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

Respondent’s Reply Brief on the Merits

Cal.March 17, 2014

CEO> Y | SUPREME COUR:FILED Case No. 8213478 MAR 1 7 2014 IN THE SUPREME COURTOF CALIFORNIA Frank A. McGuire Cleri. CALIFORNIA BUILDING INDUSTRY ASSOCIATION Deputy Plaintiff and Respondent VS. BAY AREA AIR QUALITY MANAGEMENTDISTRICT Defendant and Appellant CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S REPLY BRIEF After a Decision by the Court of Appeal in a Published Opinion First Appellate District, No. A135335 & A136212 On Appeal from a Judgment Alameda County Superior Court, No. RG10548693 Honorable Frank Roesch, Judge of the Superior Court COX, CASTLE & NICHOLSON LLP Paul Campos Michael H.Zischke (SBN 165903) (SBN 105053) pcampos@biabayarea.org mzischke@coxcastle.com 101 Ygnacio Valley Road, *Andrew B. Sabey Suite 210 (SBN 160416) Walnut Creek, CA 94596-5160 asabey@coxcastle.com Telephone: (925) 274-1365 Christian H. Cebrian (SBN 245797) ccebrian@coxcastle.com 555 California Street, 10th Floor San Francisco, CA 94104-1513 Telephone: (415) 262-5100 Facsimile: (415) 262-5199 Case No. 8213478 IN THE SUPREME COURT OF CALIFORNIA CALIFORNIA BUILDING INDUSTRY ASSOCIATION Plaintiff and Respondent VS. BAY AREA AIR QUALITY MANAGEMENTDISTRICT Defendant and Appellant CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S REPLY BRIEF After a Decision by the Court of Appeal in a Published Opinion First Appellate District, No. A135335 & A136212 On Appeal from a Judgment Alameda County Superior Court, No. RG10548693 Honorable Frank Roesch, Judge of the Superior Court COX, CASTLE & NICHOLSON LLP Paul Campos Michael H. Zischke (SBN 165903) (SBN 105053) pcampos@biabayarea.org mzischke@coxcastle.com 101 Ygnacio Valley Road, *Andrew B. Sabey Suite 210 (SBN 160416) Walnut Creek, CA 94596-5160 asabey@coxcastle.com Telephone: (925) 274-1365 Christian H. Cebrian (SBN 245797) ccebrian@coxcastle.com 555 California Street, 10th Floor San Francisco, CA 94104-1513 Telephone: (415) 262-5100 Facsimile: (415) 262-5199 TABLE OF CONTENTS Page INTRODUCTION 0.0 cccceccccccccessececeeeceeceseeneeeeeseececssesseeeesaneessesseseneeesneseeneenas 1 ARGUMENT.uui..ccecccccccescsesseeesceceeesececeeceeeeceresseaeeeseessueseneacssseneeeneeesneeeneeees 4 I. CEQA DOES NOT REQUIRE AN ANALYSIS OF THE EXISTING ENVIRONMENT’S IMPACT ON A PROJECT’S USERS. ......ccccccceccceceecsenteeeeeeeeeeeeeeeneesneesnesenseseseeenseeens 4 A. CEQA’sPlain Language Indicates That CEQAIs Intended To Reduce Or Avoid A Project’s Physical Impacts On The Environment..........cccccceeeeeeetriereeereeneess 5 B. The Resources Agency’s Misinterpretation Of Statutory Law Is Not Entitled To Deference...........ee 10 1. The 1979 Version of the Guidelines Does Not Support Reverse CEQA.......cccecesseeseteeseeenenteeneeneees 1] 2. The Legislature’s Failure to Amend CEQAin Responseto the Baird line of Cases is More Persuasive Than the Resources Agency’s and Membersofthe State Bar’s Interpretation of CEQA uoeccccccecssescescceeeecessceaeeeseseeescssseeseesessesesseesseeerenaes 12 C. The District’s Reliance On Cases That Do Not Analyze The Issue Presented Is Unavailing.............-1e 15 D. CEQAIdentifies The Specific CircumstancesIn Which The Existing Environment Should Be Considered ..........cccecscsceescceeeteneeeneceeeeseseeesseeesesiaseeseeseneenaeeey 16 1. CEQASection 21096 0... ceescseeceseeeceseeeesseeeeenees 16 2. CEQASection 21151.8 cicceeeseeeteeeeneeneeeenees 18 3. CEQA’s Exemptions for Housing Development....... 