasenss26 People v. Mendoza (2000) 23 Cal.4th 896.00 ceccseeseessetseeeeeeeneeseseeseeessaceeeaeeseseseeseseaes 33 - Porterville Citizensfor Responsible Hillside Developmentv. City ofPorterville (2007) 157 CalApp.4th 885 ooo... ceecessseeeeeeeeeeeeeeeeeseeaeesseesessesseseeens26 Preserve Wild Santee v. City ofSantee (2012) 210 CalApp.4th 260.00... cccccccsscssscsceseeeseecsseeessesessecseeeeeesecses25 Protect The Historic Amador Waterways v. Amador Water Agency (2004) 116 CalApp.4th 1099 ooo.cccecesessesesseeesssscssseeessecseeseesesceas21 _Quintano v. Mercury Casualty Company (1995) 11 Cal.4th 1049occcceccssseeesessesseessssseseesesseesesserseseceeases 35 River Valley Preservation Project v. Metropolitan Transit Development Board (1995) 37 Cal.App.4th 154occcecccceeseteeceeeeseeecseseeesseseeseesesseeecencees46 San Lorenzo Valley Community Advocates v. San Lorenzo Valley Unified School District (2006) 139 Cal.App.4th 1356.00... eccccceceseeseseseeeeesseeeeesseesseereeseeseees 18 Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 CalApp.4th 99 ooo.eeesescecsssssessesessescsessessssesescsestssssssecsesecerers 52 Save Fara v. City ofWest Hollywood . (2008) 45 Cal.4th 116...ccccssssssssssssssssessssseesecsscessssesacsevsceesarseceusess50 Sierra Club v. Napa County Board ofSupervisors (2012) 205 CalApp.4th 162 ......ccccccccsccscssesscssecsssesessessesveccesteeaseaseass 54 Sierra Club v. State Board ofForestry (1994) 7 Cal.4th 1215occcsessecssesssssscscsecesesecccsessessveacaecaseneers 17, 59 South Orange County Wastewater Authority v. City ofDana Point (2011) 196 CalApp.4th 1604 oo... cccseessecsessecssscesessssteeceeseseeees passim lH. v. San Diego Unified School District (2004) 122 Cal.App.4th 1267 oo... ccecccssssssessesssessessecsstsssssecestssseeeteren D4 Taxpayersfor Accountable School Bond Spending v. San Diego Unified School District (2013) 215 Cal.App.4th 1013 ooeccccsscscsessesecssscsscssssescseessscteaseaeteees27 Wal-Mart Stores, Inc. v. City ofTurlock (2006) 138 CalApp.4th 273 .....cccccccssseessssssscssecsssecsseseeeserentersesseeseens 16 Western Oil & Gas Association v. Monterey Bay Unified Air Pollution Control District (1989) 49 Cal.3d 408 oooeeccessecsesessscsssssscssssscesscecsetcesseevsesateacess 18, 23 Wildlife Alive v. Chickering (1976) 18 Cal.3d 190oeeecesessessesssessesessssesessecesecssscsvavssasececees 48, 49 California Statutes Health & Safety Code: § 40000 ...ceescsescccecssssssecsessssseesssssesssusecsessssssssnsssssussssssessiestasesessessssissscsssieeceseee 5 § 40200 ..cceeecsesssseccosssssesesssssecsssstscssusecssassnssssnssssssssssisesssessssusssesassitessssssvescesece 5 § 40220.5...ccccseccsesssssecsecssssessssessssscssassesessssasssssussssssesssessisssssiesssestisssssiesceseseeees 5 § O22 1 oaeceeccssecsssccossssvesesssssvecesssssssusecsesssssnssasssnissssssssssssssssissssessissesssssteseeseeces 5 § O225 .ooccscccssecscssesecscssssevecssvsssssuvecesssssssssssnsnsssssssssssasesssisssssssssesssssstescessece 5 § 42300 ..cscccsecssccsseessssssesccsssvesssucssssecsssssesseceeessssstusssisessiessissssavessesstesesssseescee 5 § 2301.5 .oocccsccscecsccsssseessscssseessssecssusseseessssnsssssssstssssasessasstsssusssesessissscssseccesssees 5 § ADB 1S scccsscccseccssescssssssesscsssssesssssecsssssesesseseeseeeesssusessissssisesssstisesssssssessssssvessees 5 Public Resources Code: § 21O0O() 0... eeessecssesecsceseseeeeesesesesesscsescsssseuseacavscscavecseatseeesesssserssasavstseevees59 § 21001) ounce eeseesssceesesesesseseesecesceesensbene ecececaeeeeeeaeeeaseneetenstssaceaseereeutsase59 § 21002...eee eeseccsessceseeseeeesesessesscacssscecscssesssssssssscsesacscseeseasaeeusavseeaeness 15, 40 § 210021eeececseecssceesessssesessecescscscssecersessesssssssecsasecassesssssatsesaseeesaeeeeees 50 § 21002.1(a) oeeececcceesesssecesessserescsesessscesscssssesssccecscessesasarsuacsassusarsees 53 § 21060.5 oo. ee eccssssscssscssscceeceeesceesesesesesesesseecsesessseseedessesassuscessacseeceseaeeaesenes 15 § 21065 0... ceeecssscesseceseseescesecseseesesesesseseseseesssessssscsesesssscavsssetsreccacereeses 6, 15, 16 § 21068occesc ceseeseeseeseceessesesesesssssecsesesssessssesessesssvavaceesavensacsatsaeacansees 16 § 2IOS8O(€)oseeeeecsesccseeescessssesesssseseccsesssseseesscsscsessesavscsereceesesseesesaecsesseaees44 § 21081oeeeeeeeeees sesneeeneenssesssussassssassessceeetenesaeeessuisaesscasesesserssseses50, 53 § 21082.2 0... eccsccesesescesesscsscesesssessssesescsesessesesssesssssscesscssesescasuatsusaesatenssacanes43 § 21082.2(a) ooeececccsseseceecseeseceeescsesesseacsecseesassessesscessseevsessceeveceesererasasnes 50 § 21082.2(b) oo.eeesesseeecessssessseesessssessessesscsessussscsecaseseecescesecsesaecsecaseaes44 § 21083 (a) occ ceseseseceeeseeesessssesesacsecssssssesscsecsssssssescsscsseevscsaecaceneseneueseeses 19 § 21083(D)B)oeeceeeeseecesessesesessesessssesscsscsssssecscesscaecneuscaceeesseaseeasens passim § 21083 (C) o..eeeeseecseeecceeseeseessssssstesesesescssseseseccssssussesacsstavsuceaseessasausaucaeeaeaes22 § 2LOOL(A)(2) woesececseceecsersessesesssesscsessecseessecsssscseecacsavecsasessaessecuesaeeacs25 § 21096...ee eceecseeseeeceeceseesessesessesessescsecssscsssssecsscsacsasacseeatereassareass 2, 28, 29 § 21096(a) oo.eccceseeecseeseeseeseseseesesssssesesecsecsesecssesecsusacsecesscenceesaccatsaeeseaneacs28° § QLD 18ecceseseceseeeecssessesssescsecseseessesscssessscssssecsseacsesaesacsateas 2, 40, 55 § QL1S 1.8(a)D)eeeeeecessssssesessssnscseseeessscsecsscsssssecsesssseeesessessesaueacsasees 30 § 21151.8(a)(2)...eccecceeeessessesecsesssasssesseees soceeseseseeeceeaeeeseeeeascseesaeeeseesetene 31° § DVIS.8(a)(B)..eeeeeeeescecesesecssescsesescsesesecsesessscersssscseasessetesareesaceasens 31, 55 § QV155.1(A)(6).oeeee scsceceeeseesssssesesesessssesecsecsecsussesecsesssarseeaceeseesauesesaceaes32 § QLISS.1(a)(A)oneceeceeseceecsesesesessscoessesssecescsessssscsevsseseevsccatsavsessaeeasaeeass 56 § 2159.21 D)eeeeee sesesceeeseesssesessessessssesscsscssssasecsesseserereseteecaasaneaees 32, 56 § 21159.21D)oeccceeesesseseseseseeecesscsessecsscsecssssseceecassevesstaesaessesseeasees 56 § 21159.22(b)(3) wu...seceessesessesscseeeseeaeeaneessessaseseesueesersessscssessseeeees 32, 56 § 21159.23(€)(2)oe eceeceececeeseseesestenessesseeseseeesssessanesseeeaeetsnessesteatesesceneeees 32, 56 § 21159.24(a)(3)...eeecceccetecsseeseseesssssssssccseeseeeesa cceseeeaeetseeateseessseeesaeees 32, 56 California Regulations Cal. Code Regs, Title 14: § 37Q4 ec ceccsssesscsssssesssssssessssssecssssssusssessssnsssesssesssscsssssssssssesssssssisecsesueccatecccesse 50 § 15021(d) ceeecsccssssessssssssessssusssssssscecsecssssnssssssessussessusessssasessssssstesesststecssecccssse 53 § 15043 ooo ecccceccsssseesccssseecessseeecsssseeessssssecssssssscssussessssisssessuceeserssuesssiecsssseesen 53 § 15044 oeccceescccssssseccsssssesessuvscssssesusssescussssssvecessussssssesserssusssssssivascssiessssesseesseees6 § 15063(D)(L) ceccssecssssssesscseessssscsssssssesesesessasessssscasssssssssssssessessstesesusesseeccssee: 53 § 15064(Ih) .occseccccsssesssssseesssseecsssesssssnessesesssusessasesesasssssteseastsessessesssssecseee: 54, 60 § 15064.7(a) coccccsssceccssssesssevesssecssssssseesssssssisessesussssessssisssarasessesseseceees 6, 7, 8, 60 § 15064.7(C) .eeseecssssescossesssucsssesssssusessssssvsssssusessusssussssussssasecestecssssecssesssecsseccsee 8 § 1508] ocecccccccseccsssecccsssscsseccnsssveseesesssesersucessssseecesssecsessssussssssussessavecsassseceseesn 19 § US LQ5() oooesceecescccesceceeccsseseestesscessssacecsssesseaesaessseeesseecaeesseescessensesecaes 58 § S126oeeeeseeeaeeseeseesseeeeesceteeesseeessaeeeeseeesseesecceessseseseeseeessseeseeeseeseees38 § 526.2eeeceeecseesacescseeseesaceeseeeecesssesesersceeensesssesseeeesenstesesenenes passim § 15126.2(8) neeeeeesceeseceseceseeeeeeseeeseeeeseeessesseesneesseseseseeeenees 10, 20, 21, 35 Other Authorities . 1 Kostka & Zischke, Practice Under the California Environmental Quality Act (Cont.Ed.Bar 2012) SLL, p. 2 eeeeeaceeeecaeecesseceeceeecesneceaseesaeeeseeseceesacetsssaeeesseeesaeenseeses31 § 13.60, p. 680 occcceseecseceececessneeesaeeceesneesaeescesaeeeeseeessnesenseessens 28, 29 9 Miller & Starr, Cal. Real Estate (3d ed. 2007) § 25A:27, p. 25A-27 ~ 25A-28 00. eeccccceeseeeseesceeneeeeececeeaeeesaeeeaeeseeenseneteas38 Remyet al., Guide to CEQA (11th ed. 2007) Pe 219ee eeceseeseeeeetesceeeeseeenetseceescaeesseueesseesneesesenseeecaersaeeesnecesessetsiaeeeesas20 Pe FAO eeeeecceeessceceececetcceseeeseecseececsaeeeeeeeseseeeeaeseceesseessdaceetseeesaesaeeneees38 Pe FAL eeecccsceeeseessetseneseseneeeereseeaeeensaseeeesesuenecesseeesseeesersaeeteaeessetenetey39 INTRODUCTION There is no such thing as “reverse CEQA.” There are only the provisions of the California Environmental Quality Act, which require agencies to analyze the significant effects of a project on the environment. Whena project will change the environmentby attracting people to a location and exposing them to significant, adverse environmental conditions, the project will have a significant effect on the environment. This conclusion flows directly from CEQA’s definition of “environment” and “significant effect on the environment,” and from its direction that a project will have a significant effect on the environment whereit causes “substantial adverse effects on humanbeings, either directly or indirectly.” Public Resources Codesection 21083(b)(3).! Accordingly, CEQA’s plain language requires analysis of “existing environmental conditions” where they may have substantial adverse impacts on “future residents or users of a project.” For the past forty years, the California Resources Agency has issued regulatory guidance (the “CEQA Guidelines”) requiring agencies to analyze whethera project will cause significant impacts by exposing humansto adverse environmental conditions. During this time, the Legislature was aware of the Resources Agency’s interpretation ofCEQA ' All subsequentreferences are to the Public Resources Code unless otherwise noted. and did not modify the law to change CEQA’s application. On the contrary, it adopted several CEQA amendments that guide how agencies must conduct this type of analysis in certain circumstances. E.g., §§ 21151.8, 21096. The plain language andlegislative history of these sections demonstrates that the Legislature believed that CEQAalready required agencies to conduct this analysis and simply provided additional parameters for analyzing certain types of impacts. Agencies across the state havein fact analyzed impacts from exposing peopleto adverse environmental conditions, and numerouscourt decisions are also premised on the understanding that CEQA requires this analysis. Yet in 1995, in a decision that addressed neither Public Resources Code section 21083(b)(3) nor the CEQA Guidelines, the court of appeal found that CEQA doesnotrequire agencies to analyze the impacts of exposing people to adverse environmental conditions. Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464. This decision lay dormantfor almost 15 years. However,in the past five years, its holding-that CEQA is concerned with the impacts of a project on the environment, and not the environment on the project-has been applied by three other appellate court decisions. City ofLong Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889, 895, 900, 905; South Orange County Wastewater Authority v. City ofDana Point (2011) 196 Cal.App.4th 1604, 1608-09 (““SOCWA”); Ballona Wetlands Land Trust v. City ofLos Angeles (2011) 201 Cal.App.4th 455, 472-74. The Baird cases intoned that CEQAis not concerned with “impacts on the project caused by the environment”and that “reverse CEQA”is not required. See CBIA’s Opening Brief (“CBIA Br.”), pp. 26-27. But such phrases, whatevertheir rhetorical appeal, cannot substitute for a reasoned analysis of CEQA’splain language, implementing guidelines, and legislative history. None ofthe Baird cases undertook an in-depth analysis of CEQA’slegislative and regulatory history. If they had doneso, they could not have reached the conclusions that they did. This case implicates the question presented because in 2010 the Bay Area Air Quality ManagementDistrict (“Air District”) adopted thresholds | of significance (“Thresholds’’) designed to assist agencies in evaluating the significantair quality impacts of projects. Among these Thresholdsarethe “TAC Receptor Thresholds,” which address impacts associated with locating new developmentin close proximity to sources of toxic air contaminants (or “TACs”). The District first issued thresholds to address health risks from exposing people to TACsin 1999 in response to unrefuted evidence that people wholive near sources of TACs, such as freeways, ports, or truck distribution centers, are at a higher risk for cancer and > This brief will refer to these casescollectively as “the Baird cases.” respiratory ailments. Although the 1999 thresholds went unchallenged and - were applied for many years, when the District adopted its 2010 TAC Receptor Thresholds, the California Building Industry Association (“CBIA”) challenged them as invalid under the Baird cases. Asdetailed in this brief, the TAC Receptor Thresholds are consistent with CEQA’srequirement to evaluate the impactoflocating new | developmentin areas subject to adverse environmental conditions. In fact, it makesnosense to require agencies to analyze the health impacts ofsiting anew freeway near residents and yet ignore the exact same impacts when siting new developmentnear a freeway. Nor would interpreting CEQAin this manner conform with the law’s purpose to provide decision makers and the public with complete information about a project’s impacts. Nevertheless, even if the Court agrees with the Baird cases, it should not set aside the TAC Receptor Thresholds. CBIA only challenged the Thresholds on their face. Accordingly, CBIA bears the burden of demonstrating that the TAC Receptor Thresholdsare invalid in all of their applications. As the Court ofAppeal found, there are numerous instances where agencies could use the TAC Receptor Thresholds to evaluate the significant health risks of their development decisions even if the Baird cases correctly interpreted CEQA. Therefore, CBIA’s facial challenge | mustfail. Adecision that upholds the TAC Receptor Thresholds, regardless of the Court’s ruling on the broaderissue presented, is particularly appropriate here. The Thresholdsare not binding on any public agency and do not _ mandate any particular analysis under CEQA. Because they are simply nonbinding tools to assist agencies during the environmental review process, they do not, and cannot, violate CEQA, and mustbe upheld. STATEMENT OF THE CASE OL Statementof Facts. A. The Air District’s Structure and Authority. The Air District is a regional agency charged with protecting air quality in the nine-county San Francisco Bay Area. Governed by a 22-_ person Board of Directors consisting of county supervisors, mayors, and city council members, the Air District has primary responsibility for controlling air pollution from stationary sources in the Bay Area. Health & Safety Code §§ 40000, 40200, 40220.5, 40221, 40221.5. Amongother activities, the Air Districtissues permits to certain emitters of air pollution and promulgatesrules to control emissions. See, e.g., id. §§ 42300, 42301.5, 42315. The Air District, like all public agencies, also acts pursuant to CEQA.Occasionally the Air District acts as a “lead agency” when conducting environmental review for permits that it issues or whenit acts in its regulatory capacity to adopt rules or air quality plans. Administrative Record Vol. 9, p. 2056 (hereafter “AR vol:p”). More frequently, it only comments onthe air quality impacts ofprojects being analyzed by other agencies. AR 9:2056, 2058; see also Cal. Code Regs.,tit. 14, (CEQA “Guidelines”) § 15044. The Air District doesnot act as a lead agency for the residential and commercial developmentprojects developed by CBIA’s members. AR 9:2056, 2058; 27:6132 (Air District is not a lead agency for developmentprojects); Clerk’s Transcript Vol. 4, p. 1085 (“CT vol:p”) (CBIA represents “member companies involvedin residential andlight commercial construction”). B. The Air District Updates Its Thresholds. Under CEQA,lead agencies must analyze, disclose, and mitigate the significant environmental impacts ofprojects they approve. §§ 21002, 21065. In order to determine whether particular impacts are “significant,” agencies utilize “thresholds of significance” - identifiable standards for environmental impacts “compliance with which meansthe effect normally will be determined to be less than significant.” Guidelines § 15064.7(a). | Agencies may either rely on generally applicable thresholdsthat it or other agencies have developed or may develop thresholds on a project by project basis. Oakland Heritage Alliance v. City ofOakland (2011) 195 Cal.App.4th 884, 896. Because the Air District has expertise in air quality and related health issues, its staff previously published recommendedthresholds of 6 significance in1999to assist lead agencies in conductingair quality analyses under CEQA. AR 23:5192-264. Since then, state and federal authorities have tightenedair quality standards for somepollutants and developed newstandards for others. AR 1:23. In response to these developments and to “local governments’ expressed need for additional CEQA guidance,” the Air District undertook a multi-year process to review and update its 1999 thresholds. AR 1:1-3, 15, 24, 94; 27:6044. This process involved extensive public outreach, including at least twenty workshopsfor staff and the public, five public meetingsofits full Board ofDirectors, and meetings with representatives from dozensofcities, counties, and non-governmental organizations. AR 1:1-3; 3:558-61; 1:187-88. By Resolution 2010-06, the Air District Board unanimously adopted the agency’s new Thresholds on June 2, 2010. AR 1:1-4; 5:1158-59. The Thresholds, like all thresholds of significance, are not binding on other agencies, but simply provide a measure by which agencies can assess the environmental impacts of a project. Guidelines § 15064.7(a). Theyare, in effect, a tool to expedite environmental review by “promot[ing] consistency, efficiency, and predictability” in the CEQA process. Committeefor a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 110-11 (“CBE’’) (citation omitted). Lead agencies retain their duty and discretion to independently determinethe significance 7 of impacts under CEQA. AR 28:6232 (Air District states that “The thresholds are recommendations to Lead Agencies . . . [and] [i]t is [up to] the Lead Agency’s discretion to use the recommended thresholds.”); Guidelines § 15064.7(c) (lead agencies must support their decision to use other agencies’ thresholds with substantial evidence). On The Air District’s Toxic Air Contaminant Thresholds. The TAC Receptor Thresholds address health impacts from toxic air contaminants, a generic term for a variety of airborne pollutants that can cause serious human health hazards. AR 9:2096; 1:6 (showing TAC Receptor Thresholds, also called “Risks and Hazards” thresholds). TACs are emitted by a variety of sources, including vehicles and industrial plants, and their effects are generally local in nature. AR 9:2096. Studies show that TACs “can cause long-term health effects such as cancer, birth defects, neurological damage [and] asthma. . . or short-term acute affects such as eye watering, respiratory irritation ... and headaches.” Jd. at AR 9:2096; 1:52 (citing studies), 59-60 (same). Somelocations in the Bay Area have high existing levelsof TACs due to emissions from freeways andindustry. AR 5:1037; 8:1886-89; 28:6232. The Air District’s 1999 thresholds recognized that a project would normally have a significant impact if it would bring new residents to an area where an existing source ofTACs would exposeproject residents to an excess cancerrisk of 10 in one million. AR 23:5213. The Air District did 8 not changethis standard in its new Thresholds. AR 1:6. However,it added new standards for cumulative TAC risks and for risks from particulates. AR 1:6-7. It also addeda standard for plan-level projects (e.g., general plans), which recognizes thata plan would not normally have significant effect if the plan includes 500-foot overlay zones around TACsources as well as policies to mitigate TAC impacts to new sensitive receptors located within those zones. AR 1:7; 9:2068, 2142. This Court’s grant of review is relevant only to the TAC Receptor Thresholds.° During the administrative process, some commenters questioned whether these Thresholds were consistent with CEQA because they addressed the impact of existing environmental hazards. AR 27: 6098, 6089. The Air District responded that “[a}] Lead Agency can address a preexisting environmental condition - such as existing sources oftoxics - under CEQAifthere is a nexus between the preexisting condition and some physical change arising from the project.” AR 27:6087. The mere existence of a preexisting environmental condition does not trigger CEQA review if a project does not expose anyoneto that contamination; however, 3 Although CBIA’s opening briefasserts that the Air District’s odor thresholds are also invalid under Baird, nobody raised this issue during the administrative process, nor did CBIAraise it during the proceedings below. The issue is thus waived. § 21177; Guardians ofTurlock’s Integrity v. Turlock City Council (1983) 149 Cal.App.3d 584, 589, 600. In any event, CBIA’s challenge to this Threshold fails for the same reasonsits challenge to the TAC Receptor Thresholdfails. “where a change causedbythe project will implicate the preexisting contamination in some way, such as introducing people to an area with a preexisting hazard, the contamination does warrant consideration under. CEQA.” Jd. It also noted that “[t]his approach to evaluating risks to new occupants of a project from existing sources of risk has been endorsed by the Resources Agency in Section 15126.2(a) of the State CEQA Guidelines.” Id.; AR 27:6096 (same). Other commenters opinedthat the Air District should focus on preventing pollution at its source rather than having agencies analyze impacts of existing pollution on new receptors. AR 3:610; 27:6093. The Air District agreed that source reduction is important and described many other measures it is taking to address TAC pollution, including changingits rules for permitting new sourcesofair pollutants, imposing new rules on metal melting operations, and carrying out its Clean Air Plan. AR 5:1129. However, it noted that the Thresholds “represent an important step[] amongst many”for helping reduce exposure to toxic air pollution. AR 5:1130. Finally, some commenters expressed concern that the TAC Receptor Thresholds would discourage infill development. AR 1:258-62; 27:6050, 6066-67. In response, the Air District refuted erroneous assertions that the Thresholds would banall development near freeways (AR 5:1036, 1156) or render existing CEQA exemptionsforinfill projects unusable (AR 27:6064, 10 6069). It also conducted case studies of actual, proposedinfill developments, which demonstrated that application of the TAC Receptor Thresholds would not require agencies to conduct full environmental impact reports (“EIR”) for all infill projects. AR 5:1039-41; 27:6091, 6094, 6096-97; 29:6593-660. | District Board membersalso emphasized that they support infill development,but that agencies should not ignore that “one of the unintended consequences of smart growth . . . is putting people in a location where they’re exposed to pollution.” AR 5:1131. The Thresholds’role is simply to provide information to lead agencies so that they can determine whetherthe benefits of particular development outweighits health risks. | AR 5:1194, 7:1593. As one Board membernoted, an EIR costs money,but exposing people to cancerrisks from TACsalso costs money: “thereal world includes people that have to pay for oncologists, and if it ain’t their insurance plan, it’s the counties’ insurance plans. One oncologist, one radiologist and a whole hostofsupport staff, includingthe facility cost for one cancercase trumpsany cost of an EIR.” AR 5:1132. He concluded, “CEQAshould be just as good. . . [at] protecting people as well as moths and Manzanita bushes.” AR 5:1133. II. Procedural History. CBIAfiled this action on November 29, 2010. On the merits, the trial court ruled that the Air District’s adoption of the Thresholds was a 1] CEQA“project” because there was a “fair argument the implementation of the Thresholds will cause a reasonably foreseeable indirect effect in the environment” by discouraging infill development. CT 8:2243-44. Thetrial court declined to reach CBIA’s claimsthat the TAC Receptor Thresholds are contrary to CEQA’s purpose and that various Thresholds are not supported by substantial evidence. CT 8:2246. The Court of Appeal reversed, finding that the Air District’s adoption of the Thresholds was not a project subject to CEQA review because (1) CEQAprovides specific procedures for adopting thresholds of significance, and CEQA review is not amongthose procedures (Opinion at 11-14), and (2) there was no substantial evidence supporting a fair | argument that the Thresholds would cause developers to abandoninfill development and build in the suburbs instead (Opinion at 16-18). In responseto claims that the TAC Receptor Thresholds would discourage infill development, the court found, “the District’s Thresholds did not - purport to limit housing density in any way, and... the likelihood and extent of any displaced development was speculative at best.” Opinion at 18. The court also addressed CBIA’s claim that the TAC Receptor Thresholds were contrary to CEQA’s purpose. It first stated that CEQA “defines a ‘significant effect on the environment’ to includesituations in which ‘{t]he environmental effects of a project will cause substantial 12 adverse effects on human beings, either directly or indirectly.’ (Pub. Res. Code, § 21083, subd. (c).” Opinion at 24-25. It noted that “[a] new project located in an area that will expose its occupants to preexisting dangerous pollutants can be said to have substantial adverse effect on human beings.” Opinion at 25. Ultimately, though, the court did not decide “whether, as a general rule, an EIR may be required solely because the existing environment may adversely affect future occupants of a project.” Jd. Rather, the court rejected CBIA’sfacial challenge because the Thresholds could be applied in various circumstances even under CBIA’sinterpretation of CEQA,and therefore did not presenta total and fatal conflict with CEQA.Id. | CBIApetitioned this Court for review on three issues, and the Court granted review only on theissue of “[uJnder what circumstances,if any, does the California Environmental Quality Act... require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?” STANDARD OF REVIEW Resolution of the question presented rests on interpretation of CEQA’sstatutory requirements. The Court’s goal in interpreting CEQAis to “determine the Legislature's intent. . . ‘so that we may adoptthe 399 construction that best effectuates the purpose of the law.’” Committeefor Green Foothills v. Santa Clara County Board ofSupervisors (2010) 48 13 Cal.4th 32, 45 (citation omitted). The Court first looks at CEQA’s statutory language “becauseit is generally the mostreliable indicationoflegislative intent.” Jd. (citation omitted). If the statutory language is reasonably subject to multiple interpretations, the Court “may consult extrinsic aids to determine the Legislature's intent.” Jd. at 48. Such extrinsic aids include relevant legislative history as well as the regulatory guidelines implementing CEQA. Id. The Court is also guided by the requirement that CEQA ““‘be interpreted in such mannerasto afford the fullest possible protection to the environment within the reasonable scopeofthe statutory language.’” Laurel Heights Improvement Association v. Regents of Univ. ofCalifornia (1988) 47 Cal.3d 376, 390 (citing Friends ofMammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 (disapproved on other grounds). See also Friends ofMammoth, 8 Cal.3d at 259(this Court’s task is to determine whether CEQA’s languageis “sufficiently flexible’ so as to effectuate the broad legislative intent.”) ARGUMENT I. | The Legislature Intended for CEQA to Protect New Users and Residents of Projects from Existing and Reasonably Foreseeable Adverse Environmental Conditions. CEQA’splain language,its longstanding interpretation by the agency charged with interpreting the law,andits legislative history unequivocally demonstrate that the Legislature intended for CEQAto 14 apply to environmental impacts caused by exposing project residents or users to significant, adverse environmental conditions. Agencies have long complied with this requirement, and numerous courts have adjudicated claims that agencies failed to adequately conduct this analysis without questioning whether such analysis was requiredin the first place. CBIA’s position that this analysis is contrary to CEQAfails to address the wealth of evidenceoflegislative intent and should be rejected. A. CEQA’s Plain Language Demonstrates that Exposing HumanBeingsto “Substantial Adverse Effects,” Either Directly or Indirectly, Causes a “Significant Effect on the Environment.” CEQAapplies to agency action that may causea direct or reasonably foreseeable indirect change in the environment. § 21065; Muzzy Ranchv. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, 381- 382. If that change constitutes a “significant effect on the environment,” CEQArequires agencies to disclose, analyze, and mitigate the impact. 3§ 21002, 21082.2(a). Thus, resolution of the issue presented by this case revolves aroundthe definition of “environment” and “significant effect on the environment.” CEQAdefines “environment”as the “physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.” § 21060.5. “A significant effect on the environment”is “a 15 substantial, or potentially substantial, adverse change”in those physical conditions. § 21068. CEQAfurther mandates a finding that a project may have a “significant effect on the environment”if “(t]he environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.” § 21083(b)(3) (emphasis added). Applying this plain language to the question presented demonstrates that CEQA requires analysis of the impacts a project will have by exposing people to environmental conditions that may substantially and adversely affect them.* First, new development causes a change in the existing physical conditions on the ground -an “environmental effect’”-both by constructing homes(or daycare centers, apartment buildings, etc.) on the site and by bringing people to that area. Where the area is subject to adverse environmental conditions, the environmental effect of the project is potentially significant if the conditions will have “substantial adverse effects on humans,”either “directly or indirectly.” § 21083(b)(3). For example, a new residential development in an area subject to seismic hazards causes a changein the environmentby bringing people to the project site. Where exposing people to these seismic hazards could result * CEQAapplies to both direct and reasonably foreseeable indirect impacts. § 21065; Wal-Mart Stores, Inc. v. City ofTurlock (2006) 138 Cal.App.4th 273, 298, disapproved on other grounds. Although the question presented - refers only to “existing” environmental conditions, CEQA encompasses both existing and reasonably foreseeable adverse environmental conditions. 16 | in a substantial adverse effect on them,the project has a potentially significant impact that must be addressed under CEQA. CBIA acknowledges that this case can be resolved based on CEQA’s plain language. CBIA Br., pp. 15-16. However, rather than address this language in any depth, CBIA simplyreiterates its position that CEQA is concerned only with the impacts of a project on the environment. See CBIA Br., pp.18-20. CBIA does not address how project can have an “effect on the environment” by bringing peopleto an area, andit ignores section 21083(b)(3) completely. CBIA’s oversight is fatal to its argument. Undersection 21083(b)(3), the project’s potentially significant effect on the environmentis the exposure ofpeople to the adverse environmental conditions. “It is, of course, too late” for CBIA’s “grudging, miserly” attempt to read out ofCEQA oneofthe key statutory provisions at issuein this case. See Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 274. Indeed, construing CEQAto address impacts resulting from exposing people to adverse environmental conditionsis the only construction consistent with this Court’s directive that CEQA be interpreted broadly to “protect[] not only the environmentbut also informed self-government.” Sierra Club v. State Board ofForestry (1994) 7 Cal.4th 1215, 1229 . (citation omitted). It is also the only one consistent with the courts’ instruction that CEQA “protect[s] a variety ofhuman values. Human 17 health is among them.” San Lorenzo Valley Community Advocates v. San Lorenzo Valley Unified School District (2006) 139 Cal.App.4th 1356, 1372. The law will not provide full disclosure or protect human health if agencies may ignore the substantial adverse risks posed by a project’s location. No onedisputes that agencies are required to disclose, analyze, and mitigate the substantial, adverse health impacts ofsiting a significant source oftoxic air pollution-suchas a new freewayoroil refinery-near people. Yet, CBIA’s interpretation of CEQA would require agencies to ignore the exact same health risks when deciding whereto site new residential development. This irrational result is inconsistent with the plain language of CEQAandits fundamental purposes, and this Court should reject it. Western Oil & Gas Association v. Monterey Bay Unified Air Pollution Control District (1989) 49 Cal.3d 408, 425 (courts should interpret statutory provisions to avoid illogical results); Committeefor Green Foothills, 48 Cal.4th at 45 (courts should“adoptthe construction [of CEQA]that best effectuates the purpose of the law’’) (citation omitted). B. For the Past Forty Years, the California Resources Agency Has Interpreted CEQA to Require Analysis of the Impacts of Locating Development in Areas Subject to. Adverse Environmental Conditions. The California Resources Agency, through the Office of Planning and Research, is charged with adopting guidelines to implement CEQA and to provide “objectives and criteria for the orderly evaluation ofprojects.” 18 § 21083(a). The CEQA Guidelines are entitled to great weight, unless clearly unauthorized or erroneous. Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 448, fn. 4. Becausethe “Office of Planning and Research[] has special expertise in interpreting the CEQAstatutes,” this Court regularly consults the Guidelines when interpreting CEQA’s statutory language. Committeefor Green Foothills, 48 Cal.4th at 48-49; see also Laurel Heights, 47 Cal.3dat 394-95. Althoughthe legislative history of sections 21068 and 21083 does not address the issue before the Court, as discussed below,the Legislature has long been aware of the Resources Agency’s consistent interpretation of CEQA’sstatutory requirements. 1. The CEQA Guidelines Require Analysis of the Impacts of Exposing People to Adverse Environmental Conditions. . Almost since they were first adopted, the CEQA Guidelines have providedthat a project “may havea significant effect on the environment” if it “[cJould expose people or structures to major geologic hazards.” Bozung, 13 Cal.3d at 279, fn. 21 (quoting former CEQA Guidelines §15081). Subsequent amendmentsto the Guidelines expanded the range of potentially significant adverse environmental conditions that agencies should address. By 1979, Guidelines section 15081 did notlist potentially significant impacts (such as seismic hazards), but referred to thelist of “consequences which may be deemedto be a significant effect on the 19 environment[ ] contained in Appendix G.” Air District Motion for Judicial Notice (“MIJN”), Exh. A. This appendix and Appendix I, in turn,stated that a project may havea significant effect on the environmentif it exposes people to geologic hazards, flood risk, existing high levels of air pollution or noise, or other existing hazards. MJN, Exh. B (see Appendix G §§ (r), (x); Appendix I §§ (D)(1)(g), €D(3)G), UD(6)(b), (D7)(b)). In 1982, the Resources Agency created section 15126, which combinedits prior guidance from section 15081 and the Appendices. This section stated that agencies must analyze “any significant environmental effects the project might cause by bringing developmentand people into the area... [because t]he subdivision would havethe effect of attracting people to the location and exposing them to the hazards there.” MJN, Exh. C, p. 77 (former CEQA Guidelines § 15126(a) [adopted 1982]). Whenthe Resources Agency substantially revised the Guidelines in 1998, it renumbered, but did not change, the language of section 15126 and replaced Appendix G with a modified version of former Appendix I. Remy et al., Guide to CEQA(11th ed. 2007) p. 219. The new Appendix G,like earlier versions ofAppendixI, provided that agencies should address a range of adverse environmental conditions, including impacts from flooding, liquefaction, landslides, wildfire, and any other situation resulting in “[e]xposure of people to existing sources of potential health hazards.” MIN,Exh. D, pp. 171-176 (§§ II(a)-(i), IV(b), V(b), EX(d), X(b)) (1997 20 version ofAppendix I); MJN, Exh. E (§§ III(d), VI(a)-(d), VI(d)-(f), (h), VIII(g)-G), XI(a)-(b), (e)-(f)) (1998 version of Appendix @): In 2009, the Resources Agency added a sentenceto section 15126.2 that incorporated the agency’s prior guidance from Appendix G. The new sentence, which remainstoday, states: “Similarly, the EIR should evaluate any potentially significant impacts of locating developmentin other areas susceptible to hazardousconditions(e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments orin land use plans addressing such hazards areas.” Guidelines § 15126.2(a). 