CALIFORNIA BUILDING INDUSTRY ASSOCIATION v. BAY AREA AIR QUALITY MANAGEMENT DISTRICT

Respondent’s Opening Brief on the Merits

Cal.January 10, 2014

Case No. 8213478 IN THE SUPREME COURTOF CALIFORNIA SUPREME COURT CALIFORNIA BUILDING INDUSTRY ASSOCIATION FILED Plaintiff and Respondent JAN 1 0 2014 VS. Frank A. McGuire Clerk BAY AREA AIR QUALITY MANAGEMENTDISTRICT Defendant and Appellant Deputy CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S OPENING BRIEF After a Decision by the Court of Appeal in a Published Opinion First Appellate District, No. A135335 & A136212 On Appeal from a Judgment Alameda County Superior Court, No. RG10548693 Honorable Frank Roesch, Judge of the Superior Court COX, CASTLE & NICHOLSON LLP) PAUL CAMPOS MICHAEL H. ZISCHKE (SBN 165903) (SBN 105053) pcampos@biabayarea.org mzischke @coxcastle.com 101 Ygnacio Valley Road, *ANDREWB. SABEY Suite 210 (SBN 160416) Walnut Creek, CA 94596-5160 asabey@coxcastle.com Telephone: (925) 274-1365 CHRISTIAN H. CEBRIAN (SBN 245797) ccebrian@coxcastle.com 555 California Street, 10th Floor San Francisco, CA 94104-1513 Telephone: (415) 262-5100 Facsimile: (415) 262-5199 Case No. S213478 IN THE SUPREME COURT OF CALIFORNIA CALIFORNIA BUILDING INDUSTRY ASSOCIATION Plaintiff and Respondent BAY AREA AIR QUALITY MANAGEMENTDISTRICT Defendant and Appellant CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S OPENING BRIEF After a Decision by the Court of Appeal in a Published Opinion First Appellate District, No. A135335 & A136212 On Appeal from a Judgment Alameda County Superior Court, No. RG10548693 Honorable Frank Roesch, Judge of the Superior Court COX, CASTLE & NICHOLSON LLP MICHAELH. ZISCHKE (SBN 105053) mzischke @coxcastle.com *ANDREW B. SABEY (SBN 160416) asabey@coxcastle.com CHRISTIAN H. CEBRIAN (SBN 245797) ccebrian@coxcastle.com 555 California Street, 10th Floor San Francisco, CA 94104-1513 Telephone: (415) 262-5100 Facsimile: (415) 262-5199 PAUL CAMPOS (SBN 165903) pcampos@biabayarea.org 101 Ygnacio Valley Road, Suite 210 Walnut Creek, CA 94596-5160 Telephone: (925) 274-1365 TABLE OF CONTENTS Page I. STATEMENT OF THE ISSUE.......-scsscsscesescsccesessssssssssscsssessesesssesceessecreseneveeee 1 TI. INTRODUCTIONouecccsceceeceseeeeeecerseesaetsasenenseeseesesaeeesassesaeeseteseeeeesees 1 TH. SUMMARYOF FACTS000... eceeececeeeescessecenerseeesecesseceseesaecasesseseassenseaeseneessees 5 A. The Thresholds 000.0... ce eesccceseceseeeseeceseessceseesseeesseecaseececaesassersesesenseseeeenseee 5 B. The Planning Community’s Response.......cccccscscssssesssssssessssssssssesessesceers 11 IV. SUMMARY OF PROCEDURALHISTORY........... ec ceseesssessseseeeeeeterseeasensenes 12 A. Trial Court Proceedings and Ruling ...0...0... ec eeceeeeeeceeseseeeeeeeserescesesneeess 12 B. First District Court of Appeal’s Opinion...eeeeects eeeeeeeseetseeeeeeeeeeees 13 V. STANDARD OF REVIEW|...ce ceecescccssenecceseeceseeseesasesceaesesesceesesaseerseesesees 15 VI. ARGUMENT|...cececcccssceeecssersnensccesesesneesseeaesenessnseaecnesasscesseevseseeeeteneaeeres 17 A. The Purpose of CEQAis to Protect the Environment, Not to Protect Projects from the Envirommentt...............:s:ccsceeeceeeseseceseessenseeaeeeees 17 B. An UnbrokenLine of Cases Has Held That A Lead Agency Does Not Need To Analyze The Impacts of the Environmenton a Project or Its Users...eeeeeeesecesscecsceenseeecsaeecsceceseeeseeeaeesecsnessseesseseees 20 C. One Section of the CEQA Guidelines Has Distorted the Purpose of CEQAand Should be Rejected...eeeeeeceseeseeseeeaesectetseeseeeseeersaeeeeees 27 1. CEQA Guideline 15126.2 (a) Includes Unauthorized Requirements for EIRS 0.00.0... :cscecscsecsseececeececeeacceesscesesssectessecseseeensenss 27 2. Appendix G to the Guidelines Calls for Unauthorized Application of CEQA.........csccssssesscssececceseseneseesaeeseeaceecereeesssaeesenaeenss 30 D. The Impacts of the Existing Environmenton a Project Should Only Be Analyzed Under CEQA When Required by the CEQAStatute........... 34 E. The Thresholds Impermissibly Require an Analysis of the Impacts of the Existing Environment on Future Users of a Project...........cccccce 39 VIL 1. The Thresholds Require an Analysis of the Existing Environment On a Project .......eeecescceceescessesceseceseceessesseseseseneeeseeeseeaes 39 2. The Opinion Erred by Upholding the Thresholds.................c.eceeeeee41 . Other Laws Address the Concern of the Impacts of the EnvironmentOn a Project ........ cc ceeesesccceecceceeccesececseseesecssssesseeneeaeeeseseneeates44 CONCLUSION...ceeccetcsscscesssccsnesseseseeseesseaerseeeseseeessesusssessseseseasensenee49 -ii- TABLE OF AUTHORITIES Page State Cases Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 CalApp.4th 1165 oo... eccccsccsscssesceseseesecsscseessscessesssssscsstsstesseeserseases25 Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464 ooo... ccc cccccccssesscsessesscersesessscesssssesssessteseeasens passim Ballona Wetlands Land Trust v. City ofLos Angeles (2011) 201 Cal-App.4th 455 oooccecsssseescesesesseesessesseeseesecseseenseeesnesess passim Cal. Native Plant Soc. v. City ofRancho Cordova (2009) 172 Cal.App.4th 603 .0..... cc ccccscccscessssessesessesseseeesssceesessssesssvesessessevecenes34 Cathay Mortuary, Inc. v. San Francisco Planning Com. (1989) 207 Cal .App.3d 275 .0.0...ccecccssssscessesssssescssesssscesseesecceesssccsssesssecssenscnseeaees20 City ofLong Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889 ooo... ccecsecsecscssesseseessesseesrscsseeessesseeseses 15, 22, 27 County Sanitation District v. County ofKern (2005) 127 Cal.App.4th 1544 oo... ceecccsssesessessesessecsssscssseessecssesscsecssscsscaserssensees9 Friends ofMammoth v. Board ofSupervisors (1972) 8 Cal.3d 247 ooo cceseccsssessecssesssescesecsccsessessessssnessscesssessssuscsvasesssseeversenee 19 Gentry v. City ofMurrieta (1995) 36 Cal.App.4th 1359 ooo.eeessecseessescssesessceseesseeeseesesesscssssecssseceesesees32 Kowis v. Howard (1992) 3 Cab.4th 888ooeeeccscessesseessessssceseseessessssseeesseensessessssssscssvsseseeeres 19 Laurel Heights Improvement Ass’n v. Regents of the University of California (1988) 47 Cal.3d 376 ooo. eececsscessessecssessssseescesesscsessccsesscssssscssecsscaseseesssaecereaees 16 Leavitt v. County ofMadera (2004) 123 Cal.App.4th 1502 2...ce ccccssecsesscsessesecssessesscecsssssscessstaccsavsaevesesees 16 Lighthouse Field Beach Rescue v. City ofSanta Cruz (2005) 131 Cal-App.4th 1170occcccecscscssessecseserseescesssesssecssscssesasereceenevess43 Martin y. City and County ofSan Francisco (2005) 135 CalApp.4th 392 oo. ecccecsccessssecescssceseseeessecenseeesescssssseassonacessersaes 19 Mountain Lion Foundation y. Fish and Game Commission (1997) 16 Cal.4th 105 oooeeecececsseessessessesecsesseeesecssesseeessesssescssssescaseasensesass 19 Moyer v. Workmen’ Comp. Appeals Bd. (1973) 10 Cal.3d 222 ooocecssecsssceseeesseeessesesssessceeecseesseessssessresssensvessseaners 15, 16 Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884 000.ccccccccssesecesessesseesecsseeesssecesresssececesesscesereenes33 People v. Banks (1993) 6 Cal.4th 926ooceeceeessesseessessessesesessssseesesseceseucsssssesssssesecseeeseares33 People v. Knowles (1950) 35 Cal.2d 175 eee ceeccccesscessssssseessesscsssceesecscsseveessscsetssssussesesssaseeaseenes 16 Rich v. State Board of Optometry (1965) 235 Cal. App.2d 591 ............eceeeesseccseesssensesseerseeessceeeesseaeeesesseeesneceeteres 16 - iii - Rohn v. City of Visalia (1989) 214 CalApp.3d 1463 ooo... eeeeccsesecsceesceereeneenseceseesseesuecseessecensesseteeees42 Santa Clara County Transportation Authority v. Guardino (1995) 11 Cal.4th 220 0... cccccccsecessessensecseesssesseeeeseeeseeessssesssesesseeeeeeesseeeeeees33 Select Base Materials v. Board ofEqual. (1959) 51 Cal.2d 640 ooo... ecececcccssessscsscseessecssreeseceeseeessesssseeeesesesseeesstseseesaeees 15 South Orange County Wastewater Authority v. City ofDana Point (2011) 196 Cal.App.4th 1604 oo.cetesseeeeeseseaesenesesersseseeetsesseeesee passim Stop Youth Addiction, Inc. vy. Lucky Stores, Inc. (1998) 17 Cal.4th 553 oo...cc ccccccessessseesscseesseesseesseeeseeessseeseneesseesesseeessssaneeseeeess37 Tracy v. Municipal Court (1978) 22 Cal.3d 760 0... ccsccccsscessseesscescscsssesseeesseeeseesssseesseseeseseessensaeereseesasens 16 Watsonville Pilots Ass’n v. City of Watsonville (2010) 183 CalApp.4th 1059 oooesecnenseessccseeseeeseeesaecseessesecsesneesseeees 36 FederalStatutes 42 ULS.C. Sec. T4O] eeecccsscescsssecssecceseessecsesscesseeesecensesescessenseseareeseseesesseeeesseeeesaes47 State Statutes Gov. Code § 11342.2 o....ccceccccessscsseseesesesseescssesscecseecsseecsssecsasecsaeeesueeenaeeensensses 17, 28 Gov. Code § 65000 20.0... ececcccceesccceccesecsseseesscecesceerecsessesenseeseseesussecavsevaseacaceneases44 Gov. Code § 65302(f) .........cccccsecscccessssecccssnscenssevsnseensceusenseccessesseesecenssteasevsseseeevers46 Gov. Code § 65860 0... ccc cceescccccsssssssesecsscessseecensnseecesseeesecesnsusnersecesessnensesssseaseoss44 Gov. Code § 66410woeccccceeceesscsccssessecesesessensscscsssseceuseuseseeesessesssseseesecers44 Gov. Code § 66473.5 occ ecccccsscceseeeesseesseeseetecsecesaneeseessseeessessseesseeeesstesesesssseneeees44 Pub. Res. Code § 21000...........ccceceesecssscssecvscecsssneeeeevensseeeerseesssessessessuseussessessears 15 Pub. Res. Code § 21002..00........cccccccccccccccsssecscsscssecceseescecessesessncuseessucecesecscssscsssseseees 1 Pub. Res. Code § 21002.1(a) ........ccccccessccsssseesteceeesneeseecenessesceesssereesecerseeeesseenes 1,18 Pub. Res. Code § 21002.1(D) oo... cecccecsccsesssseccesecesecesecseeecsseeesssenseeeeeeeenses 1,18, 19 Pub. Res. Code § 21002.1() .......cccccsccssesssseceseeesssesseessseesseseesseeesteeeseereeeel, 18, 19 Pub. Res. Code § 21003 ..........ccccsccccessssscsecsssesneccssseneceeveeenseeesenseeseesersasensusssesasescess 1 Pub. Res. Code § 21003.1........cc cc cccccessssessscsssseesesseseeeessssescesesseseessoesssnensensarsssseveese2 Pub. Res. Code § 21004000... cccccccccccsesssesessereeseceeseceessessssrenecnesseauaseuaues 2, 18,19 Pub. Res. Code § 21068 .0......0cc. ccccc cccccccessccescecesesesesscsecsessussecesesesseesesaaeaes 18, 29 Pub. Res. Code § 21083 (8).........cccesccccessceeeseseceeseesseecsccecsneesseeeesseessasessasesseeeseeenses27 Pub. Res. Code § 21083(€) .......c.ccccccccsessscsesccsnstsecesscseccvsnsensecevessserseesvecessseuseenanes27 Pub. Res. Code § 21083.1...........cccccscccessccssessssecsseeenseesseeusteesseceseeceeensesesessee 3, 16, 37 Pub. Res. Code § 21096...ccceccccccecssssesseececeseseeceesenessessssscsscsassecesessessseeaaees2 Pub. Res. Code § 21100(a) 0.0... ceccccccccsessssseseeessessecesessseeeesecesseeeseconsnaees 18, 19, 24 Pub. Res. Code § 