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

Respondent’s Petition for Review

Cal.September 20, 2013

19478 OO 2 6by =ue SEP 20 2013 In the Supreme Court of California Frank A. McGuire Clerk Deputy CALIFORNIA BUILDING INDUSTRY ASSOCIATION,et a/. Plaintiff and Respondent vs. BAY AREAAIR QUALITY MANAGEMENTDISTRICT Defendant and Appellant CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S PETITION FOR REVIEW 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 7 Telephone:(415) 262-5100 Facsimile: (415) 262-5199 In the Supreme Court of California CALIFORNIA BUILDING INDUSTRY ASSOCIATION,etal. Plaintiff and Respondent VS. BAY AREA AIR QUALITY MANAGEMENTDISTRICT Defendant and Appellant CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S PETITION FOR REVIEW 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 ANDREWB. 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 TABLE OF CONTENTS Page ISSUES PRESENTED FOR REVIEW..............ccceceeeeeeeteeeeneeneeeeners 1 T. INTRODUCTION......ececcecceneeseeecteeseteeneevecteeseaeseaeesasenseeeeteneeaees 2 II. REASONS REVIEW SHOULD BE GRANTED.......0 cee cceceeeeeeeeees4 If, FACTUAL AND PROCEDURALHISTORY.......eeeeeeeeeeeeneeees 9 A. FACTUAL SUMMARYLeceeeeecceseeeeeeenencesneeeeceaeeesaeeensesees 9 1. The Thresholds........... cece eeeeseeeceneeseeceaeeessneeeceneeeeateeeseeaes 9 a. GHG Thresholds ..00...eee eeeeeeteeeeeeneeeeseeeeeseeeeeeeeee 9 b. TAC Thresholds ........cccccceccsceseccesssseeesessneeseseeeeaees 10 2. Planning Community’s Response to Thresholds............. 1] 3. The District Acknowledges that the Thresholdsare Intended to Affect the Environment................ ce eeeeeeeeeee 14 4. Evidence in the Record Below Demonstratesthat the Planning Community’s Concerns Regarding the Thresholds Were Well-Founded.............ccceeeeeseeeeeeeeeteees 16 B. PROCEDURALHISTORY.......0eccccceeceececeseceseeeeeteneeesanenatenes 17 1. Trial Court Proceedings and Ruling «00...eee17 2. First District Court of Appeal’s Opinion................. beaeeees 17 TV. LEGAL DISCUSSION...eeeeeeeeeeneeeeneeceneeeneeesaeesssneeesenesenesenees 19 A. THE OPINION IMPROPERLY ALLOWSTHE PROMUGATION OF THRESHOLDS INTENDED TO ANALYZE THE IMPACT OF THE ENVIRONMENT ON A PROJECT IN CONFLICT WITH THE LINE OF CASES FROM BAIRD TO BALLONA . iccecsccscetcesseeteseeeeesasensaeenaeons 19 1. Four Cases Have Held That a Lead Agency Does Not Need to Analyze the Impacts of the Environmenton a PLOJCCE oo. ceeeeeeccesceceesscseeesneceessecessseeecneceesnaeeecessatecsaeenss 19 2. The Opinion Erred In Holding that the Thresholds May Not Violate the Holding ofBallona .....ccccccccccsssesseeeees 23 B. THE COURT OF APPEAL’S OPINION CONFLICTs WITH MOUNTAINLIONBECAUSEIT CREATES AN IMPLIED EXEMPTION FOR GENEREALLY APPLICABLE THRESHOLDSOF SIGNIFICANCE.........:ccecccsssecssteeeeeeees26 1. Mountain Lion Rejects Implied CEQA Exemptions....... 26 2. CEQA Guidelines § 15064.7’s Silence Should Not be Construed as an Implied Exemption from CEQA Because OPRIs Without Authority to Grant Such an Exemption.28 3. Supreme Court Review Is Necessary To Determine Whether Any Action That Adopts a “Threshold” Regardless of Whether Such Action Would Have Direct or Reasonably Foreseeable Indirect Impacts on the EnvironmentIs Exempt From CEQA.........cccccecceseseees 29 C. THE OPINION SPLITS WITH PRIOR PRECEDENT BY REQUIRING NEAR CERTAINTY IN A CHANGEIN THE ENVIRONMENT TO DEMONSTRATEAN ACTIVITYIS A CEQA PROJECT ooo. ceccceeseetsesesecseesessessssessesenssseseescatenes 32 V. CONCLUSION... ceeeceeeeceeeseseseseseeseseecesesecssseeecsessessessvevsesnsass 38 -ii- TABLE OF AUTHORITIES Page State Cases Baird v. County ofContra Costa (1995) 32 Cal.App.4th 1464ooeeeeeteseseeeseeteneesseeeseteensaeenaeepassim Ballona Wetlands Land Trust v. City ofLos Angeles (2011) 201 CalApp.4th 455ooeeseseseeeeseeeseeseeeseseseseneaeeepassim Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577 .o...cccceesccseecenetseceseevseeseesseeseetaeeeaeeeateseneraseneee 37 California Unionsfor Reliable Energy v. Mojave Desert Air Quality ManagementDist. (2009) 178 Cal.App.4th 1225 oo. cecessseessceseeesecescensecsecseeeterenenecesees 34 Citizensfor Quality Growth v. City ofMt. Shasta (1988) 198 Cal.App.3d 433 0... eseeeessscesreeseesnesecenseeseceteeessessneesneeatenas 31 City ofLong Beach v. Los Angeles Unified School Dist . (2009) 176 CalApp.4th 889 000...ee eeeceneeeereeerseceeeeeseeatenseres 4, 20, 22, 24 Communitiesfor a Better Environmentv. Cal. Resources Agency (2002) 103 Cal.App.4th 98 oo... eeesceccsneessesercseeseeeesaseaeteasesseeseeesaes 24, 29 County Sanitation Dist. v. County ofKern (2005) 127 Cal.App.4th 1544 oooceeescesecneeseesneesseesnersneereeeraees 11, 37 Dunn-Edwards Corp. v. Bay Area Air Quality ManagementDist. (1992) 9 Cal.App.4th 644 occceeeseeceseeneeeesneerieerreneeeneereaetieesesssenenes 36 Lighthouse Field Beach Rescue v. City ofSanta Cruz (2005) 131 Cal-App.4th 1170 oo.ceeee eeeeneceserseeesseresenesensetseeteessanenes 25 Mountain Lion Foundation v. Fish and Game Comm’n (1997) 16 Cal4th 105 woo.cccesseeceesseeeeeesneeeesseecesssnateceesssneeeespassim Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372 oo.iceceeesseecesscesereeeseesseenseeaseeeeseetpetenaes 6, 8, 31, 33 Plastic Pipe and Fittings Ass’n. v. California Building Standards Comm. (2004) 124 Cal.App.4th 1390 ...ccceccccccesceceecsvssessssssessssueeesssseesssesssseeesesees 34° - iii - Rental Housing Owners Assn. ofSouthern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81 cccee ccecscsesensneesereneeeeenetserereesesssenssesseens 24 Resource Defense Fund v. Local Agency Formation Comm’n. (1987) 191 Cal.App.3d 886 ......ccccesessceneteeseeteeeeeeeterseaetsesterseasesenensnensees 31 Shawnv. Golden Gate Bridge, Highway and Transp. Dist. (1976) 60 Cal.App.3d 699... cccccccseesecsenenseerersererseneteesersesessrerenenensnens 33 South Orange County Wastewater Authority v. City ofDana Point (2011) 196 Cal.App.4th 1604 0... ccseseeteteeeteteeneeretseeensenes 5, 20, 22, 24 Sundstrom v. County ofMendocino (1988) 202 Cal.App.3d 296 .....cccccccseseseseeeeeeeeesseteeesetseseserseneeens 9, 32, 36 Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069oceeseseeseneeesenenenseseenesensesssetsneresscsssssnenenereees 24 Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 oocccecessenecseenenenseserenereesseereesenssseeesesensnenensneneas 37 State Statutes Gov. Code § 11342.2 oo ceeecessessescseesseseesenscsessnseneeeseenenserseseesessesensnsnenssees 29 Pub. Res. Code § 21065... ccceccscesssecsescssecseeesesecseesnsenessesenesseessensessiesaesaess 6 Pub. Res. Code § 21084(a) ....cceceecscessecsessessesseneesessessensssseesesseenenssnenensennres 28 Pub. Res. Code § 21151.8(a)(2)(A) oes eeescecesseeeeeeeseteceeseeeenenerseterereneneeereens 25 Pub. Res. Code § 21151.8(a)(3)(B)(i) .....eesesssssssesesescsessenessesesestereeneeneeen Zo Stats. 2008, ch. 728, § 1(f), p. 4-5. ..ceeeeesssececsseeseeeenseesesseeeeeesessernerseseratenens 35 Rules and Regulations 14. CCAR. § 15061 (b)..ccsssesssssessesssssseessssssusesecsssssssneeseeeenneneeeeessseeninneness 6, 29 14 C.CAR. § 15064,7 cessssssssesssssssssessesssecscssssesseessnnneesseccaseseesuvestsveses 9, 29, 30 14 C.CAR. § 15064.7(b) sesssessssssesesssssssessssssssesecesssssssssessecesnsereseesnsnnnnnensninees 30 -1iV- 14 CCR. § 15126.2(a) ccrccssssssvecesssesscssvesessssssssecsssusessessseecensssneessessssecessnsneess 23 14 C.CLR. §8 15260-15333 vecccsssssssssseesssssssssseesecsssssssssecsssssecececcessseeecesssnuesess 6 California Rules of Court, Rule 8.500(D)(1)....... ce ceseeeeseesceeseeseeeeeneeeeeesenses 4 PETITION FOR REVIEW Petitioner and respondent, California Building Industry Association (CBIA), respectfully petitions for review of the published opinion by the _ Court of Appeal, First District, Division Five, in California Building Industry Association v. Bay Area Air Quality ManagementDistrict, (August 13, 2013, A135335 & A136212)(hereafter “Opinion”or “Slip Op.”), a copy of whichis attached as Exhibit A. CBIA presents the following issues for consideration by this Court. ISSUES PRESENTED FOR REVIEW 1.) Does the California Environmental Quality Act require identification, analysis, and mitigation of the impacts of the existing environmenton a project, as stated in the Opinion,oris it properly concerned with the impacts of the project on the environment, as stated in the existing case law, including Ballona Wetlands Land Trust v. City ofLos Angeles (2011) 201 Cal.App.4th 455? 2.) Does CEQAestablish an implied blanket exemption from environmental review of an agency’s adoption ofa rule, regulation, ordinance,or resolution of general application, even if it is reasonably foreseeable that the action may cause changesin the physical environment, so long as the agency adoptsits action as threshold of significance? 3.) Does CEQAapply a heightened evidentiary burden for determining whether anactivity is a project when the potential environmental change the activity may cause involves the displacement of development? 1. INTRODUCTION The Bay Area Air Quality ManagementDistrict (““BAAQMD”orthe ‘District”) formally adopted a series of“thresholds of significance” reflecting its policy choices for how to control air contaminants and greenhouse gasses throughout the greater Bay Area(collectively, the “Thresholds”). The Thresholds were extremely controversial primarily becausethe toxic air contaminant (TAC) receptor Thresholds are designed to use increased CEQA burdensas a meansto discourage urbaninfill and transit-oriented development, threatening to impede the Bay Area’s goalto encourage that type of compact development for its growing population. Local and regional government agencies with expertise in land use planning inundatedthe District with warnings that the TAC Thresholds would adversely change developmentpatterns throughout the Bay Area by limiting feasible infill, transit-oriented, and affordable housing developmentin the urbancore. In the face of this unrebutted expert opinion, the District-whichhasno land use expertise of its own-adopted the Thresholds and Guidelines without conducting any CEQAanalysis whatsoever. Thetrial court agreed with CBIAthat the adoption of the Thresholds was a “project” as defined by CEQA,requiring the District to comply with CEQA.On appeal, however, the District convinced the First District Court of Appealthat it has outsmarted CEQA by using CEQA to implementits policy choices. Ignoring this Court’s holding in Mountain Lion Foundation v. Fish and Game Comm’n (1997) 16 Cal.4th 105, the Opinion holdsthat, by operating through the device of CEQA Thresholds,the District was impliedly excused from the legal obligation to consider whetherits action may cause a potential environmental impact. Creating a conflict with the Bal/onaline of cases, the Opinion upholds the TAC Thresholds’ requirement that local agencies analyzethe impact of the existing environment on a project. The Opinion discussesthe line of cases uniformly holding that CEQA is not concerned with the impact ofthe existing environmenton the project, and disagrees with them, questioning the “continuing vitality” of decisions published just two years ago. Finally, the Opinion demandsthe impossible from CBIA in termsof presenting substantial evidence to support a fair argumentthat the Thresholds may cause a physical change in the environment, thereby qualifying as a project under Pub. Res. Code Section 21065. Discounting the unrebutted, consensus expert opinion of the Bay Area planning community, the Opinion holds that CBIA needed to present more concrete -3- evidence of the impacts of the Thresholds to the District before the District had even adopted them. The Opinion is wrong on all counts and the Supreme Court should correct this divergence from the established case law. Il. REASONS REVIEW SHOULD BE GRANTED Supreme Court review of this Opinion is necessary both to secure uniformity of decision and tosettle an important question oflaw. (California Rules of Court, Rule 8.500(b)(1).) After 40-years of CEQAjurisprudence, there are only a few “fundamental” issues this Court has not addressed. One suchissueis whether CEQArequires analysis of the impacts of the existing environment on the project, or whether this sort of analysis is best left to the many other laws that govern this arena. While the Court of Appeal has addressedthis issue in at least four cases dating back to 1995, this Court has notsettled the question. This issue is now ripe for the Court to address, andthis case is the appropriate vehicle. While the previous Court of Appealcases uniformly concluded that CEQAdoesnot require such reverse analysis, the Opinion below creates a conflict by expressly calling into question the “continuing vitality” ofBaird v. County ofContra Costa (1995) 32 Cal.App.4th 1464; City ofLong Beach v. Los Angeles Unified SchoolDist. (2009) 176 Cal.App.4th 889; South Orange County Wastewater Authority v. City of -4- Dana Point (2011) 196 Cal.App.4th 1604; and Ballona Wetlands Land Trust v. City ofLos Angeles (2011) 201 Cal.App.4th 455. (Slip Op. at 26). The Opinion below declined to follow the clear logic of these decisions and instead upheld the reverse application of CEQA. The Opinion concludes that building a new project in an area with existing air quality issues requires analysis of impact ofthe existing environmenton the proposed project. (Slip Op. at 24-25.) This Court’s review is necessary to determine on a statewide basis whether project applicants and lead agencies are required to analyze the impact of the environmenton the project. Otherwise, local agencieswill continue to pursue inconsistent approaches, with some agencies ignoring the Baird line of cases and some honoringit. CEQAis not well served by this sort of uncertainty. Either one group oflocal agenciesis driving unnecessary CEQAanalysis of issues that are addressed by other laws, or the other group is preparing inadequate CEQA documents ignoring an environmental impact. Either way, this Court needs to addressthe issue. Second, the Opinion deviates from this Court’s basic instruction that the courts should not imply exemptions from CEQAbecausethe Legislature knows howto grant an exemption andif it has not doneso,it is not the place of the courts to imply one. CEQA defines a “project” to mean a discretionary governmental activity “which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect -5- physical change in the environment.” (Pub.Res. Code § 21065.) If an activity is a “project,” the agency must consider whether the project is exempt undera statutory or categorical exemption. (See 14 C.C.R. §§ 15260-15333, 15061(b)(2).) If an exemption applies, no further CEQA review is necessary. (Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, 379-380 (“Muzzy Ranch”).) If a project is not exempt, then the lead agency mustanalyze the project’s potential significant effects on the environment and prepare either a negative declaration or environmental impact report (EIR). Ud.) Section 2 of the Opinion, however, holdsthat Section 21065 should not be applied to generally applicable thresholds of significance because CEQA Guidelines § 15064.7, which encouragesthe adoption of generally applicable thresholds,is silent on whether CEQA review is required for their adoption. (Slip Op.at 12.) In other words, the Opinion holds that CEQA Guidelines § 15064.7’s silence on CEQAreview amounts to an implied exemption from CEQA.This holding conflicts with Mountain Lion Foundation v. Fish and Game Comm’n (1997) 16 Cal.4th 105. In Mountain Lion Foundation, this Court required the Fish and Game Commission (“Commission”) to comply with CEQA before removing a species of squirrel from the state endangeredspecieslist. The Commission had argued that its decision to delist the squirrel was not subject to CEQA because a purported conflict betweenthe California Endangered Species Act and -6- CEQAcreated an implied exception from CEQA.