2. The Resources Agency Provided a Reasoned Explanation for Its Guidelines. In addition to consistently interpreting CEQA’s requirements for the past forty years, the Resources Agency also explicitly responded to the argument that CEQA doesnot address the impacts of locating new developmentin areas with adverse environmental conditions. Whenit amended the Guidelines in 1982, the Resources Agency explained its requirementthat an EJR “analyze effects on future developmentbuilt as ° The Appendix'G provisions contained in Exhibit E remain the sametoday, except that sections VII, VII and XI have been renumberedassections VIII, XI, and XII. Courts have long relied on the Appendix G Checklist in determining whether a project may have a significant impact on the environment. Protect The Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1110-11; Berkeley Keep Jets Over the Bay Committee v. Board ofPort Commissioners (2001) 91 Cal.App.4th 1344, 1380. 21 part of the project andthe effects on people who would occupythe project” as follows: This language responds to the ongoing debate over whether the EIR should be limited to examining effects on the pre-existing environment. ...As shown in Public Resources Code Section 21083(c), the Legislature had a concern about adverse effects which projects may have on human beings. Accordingly, the guidelines declare that if a project would have the effect of attracting people to a location where the people would be exposedto environmental hazards, or disagreeable conditions, that attraction and the resulting exposure must be seen as a significant effect of the project. MIN,Exh. C, p. 80. The Resources Agency wenton to explain whyits position is consistent with CEQA’sstatutory language: | Public Resources Code Section 21083(c) . . . was enacted by the samebill that defined the term “environment” as meaning the physical conditions existing in the area affected (AB 889 of 1972, Ch. 1154 ofthe Statutes of 1972). Accordingly, we believe they mustbe construed together rather than independently. One must not be seen as taking precedence over the other because they are both part of the same . legislative enactment. RJN, Exh.F. Addressing the situation where a residential project would be affected by noise from an existing airport, the Resources Agencyfound “that building residential dwellings in an area exposedto high levels of noise from aircraft would involve a change in the environment.” Jd. This change “would attract people to the area as buyers or renters of the residential units. As a result, the project would cause the exposure of people to the unusually high noise levels generated by the aircraft.” 22 Id. Because this noise would be “an adverse effect on human beings resulting indirectly from the construction of the residential units in that particular location. . . we believe there would bea significant effect on the environment, and an EIR should have been prepared.” Id.° Asthis discussion demonstrates, CBIA is simply wrongthat the Resources Agencyfirst interpreted CEQA to require analysis of adverse environmental conditions on project residents in 1998. CBIA Br., pp.3, 28. ‘Rather, multiple versions ofthe Guidelines, reflecting the consistent opinion of multiple administrations over forty years, have required this type of analysis. Such a long-standing interpretation of a statute by the agency primarily responsible for its implementation “is entitled to great weight,” and “[t]his deference is especially appropriate where the agency's interpretation is congruent with the statute's language and obvious purpose.” Western Oil & Gas, 49 Cal.3d at 425. Indeed, the Legislature was well aware of the Resources Agency’s interpretation of the statute. Specifically, in 1983, the Chairman of the - Assembly Committee on Natural Resources asked the State Bar Committee on the Environment to study how CEQA was working and recommend waysto clarify the Act. MJN, Exh. G, pp. 1-2. The Bar Committee held ° The Legislature apparently agreed with the Resource Agency’s interpretation, as it later enacted section 21096, which requires agencies to utilize a particular technical resource when analyzing noise and safety impacts of projects located nearairports. 23 hearings and drafted a report entitled “The California Environmental Quality Act: Recommendations for Legislative and Administrative Change,” which ultimately formed the basis for modifications to CEQA. Id.; MIN, Exh. H. Amongotherissues, the State Bar Committee analyzed a concern that “CEQAshould not be used to discuss ‘reverse impacts’ (i.e., effects felt when the project is proposed where impacts already exist, such as housing located next to an existing freeway or dumpsite).” MJN, Exh. H, p. 45. In response to this concern,the report stated that It is clear under existing law that the impacts associated with - locating adjacent to an area which produces adverse environmental effects must be discussed (Guidelines § 15126). The law provides that wherea project will result in public health problems, the project causes environmental effects by bringing people into an area that exposes them to : public health problems. (Jd). Id. (emphasis added). Although the Report recommended a number of changes to CEQA, many ofwhich the Legislature adopted, it did not recommend changing CEQAto address or override Guidelines section 15126, nor did the Legislature choose to do so. Id.; MJN, Exh.I (showing final language of chapteredbill). C. Courts Have Repeatedly Acknowledged that CEQA Requires Agencies to Analyze the Impacts of Exposing People to Adverse Environmental Conditions. Notonly has the Resources Agency consistently interpreted CEQA to require the analysis of exposing people to adverse environmental 24 conditions, numerousappellate decisions are premised on this requirement. In 1974, the court in People v. County ofKern (1974) 39 Cal.App.3d 830, 836, 842, set aside the rezoning for a new subdivision because the EIR improperly failed to respond to commentsthat the development was directly over the San Andreas fault and adjacentto other faults. Since agencies only need to respond to comments on environmental impacts (§ 21091(d)(2); Citizensfor East Shore Parks v. State Lands Commission (2011) 202 Cal.App.4th 549, 568), this ruling depended on the court’s determination that locating the project in an area of seismic instability | would cause impacts “on the environment.” Mostrecently, in City ofMaywoodv. Los Angeles Unified School District (2012) 208 Cal.App.4th 362, 390-92, the court set aside the approval of a new schoolsite because the schooldistrict had not adequately addressed whether students would face significant traffic hazards from an existing, heavily trafficked road that would bisect the campus. The court could not have reachedthis conclusion ifCEQA did not require agencies to analyze the impacts that adverse environmental conditions will have on future users of a project. See also Preserve Wild Santee v. City ofSantee (2012) 210 Cal.App.4th 260, 269-70 (acknowledgingtrial court holding that EIR did not sufficiently analyze impacts to future residents from wildfire hazard). 25 Numerousothercases, finding agencies had adequately analyzed impacts that adverse environmental conditions will have on a project, demonstrate that, for years, agencies have been conductingthis analysis whenappropriate. People v. County ofKern (1976) 62 Cal.App.3d 761, 770-71 (acknowledging County resolution discussing earthquake andfire hazards); Oakland Heritage Alliance, 195 Cal.App.4th at 896-97 (acknowledgingthat the “project would have a significant seismic effect if it would expose people or structures to ‘substantial risk of loss, injury, or death,’” but finding that the EIR adequately analyzed and mitigated this impact); California Oaks Foundation v. Regents ofthe University of California (2010) 188 Cal.App.4th 227, 263-64 (applying Guidelines section 15126.2 to analysis of the impacts of geologichazards on a project); Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 757 (impact of earthquakes on student safety is a cognizable CEQA impact, though nota significant impact here); Cadiz Land Company,Inc.v. Rail Cycle, L.P. (2000) 83 Cal.App.4th 74, 103-04 (upholding analysis of seismic conditions in area wherelandfill was to be located); Porterville Citizensfor Responsible Hillside Developmentv. City ofPorterville (2007) 157 Cal.App.4th 885, 906-09 (acknowledging requirementto address impacts to a housing project that would be exposed to impacts. from “srading/drainage/erosion,” but finding no evidence to require preparation of an EIR.) 26 CBIAnotes that these cases assumed, rather than decided, that CEQArequires an analysis of the impacts associated with exposing project residents or users to adverse environmental conditions. CBIA Br., pp. 33- 34. However, that fact reflects the widely held understandingthat these impactsfall within CEQA’s ambit. These cases would not have been decided as they were if CEQAdid not require an analysis of these impacts. See Taxpayersfor Accountable School Bond Spending v. San Diego Unified SchoolDistrict (2013) 215 Cal.App.4th1013, 1052,fn. 26 (rejecting claim that parking impacts fall outside CEQA’sscope:the fact that agencieshave long analyzed parking impacts and courts have adjudicated claimsthat agencies improperly analyzed such impacts “reflect[s] a presumptionthat the lack of sufficient parking canconstitute a significant impact on the environment”). D. CEQA’s Requirement to Analyze Impacts of Adverse Environmental Conditions on Project Users Is A General Rule, Not An Exception. CBIA acknowledges that CEQA explicitly requires agencies to analyze the impacts of exposing people to existing, adverse air, noise, and safety conditions. CBIA Br., pp. 34-39. However, it claimsthat these are specific statutory exceptions, rather than evidence of CEQA’s general purposeto protect people from adverse environmental conditions. Id. Neither the plain language of these sections nor their legislative history supports CBIA’s position. On the contrary, their language and history 27 demonstrate that the provisions carry out CEQA’s mandate to analyze significant impacts that a project will have on the environment, and that the Legislature simply intended to provide additional requirements for this analysis in particular circumstances. Other statutory provisions also demonstrate this intent. 1. Noise and Safety Impacts From Existing Airports. Public Resources Codesection 21096 addresses safety and noise impacts of locating new development near an existing airport by requiring the use of “the Airport Land Use Planning Handbook ... to assist in the preparation ofthe environmental impact report”for that new development. § 21096 (emphasis added). The section does not begin by stating that agencies must analyze the impacts of locating developmentnearairports; rather, it assumes that agencies will already be doing this analysis, and simply specifies the manner in which they must conduct their analysis. § 21096 (a) (“[i]f a lead agency prepares an environmental impactreport,” it shall utilize particular “technical resources”’). The import of this section is apparent when compared to CEQA’s general requirements, which typically do not specify the methodology by which agencies must analyze particular impacts. Instead, as a generalrule, CEQAgrants lead agencies the discretion to determine the method by whichthey will evaluate significant project impacts. 