21101... .cccceccccccccccccsssessesenersteccsecesssessetensecuneasasseseceeseneseeses24 Pub. Res. Code § 21151 (a) oo... csecssscccsseesecccsssesessecessencceesesesrsssessresscersseseesers24 Pub. Res. Code § 21151.8 0.0... cic eeccccssecssseserecesssesenecenevsaeessnsessssecseeecsseeesesesseeseneeee2 Pub. Res. Code § 21151.8(a) ......ccccccecccsssesseseesscesseeessssenseessesessateeseees 34, 35, 36, 43 Pub. Res. Code § 2621 00.0... cc cccessccssecsteneeseeeeeeenseseee veseeaeeeesaseeseesssetstsseteeseeveeeees45 Pub. Res. Code § 2621.5(a) ....ccccccecsccesssssssscsscscessecescscsesscsessceccsssssasaecaraeveveceeeseesses45 -1V- Pub. Res. Code § 2621.9(a) .0.....cccccccseccsseessseessecenscussssesercecssscconseceesessersssessteeseense45 Pub. Res. Code § 2623(€).0........cccccssecssssscsseceessneesecscesesssseaccestasceceecesecrsssecessssenees45 Pub. Res. Code § 2690..........ccccccccscsssccccsssssccescsscsscceccecssssecssecesecetssccesneeeceesteveenuees45 Rules and Regulations 14 C.C.R. § 15041 (a)oececesecnenecneesecsecenseseacseeseeesesaesseseeecseesesesseeeeesaees42 14 C.CLR. § 15063(f) occcececece ceeseeeceeceesacsceseeseeersnesaeeaessneaeeesecesersateesseessseeaees31 14 C.CLR. § 15126.2(a)ooo.ceceseseeneceeeneesesaneassneeeeeseneeseseaersseaesessessenes 3, 29 14 C.C.R. § 15126.4(a)(4)oeeeeecee se ceeeecseeeeseesesseceecsseaeesessesseesseseaseeesesaees42 14 C.CLR. § 3724(a) occeeecece eeecceereeeseeseneeeesessnesaeseesessessessesaeseseseseceaseeesenseaeaeens46 14 C.C.R. Ch. 3, Appendix Goo.ecessssceeesecerescesseesesesseesesscesstesssasseessenseneees31 062519\5897256 I. STATEMENT OF THE ISSUE This Court granted review on the following issue: “Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposedproject?” Il. INTRODUCTION The general rule is that CEQA requires an analysis of the project’ s impacts on the environment.It does not require analysis of the environment’s impacts on the project, including the future users (receptors) of the project. The whole thrust of the statute is to inform the public and decision makers about the project’s potential impacts on the environment, and to avoid or mitigate those impacts. (See Pub. Res. Code § 21002 [agencies should not approveprojects as proposedif there are feasible meansto “substantially lessen the significant environmental effects of such projects; 21002.1(a) (“The purpose of an environmental impactreportis to identify the significant effects on the environmentof a project... . and to indicate the mannerin whichthose significant effects can be mitigated or avoided’’]; 21002.1(b) [“Each public agency shall mitigate or avoid the significant effects on the environmentof projects .. .”] 21002.1(e) [an EIR should focus on “the potential [significant] effects onthe environmentof a proposed project”]; 21003 [CEQA should be implemented in a way to conserve financial and other resources “with the objective that those resources may be applied toward the mitigation ofactual significanteffects on the environment’’]; 21003.1 [objectives of comments on “the environmentaleffects of a project”); 21004 [restrictions on lead agencies in “mitigating or avoiding a significant effect of a project on the environment]”.) Public Resources Code section 21060.5 defines the “environment”as “the physical conditions which exist within the area whichwill be affected by a proposed project, including land,air, water, minerals, flora, fauna, noise, objects or historic or aesthetic significance.” The Legislature knowshow to craft exceptions to the general rule, and has chosen to do so sparingly. The exceptions demonstrate that, absent specific legislation, the general rule applies. Specific exceptions include school siting, where the Legislature has mandated analysis of the impact of the environment on future school users (Pub. Res. Code § 21151.8); and airports, where the Legislature has mandated analysis of noise and safety issues for persons residing or working in a project area near an airport. (Pub. Res. Code § 21096.) The Legislature may choose to amend CEQAto create more exceptions or to consider requiring reverse analysisin all cases, but has declined to do so. In fact, two bills were introduced in the 2013 legislative session to amend CEQAto require that an EIR include a discussion of “any significanteffects that may result from locating the proposedprojectnear, or attracting people to, existing or reasonably foreseeable natural hazards or adverse environmental conditions.” Neither was adopted. Barring amendment, CEQA should continueto be interpreted accordingto the plain meaningof its terms-it requires analysis of the impact of the project on the environment, not the reverse. This is the only interpretation honoring the Legislature’s explicit rule that courts are not to expand CEQA beyond the termsof the statute. (Pub. Res. Code § 21083.1.) Four published opinions in the court of appeal have examinedthis issue and each concluded that CEQA does not require reverse analysis. The controversy in this arena stems not from any ambiguity in the statute or confusion over the Legislature’s intent. Instead,it arises largely as the result of one subsection of one CEQA Guideline adopted by the Natural Resources Agency, which exceeds the scope ofthe statute by purporting to require a reverse analysis. (14 C.C.R. § 15126.2(a).) In addition, the CEQA Guidelines include an environmental checklist known as “Appendix G,” which includes someprovisionsthatinstruct lead agencies to analyze the potential impact of the existing environment onthe project, again beyond the scope of the CEQAstatute. Notably, these administrative overreaches occurred 28 years after CEQA wasenacted, three years afterthefirst published decision disavowing reverse application, and withoutcitation to any intervening statutory amendmentsor authorization. In other words, the Natural Resources Agency created the controversial language from whole cloth without any direction from the Legislature. The Bay Area Air Quality ManagementDistrict (“District”) relied on the discredited language in Guideline Section 15126.2(a) to craft and adopt its Toxic Air Contaminant (TAC) Receptor Thresholdsat issue in this case. The TAC Receptor Thresholds are a perfect example of what is wrong with applying CEQAin reverse. The TAC Receptor Thresholdsare designed to discourage development in manyurban infill and transit- oriented locations, and to require project applicants to mitigate for the existing air quality issues caused byothers. If building in an area affected by air quality issues triggers CEQA because future residents who will be attracted to live there may be exposed to degraded air quality, what principled distinction prevents CEQA from invading every aspect of project development? Applying CEQA in reverse is especially overbearing when evaluating urbaninfill projects, which by definition, are surrounded by existing development. Urbansites can be impacted notjust by surroundingair quality issues, but also odor, light, shadow,vibration, and soil issues - indeed even communicable disease.If the existing effects of surrounding development, or the existing natural environmentalone, is enough to require a new project to conduct environmental impact analysis and propose mitigation, CEQAis truly turned on its head. If the societal goal is to avoid the risk of polluted air, the law should be aimingto clean up theair. Imposing CEQA “mitigation” on the new development does nothing to clean up the ambientair, and does nothing for any existing residents whoalready suffer from ambientair pollution.If the substantive environmental laws currently enacted do not adequately address an impact on a future occupantof a project, the Legislature can correct that deficiency. If the societal goal is disclosure of the condition of property, including ambient conditions, to potential new inhabitants, the robust real estate disclosure laws address this issue. Those laws could be examined for possible further amendmentif the Legislature concluded that more disclosure is desirable. Expanding the reach of agencies and regulation by stretching the plain meaning of CEQAis not the answer and is expressly prohibited by the statute itself, as noted above. Resolving the question presented should lead to the Natural Resources Agency appropriately conforming its CEQA Guidelines, including the Appendix G checklist. More directly, it should result in a writ commandingthat the District set aside its Thresholds that rely on a reverse application of CEQA. I. SUMMARY OF FACTS A. THE THRESHOLDS ‘On June 2, 2010, the District approved Resolution No. 2010-06 (AR 1:00004") by whichit adopted its new CEQA Thresholds. (AR 1:00003.) The District’s Executive Officer then adopted accompanying policies and guidelines directing how the District expects the Thresholdsto be implemented (the “Guidelines,” together with the new CEQA Thresholds, collectively, the “Thresholds”). (The District’s June 1, 2010 Guidelines are found at AR 9:2048-2264.) Most of the Thresholds address the District’s jurisdictional bailiwick of regulating sources of air pollution. The Thresholds address new sourcesofcriteria air pollutants and precursors such as NO, and PMjo, carbon monoxide, greenhousegasses,toxic air contaminants, and odors. (AR 1:00006-7; 9:02063-64.) These Thresholds are used to determine whether a project would havea significant effect on the environment. For example, the thresholds “for operational-related criteria air pollutant and precursor emissions. . . represent the levels at which a project’s individual emissionsofcriteria air pollutants or ! Cites to the Administrative Record, Clerk’s Transcript and Joint Appendix take the format of “[AR/CT/JA] [Volume}:[Page Number)’. 2 The District’s extensive Guidelines incorporate and seek to implementthe CEQAThresholds. (9 AR 02062-69.) For example, the Guidelines state “The Thresholds of Significance for local community risk and hazard impacts are identified below, which apply to both thesiting of a new source and to the siting of a new receptor. Local community risk and hazard impacts are associated with TACs and PM2.5 because emissions of these pollutants can have significant health impacts atthe locallevel. If emissions of TACs or PM2.5 exceed anyof the thresholdslisted below,the proposed project would result in a significant impact. (9 AR 02065-66.) | precursors would result in a cumulatively considerable contribution to the [air basin’s] existing air quality conditions.” (AR 9:02064.) The District explains in the Thresholds that “[o]perational emissions typically represent the majority of a project’s air quality impacts . . . Operational-related activities, such as driving, use of landscape equipment, and wood burning, could generate emissionsorcriteria air pollutants and their precursors, GHG, TACs, and PM.”