(/d. at 116.) This Court emphatically rejected that contention.“It is evident. . . that the Legislature knows how to create such an exception whenoneis intended.” (/d.) Despite this Court’s clear instruction in Mountain Lion Foundation, and CEQA Guideline 15061’s specific description of which projects are exempt from CEQA,the Opinion reintroducesthe notion of an implied CEQAexemption. The Opinion holds that because the CEQA Guideline that authorizes the adoption of generally applicable thresholds of significance doesnot explicitly require environmental review, no such review is required regardless of whether the generally applicable thresholds may otherwise qualify as a project. (Slip Op. at 13, further opiningthat environmental review would just“result in a duplication of effort, at taxpayer expenseandtolittle if any purpose.”). If the absence of a separate mandate to perform CEQAreview were all that was required to escape the obligations imposed by CEQA,almost all agency action would be impliedly exempt from CEQA.Instead, the relevant question is whether the activity under consideration is a “project” as defined by Section 21065. The Opinion’s holding that a CEQA review of the Thresholds would have been meaningless ignores this Court’s explanation that CEQA provides protections that a review process outside of CEQA doesnot. This Court explained that CEQA’s substantive mandate “ensuresthere is evidenceofthe public agency’s actual consideration of alternatives and -7- mitigation measures, and reveals to citizens the analytical process by which the public agencyarrivedat its decision.” (Mountain Lion Foundation, 16 Cal.4th at 134.) The Opinion would allow government agencies to avoid this mandate, even whensubstantial evidence demonstrates that an action would have significant adverse environmental impacts, so long as the action was taken under the auspices of CEQA Guidelines § 15064.7. Review by the Supreme Court is necessary to ensure a unified approachbythe courtofthis State when deciding whetheran action by a government agency is exempt from CEQA.Byintroducing a new class of “implied exemptions,” the Opinion undercuts the most basic application of CEQA:if an activity meets the definition of a project, then it must comply with CEQA unlessit is categorically or statutorily exempt. Finally, the Opinion applies a heightened evidentiary burden on CBIAthat exceedsthe standard courts have applied in determining whether an activity is a CEQAproject. The Opinion holds that the well-founded opinion of expert planners about the potential environmental changes resulting from the Districts’ project is not “substantial evidence,” and that CBIA wasrequired to put forward evidence of specific projects that would be displaced as a result of the adoption of the Thresholds. No other case involving the determination of whether an agency action was even a project has held a petitioner to such a high bar when an agencyhasfailed to conduct any environmental review. (See e.g., Sundstrom v. County of -8- Mendocino (1988) 202 Cal.App.3d 296, 311-312 [“While a fair argument of environmental impact must be based on substantial evidence, mechanical application ofthis rule would defeat the purpose of CEQA wherethe local agency hasfailed to undertake an adequateinitial study. The agency should not be allowed to hide behind its own failure to gather relevant data”’].) In order for these important issues to be resolved, CBIA respectfully requests that the Supreme Court grant review. Ill. FACTUAL AND PROCEDURAL HISTORY A. FACTUAL SUMMARY 1. The Thresholds On June 2, 2010, the District approved Resolution No. 2010-06 (AR 1:00004 ) by which it adoptedthe District’s generally applicable CEQA Thresholdsthat it would apply as a lead agency andthat it intendedto be - applied by other lead agencies in the Bay Area. (AR 1:00003.) The Thresholds, adopted under authority of CEQA Guidelines § 15064.7, contained two generalcategories of thresholds that have beenatissue in this litigation: The GHG Thresholds and the TAC Thresholds. a. GHG Thresholds To achieveits regional reduction target for greenhouse gasses, and to discourage suburban sprawl, the District proposed a GHG Threshold expressly calculated for that purpose. (AR 1:00040, 48, 50-51; AR 8:1904 (“GHGefficiency metrics act to encourage the types of developmentthat -9- BAAQMDand OPRsupport (i.e., infill and transit-oriented development)’”].) b. TAC Thresholds In addition to thresholds applicable to sources ofair contaminants, the District also approved TAC Thresholds applicable to “new receptor” projects-e.g., new residential projects, hospitals, schools, daycare centers, parks, and nursing homes. (AR 1:00006-7.) These receptor thresholds shift the burden of addressing existing ambient air pollution away from the source ofair pollution and placing it on developers of projects 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. Redesignthe 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”’].) The District has also created what amountto, in the Court of Appeal’s own words,“‘buffer’ zones around existing and planned sources of TACs and within 500feet ofall freeways” that might otherwisetake -10- advantage of SB 375’s CEQA streamlining or other CEQA exemptions.' (Slip Op. at 5; AR 1:00007.). The District’s guidancestates that buffers between receptors and sources would “prevent manyhigh-risk projects from being considered or proposedinthefirst place, thereby eliminating the necessity for project-level mitigation.” (AR 16:3337.) Thus,if a project is proposed within a buffer zone,it will be disabled from using otherwise applicable CEQA exemptions or streamlining and be subject to heightened CEQAreview for exposing people to the existing environment. 2. Planning Community’s Response to Thresholds Whenthe Thresholds becamepublic, the District was besieged with commentletters from the region’s expert transportation and land use planning agencies explaining the adverse consequences of the District’s proposal. (See, e.g., AR 1:0258-62; AR 3:00609-10 [Association of Bay Area Governments (“ABAG”) comments “it would be counter productiveif [the District’s] proposed threshold changesactas a deterrent to growth in these [infill] areas and push developmentto greenfield sites in the outer ' The Governor’s Office and Planning Research, responsible for the State CEQA Guidelines, explained “If another agency’s morestringent thresholds are based upon substantial evidence of environmentaleffects, then the fair argument test would seem to require preparation of an EJR.” (Office of Planning and Research, “Thresholds ofSignificance,” 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) -ll- suburbs, where the amount of driving required would begreater”]; AR 3:00771-77 [San Francisco Planning Department comments]; AR 27:06050 [Santa Clara Valley Transportation Authority]; 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 27:6066-67 [Bay Area Planning Director’s Association whose members include 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 Area Council informs District the TAC Thresholds “will impact negatively transit oriented infill development and wewill lose those development opportunities for generations”’]. | The City and County of San Francisco Planning Department informedthe District that the proposed Thresholds “represent a step backwardrather than forward in terms of changing land use patterns” and stated the “overlay zone” threshold represented a “wastelandbuffers” mandate. (AR 3:00771, 00774.) BART commentedthat the overlay zone threshold would “limit or preclude development adjacentto existing and planned sources of TAC and PM2.5”andthat the Thresholds “will severely underminethe significant public investmentin public transit and TOD [Transit Oriented Development] in the Bay Area.” (AR 27:06092.) BART -12- urged the District to revise its approach to deal with the sources ofpollution rather than foreclosing developmentadjacent to existing sources. (AR 27:06093.) The experts’ comments confirm that the very development the State seeks to encourage - urbaninfill - will now bear substantial new burdens, financing challenges, and legal risks due to the District’s Thresholds. As explained by the San Francisco Planning Department, “projects which would now only merit a Categorical Exemption or Negative Declaration may now require a full EJR solely because of a pre-existing air quality risk which the individual project sponsor cannotindividually control or effectively mitigate on a project-level basis.” (AR 27:06109; see also AR 1:00242; AR 5:01081; AR 5:01113-14 [District confirms Thresholds could be used to require EJR}.) Even projects that would meet the TAC Thresholds would potentially be driven out of urban areas. The City of Oakland explained that requiring housing projects to quantify cancer risk would “discourage developmentof neededinfill housing due to the potential time, expense, and unfamiliarity associated with hiring the air quality consultants necessary to quantify the cancerrisk.” (AR 1:00246; see also AR 5:01081 [CEQA “cankill projects, especially small ones and especially ones that aren’t well funded”’].) -13- 3. The District Acknowledgesthat the Thresholds are Intended to Affect the Environment The District admits that it intended the GHG Thresholdsto achieve a real effect on the environment. The District intended that its GHG Thresholds would encourageinfill and transit-oriented development because it tends to reduce GHG emissions. (AR 1:00044.) The District further explained: “Staff believes that application of the proposed GHG thresholds will encourage regional smart growth andinfill development becauseit will be more difficult for Greenfield development to meet the proposed thresholds.” (AR 1:00192; 1:00193.) By contrast to the District’s express acknowledgementthat it was using CEQA burdensto discourage suburban development,the District did not acknowledge the opposite impacts of its TAC Thresholds, which used CEQAburdensto discourage urban infill. The District stated the “purpose of the proposed thresholdsfor local risks and hazards as they apply to new receptorsis to ensure that infill development proceedsin a safe and health protective manner.” (AR 27:06091.) Thus, any delay in implementingits TAC Thresholds “will only prolong unhealthy exposures to hazardous emissions currently experienced by many Bay Area communities.” (AR 27:06064.) “The purposeofthe proposed threshold levels is to ensure that no source creates, and no receptor endures, a significant adverse impact from any individual project” or cumulative projects. (AR 3:00611.) In other -14- words, the District intended its TAC Thresholds would changethe existing environmentby shifting development patterns away from areas it deemed unhealthy. District staff conducted a small numberofcase studies at the request of certain local agencies and its Directors. A case study of one mixed-use proposalin the City of Dublin found that the project would require a 500- foot setback to pass the Thresholds in 2012, and assuming improvements in diesel engines, a 350-foot setback if the project was delayed until 2015. (AR 5:01039-40; 29:06563 [figure showing 500-foot setback would remove entire residential componentof project and 350-foot setback would remove majority of residential componentof project}). As one local agency has noted, not every project has 350 feet it can give up. (CT 8:2169.) The District’s own presentation, meantto placate concernedelected officials, actually demonstrated that the TAC thresholds would have on the ground impacts by requiring residence free buffer zones near high-volume roadways. In a tacit admission that its new Thresholds could affect Bay Area development, the District’s board required an annual review ofthe intended and unintended consequencesofits Thresholds. (AR 5:01115 -16; AR 5:1144 [demandingthatstaff later “evaluate the impacts of what we’vejust done.”]) Despite recognizing the potential for environmental changes, the District refused to consideror evaluate these changes as required by CEQA. -15- (CT 7:1958 [4 70] [“the District admits thatit did not conduct any environmental review prior to adopting Resolution 2010-06 on June 2, 2010].) At no timepriorto its adoption of the Thresholds did the District contend that CEQA Guideline 15064.7 exemptedits action from CEQA. The District did not file any form of Notice of Determination pursuant to CEQA. 4, Evidence in the Record Below Demonstrates that the Planning Community’s Concerns Regarding the Thresholds Were Well-Founded After approving the Thresholds, the District conducted a survey asking local governments a series of questions about the real world impacts of the Thresholds. (See CT 8:2138-2209.) The survey responses bear out the warnings givento the District’s Board of Directors prior to adoption.In response to the question of whetherthe District’s Thresholds have increased the challenges associated with infill development, 80 percent of respondents answeredyes. (CT 8:2141 [With respectto projectsofall types, respondents were asked whether, since adoption ofthe District’s Thresholds in June 2010, air quality impacts “ALONE”havetriggered the need for a full-blown EIR(i.e., air quality is the sole reason for preparing an EIR). (CT 8:2139.) Almost 1 in 5 jurisdictions - responded “yes”to this question. (/d.) The survey’s high response rate - on average about 75 -16- jurisdictions responded to the questions - gives the results considerable weight. B. PROCEDURAL HISTORY 1. Trial Court Proceedings and Ruling CBIAtimely petitioned the superior court for review ofthe 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,assuch, [the District] is obligated by CEQAto evaluate the potential impact on the environment consequent to the project.” (CT 8:2243.) The trial court explainedthat there wassufficient evidence in the record to support the claim that the “Thresholds might discourage urbaninfill development, encourage suburban developmentor changelandusepatterns ... .” (CT 8:2243- 2245.) Thetrial court did not reach CBIA’s remaining claimsincluding the Ballonaissue of reverse application of CEQA.(CT 8:2246; JA 2:369.) 