1 Kostka & Zischke, Practice Under the California Environmental Quality Act (Cont.Ed.Bar 28 2012) §13.60, p. 680 (“Kostka & Zischke”) (in measuringair quality impacts, agencies may use any “methodologies. z= [that] are supported by substantial evidence”); Eureka Citizensfor Responsible Governmentv. City ofEureka (2007) 147 Cal.App.4th 357, 372 (agencies may choose methodologies for measuring impacts and courts will not second guess those choices). In the case of noise impacts from airports, however, the _ Legislature determined that agencies should use a specific methodology. Thelegislative history of SB 1453 (1994), which created section 21096, bears outthis interpretation. For example, an enrolled bill report demonstrates that the Legislature did not believe the bill imposed a new requirement to analyze impacts from existing environmental conditions; rather, the Legislature merely wished to guide agencies in carrying out their preexisting duties: Although the sponsor recognizes that CEQA currently requires local agencies to consider any significant effects on the environment andthat the agencies should already consider the efféctofairports on a proposedproject, there have been three lawsuits in the past decade (in Jackson, Ceres, and Clear Lake) where the court determinedthat a local agency failed to adequately consider anairport's effects. The sponsor argues that in each casea planner did not have significant experience in land use planning nearairports, and had no knowledgethat the Airport Land Use Planning Handbook existed or should be used in preparing the EIR MIN,Exh.J, p. 2 (emphasis added); see also MIN, Exh. K,p.2 (“[t]he provision dealing with safety hazards and noise analysis restates requirements already substantially addressed in the CEQAstatute and 29 guidelines,” including Appendix I); MIN,Exh. L (the bill would impose “no added costs” because it only provides “standardized guidelines” for conducting analysis that is already required). Accordingly, the sponsor introducedthe bill in order to “simply reaffirm the Airport Land Use Planning Handbookand other documentsas available resources for analyzing noise and safety issues.” MJN, Exh.J, p. 3. This history also demonstrates that the Legislature did not perceive the distinction that the Baird cases and CBIA make between analyzing the effects of a project on the environmentand analyzing impacts of the environmenton a project. Rather, the Legislature recognized that exposing new people tosafety and noise risks from an existing airport constitutes a significant impact on the environment. The Legislative Counsel’s Digest described how “[t]his bill would require a lead agency to follow specified procedures relative to safety hazards and noise problems” when complying with “[e]xisting law... [which] requires a public lead agency, as defined, to prepare an environmental impact report on a project . . . that may have a significant effect on the environment.” MIN, Exh. M. See also MJN, Exh. J, p. 2 (block quoted above). 2. Health and Safety Impacts at Schools. As with impacts from airports, the Legislature has identified the technical method agencies must use when evaluating impacts to schools located near sources of hazardous waste or air pollution. § 21151.8 (a)(1), 30 (a)(2) (identifying the types andlocations of potentially hazardousfacilities that may posea risk to a proposed school and a process for working with air districts and other agenciesto obtain this information). The section then goes further, prohibiting the location of schools where existing sources of toxics would pose unacceptablehealth risks unless the district can demonstrate there is no “alternative site that is suitable due to a severe shortage”ofalternative sites. § 21151.8 (a)(3)(C). This limitation on agencies’ ability to approve schoolsites is significant because, as a general. rule, CEQA doesnot prohibit the approval of a project, but allows them to go ahead evenifthey will have significant environmental impacts. Kostka & Zischke, §1.1, p. 2. However, in the _ case of schoolsiting, the Legislature determined the potential impacts from existing adverse environmental conditions are important enoughto actually limit school construction when their location posessignificant health risks. Thelegislative history for this provision does not explicitly address whether the Legislature believed it created an exception to CEQA’s general requirements or merely specified how agencies must undertake their preexisting duties. However, the history does show that the drafters thought the bill would simply “[p]rovide[] greater specification . . . regarding .. . what must be included in the EIR” and “would result in no additional costs to the state.” MJN, Exh. N. Thehistory of this uncontroversialbill thus indicates that the section was intended to provide 31 more specificity with respect to analysis that was already required by CEQAanddid not turn CEQA“onits head,” as CBIA now alleges. CBIA Br., p. 4. 3. Exemptions for Housing Development. CEQA exempts various types ofhousing projects from environmental review. However, the exemptions do not apply to projects | located on sites that will expose future project residents to a significant risk of harm from flooding, earthquakes, wildfire, or exposure to harmful materials fromsurrounding properties. See, e.g., § 21155.1(a)(6) (exemption for“transit priority projects” does not apply if project site is subject to unusually high risk offire or explosion from materials stored or used on nearbyproperties, risk of an excessive public health exposure,or unmitigated wildlandfire, seismic, landslide, or flood risk); § 21159.21(f (applying same standards to exemption for “qualified housing projects”); § 21159.22(b)(3) (samefor agricultural employee housing); § 21159.23(a)(2)(A) (same for low-income housing); § 21159.24(a)(3) (same for urban,infill housing). Thesecriteria were specifically “intended to ensure that the project has no apparent significant environmental impacts.” MJN, Exh. O,p. 5 (SB 375, creating 21151.1). See also MIN, Exh.P, p. 3 (history for SB 226 (2012), which provided new exemptionsfor infill projects, described how existing law “[e]xempts from CEQAspecified residential housing projects 32 which meetcriteria established to ensure the project does not have a significant effect on the environment.”) (emphasis added). By refusing to exempt from CEQA projects that would expose people to adverse environmental conditions, these provisions demonstrate the legislative understanding that exposing people to such conditions is a potentially significant environmental impact. 4. CBIA’s Reliance On the Legislative History of Recent, Un-enacted Bills Is Misplaced. CBIAclaimsthatbill analyses for SB 617 and AB 953, which were introduced in the 2013 legislative session but were not passed, indicate that the Legislature knew that CEQA did not require analysis of exposing people to adverse environmental conditions and declined to expand the law’s reach. CBIA Br., pp. 37-39. As this Court has repeatedly held, however,““[tJhe unpassedbills oflater legislative sessions evoke conflicting inferences. . . [and] [a]s evidence oflegislative intent they have little value.’”” Grupe Development Company v. Superior Court (1993) 4 Cal.4th 911, 923 (citation omitted). See also People v. Mendoza (2000) 23 Cal.4th 896, 921 (“[T]he Legislature’s failure to enact a proposedstatutory amendment may indicate many things other than approvalofa statute’s judicial construction, including the pressure of other business,political considerations, or a tendencyto trust the courts to correct its own errors.”). 33 Theserules are particularly apt here. Although these bills would have modified CEQA’s definition of “environment” and “significant effect on the environment”to ensure that agencies analyze the health and safety impacts of exposing people to adverse environmental conditions, legislators held very different views on whetherthe bills would clarify or change existing law. Bill supporters believed that the bill would not expand CEQA, but merely clarify existing law: This bill fixes the misguided decision in Ballona Wetlands Trust, in which a court decided that environmental review could not take into accountthe effects of the physical environmenton the project. That decision could lead to projects being built on floodplains, areas of high seismic activity, or areas ofhigh wild[fire] risk - without these risks even being permitted to be discussed in the environmental review. - MIJN, Exh. Q,p. 7; See also CBIA MIN,Ex. C, p. 3 (“SB 617 addresses the court's decision in Ballona Wetlands Trust by clarifying that project | reviews must take into account the physical environmenton a given project”) (emphasis added). Opponents ofthe bill, on the other hand, cast the measure as an_ “attack on the core of the CEQA . . [because] CEQA requires consideration of the impacts of a project on the environment, not the other way around.” MJN, Exh. Q, p. 8. They therefore viewed the bill as an unwarranted expansion ofthe law. 34 Giventhe differing opinions aboutthe effect of these bills,it is impossible to draw any meaningful conclusion from statements in a few legislative analyses indicating that the bills would “additionally require” analysis of the impacts ofexposing people to adverse environmental conditions. See CBIA Br., p. 38. In fact, other statements in those same analyses indicate that CEQA already requires this type of analysis and that agencies already perform it. CBIA MIN,Ex.E, p. 2 (the “CEQA Guidelines require lead agencies to consider the effects ofhazardous or adverse environmental conditions on aproposedproject .. . [and this type of] analysis is typically used to evaluate and address problems caused by bringing people and new developmentto areas with poorair quality, incompatible land uses, or hazardous conditions”); CBIA MIJN, Ex. D,p. 2 (“this analysis is currently required by the current CEQA Guidelines (§15126.2(a)), which are adopted regulations, despite recentlitigation. . . andit is reasonable to assume that at least some agencies may already be doing this analysis”) (all emphases added). Legislative history is only relevant to the extent a court can “ascertain the intent of the Legislature as a whole.” Quintano v. Mercury Casualty Company (1995) 11 Cal.4th 1049, 1062. Here, there is no indication whether the Legislature as a whole viewedthe bills as expanding CEQAor as maintaining the status quo, which had only been distorted by erroneousrulings such as Ballona. Thebills’ histories are therefore useless 35 in interpreting CEQA’s preexisting statutory language. See Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 735, fn. 7 (1982) (refusing to take notice of unenactedbills’ histories); Grupe Development Company, 4 Cal.4th at 922- 23 (same). Bycontrast, all of the relevant indicia of statutory intent demonstrate that the Legislature intended for CEQA to encompass impacts resulting from the exposure ofpeople to adverse environmental conditions. Asthe paramountgoal ofthe courtsis to interpret CEQA broadly consistent with its statutory language, this Court should find that CEQA requires analysis of “how existing environmental conditions will impact future residents or users (receptors) of a proposed project” where those conditions may cause substantial adverse impacts to humans,either directly or indirectly. IL. This Court Should Overrule Baird and Subsequent Cases. Although CBIA claimsthis case turns on the plainlanguage of CEQA,for the most part, its argument relies on four appellate decisions finding that CEQA does not require agencies to analyze the impacts of the environmenton a project. These decisions are notably lacking in any meaningful attempt to ascertain the Legislature’s intent and to interpret the statute consistent with its purposes. Thefirst two cases failed to even acknowledge that the CEQA Guidelines explicitly required the analysis that they found outside the scope of CEQA. And, noneofthe cases addressed either the Resources Agency’s explanation for its Guidelines or the 36 legislative history of numerous CEQA provisions demonstrating that the statute does require analysis of exposing people to adverse environmental conditions. Moreover, the Baird cases did not even need to reach the issue for which CBIAcites them. Ultimately,all of the Baird casesare unpersuasive and should be overturned to the extent they purport to limit CEQA’s requirementto address the impacts of exposing project residents or users to adverse environmental conditions. A. TheBaird Cases Are Not Consistent with this Court’s Direction that CEQA BeInterpreted Broadly to Effect Its Purposes. 