19 E. Legislative Committee Reports And Legislative Counsel’s Digests Are Persuasive........ccceccceeeeeeeeteenreenrees 20 IJ. THE BAIRD LINE OF CASES CORRECTLYSETS FORTH THE REQUIREMENTSOF CEQA.....cc.cccccceseeeeeseeee22 A. The District Offers No Basis To OverruleThe Baird Line Of Cases wo. ceeeccesceseeeceeseaceneseneeeeseesssessseeneeeeeseeeees22 1. BUIoo. eececccenenensceteceneesecenseeaceeneeetseceeesnaesseeenaeessens23 2. LONG BEACH wi eeicecceccceccetescesseesseceececesectetseaeeeasesssaaeesnees25 3. SOCWA and Ballona.ici.ceccccecccccsseceteessssteessseseeeenenees26 B. The District’s Interpretation Of CEQA Would Lead To Uncertainty In The Law And Absurd Results «0.0.00...27 1. Reverse CEQA Would Represent a Paradigm SHIft.eeeeeeeeeseeecseeseceaeceeeseeeseeeeeeeaeeseeensessseeseseeaes27 2. The District Fails to Identify any Limits on CEQA’S Reach.ceecccccesecessccssseesesecsseeecetsseceeseeesess 30 C. The District’s Argument That Other Laws Do Not Supplant CEQA Is A Red Herring...eeeeeeceeteeeseeeeeees 32 II. THE DISTRICT’S THRESHOLDS SHOULD BE OVERTURNED...oieeeceseteceeeeneeeseeeaecececeneceneneeesessnseeecssaeeessens33 TV.CONCLUSIONoooeeccceeesscecseeeseeeeeeeaeesaeceseseeeeseatecessseseneeeeseees 38 -ii- TABLE OF AUTHORITIES . Page State Cases AndersonFirst Coalition v. City ofAnderson (2005) 130 CalApp.4th 1173cecetesscseesensssseceeseneecseeeeneaeees 31 Baird v. Cnty. of Contra Costa (1995) 32 Cal.App.4th 1464.00ceceree enesereeeeseeesseesneeeseeeeeeeas 3 Bakersfield Citizensfor Local Control v. City ofBakersfield (2004) 124 CalApp.4th 118400esecesencesseesnecseesssaseeeeenens 7 Ballona Wetlands Land Trust v. City ofL.A. (2011) 201 CalApp.4th455ceccceeeesereaeeeeeeeeneees 4, 10, 12 Berkeley Keep Jets Over the Bay Comm. v. Bd. ofPort Commissioners (2001) 91 CalApp.4th 134400eeeeecesrececeessaasteesseasseeeseeeeeees 7 Bonnell v. Medical Bd. of California (2003) 31 Cal.4th 1255.00. ccccsceceeseceneceeeeeceeceseneeseeeeenseeeesaseeneeeaeees 12 Cal. Farm Bureau Fed’n v. Cal. Wildlife Conservation Bad. (2006) 143 CalApp.4th 173 oo.eccce ces ccsseeeeessessesessesseaceseeeseeeseeeeegs 29 Citizensfor Responsible & Open Governmentv. City of Grand Terrace (2008) 160 CalApp.4th 132320ccese cseecerceeeseseseeseeasseeeseeeeaees 7 City ofLong Beach v. L.A. Unified Sch. Dist. (2009) 176 Cal.App.4th 889....... vaceececceceseesaeceaeeeeaeeeaeeseeeserseceseseaeeauaeeeneeegs 4 Cmtys. for a Better Envt. v. Cal. Res. Agency (2002) 103 CalApp.4th 98 ooo.ceeeesrsseseecssesssesssesseseeeees 10, 12, 33 County Sanitation Dist. v. County ofKern (2005) 127 Cal.App.4th 1544...eececeecssecessseesssessseeeesseseenes 8, 34 Ebbetts Pass Watch v. Cal. Dep’t ofForestry and Fire Prot. (2008) 43 Cal.4th 936.0... cecccesceeseecereeseesseeseaceesseesesenreeseesesestesesseeeegs 33 El Dorado County Taxpayersfor Quality Growth v. County ofEl Dorado (2004) 122 CalApp.4th 1591occecsceeeeseaeeeseeneseeseeeeeneenees 11 Friends ofSierra Madrev. City ofSierra Madre (2001) 25 Cal.4th 161 oo.eeeeeseceeseesececsececeeseseseseesssecnesesneseseesesenens 35 Grupe DevelopmentCo. v. Superior Court (1993) 4 Cal.4th 911 ooo. cccccsecceneeeseeessaeeeceeeeeeaseseeeeseeseeneeeees passim Kaufman & Broad Cmtys., Inc. v. Performance Plastering, Inc. (2005) 133 CalApp.4th 