(AR 9:02076.) However, the Thresholds also encompass impacts that the existing environment may have on future occupantsof a project. The District did notrely on any of its statutory powers to attemptto affect the siting and design of receptor projects, but instead relied solely on CEQA Guideline 15064.7, which authorizes the promulgation of generally applicable thresholds. (AR 1:00001.) Thus, the District attempted to indirectly regulate such projects through CEQAto effectuate its vision of how land-use planning should occur in the Bay Area. To do so, the District adopted Toxic Air Contaminant (“TAC”) thresholds, also called risk and hazard thresholds, applicable to “new receptor” projects-e.g., new residential projects, hospitals, schools, daycare centers, parks, and nursing homes(the “TAC Receptor Thresholds”). (AR 1:00006-7, 3:00708.) The TAC Receptor Thresholdsare intended to address impacts associated with TACs and fine particulates. (AR 9:2065.) The TAC Receptor Thresholds and Guidelines generally provide that a project will have potentially significant impact for CEQA purposesif it is located within an area that the District’s data predicts will cause an increasein certain health risks due to emissions sources surrounding a project site. (AR 9:2063.) These receptor thresholds _shift the burden of addressing existing ambientair pollution away from the source of air pollution and place it on developers of projects that will be built in areas affected by the existing air pollution. For example, developing near major roadwaysor heavily urbanized areas will require the developer to mitigate the existing environment. (AR 9:2104; 2112-2113 [receptor mitigation includes “1. Increase project distance from freeways and/or major roadways. 2. Redesign the site layout to locate sensitive receptors as far as possible from any freeways, major roadways, or other non-permitted TAC sources . . . 3. In some cases, BAAQMD may recommendsite redesign. BAAQMDwill work closely with the local jurisdiction and project consultant in developing a design that is more appropriate for the site’’].) TheDistrict has also created what amount to “EIR Only Zones” in urbanized areas. Projects proposed in these areas might otherwise take advantage of SB 375’s CEQAstreamlining or other CEQA exemptions. But under the District’s TAC Receptor Thresholds, pre-existing air quality issues can create a “fair argument” that developmentwill cause a significant impact by being located within that area.’ In other words, a project that might otherwise be exempted from CEQAreview,or might be subjected to a negative declaration, would now be required to have an EIR prepared prior to project approval solely because of the District’s adopted TAC Receptor Thresholds, calling for CEQA examination of impactof the environmenton the project. Similarly, the District’s TAC Receptor Thresholdsestablish that a city’s general plan update or new specific plan will trigger a significant impactunless the plan designates “overlay zones” around existing and planned TAC sources and within 500 feet of all freeways. (AR 1:00007.) While the Thresholdsare silent as to what this overlay zone should require, earlier drafts of the Guidelines referred to the overlay as a “buffer” (AR 9:02043) and the District’s guidance explains that buffers between receptors and sources would “prevent many high-risk projects from being 3 The Governor’s Office and Planning Research explains “If another agency’s more stringent thresholds are based upon substantial evidence of environmental effects, then the fair argument test would seem to require preparation of an EJR even though the project does not exceed the Lead Agency’s threshold . . . Although there is no absolute meansof avoiding this problem, the agency preparing the thresholds may minimize it by consulting with other agencies during the drafting process and working out inconsistencies before adoption.” (Office of Planning and Research, “Thresholds of Significance,” 1994, available at http://ceres.ca.gov/ceqa/more/tas/Threshold.html; See also County Sanitation Dist. v. County ofKern (2005) 127 Cal.App.4th 1544, 1588- 89 (exceedanceofair district threshold requires preparation of EIR) considered or proposedin the first place, thereby eliminating the necessity for project-level mitigation.” (AR 16:3337.) The District’s label of “high risk” projects would include transit-oriented development, urban infill - mixed use projects, and affordable housing - in other words, the very type of smart growth developmentthat the region (andstate) are actively promoting to reduce automobile use and greenhousegas emissionsasit seeks to meet the requirements of AB 32 and SB 375. (See, e.g., AR 27:06092-093.) Thus,if a project is proposed within an overlay zoneit will be subject to heightened CEQAreview for exposing peopleto the existing environment. Even the District recognized that its receptor thresholds were “unique and without precedent.” (AR 27:06052; see also AR 7:01518 [District’s Director of Planning, Rules and Research (AR 9:02049)stating Thresholds go “far beyond what any otherair district has.”]) The Thresholdsalso require reverse CEQA analyses when they require an analysis of whether a project includes exposing a new receptor “to existing or planned odorsources.” (AR 9:02066, 2121.) If a project would locate receptors within a specified distance of an existing odor source with a history of at least 5 odor complaints per year, a potentially significant impact would exist. (AR 9:02066, 2121.) The District’s proposed mitigation for the existing odor sources impacts on new receptors is quite simple: do not build a project near an odor source. (AR 9:02122 -10- {projects should plan to “avoid siting receptors near odor sources”].) If relocating a project is not feasible, the District recommends technological mitigation be addedto the source of the smells. (AR 9:2122-2123.) B. THE PLANNING COMMUNITY’S RESPONSE The Bay Area’s professional planning community reacted strongly to the TAC Receptor Thresholds. (See, e.g., AR 1:0258-62; AR 3:00609-10 (Association of Bay Area Governments (“ABAG”) comments “it would be counter productive if [the District’s] proposed threshold changesact as a deterrent to growth in these [infill] areas and push developmentto greenfield sites in the outer suburbs, where the amountof driving required would be greater”); AR 3:00771-77 (San Francisco Planning Department comments); AR 27:06050 (Santa Clara Valley Transportation Authority comments [costs of additional studies required by Thresholds “‘may further drive away developmentin areas whereit is needed”]); AR 27:06092-093 (BART) comments that TAC Thresholds would “limit or preclude”transit oriented development); AR 27:06098-99 (City of Walnut Creek Comments); AR 28:06210-11 (City of Oakland comments); AR 28:06230- 31 (additional ABAG comments); AR 27:6066-67 (Bay Area Planning Director’s Association [whose membersinclude planners from 118 jurisdictions] comments that Thresholds will inhibit infill; AR 5:01087 (Center for Creative Land Recycling states Thresholds will be used by project opponents to stop affordable housing projects); AR 5:01091 (Bay -11- Area Council informsDistrict the TAC Thresholds “will impact negatively transit oriented infill development...”). The City and County of San Francisco Planning Department informedthe District that the proposed TAC Receptor Thresholds “represent a step backwardrather than forward in terms of changing land use patterns” and stated the “overlay zone” threshold represented a “wasteland buffers” mandate. (AR 3:00771, 00774.) BART commented that the overlay zone threshold would “limit or preclude development adjacent to existing and planned sources of TAC and PM2.5”andthat the Thresholds “will severely undermine the significant public investmentin public transit and TOD [Transit Oriented Development] in the Bay Area.” (AR 27:06092.) BART urged the District to revise its approach to deal with the sources of pollution rather than foreclosing development adjacent to existing sources. (AR 27:06093.) Asto the precise issue before this Court, local agencies informed the District that the proposed Thresholds were “completely opposite”to CEQA’s purpose becausethey required an “evaluation of the environment’s impacts on the project.” (AR 27:06098; see also AR 27:06089.) The District disagreed. (AR 27:06087; see also AR 8:01893.) This litigation ensued. -12- IV. SUMMARY OF PROCEDURAL HISTORY A. TRIAL COURT PROCEEDINGSAND RULING CBIAtimely petitioned the superior court for review of the District’s Thresholds. Following demurrers and merits briefing, the trial court entered a judgment and issued a peremptory writ of mandate ordering the District to rescind its approval of the Thresholds. (CT 8:2252-2256.) In its statement of decision,the trial court explained the District’s “promulgation of the Thresholdsis a ‘project’ under CEQAand,as such,[the District] is obligated by CEQAto evaluate the potential impact on the environment consequentto the project.” (CT 8:2243.) Thetrial court explained that there wassufficient evidence in the record to support the claim that the “Thresholds might discourage urbaninfill development, encourage suburban developmentor change landusepatterns .. . .” (CT 8:2243- 2245.) The trial court did not reach CBIA’s remaining claims including the issue of the reverse application of CEQA.(CT 8:2246; JA 2:369.) B. FIRST DISTRICT COURT OF APPEAL’S OPINION The District appealed the judgment. On August 13, 2013, the Court of Appealfiled its opinion (the “Opinion’”) reversing the trial court’s order granting CBIA’s petition for writ of mandate.* 4Thetrial court had also awarded CBIA reasonable attorneys’ fees pursuant to Code of Civil Procedure section 1021.5. The District separately appealed the fee award andthe parties agreed to consolidate the -13- The Opinion held that the “Thresholds were not subject to CEQA review” because CEQA Guideline’ 15064.7, which encourageslocal agencies to adopt general thresholds of significance, does not state that local agencies may be required to evaluate whetherthe thresholds themselves could lead to potentially significant environmental impacts. (Opinion at 12.) Moreover, requiring CEQAreview in addition to the District’s non-CEQApublic process would have “resulted in a duplication of effort, at taxpayer expense andtoolittle if any purpose.” (Opinionat 11- 14.) As a separate basis for reversal the Opinion held that the Thresholds are not a CEQAproject because any environmental effects from the Thresholds are too speculative. (Opinion at 14-20.) The Court of Appeal did reach the central issue not reached by the trial court-CBIA’s claim that several of the receptor Thresholds violate CEQAbyrequiring analysis of the impacts of the environment on the project. While the Opinion purports to rest on the standard of review for a constitutional challenge to a statute (Opinion at 25), the Opinionis also the first case to express disagreement with the unbrokenline of cases Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464 (“Baird”), City of briefing. The Court of Appeal reversed the awardofattorneys’ fees based onits determination that CBIA wasnolonger the prevailing party. (Opinion at 29.) 