1. The Early Baird Cases Did Not Address CEQA’s Statutory Languageor the CEQA Guidelines. Thefirst case to hold that CEQA does not require analysis of exposing project residents to adverse environmental conditionsinvolved the adoption of a negative declaration for a residential drug treatmentfacility. Baird, 32 Cal.App.4th at 1466-67. Neighboring landowners sued and argued the county should have prepared an EIR to addressthe exposure of future project residents to contaminationthat allegedly existed nearthe project site. Jd. at 1467. The courtdisagreed because there was no evidence that the facility in question would change the alleged preexisting contamination:“[t]o require an EIR in the present context, where the proposed project is challenged on the basis of preexisting environmental conditions rather than an adverse change in the environment, would impose 37 a requirement beyondthose stated in CEQAorits guidelines, and is thus prohibited.” Jd. at 1469. | In reaching this conclusion, the court ignored section 21083(b)(3), whichstates that a project will have a significant impact on the environmentif its environmental effects will cause substantial adverse effects on humanbeings. It also ignored Guidelines section 15126, which at that time-assection 15126.2 does now-required agencies to conduct the exact type ofanalysis the Baird court held was not required. Guide to CEQA,pp. 440-42. The decision was therefore incorrect that analyzing whether existing conditions may affect future residents would impose a requirement “beyond those stated in CEQAorits guidelines.” Baird, 32 Cal.App.4th at 1469. CEQApractitioners werecritical of the Baird decision. As a leading CEQAtreatise states: “if taken literally, [Baird] would conflict with numerous CEQA Guidelines provisions that, taken together, embody /ong- | settledprinciples requiring environmental documents to address potential problemsthat ‘the environment. . . might create for new development.’” Guide to CEQA,p. 440 (citation omitted) (emphasis added). See also 9 Miller & Starr, Cal. Real Estate (3d ed. 2007) § 25A:7, p. 25A-27 - 25A-28 (noting that Baird “did not cite or refer to” section 21083(b)(3) and that “[iJt is at least arguable that the introduction of construction activities and human beingsinto a potentially dangerous, but previously uninhabited, area 38 would constitute a ‘change’ in the existing environmentthat is ‘adverse’ within the meaning of [CEQA]”). For this reason, the decision was interpreted as merely reflecting “judicial impatience with a lawsuit that appears to have been filed mainly for social, rather than environmental, purposes.” Guide to CEQA,p. 441. Likewise, in 2009, the Resources Agency did not find Baird controlling whenit revised Guidelines section 15 126.2 to add language stating that an “EIR should evaluate any potentially significant impacts of locating developmentin other areas susceptible to hazardous conditions.” As the Resources Agency noted, Baird involved a situation in which there was no evidence that a project would expose anyoneto alleged preexisting contamination. MIJN, Exh. R, pp. 43, 103.- In contrast, the agency described how its guidance focused “on the potential interaction between the project and the hazard.” MIJN, Exh.S, p. 3 (Response 13-3) (emphasis added). The appellate courts also declined to follow or apply Baird for many years. In fact, the next case to address whether CEQArequires an analysis of exposing people to adverse environmental conditions-L.A. Unified, 176 Cal.App.4th at 895, 900-did not mention Baird at all. There, the petitioner challenged an EIR for construction of a high school near a freeway and other sources ofair pollution. Aspart of its environmental review, the schooldistrict prepared a health risk assessment that evaluated impactsto 39 students and staff caused by locating the school within a quarter mile of ~ sources ofhazardous emissions, as required by section 21151.8. Jd. at 900. Petitioner argued that the school district should have also analyzed the cumulative impactthatair pollution sources outside these boundaries would have on student andstaff health. The court rejected this argument, and found that the geographic scope of the District’s analysis was adequate to address both project specific and cumulative impacts. Jd. at 911-12. Before reaching this conclusion on the merits of petitioner’s claims, however,the court “digress[ed] first to make the point that generally, ‘[t]he purpose of an environmental impact report is to identify the significant effects on the environmentofa project . . . not . . . the environmenton the project... .’” Id. at 905 (citing § 21002.1(a)) (emphasisin original). CBIA latches onto this statement as making a “careful distinction” between CEQA’sspecific mandate to analyze the effects of environmental conditions on project users under 21151.8, and the alleged “absence of any such duty under CEQAgenerally.” CBIA Br., p. 22. The court made no such careful distinction. To the contrary, as in Baird, the L.A. Unified court simply ignored both the CEQA Guidelines and CEQA’slegislative history when digressing to address CEQA’s scope. Moreover, the court seemed to accept that agencies must analyze the impacts of adverse environmental conditions on future project users whenit ruled that the EIR properly analyzed the impactof existing traffic on future students. 176 Cal.App.4th 40 at 914-16 (upholding EIR’sfinding that student “pedestrian safety impacts would be reducedto less than significant levels” with mitigation). 2. The Baird Cases Do Not Provide A Reasoned Basis For Overturning Guidelines Section 15126.2. The most recent decisions to address the issue presented here- SOCWA, 196 Cal.App.4th at 1608-09, and Ballona, 201 Cal.App.4th at 473-74-provided only marginally more in-depth analysis. In SOCWA the court rejected the claim that Dana Point should have prepared an EIR to evaluate odor impacts from a nearby sewagetreatment plant on future residents. 196 Cal_App.4th at 1615, 1617. Ballona foundthat the City of Los Angeles was not required to evaluate the impacts of sea level rise on a residential project and its future residents. 201 Cal.App.4th at 474. Although both SOCWA and Ballona acknowledged Guidelines Section 15126.2, they rejected it as inconsistent with CEQA. SOCWA, 196 Cal.App.4th at 1617 (“[t]he Legislature did not enact CEQA to protect people from the environment.”); Ballona, 201 Cal.App.4th at 474 (same). CBIAechoesthis holdingin its brief. CBIA Br., pp. 25-26. In dismissing the Guidelines as contrary to CEQA, however, neither SOCWAnor Ballona analyzed CEQA’slegislative history or the Resources Agency’s explanation ofhow the Guidelines fulfill CEQA’s requirement that agencies evaluate the direct and indirect impacts ofprojects on humans. Although the SOCWA court twice quoted CEQA’s fundamental 4] purpose to provide “a decent homeandsuitable living environment for every Californian” (196 Cal.App.4th at 1613), it ignored that this purpose supports interpreting CEQAto require analysis ofthe impacts that adverse environmental conditions will have on project residents. Likewise, these courts’ narrow interpretations of CEQA’sdefinitions of “environment” and “significant effect on the environment”are not consistent with this Court’s directive that CEQAbeinterpreted broadly to effect is purposes. By focusing only on whether the project changes the adverse environmental condition, the Baird cases miss the change that the projects actually cause-bringing people to an area where they will be exposedto environmental conditions-and the adverse consequencesthat flow from | that change. See, e.g., SOWCA, 196 Cal.App.4th at 1615 (addressing whether project would change odors from the sewage treatmentplant rather than the changes resulting from bringing people to the area). As demonstrated above, CEQAcan, and should, be construed to meanthat a project will have a significant effect on the environmentifit changes the physical conditions at a site by bringing peopleto that site, and therefore exposes them to existing or reasonably foreseeable adverse environmental conditions. Moreover, the Resources Agency’s consistent interpretation of CEQAto require this analysis belies CBIA’s claim that the Resources Agency ignored Baird andfirst “distorted the purpose of CEQA” whenit revised the Guidelines in 1998. CBIA Br., p. 27-28. To the 42 contrary, Baird ignored relevant CEQA Guidelines and statutory provisions andinitiated the legal uncertainty that gaverise to this case. This Court should reject the Baird cases, not Guidelines section 15126.2. B. The Baird Cases Could Have Been Resolved By Applying CEQA’s Plain Language Rather Than Making Sweeping ‘Pronouncements About the Law’s Scope. CBIAclaimsthat if this Court overturns the Baird cases, there will be no “principled distinction prevent[ing] CEQA from invading every aspectofproject development.” CBIA Br.,-p. 4. CBIA’s alarm is unwarranted; CEQA’splain languagealready limits the scope of any required analysis. Moreover,the facts of the Baird cases themselves demonstrate that requiring analysis ofexposing people to adverse environmental conditions will not expand CEQA to encompass every possible environmental impact. Accordingly, those courts should have resolved the cases by applying CEQA’s well-established limits instead of reaching out to create a new legaldoctrine. 1. CEQA’s Plain Language Establishes the Scope of the Requirementto Evaluate Impacts Associated with Exposing People to Adverse Environmental Conditions. CEQAonly requires analysis of “substantial adverse” effects on humans. § 21083(b)(3). Agencies must base their determination that an impact is substantial and adverse “on substantial evidencein light of the whole record”before the agency. § 21082.2 (a). That some people may 43 disagree with an agency’s determination orthat there is public controversy over the location of a project does not constitute substantial evidence. § 21082.2(b). Rather, evidence consists of “fact, a reasonable assumption predicated uponfact, or expert opinion supported by fact.” § 21080(e). It does not include “argument, speculation, unsubstantiated opinion or narrative, [or] evidence that is clearly inaccurate or erroneous.” Id; see also Apartment Association ofGreater Los Angeles v. City ofLos Angeles (2001) 90 Cal.App.4th 1162, 1176 (opinions “which say[] nothing more than ‘it is reasonable to assume’ that something ‘potentially ... May occur’ [do not] constitute[] substantial evidence”). As the Resources Agency described whenit revised Guidelines | section 15126.2 in 2009, these limits mean that agencies will not needto discuss every possible way in which environmental conditions may harm people. For example, agencies need not analyze the impacts that climate change might have onthe health of future project residents if those impacts are speculative or if they are unrelated to the project being built in a particular location. MIN, Exh. 8, p.2. Similarly, agencies need not analyze the impacts that an adverse environmental condition will have on a project “if the potential hazard would likely occur sometimeafter the projectedlife ofthe project.” Id. (e.g., impacts of sea level rise fifty years from nowareirrelevantif a project has a five-year lifespan). See also 44 MIN,Exh. R, p. 42 (describing how “[s]everal limitations apply to the analysis of future hazards”). Finally, the impact must be fairly encompassed by CEQA as an environmental impact. The Guidelines identify a numberofpotential environmental impacts that would be relevant when evaluating impacts to future residents or users of a project. These include: health impacts from air pollution and hazardous chemicals, noise, flooding, geologic instability (such as earthquakesor landslides), and wildfire. CEQA Guidelines § 15126.2 (a); App. G, §§ III (d) (expose sensitive receptors to substantial pollution concentrations), IIT (€) (odors), VI (a) (identify risks from geologic/soil hazards, such as landslides, earthquakes, liquefaction), Vill (e) (safety impacts from location nearairport), VIII (h) (expose people to wildfire risk), IX (i) (expose people to risk of flood), IX (j) (pose threat of inundation by seiche, tsunami, or mudflow), XII (e), (f) (exposure to noise from airports). All of these types of impacts meetthe standard set out in Martinv. City and County ofSan Francisco (2005) 135 Cal.App.4th 392, 403: CEQA applies only to a “physically perceivable reality. The major statutory emphasis is on matters that can be seen,felt, heard, or smelled.” Indeed, if a project were to cause any of these impacts directly, they would be subject to analysis under CEQA. E.g., Berkeley Jets, 91 Cal.App.4th at 1367-71, 1382 (agency mustanalyze project’s TAC and noise impacts to surrounding 45 community); River Valley Preservation Project v. Metropolitan Transit Development Board (1995) 37 Cal.App.4th 154, 177-78 (agency must analyze howa project will impact flooding on surrounding land). Accordingly, agencies should also analyze whether these types of impacts will have a substantial, adverse impact on future project residents. 