2. First District Court ofAppeal’s Opinion The District appealed the judgment. The case drew substantial public attention, drawing amicus briefs from the following entities: Center for Creative Land Recycling, Burbank Housing, Bay Planning Coalition, San Francisco Housing Action Coalition, First Community Housing, San -17- Mateo County Economic Development Association, Nonprofit Housing Association of Northern California Bridge Housing, League of California Cities, California State Association of Counties, Sierra Club, Center for Biological Diversity, South Coast Air Quality ManagementDistrict, and San Diego County Air Pollution Control District. On August 13, 2013, the Court of Appealfiled its Opinion reversingthe trial court’s order granting CBIA’s petition for writ of mandate and order awarding CBIAits attorneys’ fees. The Opinion holds that the “Thresholds were not subject to CEQA review” because CEQA Guideline 15064.7 does notstate that CEQA review must be conducted for thresholds promulgated underit. (Slip Op.at 12.) Moreover, requiring CEQAreview in addition to the District’s non- CEQApublic process would have “resulted in a duplication of effort, at taxpayer expenseandtolittle if any purpose.” (Slip Op. at 11-14.) As a separate basis for reversal the Opinion holds that the Thresholdsare not a CEQAproject because any environmentaleffects from the Thresholdsare too speculative. (Slip Op. at 14-20.) The Opinion discounts the opinion of the Bay Area’s planning community because CBIA did not showin the Court’s opinion “actual evidence”that “developers of housing in densely populated cities such as San Francisco or Oakland would movetheir projects to the suburbanfringes orrural areas.” (Slip Op. at 18.) The -18- Opinion doesnot explain what form of evidence beyond the unrebutted expert opinionsin the record could have existed before the District’s action. The Opinion reached some of CBIA’s claims not reached bythetrial court. The Opinion rejects CBIA’sclaim that several of the Thresholds violate the Baird line of cases by requiring analysis of the impacts of the environment onthe project. While the holding purports to rest on the application ofthe standardofreview for a constitutional challenge to a statute (Slip Op at 25), the Opinion also disagrees with Bairdline ofcases, leaving the conflict smoldering with the conclusion: the “continuing vitality of Bairdet al. is better reserved for a case in which the receptor thresholds haveactually been applied to a project.” (Slip Op. at 26.) CBIA did not seek a rehearing and nowtimelyfiles this petition for review. IV. LEGAL DISCUSSION A. THE OPINION IMPROPERLY ALLOWS THE PROMUGATION OF THRESHOLDS INTENDED TO - ANALYZE THE IMPACT OF THE ENVIRONMENT ON A PROJECT IN CONFLICT WITH THE LINE OF CASES FROM BAIRD TO BALLONA . 1. Four Cases Have Held That a Lead Agency Does Not Needto Analyze the Impacts of the Environment on a Project In 1995, the First District Court of Appeal held that the “purpose of CEQAis to protect the environment from proposed projects, not to protect -19- proposedprojects from the existing environment.”(Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464, 1468 [“Baird”].) This principle waslargely dormantin the case law until a 2009 decision. (See City ofLong Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889 [““Long Beach’[holding that an EIR need not analyze impacts of a nearby freeway on health of students and teachers].) In 2011, two cases provided in-depth analyses of the principle that CEQA doesnotrequire an analysis of the environment’s impact on a project. (See South Orange County Wastewater Authority v. City ofDana Point (2011) 196 Cal.App.4th 1604, 1617 (“‘SOCWA”) [[“[t}]he Legislature did not enact CEQAto protect people from the environment. Other statutes, ordinances,andregulations fulfill that function;” “The Legislature has expressly forbidden courts to interpret CEQAorthe 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 cover situations in whichthe project, not the environment,is allegedto be at risk.”]; Ballona Wetlands Land Trust v. City ofLos Angeles (2011) 201 Cal.App.4th 455, 473 [“Ballona’’] [“the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environmenton the project”].) The publication of the 2011 cases quickly focused the CEQAbar and consultants on this fundamentalissue.It had been commonplacefor -20- EIR’s to analyze the environment’s impact on a project, including existing noise and air quality issues. Though the case law now includes an unbroken line of four cases holding that an analysis of the environment’s impact on a project is beyond the scope of CEQA,practitioners andlocal agencies remain divided overthe proper approachtoday, due to the litigation risk of honoring the published precedent. (J. Hernandez,etal, Recommendations for Complying with Ballona Wetlands Definitive Rejection of ‘Converse- CEQA Analysis (May 30, 2012) [availableat http://www.hklaw.com/publications/Recommendations-for-Complying- with-Ballona-Wetlands-Definitive-Rejection-of-Converse-CEQA-Analysis- 05-30-2012/] [it “remains advisable to continue to conduct the converse- CEQAanalysis set forth in Appendix G of the Guidelines, but to expressly note in the CEQA documentation prepared for these topics. . . that the analysis is provided for informational purposes only andis not required by CEQA... Because Ballona did not addressall potential converse-CEQA impacts, there is also uncertainty about which of the Appendix G thresholds should be considered outside the scope of CEQA”’].) The Ballona court’s emphatic statement of the law was alarming to entities such as the District. The District requested this Court depublish the Ballona opinion becauseit “could be read to preclude an evaluationofthe health impacts associated with locating projects in particular areas.” -21- (District’s Request to Supreme Court for Depublication of Ballonaat p. 3 [filed January 31, 2012 in Case No. $199392].) After publication ofSOCWA and Ballona, lead agencies have often followed a circular approach to analyzing the environment’s impact on a project, which has led to more confusion over what should be considered the significant impacts of a project. Conducting an analysis and recommending mitigation measures in an EJR, while at the same time stating that the analysis is not required by CEQAdoes not serve anyone. The Opinion has now addedto the confusion over how to address impacts of the environment on a project. Though the Opinionstates thatit need not decide whether “as a general rule, an EIR may be required solely because the existing environment may adversely affect future occupants” (Slip Op. at 25), it implies that it would nonetheless be appropriate to analyze these impacts under CEQA. (id. [A new project located in an area that will exposeits occupants to preexisting dangerouspollutants can be said to have substantial adverse effect on human beings.”].) The Court closes its analysis by questioning the “continuing vitality of Baird etal.” (Id. at 26.) The Opinion, while stopping short of creating a directsplit, clearly calls the question of whether Baird, Long Beach, SOCWA and Ballona were correctly decided. This Court should now resolve that question: -22- 2. The Opinion Erred In Holding that the Thresholds May Not Violate the Holding ofBallona The District explicitly intends to use its Thresholds in contravention of Ballona. The Staff Report states: “For new receptors - sensitive populationsor the general public - thresholds ofsignificance are designed to identify levels of contributed risk or hazards from existing local sources that pose a significantrisk to the receptors.” (AR 1:00056 [emphasis added]; see also AR 27:06087 [“‘cities and counties mustalso recognize the health impactsof siting residents immediately adjacent to freeways and busy roadways... The proposed CEQAthresholds recognize the potential for significant impacts adjacent to existing sources of pollution”] [emphasis added].) The District explicitly relies on Guideline 15126.2(a) for the exact purpose Ballonarejected. (Ballona , 201 Cal.App.4th at 474; AR 27:06087 (“evaluating risks to new occupantsof a project from existing sources of tisk has been endorsed by the Resources Agencyin Section 15126.2(a)”].) The Opinion upheld the Thresholds against CBIA’s Ballona claim because “the case law cited by CBIA doesnotbar their application in all or even most cases.” (Slip Op. at 25.) The Opinion then provides three examples ofhow the TAC receptor Thresholds could purportedly be used: (1) whena project “would itself 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 whether a -23- project is consistent with a City’s general plan or specific plan. (Slip Op.at 25.) The Opinion’s discussion is based on the erroneous premise that CBIA’s challenge to the TAC Receptor Thresholds equates to a constitutional facial challenge of a statute. Moreover, none ofthe three purported examplesis a legitimate use of the TAC Receptor Thresholds. First, California Courts have neverapplied caselaw related to facial constitutional claims to claims that an action violated CEQA. (Compare Slip Op.at 24 [citing Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069, 1084 and Rental Housing Owners Assn. ofSouthern Alameda County, Inc. v. City ofHayward (2011) 200 Cal.-App.4th 81, 90 & n. 5 (“A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measureitself, not its application the particular circumstances of an individual.’”’)] with Communitiesfor a Better Environmentv. Cal. Resources Agency (2002) 103 Cal.App.4th 98, 109 (CEQA Guidelines must berejected if “clearly unauthorized or erroneous under CEQA”). Here, the stated intent of the TAC Receptor Thresholdsis to analyze the impact ofexisting air quality on new development projects. (AR 1:00056; 27:06087.) The language of the TAC receptor Thresholds themselves demonstrate that they are intendedto be used in contravention of Baird, Long Beach, SOCWA,and Ballona . (AR 1:00006{cumulative TACreceptor threshold requires analysis ofall local sources of TACthat are within 1,000 feet from the receptor’s fence-line].) -24- Second, even if CBIA’s claim could be equatedto a constitutional facial attack on an ordinance, the Opinionfails to identify a single proper use of the TAC receptor thresholds. Whether a project “woulditself increase TACs or PM 2.5 to a cumulatively considerable level”is not a receptorissue, it is a source issue. (AR 1:00006.) Next, the 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; 13:2103.) Public Resources Codesection 21 151.8 requires an analysis ofall sources of hazardous emissions within a quarter mile of a schoolsite. (Pub. Res. Code § 21151.8(a)(2)(A); (a)(3)(B)(i).) The unique statutory requirements for schoolsiting cannotrely on the Thresholds. Thus, the Opinion’s second examplealso fails. Finally, the Opinion’s third example of using the Thresholdsto determineif a project is consistent with a general plan orspecific plan also fails. Inconsistency with a general plan or specific plan would only be a 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 Ballona 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 -25- an analysis wouldalso not be a CEQA impact. The Opinion’s statement that “the case law cited by CBIA doesnotbar their applicationin all or even most cases”is just wrong. (Slip Op. at 25.) B. THE COURT OF APPEAL’S OPINION CONFLICTS WITH MOUNTAINLION BECAUSEIT CREATESAN IMPLIED EXEMPTION FOR GENEREALLY APPLICABLE THRESHOLDS OF SIGNIFICANCE. 1. Mountain Lion Rejects Implied CEQA Exemptions. The Opinion’s holding that the absence of a specific mandate to conduct CEQA equates to an implied blanket exemption from CEQAis contrary to well-settled law. As CBJA explained below (CBIA’s Answerto South Coast Air Quality ManagementDistrict and San Diego County Air Pollution Control District’s Amicus Brief at pp. 15-16), this Court has madeclearthat there is no such thing as an implied exception or exemption to CEQA.In Mountain Lion Foundationv. Fish and Game Comm’n,this Court required the Fish and Game Commission (“Commission”) to comply with CEQAbefore delisting a species of squirrel as endangered. (Mountain Lion Foundation v. Fish and Game Comm’n (1997) 16 Cal.4th 105.) The Commission had argued thatits decision to delist the squirrel after a two- year public process wasnot subject to CEQA.(/d. at 111.) The Commission’s primary argumentwasthat the decision to delist a species -26- cannot consider the factors normally considered under CEQA,thus the Commission’s compliance with CEQA would violate the California Endangered Species Act (““CESA”). (Ud. at 114.) The Commissionalso arguedthat this conflict between CESA and CEQAcreated an implied exception from CEQA.(/d. at 116.) This Court was not persuaded: “Itis evident . . . that the Legislature knows how to create such an exception when oneis intended.” (/d.) This Court also rejected the argumentthat the delisting decision is not subject to CEQA becauseit represents a nondiscretionary biological determination, just restating known science. (Id. at 117.) The Court held this argument was without merit because the Commission could consider the evidence introducedin the delisting proceedings, weigh such evidence, and determine whether the evidence is scientifically credible andreliable. (Ud. at 1 18.) Further, just as an agency “may” adopt generally applicable thresholds, the Commission’s regulations made a delisting decision discretionary. (/d. [“species may be delisted if Commission determinesits existence no longer threatened”’] [original emphasis].) This Court noted that the benefits flowing from complying with CEQAwould include “helping shape and inform the Commission’s exercise of discretion.” (/d. at 122.) These benefits would include the consideration of project alternatives,even if the only alternative considered was a “no project”alternative. (/d. at 123.) Because delistingthe squirrel -27- might also impact other species that share the same habitat, “the development, consideration, and adoption offeasible mitigation measures enhancethe overall species protection goals of CESA while encouraging a more environmentally sound delisting decision.” (/d.) The Opinion conflicts with Mountain Lion by construing a regulation’s silence regarding CEQA compliance as an intention to exempt. 2. CEQAGuidelines § 15064.7’s Silence Should Not be Construed as an Implied Exemption from CEQA Because OPRIs Without Authority to Grant Such an Exemption Equating the silence of Guideline § 15064.7 with an intent to exempt actions taken underthat Guideline from any CEQA environmental review not only violates this Court’s precedent, it also ignores that OPR and the Natural Resources Agency could not create such an exemption even if they wanted to. Beyondrestating exemptions from CEQAcreated by the Legislature, OPRis only authorized to create categorical exemptions from CEQA. (Pub. Res. Code § 21084(a).) Notably, before a categorical exemption may be incorporated into the CEQA Guidelines, the Secretary of the Natural Resources Agency must makea finding thatthat class of activities will not have a significant effect on the environment. (/d.) No suchfinding was made foractivities taken under CEQA Guidelines § 15064.7, therefore the Opinion errs whenit reads into that Guideline an intent to exempt such - 28 - activities from environmental review. (See Communitiesfor a Better Environmentv. Cal. Resources Agency (2002) 103 Cal.App.4th 98, [In short, the question is whether the regulation is within the scope of the authority conferred;if it is not, it is void”]; Gov. Code § 11342.2.) Further, CEQA Guidelines specify whena project may be considered exempt from CEQAandthe adoption ofa thresholdis not includedin this exhaustive list. (CEQA Guidelines § 15061(b).) The Opinionidentifies no statutory authority for OPR orthe Natural Resources Agency to exemptactions taken under CEQA Guidelines § 15064.7 from CEQA’s definition ofa project. 