5 The “CEQA Guidelines”are foundin Title 14, Chapter 3 of the California Code of Regulations. -14- Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889 (“Long Beach’), South Orange County Wastewater Authority v. City of Dana Point(2011) 196 Cal.App.4th 1604, 1617 (“SOCWA”)) and Ballona Wetlands LandTrust v. City ofLos Angeles (2011) 201 Cal.App.4th 455, 474 (“Ballona”) that hold CEQA does not require analysis of the existing environment on projects - or in the SOCWA court’s words “make CEQA work in reverse.” (SOCWA, 196 Cal.App.4th at 1617.) CBIAtimely petitioned this Court for review on three issues. This Court granted review onthe single issue of “[u]nder what circumstances,if any, does the California Environmental Quality Act (Pub. Res. Code § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?” Vv. STANDARD OF REVIEW Whether CEQArequires an analysis of the existing environment’s impact on a project presents a pure question of statutory interpretation. When construing a statute, the Court begins with “the fundamental rule that a court ‘should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’” (Moyer v. Workmen’ Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230; Select Base Materials v. Board ofEqual. (1959) 51 Cal.2d 640, 645.) “An equally basic rule of statutory construction is, however, that courts are boundto give effect to statutes according to the usual, ordinary import of the language employed in framing them.”(Rich v. -15- State Board ofOptometry (1965) 235 Cal. App.2d 591, 604; Moyer, 10 Ca].3d at 230.) Although a court may properly rely on extrinsicaids,it should first turn to the wordsof the statute to determinethe intent of the Legislature. (People v. Knowles (1950) 35 Cal.2d 175, 182; Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764.) “If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.” (Knowles, 35 Cal.2d at 183.) Principles of statutory construction related specifically to CEQA reinforce the courts’ obligation to heed the plain meaning of the statute and to interpret CEQAto protect the environment, not to protect proposed projects from the environment. This Court has held that the Legislature intended CEQA “‘to be interpreted as to afford the fullest possible protection to the environmentwithin the reasonable scope of the statutory language.” (Laurel Heights ImprovementAss’n v. Regents of the University of California (1988) 47 Cal.3d 376, 390.) Similarly, the Legislature has taken the (perhaps unique) step of expressly providing that the courts are not to interpret CEQA “in a manner which imposes procedural or substantive requirements beyond those explicitly stated in” CEQAor the CEQA Guidelines. (Pub. Res. Code § 21083.1; Leavitt v. County ofMadera (2004) 123 Cal.App.4th 1502, 1515, 1523[“the literal, i.e., explicit, approachto statutory construction is mandatory under CEQA”and -16- rejecting claim that duty to “request a hearing” also included implicit duty to set a hearing date].) | The issue presented will also require this Court to determine what weightit will afford certain regulations promulgated by the Natural Resources Agencythat are commonlyreferred to as the CEQA Guidelines. Government Code section 11342.2 provides the general standard of review for determining the validity of administrative regulations. That section states that “[w]henever by the express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisionsof the statute, no regulation adoptedis valid or effective unless consistent and notin conflict with the statute and reasonably necessary to effectuate the purpose of the statute.” (Gov. Code § 11342.2.) “The question is whether the regulation alters or amends the governingstatute or case law,or enlarges or impairs its scope. In short, the question is whether the regulation is within the scope of the authority conferred;if it is not, it is void. This is a question particularly suited for the judiciary as the final arbiter of the law, and does not invade the technical expertise of the agency.” (Communitiesfor a Better Environmentv. Cal. Resources Agency (2002) 103 Cal.-App.4th 98, 109 [footnotes omitted].) -]7- VI. ARGUMENT A. THE PURPOSE OF CEQAIS TO PROTECT THE ENVIRONMENT, NOT TO PROTECT PROJECTS FROM THE ENVIRONMENT CEQAis concerned with the potential of new development to impact the physical environment, not the potential of the environment to impact new development. For example, the “purpose of an environmental impact report is to identify the significant effects on the environmentofa project. . . and to indicate the mannerin whichthose significant effects can be mitigated or avoided.”(Pub. Res. Code § 21002.1(a); see also Pub. Res. Code §§ 21002.1(b); 21002.1(e); 21004; 21100(a) [CEQA requires an EIR whena project “may havea significant effect on the environment”].) CEQAdefines “environment”as “the physical conditions which will be affected by a proposedproject, including land, air, water, minerals, flora, fauna, noise, objects of historical or aesthetic significance. (Pub. Res. Code § 21060.5.) This Court has recognized CEQA’s intent to protect the physical environmentfrom its earliest decisions interpreting the statute. “In an era of commercial and industrial expansion in which the environmenthas been 6 Since 1976, CEQAdefines “significant effect on the environment’as “a substantial, or potentially substantial, adverse change in the , environment.” (Pub. Res. Code § 21068.) -18- repeatedly violated by those that are oblivious to the ecological well-being of society” the Court recognized that CEQAserved the important purpose of forcing agencies to “consider the possible adverse consequencesto the environmentofthe proposed activity and to record such impacts in writing.” (Friends ofMammoth v. Board ofSupervisors (1972) 8 Cal.3d 247, 254-255 [emphasis added] [disapproved on other grounds in Kowisv. Howard (1992) 3 Cal.4th 888]; Mountain Lion Foundation v. Fish and Game Commission (1997) 16 Cal.4th 105, 112 [“In enacting CEQA,the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage whencarrying outtheir duties.”’] CEQAcannotfairly be read to support the notion that the Legislature intended CEQAto protect projects (including the future inhabitants of the projects) from the existing environment. The whole thrust of the statute is to inform the public and decision makers aboutthe project’s potential impacts on the environment, and to avoid or mitigate those impacts. (Pub. Res. Code §§ 21002.1(b); 21002.1(e); 21004; 21100(a).) As one Court of Appeal explained when examining the reach of CEQA:“The major statutory emphasis is on matters that can be seen, felt, heard, or smelled, i.e., consequences resulting from physical impacts on the environment. (Martin v. City and County ofSan Francisco (2005) 135- Cal.App.4th 392, 403 [citing Cathay Mortuary, Inc. v. San Francisco -19- Planning Com. (1989) 207 Cal.App.3d 275, 279 [rejecting a claim that shadow affecting proposed park location required CEQA analysis and noting that “CEQA will comeinto play only [with] a disruption of the physical environment.”].) Noaction by the Legislature since the original adoption of CEQA indicates an intention to expandthestatute to generally require an analysis and mitigation of the existing environment’s impacton a projectandits future users. Indeed, the Legislature has allowed only narrowlytailored exceptions requiring reverse analysis. As discussed further below, the Legislature has recently declined to pass bills which would have imposed a new state mandate for reverse CEQAanalysis. The Legislature is aware howto require the analysis that the District has attempted to require through its odor and TAC Receptor Thresholds, and has chosen notto require it. This Court should respect the Legislature’s policy choices. B. AN UNBROKENLINE OF CASES HAS HELD THAT A LEAD AGENCY DOES NOT NEED TO ANALYZE THE IMPACTS OF THE ENVIRONMENTON A PROJECT OR ITS USERS The published decisions that have considered whether CEQA requires analysis of environment on the project have uniformly rejected that proposition. A close examination of these cases reveals the strength of their analysis across a broad spectrum offact patterns, from impactedsoil, to air -20 - quality, to odor, to the global threat of sea level rise. This analysis should be affirmed. Thefirst case to directly address whether CEQA requires an analysis of the impacts of the existing environment on a project and its users was Baird. \n Baird the Court held that CEQA doesnot require an EIR for a project that “might be affected by preexisting conditions but will not change those conditions or otherwise have a significant effect on the environment.” (Baird, 32 Cal.App.4th at 1466.) The petitioners in that case argued in opposition to a proposed addiction treatment center that “preexisting physical conditions, consisting of the various forms of purported contamination, will have an adverse effect on the proposed facility andits residents.” (Id. at 1468 [original emphasis].) The Court of Appeal concluded that “[a]ny such effect is beyond the scope of CEQA andits requirement of an EIR. The purpose of CEQAis to protect the environment from proposed projects, not to protect proposed projects from the existing environment. CEQAis implicated only by adverse changes in the environment.” (Id. [original emphasis].) The Baird court concludedthat “[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 a requirement beyond those stated in CEQAorits guidelines, andis thus prohibited.” (/d. at 1469.) -21- The next case to address whether CEQA should be applied in reverse is Long Beach. In Long Beach,thepetitioners argued that the proposed construction of a school intended to serve over 1,800 students was insufficient becauseit failed to discuss the project’s cumulative impacts on air quality and traffic on staff and student health due to already existing air pollution from nearby freeways. (City ofLong Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 895, 905.) The Court of Appeal concludedthat “generally, ‘[t]he purpose of an [EIR]is to identify the significant effects on the environmentof a project .. .’ [citations], not the impact of the environment on the project, such as the school’s students and staff... Accordingly, [petitioner’s] criticism of LAUSD’s analysis for failure to consider the cumulative effects of air quality ‘on staff and student health’ is not the aim of the cumulative impacts analysis.” (Id. at 905 [original emphasis].) The schooldistrict in Long Beach did analyze the non-cumulative risks of existing air contamination on students becauseit wasspecifically required to do so by CEQAsection 21151.8. (Id. at 903- 904; see also Section VI.D,below.) The Long Beach court’s careful distinction between the specific duty to conduct reverse analysis pursuant to section 21151.8, versus the absence of any such duty under CEQA generally,is instructive. Pursuant to section 21151.8, analysis of the impacts of existing air quality issues on future students and teachers would be required. But such analysis was not required -22 - under CEQAgenerally, so petitioner’s allegation that the schoolfailed to perform an adequate cumulative impactanalysis failed. The mostin-depth analysis of why CEQA doesnot require reverse CEQAanalyses is found in SOCWA.There, the agency managing a sewage treatment plant argued that the proponents of a residential development project should be required to mitigate for existing odors emanating from the sewageplant to protect the future residents from the impacts of those odors. (SOCWA, 196 Cal.App.4th at 1614.) The court soundly rejected the agency’s attempt to use CEQAto protect a proposed project andits residents from the existing environment. The court explained that the “unmistakable” Legislative intent was that CEQAis intendedto protect the environment. (/d. at 1613.) The SOCWAcourt walked throughthe legislative intent of CEQA, including sections 21000 and 21001, and concluded that even that broad language expressinglegislative intent to “protect environmental quality” did not transform CEQAinto “a weapon to be deployed against all developmentills.” (/d. at 1613-1614.) The court noted that CEQA requires an EIR for any project that “may have a significant effect on the environment” and that CEQAdefines the “environment” as “the physical conditions which exist within the area which will be affected by a proposed project, includingland,air, water, minerals, flora, fauna, noise, objects of historical or aesthetic significance.” -23- (Id. at 1614 [citing Pub. Res. Code §§ 21060.5, 21100(a), 21101, 21151(a) [original emphasis].) Thus, because the proposedresidential development would not make changesto the sewageplant or its odor producing operations, the agencyfailed to identify any potential effects of the project that would require the preparation of an EIR.(/d. at 1615.) The SOCWAcourt next turned to CEQA Guideline section 15126.2 and Appendix G, whichthe petitioner had relied on to assert that CEQA required analysis of odor impacts. The Court quickly dispensed with Appendix G: “A few questions on a suggested checklist in an appendix to the guidelines do not seem to us to provide a strong enough foundation on whichto base a reversal of the entire purpose of CEQA.” (/d. at 1616.) And as to Guideline 15126.2, the court concludedthat the examples within the Guideline suchas risks from wildfires and active faults “are not examples of environmental effects wrought by development.” (/d.) The court concluded “A true example with respect to, say, wildfires would be increasing the risk in a fire-prone area by people usingtheir fireplaces or their backyard barbequesor by children playing with matches. The guidelines are entitled to great weight, except when they are inconsistent with controlling law.” (/d.) The Court of Appeal stated that, to the extent CEQA Guidelines could be read to require an analysis of the environment’s effect on a project, the Guidelines would be unauthorized because“[t]he Legislature -24 - has expressly forbidden courts to interpret CEQA orthe regulatory guidelines to impose procedural or substantive requirements beyond those explicitly stated in the act or in the guidelines.[]. This prohibition would encompass expanding CEQAto coversituations in which the project, not the environment,is alleged to be at risk.” (/d. at 1617 [internal citations and quotations omitted]; see also Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1218-1219 [guidelines invalid if they exceed statutory scope].) The court concluded that odor from existing facilities was not properly addressed through CEQA,butinstead through the relevantair district’s regulations that governed the sewage treatmentplant. (/d. at 1617- 1618.) The Ballona decision which followed SOCWA,should have closed the door on any argument about whether CEQA mandated analysis of the impact of the environmentonthe project. Ballona rejected the language in Guideline 15126.2(a) that purported to mandate reverse application of CEQA. In Ballona, the petitioners claimed, among otherthings, that an EIR for a mixed-use developmentproject did not contain an adequate discussion of the impacts of sea-level rise on the project. (Ballona, 201 Cal.App.4th at 464, 472) The Ballona court explainedthat “identifying the effects on the projectand its users of locating the project in a particular environmental -25- setting is neither consistent with CEQA’s legislative purpose nor required by the CEQAstatutes . . . Contrary to Guidelines section 15126.2, subdivision (a) [which has been interpreted to require an analysis of the impacts of the environmenton a project], we hold that an EIR need not identify or analyze such effects.” (Ballona, 201 Cal.App.4th at 474.) The Ballona court also concluded that Guideline 15162.2(a) was only valid to the extent it would require analysis of “impacts on the environment caused by the developmentrather than impacts on the project caused by the environment.” (Jd. at 474 n. 9.) As to Appendix G,the court explainedthat: a few of the questions on the form concern the exposure of people or structures to environmental hazards and could be construed to refer to not only the project’s exacerbation of environmental hazardsbutalso the effect on users of the project and structures in the project of preexisting environmental hazards.. . to the extent that such questions may encompassthe latter effects, the questions do notrelate to environmental impacts under CEQA and cannot support an argumentthatthe effects of the environment on the project must be analyzed in an EIR. (Id. at 474.) In contrast to the careful statutory construction set forth in the Baird line of cases, the Opinion below offers no colorable statutory basis to require reverse analysis, other than the notion that CEQAis concerned with human health. Construing CEQAas applicable toall that affects human - 26 - health essentially confers upon it boundless application. That interpretation cannotstand. This Court should affirm the reasoning and holdings of Baird, Long Beach, SOCWA,and Ballonathatthe statutory text of CEQA only requires an analysis of the adverse impacts of a project on the existing environment, not the reverse. As discussed below,the only exceptions to this rule would be where the Legislature expressly so provides. Neither a state nor local agency is permitted to expand CEQAbeyondits statutory purpose and meaning. C. ONE SECTION OF THE CEQA GUIDELINES HAS DISTORTED THE PURPOSE OF CEQA AND SHOULD BE REJECTED 1. CEQA Guideline 15126.2 (a) Includes Unauthorized Requirements for EIRs Despite the clear language of CEQAand the published case law dating back to Baird, the CEQA Guidelines continue to include language in section 15126.2(a) that distorts the intent of the statute. CEQA requires the Office of Planning and Research to “prepare and develop proposed guidelines” to implementthe statute, and the Natural Resources Agency (formerly the “Resources Agency’) to certify and adopt those “guidelines” through formal public rulemaking procedures (Pub. Res. Code § 21083(a), (e).) 27 - Likeall other state agencies, the Natural Resources Agency has no authority to promulgate regulations that exceed their authorizingstatute. (Gov. Code § 11342.2.) Yet that is precisely what has occurred. The unauthorized language in CEQA Guideline 15126.2(a), identified in SOCWAandBallona, is what the District relies on to justify requiring reverse CEQAanalyses. (AR 27:06087 [“This 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’’].) Subsection (a) of that Guideline, originally adopted in 1998 (California Register 98, No. 44, October 26, 1998), begins by restating that CEQArequires an EIR to analyze the impacts of a project on the environment: (a) The Significant Environmental Effects of the Proposed Project. An EIR shall identify and focus on the significant environmental effects of the proposed project. In assessing the impact of a proposed project on the environment, the lead agency should normally limit its examination to changesin the existing physical conditions in the affected area as they exist at the time the notice of preparation is published, or where no notice of preparation is published,at the time environmental analysis is commenced. Direct and indirect significant effects of the project on the environmentshall be clearly identified and described, giving due consideration to both the short-term and long-term effects. The discussion should include relevant specifics of - 28 - the area, the resources involved, physical changes,alterations to ecological systems, and changesinduced in population distribution, population concentration, the human useof the land (including commercial andresidential development), health and safety problems caused by the physical changes, and other aspects of the resource base such as water, historical resources, scenic quality, and public services. (14C.C.R. § 15126.2(a).) The Guideline then departs from the plain meaning of CEQA, including the statutory definition of the “environment”(section 21060.5) and “significant effect on the environment” (section 21068), and without statutory authority, adds the following: The EIRshall also analyze any significant environmental effects the project might cause by bringing development and peopleinto the area affected. For example, an EIR ona subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would havethe effect of attracting people to the location and exposing them to the hazards found there. Similarly, the EIR should evaluate any potentially significant impacts of locating developmentin other areas susceptible to hazardous conditions(e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps,risk assessmentsor in land use plans addressing such hazardsareas. (14 C.CR. § 15126.2(a).) -29 - In 2005, pursuant to CEQAsection 20183, the Office of Planning and Research (OPR) prepared and the Natural Resources Agencycertified and adopted the last sentence of Guideline 15126.2(a) quoted above.