2. The Baird Cases Could Have Reached the Same Result By Applying CEQA’s General Requirements. In each ofthe Baird cases, the court could have concluded that CEQAdid not require the analysis demandedbypetitioners based on the application of CEQA’s general requirements to the evidencein those cases. Specifically, the Baird court could haveruled that no EIR was required because no substantial evidence supported a fair argumentthat the contamination would causesignificant health impacts. 32 Cal.App.4th at 1468,fn. 1 (the alleged contamination, if it existed at all, was located between 700 and 2000 feet from the project site). Similarly, in Ballona Wetlands the court found substantial evidence supported the City’s finding that the “project would-not be subject to inundation as a result of sea level rise resulting from global climate change.” 201 Cal.App.4th at 476. This finding should have disposed ofpetitioners’ claim that the EIR did not adequately evaluate this impact; after all, there is no need to analyze impacts that will not occur. 46 In both SOCWA and L.A. Unified, the agencies actually conducted ‘the analysis that the courts eventually found was not required. Specifically, in SOCWA DanaPoint actually “had taken into accountthe possible effects of the proximity of the SOCWAsewageplant, by requiring a buffer zone between the plant and future structures, visual screening, air conditioning, and notifications in escrow instructions.” 196 Cal.App.4th at 1610-11. And, in L.A. Unified, the schooldistrict had analyzed health impacts to students and staff from sources of toxic emissionswithin a one-quarter mile radius of the proposed school, and the court upheld this analysis on the merits. 176 Cal.App.4th at 900, 911-12. Finally, in Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768-the most recent case to address Baird-the court refrained from determining the validity ofthat line of cases. There, the court addressed a claim that the city should have prepared an EIR for a mixed use development because the project would cause significant impacts by exposing future project workers and residents to toxic contaminationin the soil. Jd. at 777-78. The court acknowledged Baird, but found it inapplicable because the project at issue, unlike in Baird, would disturb the existing, contaminated soil, thereby constituting a physical change that might cause a cognizable impact under CEQA. Id. at 779-80. Ultimately, however, the court ruled that there was no substantial evidence supporting a fair argumentthat the project would cause significant 47 health risks to the workers andresidents. Jd. at 784-85. Although the court | entertained the idea that CEQAgenerally would not require this analysis,it ultimately declined to “decide the issue here.” Jd. at 782. This refusal in Parker Shattuck to decide the issue was clearly correct and avoided the problem set in motion by Baird whenit made a broad pronouncementabout the requirements of CEQAthat was not supported bythe law or required by the facts ofthe case. C. Compliance with Other Laws Does Not Substitute for Compliance with CEQA. Both SOCWA and Bairdassert that CEQA is not necessary to address exposure to adverse environmental conditions because “{o]ther statutes, ordinances, and regulations fulfill that function.” SOCWA, 196 Cal.App.4th at 1617; Baird, 32 Cal.App.4th at 1469. In support ofthis position, CBIA expends six pagesofits brief listing statutes that purportedly replace the need for CEQA. CBIA Br.at 44-49. This Court has expressly rejected the notion that other laws supplant CEQA:“[iJn analyzing the application ofCEQA to an agency already charged by another act with environmental responsibilities, we recently recognized that these acts should be harmonized and CEQA applied.” Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 198 (emphasis added); see also Neighborsfor Smart Rail, 57 Cal.4th at 462 (“an EIR must be judged onits fulfillment of CEQA’s mandates, not those of otherstatutes”); 48 CBE, 103 Cal.App.4th at 111-14 (invalidating former Guidelines section 15064(h), which directed agencies to find an impact was notsignificantif it complied with other laws or regulations, because compliance with other laws is not a substitute for CEQA review). As CBIAitself concedes, “CEQA provides protections that a review process outside ofCEQA does not.” Petition for Review, p. 7. This is because ““CEQA[‘s] requirements serve very specific and important purposes”that are not covered by other environmental laws. Wildlife Alive, 18 Cal.3d at 197 (noting that CEQA,unlike other laws, requires analysis of alternatives and public disclosure of information that is subject to judicial review). For example, in contrast to the laws of general application that CBIAcites, CEQA ensuresthat agencies analyze site-specific impacts and alternatives. Compare CBIA Br., p. 48 (Federal Insecticide, Fungicide, and Rodenticide Act generally regulates pesticide use), with Ebbetts Pass Forest Watch v. California Department ofForestry and Fire Protection (2008) 43 Cal.4th 936,956 (“the fact a sister agency had assessed the environmental effects of various herbicides in general and registered them for use did not excuse CDFfrom assessing those herbicides’ use as part of a particular timber harvestplan” under CEQA,and analyzing alternatives to their use) (emphasis in original). Similarly, the Alquist-Priolo Earthquake Fault Zoning Act and other seismic safety laws do not require agencies to analyze project alternatives. 49 Compare Cal. Code Regs,tit. 14, § 3724 (requiring agencies to mitigate seismic-related safety impacts, but not to analyze alternatives) with California Oaks Foundation, 188 Cal.App.4th at 264, 276 (agency imposed mitigation to comply with seismic safety laws and CEQA,but also analyzed alternative project sites to comply with CEQA). Nor do they provide the samelevel ofpublic disclosure that CEQA requires. Unlike Alquist-Priolo, which “does not dictate particular procedures the agency must follow when approving a project” (id. at 250), CEQA requires agencies to follow detailed procedures to inform themselves and the public of a project’s impacts(e.g., §§ 21081, 21082.2(a)). Even if CBIA were correct that a property owneris morelikely to read real property disclosures than an EIR (CBIABr.at 45), such retrospective disclosure cannot substitute for CEQA’s mandate that public agencies analyze, disclose and mitigate significant project impacts before a project is approved. § 21002. 1(a); Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 130. CBIAalso claims that general plan policies adequately protect residents from environmental effects, such as excessive noise. CBIA Br., p. | 46. But courts have repeatedly held that “conformity with a general plan does not insulate a project from EIR review whereit can be fairly argued that the project will generate significant environmental effects.” Oro Fino Gold Mining Corporation v. County ofEl Dorado (1990) 225 Cal.App.3d 50 872, 881-82 (compliance with General Plan’s noise policies does not necessarily render project’s noise impacts insignificant); see also City of Antioch v. City Council (1986) 187 Cal.App.3d 1325, 1332 (“there is no indication in CEQA that mere conformity with the general plan will justify a finding that the project has no significant environmental effect”). In sum,other laws provide additional protections but do notreplace CEQA’s unique analysis, disclosure, and mitigation requirements. If CBIA believes that CEQA should exempt projects whose impacts are already regulated by other laws,it is free to ask the Legislature to amendthe law in this manner. But as CBIA itself emphasized, “the Legislature knows how to grant an exemption andif it has not doneso,it is not the place of the courtsto imply one.” Petition for Review, p. 5. D. Analyzing and Mitigating the Impacts of Adverse Environmental Conditions Would Not Require Unconstitutional Mitigation. The SOCWA court expressed concern that requiring agencies to adopt mitigation addressing the source of an impact would“stick”project applicants with the bill for impacts they did not cause. 196 Cal.App.4th at 1614; see also CBIA Br., p. 42, fn. 10. This concern is addressed by CEQAitself. First, the impacts at issue here are associated with bringing peopleto an existing environmental condition. Therefore, mitigation can be focused on changesto the project under review,suchas setbacks, buffers, or improved earthquake safety measures that limit the effect of 51 exposing new residents to that adverse condition. See, e.g., SOCWA, 196 Cal.App.4th at 1610-11 (addressing odor-related impact of locating new residents near sewage plant by requiring setbacks); L.A. Unified, 176 Cal.App.4th at 900-01 (addressing air quality impact of locating school near sourcesofair pollution by requiring building setbacks and enhanced filtration). Agencies mayalso address the source of particular impactsin at least’ some circumstances. When confronted with multiple projects that contribute to an environmental impact, agencies often require project proponents to pay their fair share toward addressing the impact, instead of having them paythe entire cost ofthe mitigation. See, e.g., Save Our Peninsula Committee v. Monterey County Board ofSupervisors (2001) 87 _ Cal.App.4th 99, 137-142 (upholding traffic mitigation program that required project proponents to contribute their share of mitigating increased traffic). Thus, Dana Point might have required the developer to contribute a portion of the cost of covering the sewage treatmentplant, based on the amount of sewage that the project would contribute to the plant. Finally, even where someprinciple of law precludes an agency from adopting mitigation for a significant impact, “such preclusion would not excuse the [agency] from performingtherealistic assessment of environmental effects CEQA demands.” Communitiesfor a Better Environment v. South Coast Air Quality Management District (2010) 48 52 Cal.4th 310, 325. This Court’s statement reflects that CEQA’s core purposeis to provide the public and decision makers with complete information regarding a project’s impacts. § 21002.1(a); Guidelines § 15063(b)(1). It is only after fully analyzing both the benefits andrisks of approving developmentthat decision makers and the public can intelligently weighthe competing policy concerns. Guidelines § 15021(d). If, after such consideration, agencies believe that the benefits ofnew development outweighits risks, they are free to approve such projects notwithstanding any significant health impacts. § 21081; Guidelines §§ 15021(d), 15043. CBIA’sinterpretation of CEQA would eliminate this essential function for a range of environmental impacts that adversely affect humans. This Court should reject such a result as being inconsistent with 7 the plain language of CEQA,theinterpretation of the regulatory agency charged with implementing CEQA,andthis Court’s directives about the law’s broad purposes. II. The Court Should Uphold the Air District’s Receptor Thresholds Regardless of How It Rules on the Broader Question of CEQA’s Scope. , A. CBIABears the Burden of Demonstrating the Thresholds Are Invalid in All of Their Applications. CBIA’s lawsuit challenges the Air District’s mere adoption of the Thresholds, not their application in any particular instance. CT 4:1092-93. A facial claim such asthis “is ‘the most difficult challenge to mount 53 successfully, since the challenger must establish that no set of circumstances exists under which the [law] would bevalid.’” 71H. v. San Diego Unified School District (2004) 122 Cal.App.4th 1267, 1281 (citation omitted). CBIA asserts that this standard only appliesto facial constitutional challenges andthat courts have not applied it to CEQA. Petition for Review, p. 24. Instead, CBIA claims, this Court must determine whether the challenged Thresholds are “‘clearly unauthorized or erroneous under CEQA.”” /d. (quoting CBE, 103 Cal.App.4th at 109). CBIA’s argumentis unavailing. Courts routinely apply the facial standard described above when adjudicating claims that an agency’s action conflicts with state statutes. T.H,, 122 Cal.App.4th at 1281(facial claim that administrative regulation violated both state law and the constitution); Sierra Club v. Napa County Board ofSupervisors (2012) 205 Cal.App.4th 162, 173-74 (facial claim that local ordinance conflicted with state law); Association ofCalifornia Insurance Companies v. Poizner (2009) 180 Cal.App.4th 1029, 1054(facial claim that statewide regulations conflicted with state law). The CBE decision, relied upon by CBIA,did not explicitly cite this standard but effectively applied it. Specifically, the CBE court invalidated Guidelines that required lead agencies to use an approach that flatly conflicted with CEQA (103 Cal.App.4th at 115 (Guidelines § 15064(h))), but it upheld other Guidelines that arguably allowed lead agencies to use a prohibited 54 - approach because agencies could apply them in a manner consistent with CEQA (id. (Guidelines § 15064(i)(3))). Likewise here, because the Thresholds can be applied consistent with CEQA,they must be upheld, regardless of this Court’s ruling on the question presented. B. CBIA’s Facial Challenge Fails Because the Receptor Thresholds Can Be Validly Applied in Numerous Situations. 