3. Supreme Court Review Is Necessary To Determine Whether Any Action That Adopts a “Threshold” Regardless of Whether Such Action Would Have Direct or Reasonably Foreseeable Indirect Impacts on the Environment Is Exempt From CEQA. By holding that an entire class of governmentaction is excused from CEQA,so longasthe public is provided an opportunity to comment and the action is based on substantial evidence, the Opinion opens the door for mischief by governmentagencies.It permits agencies to evade CEQA review for policies that may have reasonably foreseeable indirect impacts on the environment. (See Slip Op. at 14 [While the definition of a “project” under CEQAis broad[citation], it should not be stretched so far as to -29 - require CEQA review in addition to the public hearings [sic?] and substantial evidence standard already required for the promulgation of thresholds ofsignificance under CEQA Guidelines section 15064.7”].) The Opinion allows a governmentagency to adopt a policy by rule, regulation, ordinanceor resolution thatis labeled a “threshold of significance” and to refuse to conduct any environmental review ofthat action even if it would otherwise meet the definition of a project. For example, a county could adopt a threshold that effectively imposes a housing moratorium andthen refuse to override the “significant impact”of any new housing developmentproject. In other words, the Opinion would allow local agencies to adopt policies without any environmental that would otherwise undergo CEQAreviewif adopted as stand-alone regulatory action, or even if incorporated into a general plan, specific plan, or zoning ordinance. A local agency could bind itself through ordinance with de facto zoning “thresholds” without complying with CEQAsolong as it had some substantial evidence, conducted a “public process” and operated through the device of CEQA Guidelines § 15064.7. Theuse ofthresholds for this purpose would clearly cause reasonably foreseeable indirect changesto the environment, butthe Opinion would immunizeit from a CEQA challenge. This Court should 2 The Guideline does not require a public hearing;it only requires a “public review process.” (CEQA Guidelines § 15064.7(b).) 30 - correctthis error and clarify that a government agencythat takes an action that meetsthe definition of a project found in Public Resources Code section 21065, that is not statutorily or categorically exempt from CEQA, must analyze the environmental impacts ofthat action. (Muzzy Ranch, 41 Cal.4th at 379-380.) Further, the Opinion’s assertion that the “public process” required under CEQA Guidelines § 15064.7 is an adequate substitute for aninitial study, negative declaration, or an EIR finds no support in over 40 years of CEQAcase law. (See Resource Defense Fund v. Local Agency Formation Comm’n. (1987) 191 Cal.App.3d 886, 896-898,[failure to comply with CEQAproceduresnecessarily prejudicial and not subject to harmlesserror analysis]; Citizens for Quality Growth v. City ofMt. Shasta (1988) 198 Cal.App.3d 433, 443-445, 448-449 [judgment reversed where city failed to make finding, in absence of mitigation measures addressing significant environmental impact, that alternatives that would lessen environmental impact were infeasible].) If actions undertaken under Guidelines § 15064.7, that otherwise meetthe definition of a project under CEQA,are not required to undertake an initial study, there is no requirement for an agency to consider the potential environmentaleffects ofits actions or to consider mitigation measures or alternatives that could lessen or avoid those potential impacts. The Opinionstatesthat the District took the public’s comments “into -31- consideration,” but the District admits it conducted no environmental review ofthe potential impacts of the Thresholds.(Slip Op.at 13; CT 7:1958 [§ 70]; Sundstrom 202 Cal.App.3dat 296, 311-3 12 [“The agency should not be allowed to hide behind its ownfailure to gather relevant data’’].) C. THE OPINION SPLITS WITH PRIOR PRECEDENT BY REQUIRING NEAR CERTAINTYIN A CHANGEIN THE ENVIRONMENT TO DEMONSTRATEANACTIVITYIS A CEQA PROJECT The Opinionholdsthe planning experts’ opinionsthat the Thresholds wouldresult in a potential change in the environment were not substantial evidence because “no actual evidence was presented to show that developers of housing in densely populated cities such as San Francisco or Oakland would movetheir project to the suburbanfringes or rural areas.” (Slip Op at 18.) The Opinion appears to demand examples of specific developmentprojects that would relocate due to the Thresholds. Sucha heightened evidentiary burden hasnot previously been imposed to demonstrate an activity is a project. For example, this Court held in Muzzy Ranch that just because “further governmental decisions need to be madebefore a Jand use measure’s actual environmental impacts can be determined with precision does not necessarily prevent the measure from qualifying as a project.” -32- (Muzzy Ranch, 41 Cal.4th at 383.) This Court relied on the judicially noticeable facts that the (1) the “population of California is ever increasing[;]” and (2) “[dJepending on the circumstances, a government agency may reasonably anticipate thatits placing a ban on development in one area ofa jurisdiction may have the consequence, notwithstanding existing zoning or landuse planning, of displacing developmentto other areas ofthe jurisdiction” to conclude that the adoption ofa airport land use compatibility plan was a CEQAproject. (/d. at 382-383.) Here, millions of people are expected to cometo the Bay Area and the District can “reasonably anticipate” that increasing the burden oninfill may leadto the displacementin development, especially in the face the expert opinion reaching the same conclusion. In Shawn v. Golden Gate Bridge, Highway and Transp. Dist. (1976) 60 Cal.App.3d 699 (“Shawn”) involved a claim that a transportation district’s decision to increase bus fares wasa project under CEQA.(/d.at 700-701.) Petitioners argued that the increased bus fare could have the collateral effect of encouraging bus passengers to increase their use of private cars, thus changing the environment byincreasing traffic congestion andair pollution. (/d. at 701.) The court agreed that this potential environmental change merit the fare increase wasa project. (/d. at 703.) No specific passengers were identified that would alter their behavior. -33- Likewise, in Plastic Pipe and Fittings Ass’n. v. California Building Standards Comm. (2004) 124 Cal.App.4th 1390, 1413, the Court of Appeal rejected an argument that amendmentofbuilding code to allow plastic pipes not a project because there was no certainty it would be used in any particular work of construction and cause the impacts generally alleged. The lack of any specific projects did not negate the substantial evidence of the expert predictions. California Unionsfor Reliable Energy v. Mojave Desert Air Quality ManagementDist. (2009) 178 Cal.App.4th 1225, 1237, 1245 also demonstrates the traditional evidentiary standard applied to these determinations. In CURE, the Mojave Air District argued thatits rule allowing road paving as an offset for other air pollution was exempt from CEQAbecause ‘“the rule does not permit the paving of any road or the using of any offset: . . . the rule simply sets forth a protocol for calculating such an offset if one is sought.” CURErejected argumentstating the “only thing that was even arguably speculative aboutthese effects was their quantity. Plaintiffs’ evidence did not necessarily require a finding that these adverse environmental effects would be significant.”].) Here, the unrebutted expert opinion from local planners, regional expert agencies such as the Association of Bay Area Government, the Bay Area Rapid Transit District, major cities such San Francisco and Oakland all asserted that the TAC Receptor Thresholds alone would adversely -34- impact Bay Area developmentpatterns by creating disincentives for urban infill and transit-oriented projects. There is no principleddistinction betweenthe substantiality of this evidence and that presented in the cases discussed above, yet the Opinion discounts this evidence as inadequate. Moreover, the Opinion seemsto ignore the obvious role that CEQA incentives and disincentives can play in shaping developmentdecisions. The District itself understood that well when it expressly designed its GHG Thresholdsto create additional CEQA burdensfor greenfield development as a wayoftrying to discourageit. (AR 9:2228.) It is clear the burden of CEQAhas onthe ground impacts, but the Opinion adopts the view that CEQA’srole in shaping developmentpatternsis too speculative, even whenarticulated by planning experts across the Bay Area. The State Legislature has recognized the power of CEQA streamlining to encourage certain types of projects such as urban infill. Those incentives in turn shape development patterns-real physical changeson the ground. In adopting SB 375°s CEQAstreamlining provisions, the Legislature foundthat “[n]ew provisions of CEQA should be enacted sothatthe statute encourages developers to submit applications and local governmentsto make land use decisionsthat will held the state achieveits climate goal under AB 32... .” (Stats. 2008, ch. 728, § 1(f), p. 4-5.) -35- Although the Opinion pretends much moreis required, with two million more residents forecast for the Bay Area in the current planning horizon, it is reasonably foreseeable that increasing CEQA’s burden on urban infill housing could increase developmentoutside the urbancore.It is not speculative that development would shift at least to some degree in response to the regulatory burden imposed by the Thresholds. The only question is how much.Here, the planning community’s expert opinion should not be discarded whenthe District itself has no land use planning expertise and refused to conduct any environmental analysis related to its action. (See Greenebaum v. City ofLos Angeles (1984) 153 Cal.App.3d 391, 341 [planningstaff opinion considered substantial evidence].) The Opinion,in effect, rewards the District for wearing blinders, and. imposesan evidentiary burden on CBIA that would appear to be impossible to meet - to identify a project displaced by the Thresholdsbefore the Thresholds are adopted. The case law does not support providingthe District such an impenetrable shield. (Sundstrom v. County ofMendocino (1988) 202 Cal.App.3d 296, 311-312 [“Without seeking the opinion of, say, a qualified botanist or ecologist, the planning commission staff was not in a position to dismiss the possibility of potentially adverse vegetative change”; see also Dunn-Edwards Corp. v. Bay Area Air Quality ManagementDist. (1992) 9 Cal.App.4th 644, 657-658 (disapproved on another ground in Western States Petroleum Assn. v. Superior Court (1 995) - 36 - 9 Cal.4th 559, 576 n. 6) [rejecting District’s argumentsthat its tightening of emission standards wascategorically exempt from CEQAbecauseofthe potential unintended impacts from higher paintuse that could result from the restrictions; District’s arguments that petitioners arguments were speculative rejected because information that would be needed would be that information generated by preparation of an EIR]; County Sanitation District v. County ofKern (2005) 127 Cal.App.4th 1544, 1601-1603 (“The county’s attemptto pass off the responsibility to analyze the impacts ofthe ordinanceto other agencies would create a ‘gap’ in CEQAanddeprive the public of the benefits that could result from consideration ofalternatives to the proposed ordinance”); Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 596 (“[A]pellant has not conducted any environmental review in connection with the project which formed the basis of Resolution No. 224, so this court is not in any position to evaluate the environmental consequencesofproceeding with the project.”) -37- V. CONCLUSION For the foregoing reasons, CBIA asksthatthis Court grant review on each ofthe three important issues presented. Dated: September 20, 2013 Respectfully sybmitted, Cox, Castle & ayd\ KR AndrewB.Sabey Attorneys for Plaintiff and Respondent California Quilding Industry Association - 38 - CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 8.504(d)(1)) I, Andrew B. Sabey, hereby certify that the word count in PETITION FOR REVIEWis 8,276 words. I declare underpenalty ofperjury under the laws of the State of California that the foregoing is true and correct. Executed this 20th day of September, 2013 in San Francisco, AN DaeB. Sabey California. EXHIBIT A Court of Appeal Opinion Filed 8/13/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEALOF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE CALIFORNIA BUILDING INDUSTRY ASSOCIATION, Plaintiff and Respondent, A135335 & A136212 vs (A lameda County BAY AREA AIR QUALITY Super. Ct. N o. RG10548693) MANAGEMENTDISTRICT, Defendant and Appellant. The California Environmental Quality Act (CEQA; Pub. Res. Code, § 21000 et seq.) requires public agencies to conduct an appropriate environmental review of discretionary projects they carry out or approve and to prepare an environmental impact report (EIR) for any project that may havea significant effect on the environment. (Pub. Res. Code, §§ 21151, 21100, 21080, 21082.2.) The CEQA Guidelines’ encourage public agencies to develop and publish “thresholds of significance”to assist in determining whethera project’s effect will be deemed significant. (CEQA Guidelines, § 15064.7.) Here we consider whether the promulgation of thresholds of significance by a public agencyisitself a “project” subject to CEQA review. Weconcludeit is not and ' References to the CEQA Guidelinesare to the regulations for the implementation of CEQA codified in Title 15, section 15000 et seq. of the California Code of Regulations, which have been developed by the Office of Planning and Research and adopted by the Secretary of the Resources Agency. (Pub. Res. Code, § 21083.) “ ‘In interpreting CEQA,weaccord the Guidelines great weight except where they are clearly unauthorized or erroneous.’ [Citation.}” (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 128, fn. 7.) reverse a superior court judgmentthat issued a writ of mandate invalidating thresholds of significance promulgated by defendant and appellant the Bay Area Air Quality ManagementDistrict (the District). We also concludethe court’s order cannotbe upheld on alternative grounds and reverse an award of attorney fees made to respondent the California Building Industry Association (CBIA) under Code of Civil Procedure section 1021.5. I. BACKGROUND The District is a local agency charged with limiting nonvehicular air pollution in the San Francisco BayArea. It is authorized to adopt and enforce rules and regulations regarding the emission of pollutants, and to ensure state and federal ambientair quality standards are met. (Health & Saf. Code, §§ 39002, 40000, 40001, subd. (a), 40200.) Amongits otheractivities, the District monitors air quality, engages in public outreach campaigns, issues permits to certain emitters of air pollution and promulgatesrules to control emissions. (Health & Saf. Code, §§ 42300, 42301.5, 42315.) CEQArequires public agencies such as the District to analyze, disclose, and mitigate significant environmental effects of projects they carry out-er approve. (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 379-381 (Muzzy Ranch).) When adoptingrules or issuing permits, the District will act as the lead agency for CEQA purposes. The District does not act as a lead agency for CEQA review of residential and commercial developmentprojects in the area, though it may act as a responsible or commenting agency on projects being analyzed by other agencies.” The CEQA Guidelines encourage agencies to publish the “thresholds of significance” used to determine the significance of a project’s impact on the environment. * The “lead agency” under CEQAis the agency “with principal responsibility for carrying out or approving a project. ...” (Pub. Res. Code, § 21067.) A “responsible agency”is “a public agency, other than the lead agency, which has responsibility for carrying out or approving a project.” (Pub. Res. Code, § 21069.) Public agencies may also submit comments regarding projects within the agency’s expertise, whether or not the project is within the agency’sjurisdiction. (Pub. Res. Code, § 21153, subd. (c); CEQAGuidelines, § 15209; see Consolidated Irr. Dist. v. City ofSelma (2012) 204 Cal.App.4th 187, 204-205.) (CEQA Guidelines, § 15064.7(a).) In 1999, the District published thresholds of significance concerningcertain air pollutants, along with guidelines concerning their use and CEQAanalysis of air quality issues in general. The District’s 1999 thresholds and _ guidelines were “intended to serve as a guide for those who prepare or evaluate air quality impact analyses for projects and plans in the San Francisco Bay Area,” and set forth the levels at which toxic air contaminants (TACs) andcertain types of particulate matter would be deemed environmentally significant. The thresholds and guidelines did not include significance levels for greenhouse gases (GHGs), which affect the earth’s ability to absorb heat into the atmosphere and are now generally recognized as contributing to global climate change. (See Rialto Citizensfor Responsible Growthv. City ofRialto (2012) 208 Cal_App.4th 899, 938 (Rialto Citizens).)