(Final Statement of Reasons for Regulatory Actions, December 2009, pp. 41-42, available online at ceres.ca.gov/ceqa/docs/ Final_Statement_of_Reasons.pdf.). The Natural Resources Agency argued that “the decision in Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464, does not preclude this analysis,” reasoning that the Guideline waslimited to “hazards which the presenceof a project could exacerbate(i.e., potential upset of hazardous materials in a flood, increased need for firefighting services, etc.).” (Final Statement of Reasons for Regulatory Actions, December 2009, p. 43, available online at ceres.ca.gov/ceqa/docs/ Final_Statement_of_Reasons.pdf.). The CEQA Guidelines’ requirement, not found inthe statute, that lead agencies analyze the effect of the existing environment on the users of a project, has led to expensive, unnecessary expansion of CEQAanalysis statewide. Despite the caveat in the Natural Resources Agency’s Final Statement of Reasons, which at least acknowledges Baird, the Guidelines themselves contain no limitation on the demand for reverse CEQAanalysis. To restore the interpretation of CEQA toits intended purpose, the above - 30 - expansion of 15126.2(a) should be rejected as unauthorized.’ 2. Appendix G_to the Guidelines Calls for Unauthorized Application of CEQA. The contents of Appendix G to the CEQA Guidelines provides the most direct explanation of why CEQA is sometimes misinterpreted to require analysis of the impacts of the environmenton the project. Appendix G consists of a sample “Environmental Checklist Form,” which according to the CEQA Guidelines, “may be used to meet the requirements for an initial study.” (14 C.C.R. Ch. 3, Appendix G; 14 C.C_R. § 15063(f).) Typically, Appendix G is where a lead agency beginsits evaluation of whether CEQAapplies to a proposedproject, and is also used to frame the scope of analysis in an EIR. Appendix G, while not binding on any lead agency,is the de facto starting point for CEQA analysis statewide. One Court of Appeal summarized the role of Appendix G as follows: The initial study is largely a creature of the Guidelines (see discussion to Guidelines, § 15063); CEQArefersto it only glancingly(e.g., § 21080, subd. (c)(2)). The Guidelines require the lead agencyto “conductan Initial Study to determine if the project may havea significant effect on the environment.” (Guidelines, § 15063, subd. (a).) The initial study must 7 The Governor’ s Office of Planning and Research has declined to make _ any revisions to Guideline 15126.2 in response to the Bairdline of cases pending this Court’s review of the issue presented. (MJNEx. F, p.7 § IV.) -31- include, among other things, a description of the project (Guidelines, § 15063, subd. (d)(1)); an identification of its environmental effects “by use of a checklist, matrix, or other method” (Guidelines, § 15063, subd. (d)(3)); “[a] discussion of ways to mitigate the significant effects identified, if any” (Guidelines, § 15063, subd. (d)(4)); and “[a]n examination of whether the project would be consistent with existing zoning, plans, and other applicable land use controls.” (Guidelines, § 15063, subd. (d)(5).) (Gentry v. City ofMurrieta (1995) 36 Cal.App.4th 1359, 1376.) Appendix G suggests that lead agencies should analyze the impacts of the environment on a project. For example, Appendix G states: A “No Impact” answeris adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved(e:g., the project falls outside a fault rupture zone). A “No Impact” answershould be explained whereit is based on project-specific factors as well as general standards(e.g., the project will not expose sensitive receptors to pollutants, based on a project-specific screening analysis). Appendix G also asks questions such as “Wouldthe project ... [e]xpose people or structures to potential substantial adverse effects, including the risk of loss, injury or death involving . . . rupture of a known earthquakefault... .” Without any analysis of whether impacts of the existing environment on future users of a project is proper, certain lead agencies have routinely -32- applied Appendix G and Guideline section 15126.2(a) and have analyzed the impactof the existing environmenton the future users of the project as part of the CEQAprocess. Becauselead agencies, and even project applicants, have felt bound by the CEQA Guidelines’ overreachinginterpretation of CEQA,the issue is sometimes presented to the courts as a question of adequacy ofthe analysis, not the more fundamental question of whether the analysis was required in the first place. Courts that have the matter presented in that fashion have taken the case at face value and evaluated whetherlead agencies had ‘substantial evidence to support their conclusions about impacts of the environment on a project. For example, the opinion in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884 contains an analysis of whether a city properly addressed whetherthe project “would expose peopleorstructures to ‘substantial risk of loss, injury or death’ whichis, in substance, the language of appendix G... .” (Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 896.) Of course, because the parties did not argue whether such an analysis was beyond the scope of CEQA,any holding from that case, or similar cases, wouldbe irrelevantto the issue presented to this Court becauseitis “axiomatic that an opinionis not authority for an issue not considered therein.” (Santa Clara County Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 243 [citing People v. Banks (1993) 6 Cal.4th 926, 945 and -33- cases cited therein]; Cal. Native Plant Soc. v. City ofRancho Cordova (2009) 172 Cal.App.4th 603, 632.) SOCWAand Ballona correctly identified how the CEQA Guidelines improperly attempt to expand the scope of CEQAandthis Court should affirm that the CEQA Guidelines are only consistent with CEQAto the extent that they require analysis of “impacts on the environment caused by the developmentrather than impacts on the project caused by the environment.” (Ballona, 201 Cal.App.4th at 474 n. 9; See also Id. at 474 analysis of “effects on users of the project and structures in the project of preexisting environmental hazards” not required by CEQA].) D. THE IMPACTSOFTHE EXISTING ENVIRONMENTON A PROJECT SHOULD ONLY BE ANALYZED UNDER CEQA WHEN REQUIRED BY THE CEQA STATUE There is currently no general mandate in CEQAto analyze the impacts of the existing environmenton a project andits future users.It is the prerogative of the Legislature to create one if it chooses. The District has relied on CEQA’s specific statutory requirement, that selecting a new schoolsite requires analysis of the health impacts on future pupils from existing environmental hazards,as if that were evidence that analysis of the environment’s effect on a project is within the scope of CEQA generally. (See Pub. Res. Code § 21151.8(a)(2)(A); (a)(3)(B)(i) [requiring an analysis - 34 - of all sources of hazardous emissions within a quarter mile of a school site].) Section 21151.8 demonstrates the high level of focus the Legislature put on the safety of students as a policy matter. The section, which effectively restates the requirements found in Education Codesection 17213, imposes specific procedural requirements that must be met prior to an environmental impact report being certified or a negative declaration being approved for a project involving the purchase of a schoolsite or the construction of a school. The environmental document mustdisclose the status of any hazardous waste on the project site, whether there are any pipelines on the project site, and whethera site is within 500 feet of a freeway of busytraffic corridor. (Pub. Res. Code § 21151.8(a)(1).) The schooldistrict is required to consult with the relevantair districts regarding sites within a quarter mile of the project that might reasonably be anticipated to emit hazardous emissions or waste. (Pub. Res. Code § 21151.8(a)(2).) Further, the lead agency is required to make specific findings prior to project approval includingthat the health risks from the facilities identified by an air district “do not and will not constitute an actual or potential endangerment of public health to persons who would attend or be employedat the proposed school”or that such risks would be reduced through Corrective measures imposed by another agency with jurisdiction prior to school occupancy. (Pub. Res. Code § 21151.8(a)(3).) -35- For freeways and busy roadways, a schooldistrict must undertake an analysis consistent with Health & Safety Code section 44360 (which requires health risk assessments be prepared in accordance with the Office of Environmental Health Hazard Assessment’s guidelines) that concludes that the air quality at the school site does not pose “significant health risks to pupils.” (Pub. Res. Code § 21151.8(a)(3)(iii).) The extremespecificity of Section 21151.8 lends no support to the proposition that there is a general obligation to conduct reverse CEQAanalyses. Likewise, the District has previously relied on cases such as Watsonville Pilots Ass’n v. City of Watsonville (2010) 183 Cal.App.4th 1059, where the impacts of the environmenton future users of a project are analyzed. Howeverin that case, there wasalso a statutory duty to analyze the impacts of an existing airport on new surrounding development. (Watsonville Pilots Ass’n v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1081 [CEQA § 21096 required city to address airport-related safety hazard and noise problemsin EIR].) These specific requirements to analyze impacts on a project rather than impacts on the environment demonstrate that the Legislature is well aware how to expand CEQAwhenthatis its intent. The implication from sections 21096 and 21151.8 is not that CEQA generally requires an analysis of all the existing environments potential impacts on a project andits users. Instead, these provisions evidence that, in response to specific public policy - 36 - concerns, the Legislature has expanded the scope of CEQA to include specific provisions for reverse analyses in two particular circumstances. Expanding these narrow statutory exceptions to be a generally applicable CEQArequirement would violate CEQA’s mandatethatthe courts are statutorily prohibited from interpreting CEQA “in a manner which imposes procedural or substantive requirements beyond those explicitly stated in” CEQAorits Guidelines. (Pub. Res. Code § 21083.1.) If