1. Agencies MayUse the Challenged Thresholds to Carry OutSpecific CEQA Provisions. First, agencies may use the TAC Receptor Thresholds when determining whether the location of a proposed schoolsite “will [] constitute an actual or potential endangerment ofpublic health to persons who would attend or be employed at the proposed school,” as required by section 21151.8(a)(3)(B)(i). Because the law does not provide a standard for making this endangerment determination, agencies may use the Air District’s Thresholdsto do so. | CBIAclaimsthat agencies cannot use the Thresholds in this circumstance because they are inconsistent with the “unique and detailed statutory requirements for schoolsiting” set forth in section 21151.8. CBIA Br., p. 43. But the only difference CBIA mentionsis that CEQA requires agencies to consider impacts from TAC sources within 1,320 feet (a quarter mile) of a schoolsite, whereas the Air District recommends 55 considering impacts from sources within 1,000 feet. Id.; see also AR 1:6 (listing Thresholds). This difference is hardly consequential. In any event, the Air District recognized that lead agencies may expand the recommended 1,000 foot distance where conditions warrant. AR 4:876, 882. Agencies could therefore use the Air District’s recommended threshold levels for increased cancer risk, non-cancerrisk, or PM)5 exposureto asses health risks from sources within 1,320 feet, instead of 1,000 feet, of a proposed new school. AR 1:6. Second, agencies may use the TAC Receptor Thresholds to determine whether certain CEQA exemptions apply. For example, transit- oriented housing projects are exempt from CEQAreview,butonlyifthe lead‘agency determinesthatthereis not: (1) a “[r]isk of a public health exposure”on the projectsite, or (2) an unmitigated “potential for exposure to significant hazards from surrounding properties.” § 21155.1(a)(4)(B), (6)(C). See also §§ 21159.21(f), (h) (applying samecriteria for “qualified housing projects”); 21159.22(b)(3) (for agricultural employee housing); § 21159.23(a)(2)(A) (for low-income housing); § 21159.24(a)(3) (for urban,infill housing). Accordingly, agencies could use the TAC Receptor Thresholds to determine whether a project may cause risk of a public health exposure due to TAC hazards from surrounding properties, and thus whether an exemption applies. 56 _ Third, agencies may use the TAC Receptor Thresholds to determine whethera project’s own TACemissions will have a significant cumulative impact when combined with other existing sources of TACs. CBIA claims that this “is not a receptor issue, it is a source issue.” CBIA Br., p. 42. However, many projects will be both sources and receptors-e.g., new | housing developments will expose new residents to existing pollution and will also contributetoit by causing vehicle trips that emit TACs. It makes no sense to evaluate whether a new project’s TAC emissions will have a significant cumulative impact on surrounding residents, but ignore the exact same impact on the Project’s own residents. Fourth, agencies may use the Thresholds to determine whethera project is inconsistent with a general plan’s policies to protect new residents from existing TACs. CBIA claimssuch analysis will be unnecessary if this Court rules that exposing people to adverseexisting conditions is not an “impact on the environment” under CEQA. CBIA Br., p. 43 (agencies need only analyze plan inconsistencyifthe inconsistency is evidence of a significant “impact on the environment”). But CBIA’scited authority does not support its argument. The court in Lighthouse Field Beach Rescue v. City ofSanta Cruz (2005), 131 Cal.App.4th 1170, 1207, held that an inconsistency between a project and relevant land use policies “does not in itself mandate a finding of significance,” but acknowledged that an inconsistencyis “a factor to be considered in determining whether a 57 particular project may cause a significant environmental effect.” (emphasis added.) Accordingly, where agencies have adopted policies to address TAC exposuresto future residents, they may rely on the Thresholds when considering whether a conflict with this policy will “cause substantial adverse effects on human beings,” as required by CEQA. § 21083(b)(3); | see also Guidelines § 15125(d) (“an EIR shall discuss any inconsistencies between the proposed project and applicable general plans”) (emphasis added). 2. Agencies May Choose to Employ the Challenged Thresholds Even if CEQA Does Not Require Them to Analyze the Impacts of Exposing Project Residents to Adverse Environmental Conditions. Evenifthis Court finds that CEQA does not generally require agencies to analyze the impacts that existing sources ofTACs would have on a project’s users or residents, there is nothing in CEQA that prohibits agencies from conducting this analysis. This Court and others have repeatedly acknowledged that agencies regularly and lawfully exercise their discretion to take measures in excess ofwhat CEQA strictly requires. For example, in Neighborsfor Smart Rail, 57 Cal.4th at 445, petitioners challenged the Authority’s EIR for a light rail project on the groundthat the agency improperly measured the project’s impacts against a baseline of projected future conditions, rather than existing conditions. This Court ruled that the Authority erred in using the future conditions baseline, but 58 went on to add: “nothing in CEQAlaw precludes an agency, as well, from considering both types of baseline-existing and future conditions-inits primary analysisofthe project’s significant adverse effects.” Id. at 454; see also Committeefor Green Foothills, 48 Cal.4th at 41, 51 (agency elected to issue a Notice ofDetermination even though CEQAdid not mandate or even discuss the use of such a notice in this situation); L.A. Unified, 176 Cal.App.4th at 900 (school district’s EIR analyzed air quality impacts from TACsourceslocated outside of the radii required by law).’ Allowing agencies to analyze environmental health issues that exceed CEQA’s minimum requirements, and to use the TAC Receptor Thresholds when doingso,fits perfectly with the law’s purposesto protect the “health and safety of the people of the state” in order to provide “a decent homeandsuitable living environment for every Californian.” §§ 21000(d), 21001(d). It also fits with the law’s purposeto “protect[] not only the environmentbutalso informed self-government.” Sierra Club, 7 Cal.4th at 1229 (citation omitted). "In his CEQAtreatise, CBIA’s counsel also emphasizes that agencies may wish to provide greater analysis in their EIRs than required by law. Kostka. & Zischke, §§12.28, 12.29, p. 609 (“it may be desirable in some cases to discuss plan policies that are not legally applicable”), 12.30, p. 610 (“agencies mayfind it useful” to discuss consistency with zoning regulations even though “an EIRis not required to discuss” such issues), 12.35, p. 614 (recommending methods for agencies to analyze plan consistency that “go beyond the requirements of the CEQA Guidelines”). 59 CBIAasksthis Court to “set aside” the Receptor Thresholds (CBIA Br., p. 5) because they compel agencies to act in a mannercontrary to CEQA(id., pp. 4 (Thresholds “require” mitigation), 7 (Thresholds “indirectly regulate’ development) (emphases added)). This characterization is incorrect. The Thresholds CBIA challengesare not legally binding. They are recommendations. As the Court of Appeal ruled, “No public agency other than the District is committed to using the Thresholds, and the District does not act as the lead agency for the type of residential and commercial projects CBIA”is concerned with. Opinion,p. 17. See also Guidelines § 15064.7(a) (thresholds set level at which an impactwill “normally” besignificant); CBE, 103 Cal.App.4th at 111-113 (invalidating former Guideline section 15064(h), which would have made thresholds binding rather than permissive); AR 28:6232 (Air Districtstates that “[t]he thresholds are recommendations to Lead Agencies. . . [and] [iJt is [up to] the Lead Agency’s discretion to use the recommended thresholds”). Given the Thresholds’ nature and unquestionable utility in particular circumstances, this Court should leave them in place even if it determines that CEQA doesnot generally require agencies to analyze the impacts of exposing project residents or users to adverse environmental conditions. Under CEQA,courts only invalidate agency decisions “if the mannerin which an agencyfailed to follow the law is shownto be prejudicial....” 60 Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2008) 44 Cal.4th 459, 485 (citation omitted). . Here, the Air District’s adoption of the TAC Receptor Thresholds was not prejudicial becausethe Thresholds do not require agencies to apply them at all, much less in a mannerthat violates CEQA. In fact, as the foregoing discussion demonstrates, CEQArequires the analysis, disclosure, and mitigation of impacts from exposing people to high levels of air pollution. The Thresholds are designedto assist agencies in conducting this analysis and should be upheld However, even if the | Court rules in favor of CBIA onthe issue presented, the appropriate remedy would be to provide a declaration of the law but to leave the challenged Thresholdsin place. CONCLUSION The Air District respectfully requests that the Court declare CEQA requires analysis of “existing environmental conditions” where they may have substantial adverse impacts on “future residents or users of a project,” and uphold the Air District’s Receptor Thresholds as complying with this requirement. 61 DATED: February 24,2014 SHUTE, MIHALY & WEINBERGER LLP By: CAAC ELLISON FOLK ERIN B. CHALMERS Attorneys for Defendant and Appellant BAY AREA AIR QUALITY MANAGEMENTDISTRICT 62 CERTIFICATE OF WORD COUNT I certify that this answer, exclusive of this certificate and the tables of contents and authorities, contains 13,990 words according to the word count function of the word-processing program used to producethebrief. The numberofwords in this answer complies with the requirements of Rule 8.504(d)(1) of the California Rules of Court. Ade Ellison Folk 563594.4 PROOF OF SERVICE California Building Industry Association,et al. v. Bay Area Air Quality ManagementDistrict; Supreme Court ofCalifornia Case No. 8213478 At the time of service, I was over 18 years of age and not a party to this action. I am employedin the City and County of San Francisco,State of California. My business address is 396 HayesStreet, San Francisco, CA 94102. On February2), 2014, I served true copies of the following document(s) described as: BAY AREA AIR QUALITY MANAGEMENTDISTRICT’S ANSWERING BRIEF on the parties in this action as follows: SEE ATTACHED SERVICE LIST BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx and addressed to the personsat the addresses listed in the Service List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of ~ FedExor delivered such document(s) to a courier or driver authorized by FedEx to receive documents. I declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct. Executed on FebruaryQQ 2014, at San Francisco, California. pmar Patricia\A. Spencer SERVICE LIST California Building Industry Association,et al. v. Bay Area Air Quality ManagementDistrict; Supreme Court of California Case No. 8213478 Michael H. Zischke Andrew B. Sabey Christian H.Cebrian Cox, Castle & Nicholson LLP 555 California Street, 10° Floor San Francisco, CA 94104 Tel: (415) 392-4200 Fax: (415) 392-4250 mzischke@coxcastle.com asabey @coxcastle.com ccebrian @coxcastle.com Court of Appeal First Appellate District 350 McAllister Street San Francisco, CA 94102 The Honorable Frank Roesch Alameda Superior Court 1225 Fallon Street Oakland, CA 94612 Attorneys for Plaintiff and Respondent CALIFORNIA BUILDING INDUSTRY ASSOCIATION