° In 2006, the California Legislature passed the Global Warming Solutions Act (Assem.Bill No. 32:* Health & Saf. Code, 38500 et seq.), which calls for the reduction of GHGemissions to 1990 levels by 2020. (See Association ofIrritated Residents v. State Air Resources Bd. (2012) 206 Cal.App.4th 1487, 1490.) In 2008, the Legislature passed The Sustainable Communities and Climate Protection Act (Sen. Bill No. 375°), requiring regional land use andtransportation planning to reduce GHGs,and allowing for CEQA exemptions and streamlining for certain transit priority projects. (See Pub. Res. Code, §§ 21155, 21155.1, 21155.2, 21155.3, 21159.28.) The CEQA Guidelines have since been amendedto include provisions concerning the significance levels of GHGs associated with a project, mitigation ofGHG emissions, and guidance abouttiering or streamlining the analysis of GHG emissions. (CEQA Guidelines, §§ 15064.4, 15126.4(c), 15183.5.) 3 CEQA Guidelines section 15364.5 was added effective March 18, 2010, to provide, “ ‘Greenhouse gas’ or ‘greenhouse gases’ includesbutis notlimited to: carbon dioxide, methane, nitrous oxide, hyrofluorocarbons, perfluorcarbonsand sulfur hexafluoride.” 4 Assembly Bill No. 32 (A.B. 32) was enacted by Stats. 2006, ch. 488, § 1. > Senate Bill No. 375 (S.B. 375) was enacted byStats. 2008, ch. 728, § 14. In 2009, the District drafted new proposed thresholds ofsignificance, citing (1) morestringent state and federal air quality standards, including the addition of PM2.5 (particulate matter with a diameter of 2.5 micronsorless); (2) the discovery that TACs present an even greater health risk than previously thought; and (3) the growing concern with global climate change. A numberof organizations, businesses, and local governments participated in public hearings, meetings, and workshopsheld by the District regarding the proposed revisions. One participant was CBIA,a statewide trade organization representing over 6,500 membersinvolved in residential and light commercial construction, including homebuilders, architects, trade contractors, engineers, designers, and other industry professionals. During the public hearing process, CBIA andother groups, including public agencies, expressed concern the proposed thresholds and guidelines were too stringent and would makeit difficult to complete urban infill projects close to existing sources of air pollution. According to these groups, EIRs would be required for many projects where they otherwise would not have been, and other projects would not be approved. If these infill projects were not feasible, they argued, developers would build in more suburban areas, thus (paradoxically) causing even more pollution due to automobile commutertraffic. On June 2, 2010, the District’s Board of Directors passed Resolution No. 2010-06, adopting new thresholdsof significance for air pollutants, including GHGs, TACs and PM,; (the Thresholds). The District published new “CEQA Air Quality Guidelines” (District Guidelines), which were designedto “help lead agencies navigate through the CEQAprocess” and which describe “step-by-step procedures for a thorough environmental impact analysis of adverse air emissions due to land developmentin the Bay Area.” The District’s 2010 Guidelines include tables setting forth the new Thresholds and explaining they “represent the levels at which a project’s individual emission ofcriteria air pollutants or precursors wouldresult in a cumulatively considerable contribution to the [Bay Area]’s existing air quality conditions.” They also . suggest methods of assessing and mitigating impacts foundto be significant. © The District Thresholds for GHGs were designedto help the Bay Area reachits regional target for reducing GHGlevels by 1.6 million metric tons over 10 years and are intended to be consistent with existing California legislation. For land use developments, a project’s operations generally will not be deemedto have a significant impactif the project complies with a qualified GHG Reduction Strategy consistent with A.B. 32 goals or produces annual emissionsofless than 1,100 metric tons per year of carbon dioxide equivalent (CO,e), or 4.6 metric tons of CO,e/per service population (residents and employees)/per year. The Thresholdsset significance levels for TACs and PM); based on daily emissions from construction and operations. In addition to daily emissions, the Thresholdsset significance levels for TACs and PM,; based on “Risks and Hazards” to receptors (persons who would be living or working on the site of the proposed project or within the area). Under this measurement, significance will be found if the cumulative emissions from all TAC sources within 1,000 feet exposes receptors to an increased cancerrisk greater than 100 in a million, or if the TACs from any single source within 1,000 feet exposes receptors to an increased cancerrisk of greater than 10 in a million. Additionally, an incremental annual average increase ofmore than .3 microgram PM)5 from a single source or .8 microgram from all sources would be deemed cumulatively significant. At the level of general and specific plans, the TAC Thresholdsset overlay “buffer” zones around existing and planned sources of TACs and within 500 feet ofall freeways. On November29, 2010, CBIAfiled a petition for writ ofmandate challenging the Thresholds. (Code Civ. Proc., § 1085.) After the trial court granted the District’s demurrers to causes of action alleging the Thresholds were preempted by state law and amounted to an invalid “underground regulation” (see Bollay v. Office ofAdministrative Law (2011) 193 Cal.App.4th 103, 106-107), the court conducted a hearing on the merits of the following claims: (1) the District should have conducted a CEQAreview ofthe Thresholds before their promulgation because théy constitute a “project” within the meaning of CEQA;(2) the TAC/PM,; Risks and Hazards Thresholds were arbitrary and capricious to the extent they required an evaluation (impermissible under CEQA)ofthe impacts the environment would have on a givenproject; (3) aspects of the Thresholds were not based on substantial evidence; and (4) the Thresholdsfailed the “rational basis” test because sufficient evidence did not exist for their approval.° Thetrial court agreed the District should have conducted an environmental review under CEQAbefore issuing the Thresholds. In its statement of decision, it concluded 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.” The court characterized the Thresholdsas “a discretionary activity directly undertaken by a public agency which may cause a reasonably foreseeable indirect physical change in the environment” and found the evidencein the record sufficient to support CBIA’s claim the Thresholds “might discourageinfill development, encourage suburban developmentor change land usepatterns. .. .” The court rejected the District’s argumentthat, assuming the Thresholds werea project, they were exempt from CEQA review underthe “commonsense exemption,” which applies “Iw]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment... .” (See CEQA Guidelines, § 15061(b)(3); Muzzy Ranch, supra, 41 Cal.4th at pp. 385-386.) CBIA’s remaining arguments were not addressed. Judgment was entered in favor of CBIA and a writ of mandate was issued directing the District to set aside its approval of the Thresholds. CBIA filed a motion seeking attorney fees under Code of Civil Procedure section 1021.5 and was awarded $422,293.75. The District appeals the judgment and the award of fees.’ It argues (1) the promulgation of the Thresholds was not a “project” under CEQA anddid not require ° Although the hearing wasnottranscribed, the record on appeal shows the superior court considered the full administrative record pertaining to the promulgation of the 2010 Thresholds and District Guidelines, as well as briefs submitted by the parties. 7 Separate notices of appeal were filed from the judgment and order awarding attorney fees. We have ordered the appeals consolidated. prior environmental review; (2) assuming the Thresholds were a project, they were exempt from CEQA review under the commonsense exemption; (3) CBIA andits membershad a pecuniary interest in the litigation that precludes a fee award under Code of Civil Procedure section 1021.5; and (4) the fee awarded was excessive becauseit did not take into account the claims on which CBIA did notprevail. CBIA urgesusto uphold the trial court’s judgment and fee award and to additionally resolve in its favor the claimsthetrial court found unnecessary to address: (1) the TAC/PM)5 Thresholds are arbitrary and capricious because they require an analysis of existing pollution on a proposed project; (2) the Thresholds were not supported by substantial evidence; and (3) the District’s approval of the Thresholds was arbitrary and capricious.’ DISCUSSION I. CEQA REVIEW OF THRESHOLDSOF SIGNIFICANCE A. Overview ofRelevant CEQA Provisions “ “The basic purposes of CEQAare to: [{] (1) Inform governmental decision makers and the public aboutthe potential, significant environmental effects of proposed activities. [§] (2) Identify ways that environmental damage can be avoidedor significantly reduced. [§] (3) Prevent significant, avoidable damage to the environment by requiring changesin projects through the use of alternatives or mitigation measures whenthe governmental agency finds the changesto be feasible. [{]] (4) Disclose to the public the reasons why a governmental agency approvedthe project in the mannerthe ® Amicuscuriae briefs have been filed on behalf of the District by the Sierra Club and Center for Biological Diversity, the South Coast Air Quality ManagementDistrict and San Diego County Air Pollution Control District, and the League of California Cities and California State Association of Counties. The Center for Creative Land Recycling, Burbank Housing, Bay Planning Coalition, San Francisco Housing Action Coalition, First Community Housing, San Mateo County Economic Development Association, Nonprofit Housing Association ofNorthern California and Bridge Housing havefiled an amicus curiae brief on behalf of CBIA. Wehave read and considered those briefs in addition to those filed by the parties to the appeal. agency choseif significant environmentaleffects are involved.’ ([CEQA Guidelines], § 15002).” (Tomlinson v. County ofAlameda (2012) 54 Cal.4th 281, 285-286 (Tomlinson).) CEQA is designed to compel government to make decisions with environmental consequences in mind. (Laurel Heights Improvement Assn. v. Regents of University ofCalifornia (1988)47 Cal.3d 376, 393.) “To achieve these goals, CEQA and the implementing regulations provide for a three-step process. In thefirst step, the public agency must determine whether the proposed developmentis a ‘project,’ that is, ‘an activity which may causeeither a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment’ undertaken, supported, or approved by a public agency. ([Pub. Res. Code], § 21065.) [§[] The secondstep of the process is required if the proposedactivity is a ‘project.’ The public agency must then decide whether it is exempt from compliance with CEQA undereither a statutory exemption ([Pub. Res. Code], § 21080) or a categorical exemptionsetforth in the regulations ([Pub. Res. Code], § 21084, subd. (a); [CEQA Guidelines], § 15300). A categorically exempt project is not subject to CEQA, and no further environmental review is required. [Citations.] If the project is not exempt, the agency must determine whether the project may have a significant effect bn the environment. If the agency decides the project will not have such an effect, it must ‘adopt a negative declaration to that effect.’ ([Pub. Res. Code], § 21080, subd. (c); see [CEQA Guidelines], § 15070. ...) Otherwise, the agency must proceedtothethird step, which entails preparation of an [EIR] before approvalofthe project. ([Pub. Res. Code], §§ 21100, subd.(a), 21151, subd. (a).)” (Tomlinson, supra, 54 Cal.4th at p. 286.)° ° A “negative declaration”is a “written statement briefly describing the reasoris that a proposed project will not have a significant effect on the environment and does not require the preparation of an [EIR].” (Pub. Res. Code, § 21064.) A “mitigated negative declaration” is ““a negative declaration prepared for a project whenthe initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals madeby,or agreed to by, the applicant before the proposed Under CEQA,an EIR shall be prepared for any project that “may have a significant effect on the environment.” (Pub. Res. Code, §§ 21151, 21100, subd.