the Legislature determinesthat the analyses advocated by the District should be included within CEQA’s mandate, the Legislature may amend CEQAto abrogate the holdings of Baird, Long Beach, SOCWA, and Ballona. It is noteworthy that two bills to abrogate those cases were circulated in 2013, but were not adopted.8 AB 953 and SB 617 would have imposed a new state mandate that an EIR includea discussion of “any significant effects that may result from locating the proposed project near, or attracting people to, existing or reasonably foreseeable natural hazards or adverse environmental conditions” and would amendthe definition of the “environment” and a “significant effect on the environment”to include the health and safety of people affected by the physical conditions located on a 8 In Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 571, fn.9, this Court took judicial notice of the Legislature’s failure to adoptbills that would have amendedthe scope of the Unfair . Competition Law asanaid inits interpretation of the statute. -37- project site. (CBIA’s Motion for Judicial Notice [“MIN’] 9 Ex. A [Assem. Bill No. 953 (2013-2014 Reg.Sess.)]; MJN Ex. B [Sen. Bill No. 617 (2013-2014 Reg. Sess.) §§ 1, 2 (Legislative Counsel’s digest states, “[t]his bill would additionally require the lead agencyto include in the EIR a detailed statement on any significant effects that may result from locating developmentnear,or attracting people to, existing or reasonably foreseeable natural hazards or adverse environmental conditions. Because the lead agency would be required to undertake this additional consideration, this bill would imposea state-mandated local program.’’)]; see also MJN Ex.C, p.7 [Senate Committee on Environmental Quality, Analysis of Senate Bill No. 617 (2013-2014 Reg. Sess.) (“SB 617 addresses Ballona Wetlands” by requiring an EIR to analyze reverse CEQA impacts.)]; MJN Ex. D, p. 2 [Senate Appropriations Committee, Analysis of Senate Bill No. 617 (2013-2014 Reg. Sess.) (“Thisbill potentially increases the workload for a lead agency to review a projectasthis bill would require that lead agencyto also consider the impactof natural hazards or adverse environmental conditions on the project . .. However, staff notes that this analysis is currently required by the current CEQA Guidelines §15126.2(a), which are adopted regulations, despite recent litigation. Because this analysis is currently in the CEQA guidelines,it is 9 The MINwillbefiled concurrently with this Opening Brief. - 38 - reasonable to assumethat at least some agencies mayalready be doingthis analysis.”) [(emphasis added)]}.) Thus, the Legislature’s evaluation of the bills recognizes that reverse CEQAanalysis is “not explicitly required by statute” and further evidences that the Legislature knowshowto “override a line of appellate court cases that invalidates provisions in the CEQA Guidelines requiring consideration of the effects of hazardous or adverse environmental conditions on a proposed project”if it so desires. (MJN Ex. E, p. 3 [Assembly Committee on Natural Resources, Analysis of Assembly Bill No. 953 (2013-2014 Reg. Sess.].) This Court should affirm the plain meaningof the statute and leave to the Legislature the policy decision of whether to expand the scope and reach of CEQA. E. THE THRESHOLDS IMPERMISSIBLY REQUIRE AN ANALYSIS OF THE IMPACTSIF THE EXISTING ENVIRONMENT ON FUTURE USERS OF A PROJECT 1. The Thresholds Require an Analysis of the Existing Environment on a Project The District is explicit in its intent that its TAC Receptor Thresholds will be used for reverse application of CEQA: The Staff Report states: “For new receptors - sensitive populations or the general public - thresholds of significance are designedto identify levels of contributed risk or hazards from existing local sources that pose a significant risk to the receptors.” - 39 - (AR 1:00056 [emphasis added]; see also AR 27:06087 [“‘cities and counties must also recognize the health impactsofsiting residents immediately adjacent to freeways and busy roadways . . . The proposed CEQA thresholds recognizethe potential for significant impacts adjacent to existing sourcesof pollution”] [emphasis added]; Appellants’ Opening Brief on Appeal at 12 [TAC Receptor Thresholds intended to address concern “that projects developed in areas near existing TAC sourceswill expose new residents and employeesto unhealthy air pollution”).) And the District explicitly relies on Guideline 15126.2(a) for the exact purpose rejected by Ballona. (AR 27:06087) [“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)”’]; compare with Ballona, 201 Cal.App.4th at 474 [Guideline 15126.2 inconsistent with CEQA because “identifying the effects on the project and its users of locating the project in a particular environmentalsetting is neither consistent with CEQA’s legislative purpose nor required by the CEQAstatutes”’].) Likewise, the District’s odor threshold is on all fours with the contention rejected in SOCWA.The Thresholds require an analysis of whethera project includes exposing a new receptor “to existing or planned odor sources.” (AR 9:02066.) If a project would locate receptors within a specified distance of an existing odor source with a history ofat least 5 odor complaints per year, a potentially significant impact would exist. (AR - AQ - 9:02066, 2121.) If moving a project is not feasible, the Thresholds recommendtechnological mitigation be added to the source of the pollution. (AR 9:2122-2123.) This is exactly the type of mitigation that offended the SOCWA court. (SOCWA, 196 Cal.App.4th at 1614-1615 [“SOCWAwantsto protect itself from nuisance complaints by potential neighbors based on bad smells from the plant, while sticking [the residential developer] with the bill [for aeration tank improvements]. The statutory definition of ‘environment’ - ‘the physical conditions... which will be affected by a proposed project’ (§ 21060.5) - precludes any such application of CEQA”’].) 2. The Opinion Erred by Upholding the Thresholds The Thresholds should be overturnedif “clearly unauthorized or erroneous under CEQA.” (Communitiesfor a Better Environmentv. Cal. Resources Agency (2002) 103 Cal.App.4th 98, 109.) Thefinal interpretation of the law rests with the courts. (/d.) Thus, when an action taken by an agency “is inconsistent with controlling CEQA law”it is invalid. (/d. at 114.) Here, the stated intent of the Thresholds to misapply CEQAto havelocal agencies analyze, and require mitigation for, the impact of existing air quality and odor on new developmentprojects “‘is inconsistent with controlling CEQA law,” and should be overturned on that -4J - basis alone. !9 (AR 1:00056; AR 9:02066, 2121; CBE, 103 Cal.App.4th at 114.) Despite the inconsistency of the Thresholds with Baird andits progeny, the Opinion upheld the Thresholds against CBIA’s claim based on its conclusionthat “the case law cited by CBIA doesnot bar their application in all or even most cases.” (Opinion at 25.) This is clear error. The Opinion provides three examples of how the TAC Receptor Thresholds could purportedly be used: (1) when a project “woulditself increase TACs or PM 2.5 to a cumulatively considerable level;” (2) to analyze impacts to students and personnel under Public Resources Code section 21151.8; and (3) to determine whethera project is consistent with a City’s general plan orspecific plan. (Opinion at 25.) Noneof the three purported examplesis a legitimate use of the TAC Receptor Thresholds. First, whether a project “woulditself increase TACs or PM 2.5 toa cumulatively considerable level” is not a receptorissue, it is a source issue. (AR 1:00006.) The District’s Thresholds already include separate source standards so would notrely on a receptor threshold for source analysis. (See AR 1:00006.) 10 Requiringnew receptor projects to mitigate for impacts they have not contributed to could violate the constitutional restrictions placed on lead agencies when imposing mitigation. (See Rohn v. City of Visalia (1989) 214 Cal.App.3d 1463, 1470, 1477;.14 C.C.R. §§ 15041(a); 15126.4(a)(4).) -42- Next, the TAC Receptor Thresholds could not be properly used to analyze the impacts to students and teachers as required by Public Resources Code section 21151.8. The TAC Receptor Thresholds require an analysis out to 1,000 feet. (AR 1:00006; 9:2103.) Public Resources Code section 21151.8 requires an analysis of all sources of hazardous emissions within a quarter mile of a schoolsite. (Pub. Res. Code § 21151.8(a)(2)(A); (a)(3)(B)G).) The unique and detailed statutory requirements for school siting contain their own standards and cannotrely on the Thresholds. Thus, the Opinion’s second examplefails. Finally, the Opinion’s third example of using the Thresholds to determineif a project is consistent with a general plan or specific plan employs circular reasoning. Inconsistency with a general plan or specific plan would only bea significant environmental impact under CEQAif such inconsistency implicates a physical impact on the environment. (Lighthouse Field Beach Rescue v. City ofSanta Cruz (2005) 131 Cal.App.4th 1170) Thus,if the Ballona line of cases is correct that the existing environment’s impact on the project would not be a significant impact on the environment under CEQA,any inconsistency with a general plan or specific plan policy that required such an analysis would also not be a CEQA impact. If a lead agency adopted an overlay zone Or buffer as suggested by the District, the agency would test the consistency of any future project against its own plan, not against the District Thresholds. It would notbea - 43 - CEQAissue, it would be a question of consistency with a general plan. (Gov. Code §§ 65860; 66473.5). In other words, the incorporation of the Thresholds into another law would notresult in a proper use of the Thresholds under CEQA. The Opinion’s statement that “the case law cited by CBIA does not bar their application in all or even most cases”is just wrong. (Opinion at 25.) F. OTHER LAWS ADDRESS THE CONCERN OF THE IMPACTS OF THE ENVIRONMENT ON A PROJECT Theissuesthat the District seeks to address through its TAC Receptor Thresholds are important. To date, however, the Legislature has madethe reasonable policy choice that CEQAis not the proper vehicle to address those concerns. The federal government and the State of California have adopted a plethora of laws to address humanhealth, safety, and nuisance. As to the compatibility of uses, cities and counties have immense powersto restrict the uses of property through their police powers, planning and zoning law (Government Code §§ 65000,et seq.), and the Subdivision Map Act (Government Code §§ 66410 et seq.). These