(a), 21080, subd. (d), 21082.2, subd. (d).) “Because of this ‘may havea significant effect’ language and the EIR’s placeat the heart of the CEQA scheme,an EIR is required ‘ “wheneverit can befairly argued on the basis of substantial evidence that the project may havesignificant environmental impact,” ’ regardless of whether other substantial evidence supports the opposite conclusion.” (Communitiesfor a Better Environmentv. California Resources Agency (2002) 103 Cal.App.4th 98, 110 (Communities).) The determination of environmental significance “calls for a careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data.” (CEQA Guidelines, § 15064(b).) Though “an ironclad definition of significant effect is not always possible because the significance of an activity may vary with the setting” (ibid.), section 15064.7 of the CEQA Guidelines encourages public agencies to develop and publish “thresholds of significance” for use in determining the significance of environmental effects. Such thresholds promote “consistency, efficiency, and predictability in deciding whether to prepare an EIR.” (Communities, supra, 103 Cal.App.4th at p. 111.) Although CEQAis designed to promote the adoption ofproject alternatives or mitigation measures whenfeasible, it does not mandate the disapproval of a project with significant environmental effects and does not require the agency to “select the alternative course mostprotective of the environmental status quo.” (San Franciscans Upholding the Downtown Plan v. City & County ofSan Francisco (2002) 102 Cal.App.4th 656, 695.) “CEQA’s only purposeis to guarantee that the public and the negative declaration andinitial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidencein light of the whole record before the public agency that the project, as revised, may have a significant effect -on the environment.” (Pub. Res. Code, § 21064.5.) agencies of governmentwill be informed of environmental impacts,that they will consider those impacts before acting, and that insofar as practically possible, feasible alternatives and mitigation measures will be adopted to lessen or avoid adverse environmental impacts.” (Jbid.) When economic,social, or other conditions make such alternatives or mitigation measures infeasible, a project may be approvedin spite of significant environmental damageifthe agency adopts a statement of overriding considerations and finds the benefits of the project outweigh the potential environmental damage. (Pub. Res. Code, §§ 21002, 21002.1, subd. (c); CEQA Guidelines, § 15093.) B. The District’s Promulgation ofthe Thresholds Did Not Require Prior CEQA Review 1. Introduction and Standard ofReview The District argues the Thresholds were not a project subject to CEQAreview and the superior court erred in so concluding. This is a question of law to be decided de novo based on undisputed evidence in the record on appeal. (Muzzy Ranch, supra, 41 Cal.4th at p. 382; Plastic Pipe & Fittings Assn. v. California Building Standards Com. (2004) 124 Cal.App.4th 1390, 1412-1413 (Plastic Pipe); Black Property Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, 984.) We review the District’s decision, not the trial court’s, and accord no deference to the conclusions reached by the District or the trial court on the issue. (Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 470 (Kaufman), Plastic Pipe, at p. 1407.) A “project” under CEQA means“an activity which may causeeithera direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, andthat is any of the following: [{] (a) An activity undertaken by any public agency. ... [{] . . - [J] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (Pub.Res. Code, § 21065; see also CEQA Guidelines, § 15378.) The adoptionofa rule, regulation, or ordinancefitting this definition may bea project subject 10 to CEQA. (California Unionsfor Reliable Energy v. Mojave Desert Air Quality ManagementDist. (2009) 178 Cal.App.4th 1225, 1240 (Mojave Desert).) CBIAasserts the District’s Thresholds may cause a reasonably foreseeable indirect change in the physical environment because the significance levels for TACs and PM,; are more stringent than under previous thresholds and will require a more thorough environmental analysis (e.g., a full EIR when a mitigated negative declaration might have otherwise sufficed). According to CBIA, the Thresholds will discourage developers from building desirable urban infill projects close to public transportation by making the CEQAreview process more burdensomeand expensive, and will result in more housing being built in the suburbs, causing more commutertraffic and moretraffic-related emissions. CBIA also argues the GHG Thresholdsare, by the District’s own admission, designed to promote infill and transit-oriented development becausethe levels “tend to reduce GHGandotherair pollutants emissions overall, rather than discourage large developments for being accompanied by a large mass of GHG.” Thus, argues CBIA,it is “reasonably foreseeable” the Thresholds will cause an “indirect change in the physical environment.” (Pub. Res. Code, § 21065.) For two reasons, we concludethat the Thresholds were not subject to CEQA review. First, the CEQA Guidelines establish the required procedure for enacting generally applicable thresholds of significance such as those at issue in this case, and a prior CEQAreview ofthe thresholdsis not a part of this procedure. Second, the environmental change posited by CBIA asthe basis for requiring CEQA review is speculative and not reasonably foreseeable. 2. CEQA Guidelines section 15064.7 Does Not Providefor Prior CEQA Review The District promulgated the 2010 Thresholds under section 15064.7 of the CEQA Guidelines, a regulation that has been judicially upheld as consistent with the CEQA statutes and reasonably necessary to effectuate their purpose. (Communities, supra, 103 11 Cal.App.4th at pp. 108-109, 111.) CEQA Guidelines section 15064.7 provides, “(a) Each public agency is encouraged to develop and publish thresholdsof significance that the agency usesin the determinationofthe significance of environmentaleffects. A threshold of significanceis an identifiable quantitative, qualitative or performancelevel of a particular environmentaleffect, non-compliance with which meansthe effect will normally be determinedto be significant by the agency and compliance with which meansthe effect will normally be determined to be less than significant. [{] (b) Thresholds of significance to be adopted for generaluseas part of the lead agency’s environmental review process must be adopted by ordinance,resolution,rule, or regulation, and developed through a public review process andbe supported by substantial evidence. [{] (c) When adopting thresholds of significance, a lead agency may consider thresholds of significance previously adopted or recommended by other public agencies or recommendedby experts, provided the decision ofthe lead agency to adopt such thresholds is supported by substantial evidence.” Section 15064.7(b) of the CEQA Guidelines provides that thresholds of significance must be formally adopted through a public review process and supported by substantial evidenceif, as in this case, they are to be placed in general use. It does not additionally require an EIR or other CEQAreview as a prerequisite for promulgating a threshold. The reason for this seems clear: the preparation of an EIR or other CEQA document would largely duplicate the public review process and substantial evidence standard set forth in section 15064.7. The case beforeusis illustrative. The District drafted proposed revised thresholds of significance in 2009,utilizing the scientific and administrative expertise ofits staff. It then conducted public hearings, outreach, and workshops for more than a year. The administrative record, which contains staff reports, scientific reports and protocols, analyses of the effect the proposed thresholds would have on various projects,letters from interested parties, responses by the District, transcripts of hearings, and records 12 from various workshops,is in excess of 7000 pages. CBIA and other groups with similar concerns about the proposed thresholds and their effects participated in that process. The District took the comments of such groups into consideration before adopting the 2010 Thresholds. | In addition to this process, CBIA would have hadthe District undertake a CEQA review of the Thresholdsprior to their promulgation, which, if no exemption applied, would result in either a negative declaration, a mitigated negative declaration, or the preparation of an EIR. (Tomlinson, supra, 54 Cal.4th at p. 286.) The purpose of an EIR, the most rigorous of these three levels of review (and the level of review we assume here for purposesofdiscussion), “is to provide public agencies and the public in general with detailed information about the effect which a proposedprojectis likely to have on the environment;to list the ways in whichthe significant effects of such a project might be minimized; andto indicate alternatives to such a project.” (Pub. Res. Code, § 21061.) Accordingly, an EIR must include a detailed statement of “[a]ll significant effects on the environmentofthe proposed project,” as well as a separate section setting forth significant effects that cannot be avoided, significant effects that would be irreversible, mitigation measures, alternatives to the project, and the growth-inducing impacts of the project. (Pub. Res. Code, § 21100, subd. (b).) Though an EIR on the impact of the proposed Thresholds would haveresulted in a single report setting forth the information in the preceding paragraph,it is difficult to see how that information would have substantively differed from what the District considered during the public review process it undertook before promulgating the Thresholds. Any party objecting to the substance of the Thresholds as unsupported by substantial evidence could file a writ ofmandate challenging them on that basis, as CBIA has done. (See Part II.B., below.) Requiring an EIR in addition to the process already in place would result in a duplication of effort, at taxpayer expense andtolittle if any purpose. (See Save the Plastic Bag Coalition v. City ofManhattan Beach (2011) 52 Cal.4th 155, 175 13 (Plastic Bag Coalition) [“Commonsense. . . is an important considerationat all levels of CEQAreview”].) While the definition of a “project” under CEQAis broad (Friends ofthe Sierra Railroad v. Tuolomne Park & Recreation Dist. (2007) 147 Cal.App.4th 643, 653 (Friends ofthe Sierra)), it should not be stretched so far as to require CEQA review in addition to the public hearings and substantial evidence standard already required for the promulgation of thresholds of significance under CEQA Guidelines section 15064.7. An interpretation of a statute or regulation, even one that might flow from its literal language, should be rejected whenit is contrary to the apparent intent of the statute or regulation or would result in absurd consequences. (See Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27; In re J.W. (2002) 29 Cal.4th 200, 210.) 3. The Thresholds Are Not a “Project” Because the Environmental Effect Posited by CBIA is Too Speculative to be “Reasonably Foreseeable”’ Assuming CEQA Guidelines section 15064.7 did not define the entirety of the process to be used when enacting thresholds of significance, we wouldstill-reject CBIA’s claims that the District’s Thresholds were a “project” requiring prior CEQA review. In reaching this conclusion, we bear in mindthat the “whole of an action” must be considered in determining whethera project exists. (CEQA Guidelines, § 15378(a); Associationfor a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629,638.) Public Resources Code section 21065 establishes a two-prongtest for defining what constitutes a project. (San Lorenzo Valley Community Advocatesfor Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1379.) As relevant here, the first prong is satisfied when the challenged action is an “activity directly undertaken by any public agency”or “an activity that involves the issuanceto a person ofa lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (Pub. Res. Code, § 21065, subds. (a) & (c); CEQA Guidelines, § 15378(a)(1), (3).) Thesecond prongis satisfied when the project “may 14 cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Res. Code, § 21065; CEQA Guidelines, § 15378(a).) Asto the first prong, the promulgation of the Thresholds by resolution is akin to an ordinance and can be viewedas an activity undertaken directly by the District. (See Plastic Bag Coalition, supra, 52 Cal.4th at p. 171, fn. 7.) The Thresholds can also be viewed as a componentof“[a]n activity that involves the issuance to a person ofa... permit, license, certificate, or other entitlement for use by one or more public agencies” in the sense they maybe utilized for CEQA review ofprojects built by private individuals for which permits or other approvals are required. (Pub. Res. Code, § 21065.) In any case, “CEQAgenerally applies ‘to discretionary projects proposed to be carried out or approved by public agencies. .. .”” (Concerned McCloud Citizens v. McCloud Community Services Dist. (2007) 147 Cal.App.4th 181, 191, emphasis added.) Takingthefirst view, that the promulgation of the Thresholds wasan activity directly undertaken by the District, that activity did not effect any direct change in the environment and can amountto a “project”only if the Thresholds may cause “a reasonably foreseeable indirect physical change in the environment” under the second prong of the analysis. (Pub. Res. Code, § 21065; CEQA Guidelines, § 15378(a).) An “indirect physical change in the environment”is “a physical change in the environment which is not immediately related to the project, but which is caused indirectly by the project.” (CEQA Guidelines, § 15064(d)(2).) “A change whichis speculative or unlikely to occur is not reasonably foreseeable.” (CEQA Guidelines, § 15064(d)(3).)"° 10 This elucidation of the phrase “a reasonably foreseeable indirect physical change in the environment”is not contained in the CEQA Guideline defining a “project” (CEQA Guidelines, § 15378), but in a Guideline that relates to determining whether a project may havea significant effect and thus requires an EIR. (CEQA Guidelines, § 15064; see Tomlinson, supra, 54 Cal.4th at p. 286.) “{I]dentical language appearing in separate statutory provisions should receive the same interpretation when thestatutes cover the same or analogous subject matter.” (People v. Cornett (2012) 53 Cal.4th 1261, 1269, fn. 6; see also California Society ofAnesthesiologists v. Brown (2012) 204 Cal.App.4th 390, 403.) 15 CBIA’s claim that the Thresholds will have a reasonably foreseeable effect on the environmentis predicated on the assumption the Thresholds will make it more difficult for developers to build residential projects in urban areas, thus causing more housing to be built in suburban and currently rural areas. For the Thresholdsto result in the displaced development predicted by CBIA,the following would have to occur: (1) a lead agency charged with approval of a project would have to apply the Thresholds to that project; (2) the agency would haveto find the project’s impacts exceeded the Thresholds; (3) the impacts would have to be deemedsignificant for purposes oftriggering an EIR; (4) absent the Thresholds, a finding of significance would not have been made;(5) the agency would have to disapprovethe project rather than adopting mitigation measures or filing a declaration of overriding concerns, or the developer would have to abandon the project in response to the agency’s actions; (6) the developer would have to move the project elsewhere; (7) that “elsewhere” would haveto be in a location outside the urban center where the project had been previously sited; (8) the newly-sited project would have to be approved following CEQA review by the lead agency in the new jurisdiction; (9) people who would otherwise havelived in the urban area would have to moveto the newly sited project but continue to commuteto the urban area; and (10) this sequence of events would have to be repeated with sufficient frequency for the increase in traffic attributable to this displaced development to change the physical environment. While such a scenario is possible, it is too attenuated and speculative to be reasonably foreseeable, and it does not require CEQAreview prior to the promulgation of the Thresholds themselves. Wenextconsider the Thresholds as a component of CEQAreview necessary for the approval of future projects. To trigger CEQAreview, an agency’s action must “be ‘a necessary step in a chain of events which would culminate in physical impact on the environment.’ ” (Kaufman, supra, 9 Cal.App.4th at p. 473, italics added [establishment of community facilities district to fund acquisition of school sites was not a “project”].) A decision by a public agency that does not commit the agencyto a particular course of action does not amountto the approvalof a project. (/bid.; see also Citizens to Enforce 16 CEQAv. City ofRohnert Park (2005) 131 Cal.App.4th 1594, 1600-1601.) “CEQA review is premature if the agency action in question occurstoo early in the planning process to allow meaningfulanalysis of potential impacts. Although environmental review musttake place as early asis feasible, it must also be ‘late enough to provide meaningful information for environmental assessment.’ ” (Friends ofthe Sierra, supra, 147 Cal.App.4th at pp. 654-655.) Teasing out the extent to which undefined future projects might be built or abandoned asa result of the Thresholds, and the extent to which land development projects might be relocated to a more suburban location, would require a prescience we cannot reasonably demandofthe District. 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 alleges will be displaced. Moreover, the Thresholds are not conclusive even when they are used by another agency; they simply set the levels at which an environmental effect will normally be deemed significantor insignificant. (CEQA Guidelines, § 15064.7(a); see Mejia v. City ofLos Angeles (2005) 130 Cal.App.4th 322, 342; Communities, supra, 103 Cal.App.4th at pp. 111-113 [invalidating former version of CEQA Guidelines section 15064, subdivision (h), which effectively directed agencyto find effect was not significant when project complies with applicable regulatory standard]; Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1108-1109.) Thus, even the disapproval or abandonmentofa project to which the Thresholds had been applied could noteasily be ascertained to be the product of the Thresholdsperse. It is true that, during the public review process, several local governments and agencies with responsibility for land use planning expressed concern that the Thresholds would deter urban infill development by requiring more extensive environmental review of projects next to freeways or other transportation corridors. At oral argument, counsel for CBIA. characterized these concernsas “unrebutted evidence”the Thresholds would result in displaced development, and suggested theDistrict, which lacked any expertise in land use planning, impermissibly disregarded this evidence. Werespectfully disagree 17 with this conclusion. Even ifthe application of the Thresholds would makecertain infill projects more costly or difficult to complete, it does not follow that the urban sprawl _ projected by CBIAis reasonably foreseeable. Representatives of the agencies who were concerned about the Thresholds might have had the expertise necessary to say that certain infill projects would be morecostly or even infeasible, but no actual evidence was presented to show that developers of housing in densely populatedcities such as San Francisco or Oakland would movetheir projects to the suburban fringes or rural areas. The Supreme Court’s decision in Muzzy Ranch, supra, 41 Cal.4th 372, does not compelthe conclusion that the Thresholds are a project. In that case, aland use commission, established to ensure the orderly expansion of airports and the promulgation of appropriate land use measures, adopted by resolution a plan that, among otherthings, restricted residential development around Travis Air Force Base to levels then currently permitted underthe area’s general plan and zoning regulations. (Jd. at pp. 378-379.) The court concludedthe resolution amounted to a project under CEQAbecausefreezing housing densities in one area of a jurisdiction might have the effect of displacing developmentto other areas, with attendant environmental consequences. (/d. at pp. 382- 383.) It then held the “commonsense exemption” to CEQA applied because the resolution simply incorporated the existing general plan and zoning laws, and there was no evidenceofany effort to change those provisions. (Id. at pp. 388-389.) The Muzzy Ranch decision supports the proposition that whenit is reasonably foreseeable activity by a public agency will displace land developmentto another location, the displaced development maybe considered an indirect physical changein the environment. (Muzzy Ranch, supra, 41 Cal.4th at p. 382.) It was reasonably foreseeable the resolution in Muzzy Ranch would displace development to another location within the jurisdiction, becauseit specifically capped the permissible housing density in the area at issue. (/d. at p. 383.) In the instant case, the District’s Thresholds did not purport to limit housing density in any way, and,as already explained,the likelihood and extent of any displaced development was speculative at best. - 18 Wealsofind it significant that the resolution in Muzzy Ranch wasthe product of a study concerning the compatibility of land use in the area aroundan air force base with the operations of that base. Such a determination would not necessarily focus on broader environmental concerns, making CEQA review necessary to ensure such concerns were considered by the agency. Here, by contrast, the Thresholds were bytheir very nature designed to measure environmental impacts as part of the CEQAprocess. Also distinguishable is the decision in Plastic Pipe, supra, 124 Cal.App.4th 1390. In that case, the state Building Standards Commission ordered CEQAreview of a proposed uniform codeprovision allowing builders to use cross-linked polyethylene (PEX) pipes. (/d. at pp. 1398-1401.) A writ proceeding was brought by a manufacturer ofPEX pipe, in which it was alleged no CEQA review was required. (/d. at p. 1401.) The appellate court disagreed, because there was evidence PEX could have a deleterious effect on the environment. (/d. at p. 1407.) It rejected a claim by the manufacturer that the causal link between the regulation and environmental change was too remote because PEX was only one of many materials available, and there was no certainty it would be used in any particular work of construction. (/d. at p. 1413.) The court concluded the approval ofPEX madeits use and the damagethat mightresult from its use reasonably foreseeable. (/d. at p. 1413.) This seems unremarkable because the approval of a particular building material will almost certainly result in its use on some project; the connection between the Thresholds and displaced residential developmentis far more tenuous. Similarly, in Mojave Desert, supra, 178 Cal.App.4th 1225, the court considered the enactmentofa localair district rule allowing stationary sources ofpollution to offset their emissions of particulate matter by paving dirt roads (which would in turn reduce the particulate matter generated bytraffic on dirt roads). (dd. at pp. 1230-1236.) The plaintiffs challenged the new rule allowing the offset, arguing that particulate matter from combustion andstationary sources is not equivalent to, and is in fact more damaging than, particulate matter causedbytraffic on dirt roads. (Jd. at pp. 1234-1237.) The air district acknowledgedthat its adoption of the offset rule was a “project” under CEQA, 19 but argued unsuccessfully it was exemptas an “action[] taken.. . to assure the maintenance,restoration, enhancement, or protection of the environment... .” (Jd. at pp. 1231, 1244.) Theair district’s concession in Mojave Desert that the offset rule was a “project” was not surprising. By allowing polluters to utilize paving offsets, the rule would clearly change the physical environment: more combustion-related particulate matter would be emitted; the act of paving roads would produce additional emissions; wildlife and plants would be affected by the paving; and new land development would be encouraged due to the improved accessto certain areas. (Mojave Desert, supra, 178 Cal.App.4th at pp. 1235-1236.) The District’s Thresholds do not authorize the same sort of specific and immediate change;in fact, the indirect change on which CBIApurports to rely would come from the abandonmentor disapprovalof a particular project, an event which,in the moment, would effect no change on the physical environmentatall. Forall of these reasons, we conclude no CEQAreview was required before the District promulgated the Thresholds. Because we agree with the District the Thresholds do not qualify as a project, we need not consider the District’s alternative claim that the commonsense exemption to CEQAapplies. Ul. VALIDITY OF THRESHOLDS In its petition for writ of mandate, CBIA raised several challenges to the substance of the Thresholdsthat were not ruled uponbythetrial court. It urges us to resolve these issues, notwithstandingits failure to pursue a cross-appeal, arguing that these claims supply an independent groundfor affirming the trial court’s judgment. (Little v. Los Angeles County Assessment Appeals Bds. (2007) 155 Cal.App.4th 915, 925,fn. 6.) Our reversalof the trial court’s judgment vacating the Thresholds and ordering CEQAreview would require the court to address CBIA’s other challenges to the Thresholds on remand. But, because an appellate court’s role in a CEQA caseis essentially the sameas thetrial court’s (Rialto Citizens, supra, 208 Cal.App.4th at p. 923), it would serve no useful purpose to remand the case. (Knight v. McMahon 20 (1994) 26 Cal.App.4th 747, 754, disapproved of on other grounds in American Federation ofLabor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1023; see also Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1195.) We consider the other issues raised by CBIA ontheir merits. A. The TAC/PM),; Risk andHazard Receptor Thresholds The Risks and Hazards section ofthe Thresholds include significance levels for TACs and PM)5 caused by a “new source”(i.e., a project that emits those pollutants), as well as for “new receptors”(i.e., residents and workers whowill be broughtinto the area as a result of a proposed project). In other words, a CEQAanalysis that applied the Thresholds would consider both the effect of the pollution the project will create and the effect of existing pollution on the project and its future occupants. CBIA claims the TAC and PM,; thresholds for new receptors (hereafter, “receptor thresholds”) are invalid, because CEQAdoesnot require analysis of the impacts that existing hazardous conditions will have on a new project’s occupants. It argues “[t]he purpose of CEQAis to protect the environment from proposedprojects, not to protect proposed projects from the existing environment.” (Baird v. County ofContra Costa (1995) 32 Cal.App.4th 1464, 1468 (Baird).) CBIArelies primarily on a quartet of cases concluding an EIR is not required for a proposed project based solely on the effect of the environment on people whowill live and workat the site of the project. In thefirst of these cases, Baird, supra, 32 Cal.App.4th 1464, a drug and alcohol treatment facility for adult patients submitted plans to construct a new facility to treat male adolescents. Neighbors argued an EIR was required to analyze the project due to contamination of the building site by oil and other harmful substances. (Jd. at pp. 1466- 1467.) This court concluded the effect of preexisting pollution on the proposedfacility and residents was “beyond the scope of CEQAandits requirement of an EIR,” which was necessary only “if substantial evidence supports a fair argumentthat the project may have asignificant effect on the environment.” (Jd. at p. 1468.) The proposedfacility had 21 no potential to cause an adverse changein the environment, andotherstatutes addressed the problem of building a new facility near existing hazardous waste. (/d. at p. 1469). “The courts are statutorily prohibited from interpreting CEQA ‘in a manner which imposes procedural or substantive requirements beyond those explicitly stated in’ CEQA or its implementing guidelines.” ([bid.) In City ofLong Beach v. Los Angeles Unified SchoolDist. (2009) 176 Cal.App.4th 889 (Long Beach), the court considered a challenge to an EIR concerning the construction of a new high school and concluded it was not defective for failing to address, in its cumulative impact section, the effect of traffic corridors and freeways on the health of future students and teachers. (Jd. at p. 905.) Although the schooldistrict was required bystatute to consider the health effects of freeways andtraffic corridors within a specified radius of the project, the freeways and traffic corridors in Long Beach were outside this range. (Id. at pp. 903-904.) “While [Public Resources Code] section 21151.8 requires the lead agency acquiring or constructing a school to consider whetherthe site itself contains environmental hazards or materials, the overall purpose of the cumulative impacts section of an EIR is to consider the ‘change in the environment’ that results from the incremental impact of the project when addedto other closely related projects.” (id. at p. 905.) In South Orange County Wastewater Authority v. City ofDana Point (2011) 196 Cal.App.4th 1604 (SOCWA), the operator of a sewage treatmentplantfiled a petition for writ of mandate seeking the preparation of an EIR for a proposedresidential development that was to be situated nearthe plant, arguing odors, noise, and wastewater runoffwould harm future residents. (/d. at pp. 1609-1610.) This apparent concern forthe plant’s future neighbors wasthe guise for a less altruistic agenda-to get the developersofthe project to pay to coverthe plant’s aeration tanks to eliminate the odors and stave off nuisance lawsuits. (/d. at p. 1610.) The court concluded no EIR was required based on the environment’s effect on the project, because that was a concern thatdid not fall 22 within the scope of CEQA.(id. at pp. 1612-1616.) “The Legislature did not enact CEQAto protect people from the environment. Other statutes, ordinances, and regulations fulfill that function.” (/d. at pp. 1617-1618.) The court in SOCWA acknowledged that Appendix G to the CEQA Guidelines contains a sample checklist form suggested for use in preparing an initial CEQA study and contains a few questions dealing with the exposure of people to environmental hazards. (E.g., “Would the project . . . [§] . . .