laws confer great poweron local agenciesto select and regulate land uses (including the project siting issues implicated by the TAC Receptor Thresholds), and allow agencies broad discretion to disapprove a proposed project deemed -44- undesirable, or alternatively, to impose conditions on projects up to the limits of the state and federal constitutions. In order to ensure that buildings constructed will be safe and habitable, laws such as the California Building Code and the Alquist-Priolo Earthquake Fault Zoning Act, (Public Resources Code §§ 2621, et seq.) demand it. The Alquist-Priolo Earthquake Fault Zoning Actis intended to “prohibit the location of developments and structures for human occupancy acrossthe trace of active faults” and to “to minimizethe lossof life during and immediately following earthquakes ... .” (Pub. Res. Code § 2621.5(a).) Among other things, it requires a seller to disclose to any prospective buyerif a property is within a delineated earthquake fault zone. (Pub. Res. Code § 2621.9(a).) As a practical matter, a property disclosure has a far higherlikelihood of being read by a future occupantof a project than an EIR potentially approved years before construction even begins. Alquist-Priolo also requires any land use approvalto be consistent with the guidanceof the State Mining and Geology Board and requires that a geologic report delineating any hazard of surface fault rupture be prepared (Pub. Res. Code § 2623(a).) Likewise, the regulations implementing the Seismic Hazards Mapping Act (Public Resources Code §§ 2690,et seq.) mandate that a “project shall be approved only when the nature and severity of the seismic hazardsat the site have been evaluated in a geotechnical -45- report and appropriate mitigation measures have been proposed.” (14 C.C.R. § 3724(a).) Ambient noise impacts on new construction is addressed through GovernmentCode section 65302 in the Planning and Zoning Law.That section mandates that every general plan include a noise elementthat identifies and appraises noise problems in a community. (Gov. Code § 65302(f).) The noise element must include noise counters which “shall be used as a guide for establishing a pattern of land usesin the land use element that minimizes the exposure of community residents to excessive noise.” (Gov. Code § 65302(f)(2)-(3).) The noise element must also “include implementation measures and possible solutions that address existing and foreseeable noise problems, if any.” (Gov. Code § 65302(f)(4).) The State also imposesnoise insulation standards that require new construction to meet performance standards through design and building materials that would offset any noise source in the vicinity of a receptor and establish an interior standard of 45 dBA Ldn in any habitable room with all doors and windowsclosed. (24 C.C.R. Part 2 [the California Building Code], Appendix chapters 12, 12A.) Protecting future users of a project from environmental contamination is addressed through a host of laws. The followinglist is not - 46 - all-inclusive, but represents a broad cross-section of existing, substantive law. If additional lawsare desirable, the Legislature can adopt them. Air pollution control starts with the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.). California laws designed in whole or in part to protect air quality include atleast the following: Division 26 (commencing with Section 39000) of the Health and Safety Code, the Protect California Air Act of 2003 (Chapter 4.5 commencing with Section 42500) of Part 4 of Division 26 of the Health and Safety Code), the Carl Moyer Memorial Air Quality Standards Attainment Program (Chapter 9 (commencing with Section 44275) of Part 5 of Division 26 of the Health and Safety Code), the California Port Community Air Quality Program (Chapter 9.8 (commencing with Section 44299.80) of Part 5 of Division 26 of the Health and Safety Code), the California Clean Schoolbus Program (Chapter 10 (commencing with Section 44299.90) of Part 5 of Division 26 of the Health and Safety Code), and the California air pollution control laws, including the Air Toxics “Hot Spots” Information and Assessment Act of 1987 (Part 6 (commencing with Section 44300) of Division 26 of the Health and Safety Code), the Atmospheric Acidity Protection Act of 1988 (Chapter 6 (commencing with Section 39900) of Part 2 of Division 26 of the Health and Safety Code), the Connelly-Areias-Chandler Rice Straw Burning Reduction Act of 1991 (Section 41865 of the Health and Safety Code), and the Lewis-Presley Air Quality Management Act (Chapter 5.5 (commencing -47- with Section 40400)of Part 3 of Division 26 of the Health and Safety Code). Manyother hazards are addressed through the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.), the federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. Sec. 6901 et seq.), the federal Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. Sec. 11001 et seq.), the federal Pollution Prevention Act of 1990 (42 U.S.C. Sec. 13101 et seq.), the federal Oil Pollution Act of 1990 (33 U.S.C. Sec. 2701 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.), the federal Toxic Substances Control Act (15 U.S.C. Sec. 2601 et seq.), the federal Asbestos Hazard Emergency Response Actof 1986 (15 U.S.C.Sec. 2641 et seq.), the federal Lead- Based Paint Exposure Reduction Act (15 U.S.C. Sec. 2681 et seq.), the federal Low-Level Radioactive Waste Policy Act (42 U.S.C. Sec. 2121b et seq.), the federal Lead Contamination Control Act of 1988 (42 U.S.C.Sec. 300j-21 et seq.), the Hazardous Waste Control Law Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code), Chapter 6.7 (commencing with Section 25280) of Division 20 of the Health and Safety Code, Sections 25356.1.5 and 25395.94 of the Health and Safety Code, Chapter 6.95 (commencing with Section 25500) of Division 20 of the Health and Safety Code, the Elder California Pipeline - 48 - Safety Act of 1981 (Chapter 5.5 (commencing with Section 51010) of Part 1 of Division 1 of Title 5 of the Government Code), and the Natural Gas Pipeline Safety Act of 2011 (Article 2 (commencing with Section 955) of Chapter 4.5 of Part 1 of Division 1 of the Public Utilities Code). In short, regulatory agencies andlocal jurisdictions are requiredto, and do, consider the environment’s impact on projects and users outside of CEQA,and without the omnipresent threat of CEQAlitigation being injected into non-CEQAprocesses. Baird and SOCWAarecorrectthat the important concerns regarding the well-being of future occupantsis addressed through laws other than CEQA. (SOCWA,196 Cal.App.4th at 1617; Baird, 32 Cal.App.4th at 1469 [noting that petitioner’s concern that residential developmentcould be built over toxic waste sites if CEQA not applied in reverse was addressed through Health and Safety Code section 25220 et seq., “which prescribe proceduresfor precluding the construction of residences on or within 2,000 feet of property containing hazardous waste’’].) This Court should heed the mandate in CEQAsection 21083.1 to not expandthe procedural or substantive requirements of CEQA beyond those explicitly stated in the statute. Vil. CONCLUSION For the foregoing reasons, CBIAasksthat this Court determine that CEQAdoes not require an analysis of the existing environment on a project or its users, unless specifically required in the statute, as in the case for new - 49 - school sites, and hold that any of the District’s Thresholdsthat are inconsistent with this rule of law are void. CBIA also requests that this matter be remandedto the trial court, which did not reach this issue, to issue a writ or other order, and for further proceedings consistent with the Court’s decision. Dated: January 10, 2014 Respectfully submitted, Cox, Castle & Nicholson LLP By |WSU AndrewB. Sabey Attorneys for Plaintiff and Respondent California Building Industry Association - 50 - CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 8.504(d)(1)) I, Andrew B. Sabey, hereby certify that the word count in OPENINGBRIEFis 11,323 words. I declare under penalty of perjury under the lawsof the State of California that the foregoingis true and correct. Executed this 10th day of January 2014 in San Francisco, ALS B.VSabey California. PROOF OF SERVICE I am employed in the County of San Francisco, State of California. I am overthe age of 18 and not a party to the within action; my business address is 555 California Street, 10th Floor, San Francisco, California 94104- 1513, On January 10, 2014, I served the foregoing document(s) described as CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S OPENING BRIEF on ALL INTERESTED PARTIESinthis action by placing a true copy thereof enclosed in a sealed envelope addressedas follows: Please see attached Service List On the above date: _x_ BY U.S. MAIL Thesealed envelope with postage thereon fully prepaid wasplaced for collection and mailing following ordinary business practices. I am aware that on motion of the party served, service is presumed invalid if the postage cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing set forth in this declaration. I am readily familiar with Cox, Castle & Nicholson LLP's practice for collection and processing of documents for mailing with the United States Postal Service and that the documents are deposited with the United States Postal Service the same dayas the day ofcollection in the ordinary course of business. I hereby certify that the above document wasprinted on recycled paper. I declare underpenalty ofperjury that the foregoingis true and correct. Executed on January 10, 2014, at San Francisco, California. eets MichellHo ™~ 0625 19\4232068v5 SERVICE LIST Supreme Court of California Case No. $213478 CALIFORNIA BUILDING INDUSTRYASSOCIATION, etal. v. BAYAREA QUALITYMANAGEMENTDISTRICT APPELLATE CASE NOS.A135335 & A136212 Party Attorney Bay Area Air Quality Ellison Folk ManagementDistrict: Shute, Mihaly & Weinberger Defendant and Appellant 396 HayesStreet San Francisco, CA 94102-4421 Brian Charles Bunger Bay Area Air Quality ManagementDistrict 939 Ellis Street San Francisco, CA 94109 |Alameda County Superior Court Case No. RG10-548693 The Honorable Frank Roesch Alameda County Superior Court 1221 Oak Street Oakland, CA 94612 Court of Appeal of the State of California First Appellate District, Div. 5, ‘Appellate Case Nos. A135335 & A136212 Clerk of the Court Court of Appeal of the State of California First Appellate District, Division 5 350 McAllister Street San Francisco, CA 94102-3600 Telephone: 415-865-7300 VIA HAND DELIVERYClerk of the Supreme CourtSupreme Court of California350 McAllister StreetSan Francisco, CA 94102-4797Telephone: 415-865-7000(Original and 9 copies) 0625 19\4232068v5