[§] . . . [elxpose people or structures to a significant risk of loss, injury or death involving wildlife fires. . .?”) It further acknowledgedsection 15126.2 of the CEQA Guidelines, which deals with the content of EIRs andstates in part, “ ‘The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected. For example, an EIR on a subdivisionastride an active fault line shouldidentify as a significant effect the seismic hazard to future occupants of the subdivision.. . Similarly, the EIR should evaluate any potentially significant impacts oflocating developmentin other areas susceptible to hazardous conditions(e.g., floodplains, coastlines, wildfire risk areas)... .’” (SOCWA, supra, 196 Cal.App.4th at p. 1616.) The court in SOCWA concludedthat to the extent the examples given in the CEQA Guidelines were not examples of environmental effects wrought by development, they were inconsistent with the statutory scheme and werenot controlling. (/d. at p. 1616.) The court also suggested that CEQA Guidelines dealing with the content of an EIR after an EIR had been determined necessary address a different point than whether an EIR should be required in the first place. (/d. at p. 1617.) Finally, in Ballona Wetlands Land Trust v. City ofLos Angeles (2011) 201 Cal.App.4th 455 (Ballona), the court concluded a revised EIR on a proposed mixed-use developmentproject did not have to discuss the impact of a possible sea levelrise on the project. “[T]he purpose of an EIRis to identify the significant effects of a project on the environment, not the significant effectsof the environment on the project.” (dd.at 23 p. 473.) Like the court in SOCWA,the court in Ballona found aspects ofCEQA Guidelines section 15126.2 and Appendix G to be inconsistent with the CEQA statutory scheme. (Ballona, at pp. 473-474.) CBIA arguesthe receptor thresholds are invalid under Baird, Long Beach, SOCWAand Ballona because an EIR may be deemed necessary based solely on the effect of the existing environment on a proposed project and its occupants. The District questions the reasoning of the case law on which CBIArelies and arguesits receptor thresholds are valid because “[i]t makes no sense to require analysis ofthe health risks to residents if a freewayis built next to them, but not to require analysis of the exact same risks ifnew homesare built next to an existing freeway.” The District claims that disregarding the effect ofthe environment on people who will occupy a new development after it is completed is contrary to one of CEQA’s stated purposes: providing “a decent homeandsuitable living environment for every Californian.” (Pub. Res. Code, § 21001, subd.(d).) In support ofits position, the District notes certain CEQAstatutes require consideration of the preexisting environment. As examples, the District cites Public Resources Code section 21096, subdivision (b), which provides a negative declaration may not be adopted for a project adjacent to an airport unless the lead agency considers “whether the project will result in a safety hazard or noise problem for persons using the airport or for persons residing or working in the project area.” The District also cites Public Resources Code section 21151.8 (a provision that was noted, but not controlling, in Long Beach, supra, 176 Cal.App.4th at pages 903 to 904), which provides an EIR relating to the acquisition or construction of a schoolsite cannotbecertified unless the lead agency follows procedures for ascertaining whether the site contains hazardous substancesor is within a set radius of a freewayortraffic corridor. Wealso note that Public Resources Code section 21083, which authorizes the promulgation ofthe CEQA ~ Guidelines, defines a “significant effect on the environment”to includesituations in 24 which “[t]he environmental effects of a project will cause substantial adverse effects on humanbeings,either directly or indirectly.” (Pub. Res. Code, § 21083, subd. (c).) 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. Ultimately, we need not decide whether Baird, Long Beach, SOCWA, and Ballona were correctly decided or whether, as a general rule, an EIR may be required solely because the existing environment may adversely affect future occupants of a project. CBIA’s challengeto the receptor thresholds as unauthorized by CEQAare analogousto a claim a statute or regulation is unconstitutional on its face. In determining whether the receptor thresholds may stand, we therefore consider whether they present a “total and fatal conflict” with the relevant CEQAprovisions or will be unauthorized “in the vast majority of [their] applications.” (See Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069, 1084; Rental Housing Owners Assn. ofSouthern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 90 & fn. 5.) | The receptor thresholds are not facially invalid because the case law cited by CBIA doesnotbar their application in all or even most cases. For example, even under CBIA’s analysis, the receptor thresholds may be used to evaluate whether a proposed project woulditself increase the TACs or PM); to a cumulatively considerable level, i.e., whether the amountofpollution the project would add to the environment would be significant. The receptor thresholds could also be used to determine the health risks to students and personnel whena schoolproject is located within a specified radius of a traffic corridor or freeway, or other source ofhazardous emissions (including TACs), as required by Public Resources Code section 21151.8, subdivisions (a)(1)(D), (a)(2)(A) and (a)(3)(B).) And, as counsel for the District suggested at oral argument, the receptor thresholds could be relevant in a number ofways when determining whetherthe project at issue is consistent with the area’s general or specific plan. (CEQA Guidelines, § 15125(d).) 25 Becausethe receptor thresholds are not invalid on their face, it would be inappropriate to set them aside. The continuing vitality of Bairdet al. is better reserved for a case in which the receptor thresholds have actually been applied to a project. B. The TAC Single-Source and Cumulative Thresholds Are Supported by Substantial Evidence The Thresholds define TAC levels as significant if (1) the cumulative emissions of all TAC sources within 1,000 feet increases the cancerrisk by more than 100 in a million, or (2) any single source ofTAC emissions within 1,000 feet increases the cancerrisk by more than 10 in a million. CBIA complains these levels are arbitrary and unsupported by substantial evidence. Therisk levels CBIA challenges are based on a District regulation used to determine whether a single new source of TACswill cause an increased cancerrisk of greater than 10 in a million, a level that comports with that used by the United States Environmental Protection Agency, other air districts, and the California Air Pollution Control Officers Association. CBIA suggests this rule is arbitrary in light of the Threshold for cumulative TAC sources, which reach a level of significance only if the levels from ail sources increase the risk by 100 in a million. CBIA hadthe burden of establishing there was no substantial evidence to support the District’s determination the receptor levels were appropriate. (See Desmondv. County ofContra Costa (1993) 21 Cal.App.4th 330, 335-336.) For CEQA purposes, “substantial evidence” means “enough relevant information and reasonable inferences from this information that a fair argument can be madeto support a conclusion, even though other conclusions mightalso be reached.. . . [{] [and] shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported byfacts.” (CEQA Guidelines, § 15384.) A reviewing court “may not reconsider or reevaluate the evidencepresented to the administrative agency. [Citation.] All conflicts in the evidence and any reasonable doubts must be resolved in favor of the agency’s findings and 26 decision.’ ” (Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 596.) During the public review of the Thresholds, the District offered the following explanation for the two different levels of cancer risk: “For new sources, the mullti- source, cumulative threshold is designed to ensure that individual small sources don’t cumulatively create a significant risk to receptors in the area. It can be argued that the single-source, individual threshold does this already. But, especially because many existing sources are not subject to a single-source threshold, District staff contends that the single-source threshold is not sufficient. That is, in an environment with many existing sources, even a small addition to the risk of a receptor can becomesignificant. [{] District staff is recommendingthat a multi-source threshold also apply to receptors in order to ensure that receptors are not moving into an area with many,collectively significant, sources. The reasoning forthis threshold for receptors is similar to that for sources: to ensure that multiple small sources [do] not create a cumulatively significant impact. [{] Recommending a cumulative threshold for a receptor that 1s higher that the corresponding individual threshold does raise the question, ‘why should a receptor care if there is one big source or multiple small sources?’ The answer, at least in part, is that different sources can emit different pollutants, cause harm to different organs, cause different types [of] health effects, and lead to different types of cancer. Thus, a single source posing a cancerrisk of 90 in a million could be different (medically speaking) than multiple sources that add to the samerisk.” Additionally, in a report on the proposed Thresholds issued May 3, 2010,the District offered the following explanation as justification for the Thresholds challenged by CBIA: “Emissions from a new source or emissions affecting a new receptor would be considered significant where ground-level concentrations of carcinogenic TACs from any source result in an increased cancerrisk greater than 10.0 in one million, assuming a 70 year lifetime exposure.. . . [{]] The 10.0 in one million cancerrisk thresholdfora 27 single source is supported by EPA’s guidance for conducting air toxics analyses and making risk managementdecisionsat the facility and community-scale level. It is also the level set by the Project Risk Requirementin the Air District’s Regulation 2, Rule 5 new and modified stationary sources of TAC, whichstates that the Air Pollution Control Officer shall deny an Authority to Construct or Permit to Operate for any new or modified source of TACsifthe project risk exceeds a cancerrisk of 10.0 in one million. [{] This threshold for an individual new source is designed to ensure that the source does not contribute a cumulatively significant impact. . . . [§]] The single-source threshold for receptors is provided to address the possibility that within the area defined by the 1,000 foot radius there can be variationsin risk levels that may be significant, below the corresponding cumulative threshold. Single-source thresholdsassist in the identification of significant risks, hazards, or concentrations in a subarea, within the 1,000 foot radius.” CBIA hasnotcarried its burden of establishing the levels for cumulative and single-source TAC emissions werearbitrary or unsupported by substantial evidence. C. The District’s Approvalofthe Thresholds Was Not Arbitrary and Capricious CBIA argues in a conclusory fashion there is no “rational connection between any evidence and the choices made in developing the Thresholds” and suggests the District did not follow the correct administrative procedure for their promulgation. Becausethis contention is not supported by appropriate argument and citations, we considerit no further. (Daily v. Sears, Roebuck and Co. (2013) 214 Cal.App.4th 974, 994, fn. 7.) In any event, the claim is untenable given the extensive information considered by the District in formulating the Thresholds and the lengthy public review process preceding their adoption. Il. ATTORNEY FEES Thetrial court awarded CBIA attorney fees under Code of Civil Procedure section 1021.5, under whichfees are available “to a successful party against one or more opposing parties in any action which has-resulted in the enforcement of an importantright 28 affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden ofprivate enforcement, or of enforcementby one pubic entity against another public entity, are such as to make the award appropriate, and (c) such fees shouldnot in the interest ofjustice be paid out of the recovery,if any.” Because wehavereversed the judgment in CBIA’s favor and have declinedto grant the relief it sought on the issues not resolvedbythetrial court, CBIA is no longer a successful party in thelitigation and the order awarding fees must be reversed. (Carson Citizensfor Reform v. Kawagoe (2009) 178 Cal.App.4th 357, 371; see also Ebbets Pass Forest Watch v. DepartmentofForestry & Fire Protection (2010) 187 Cal.App.4th 376, 381-388 [discussing meaning of “successful party” under Code Civ.Proc., § 1021.5].) 29 DISPOSITION The judgmentis reversed. The superior court shall vacate its writ of mandate and its order awarding CBIA attorney fees under Code of Civil Procedure section 1021.5. The District (appellant) is entitled to recover its ordinary costs on appeal." NEEDHAM,J. Weconcur. JONES,P. J. BRUINIERS,J. '' The request for judicial notice filed by amicus curiae South Coast Air Quality ManagementDistrict and San Diego County Air Pollution Control District on March4, 2013 is denied, as is the request for judicial notice filed by respondent CBIA on March 22, 2013. Both requests seek judicial notice of materials outside the administrative record considered by the District and the trial court. (See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573.) Additionally, those materials pertain to the actions of other agencies and are not relevantto the resolution of this case. tt 30 Trial court: Alameda County Superior Court Trial judge: Hon. Frank Roesch Cox, Castle & Nicholson, Michael H. Zischke, Andrew B. Sabey and Christian H. Cebrian for Plaintiff and Respondent. Brian C. Bunger, Randi L. Wallach; Shute, Mihaly & Weinberger, Ellison Folk and Erin B. Chalmers for Defendant and Appellant. Perkins Coie, Stephen L. Kostka and Geoffrey L. Robinson for Center for Creative Land Recycling, Burbank Housing, Bay Planning Coalition, San Francisco Housing Action Coalition, First Community Housing, San Mateo County Economic Development Association, Nonprofit Housing Association ofNorthern California and Bridge Housing as Amici Curiae on behalf of Plaintiff and Respondent. Matthew Vespafor Sierra Club and Center for Biological Diversity as Amicus Curiae on behalf ofDefendant and Appellant. Burke, Williams & Sorensen, Thomas B. Brown and Matthew D.Visick for League of California Cities and California State Association of Counties as Amici Curiae on behalf ofDefendant and Appellant. Kurt R. Wiese, General Barbara B. Baird, District Counsel, Veera Tyagi and Ruby Fernandez, Sr. Deputies District Counsel for the South Coast Air Quality Management District; Thomas E. Montgomery, County Counsel and Paula Forbis, Sr. Deputy County 31 Counsel for San Diego County Air Pollution Control District Counties as Amici Curiae on behalf ofDefendant and Appellant. 32 PROOF OF SERVICE I am employedin 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 September 20, 2013, I served the foregoing document(s) described as CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S PETITION FOR REVIEW on ALL INTERESTED PARTIESinthis action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Please see attached Service List Onthe abovedate: _x_ BYU.S.MAIL Thesealed envelope with postage thereon fully prepaid wasplacedfor collection and mailing following ordinary business practices. I am aware that on motionofthe 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 day as the day of collection in the ordinary course of business. I herebycertify that the above document wasprinted on recycled paper. I declare under penalty of perjury that the foregoingis true and correct. Executed on September 20, 2013, at San Francisco, California. ZEA Michell Ho ' 0625 19\4232068v3 SERVICE LIST CALIFORNIA BUILDING INDUSTRYASSOCIATION, etal. v. v. BAYAREA QUALITYMANAGEMENTDISTRICT APPELLATE CASE NOS. A135335 & A136212 Party Attorney Bay Area Air Quality Management District: Defendant and Appellant Ellison Folk Shute, Mihaly & Weinberger 396 HayesStreet San Francisco, CA 94102-4421 Brian Charles Bunger Bay Area Air Quality Management District 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 VIAHAND DELIVERYClerk of the Supreme CourtSupreme Court of California350 McAllister StreetSan Francisco, CA 94102-4797Telephone: 415-865-7000(Original and 14 copies) 0625 19\4232068v3