26.0...ceeeeceeseeeetssecesseesesersesseeeseennaees 17, 18 Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376.0... .eecccccesccscceseeeeseeeececeeeseeeeeineccateessesseseueseesnoees 10, 27 Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 oo. ccceccescecsecceeseeeseeeeneeeeseseeeeaseeescesseeesenseeees 15, 21 - iii- Neighborsfor Smart Rail v. Exposition Metro Line Constr. Auth. (2013) 57 Cal4th 439occccccsccssecsseesseccssceecesseeseeesssssesessessesesesaeeats 33 Newberry Springs Water Ass’n v. Cnty. ofSan Bernardino (1984) 150 CalApp.3d 740.00... ccc cceeeesecesstseesseeeseeesseceesseesseeesseeneeenseesees 6 No Oil, Inc. v. Occidental Petroleum Corp. (1975) 50 CalApp.3d 8 ...c.cececcececsecsnseesescesseeesseesscecsssecesaesessssesseneesesseess 11 Ocean View Estates Homeowners Ass’n, Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396.00... cccccsccssssscsesseeceeseeecesseecensrscrstecsseeeess 6 Peltier v. McCloud River R.R. Co. (1995) 34 CalApp.4th 1809.0... cceccccscseesteeesseecsseecessesssseessseseesestens 21 Quintano v. Mercury Casualty Co. (1997) 11 Cal4th 1049oooccccccssscsssecesecessseeenseeeesseeseessssesseesseees 17 S. Orange Cnty. Wastewater Auth. v. City ofDana Point (2011) 196 Cal.App.4th 1604.00. eccccesseeeeceesseessstsessseeeseenes passim San Lorenzo Valley Community Advocates v. San Lorenzo Valley Unified School District (2006) 139 Cal-App.4th 1356.00... ccccceccescceesecenseenssesenssessseeeseessesarens 8,9 San Remo Hotel v. City & Cnty. ofS.F. (2002) 27 Cal4th 643 oo.cccceccscessecessecesneceeeesseeessnecsestessssesnessenesaueees 35 Santa Clara Cnty. Transp. Auth. v. Guardino (1995) 11 Cal4th 220...cceccesceesneeeenseeeeessseeesseeeesseeesssessessneessesees 16 Save Our Residential Env’t v. City of W. Hollywood (1992) CalApp.4th 1745 ooo... ceeececcsseccsseceeesseecsseeeecssseeeeeeseecenseecsssessesees 37 Select Base Materials v. Bd. ofEqualization (1959) 51 Cal.2d 640... cccccccccesecesseeesssacesscessceeesseesessesenesesssessenssssaees 6 Traverso v. People ex. rel. Dep’t of Transp. (1996) 46 CalApp.4th 1197oooeccccssecesesesseeeseesesssessnseessessesenteees 14 Whitcomb Hotel, Inc. v. Cal. Emp’t Comm’n (1944) 24 Cal.2d 753 oo. eeccceecsseessseceseceenseessesesseecsseeceeseesseesssassssessseess 15 Wildlife Alive v. Chickering (1976) 18 Cal.3d 190.eeececeecsseceeseeesneeesnesssaessesesessasesseestessaeseneeses 33 Witt Home Ranch, Inc. v. Cnty. ofSonoma (2008) 165 CalApp.4th 543... ccecccssccssssccsscessceeesseseesscesssesssessssssseess 16 Yamaha Corp. ofAm. v. State Bd. ofEqualization (1998) 19 Cal4th dicccseccssseeseeeesseeeeeesssecesecessseseseseetssssesseeess 13 StateStatutes Education Code § 17212 0...ceccccsssssessssssssssssssssssesssssccceseesesevesseneneeates 20 Gov. Code § 65040.12 oo... cecceccecccscseessneesseeeeeseeesseesseeeesseesesatesseeesseessesseessase 37 Pub. Res. Code § 21000 0... ccceceececsssecesecesseeesseessaeeesseeeessesssaseeseesessueees 26 Pub. Res. Code § 21001 oo...eecessececccscscccccceecceecceseseceseseeseneasarans 26 Pub. Res. Code § 21002.1(a)-(b) oo...ceecccscsssecssecscecceessssssteceesstacees 37 -1V- Pub. Res. Pub. Res. Pub.Res. Pub.Res. Pub.Res. Pub. Res. Pub.Res. Pub. Res. Pub.Res. Pub. Res. Pub. Res. Pub. Res Pub. Res Pub. Res Pub. Res Pub. Res Pub. Res Pub. Res Code § 21003 .....ceccccccccccecsssccescesessssssseeeeseseceeecaesssesecsteesecseeeeees 37 Code § 21060.5 woo cccccccccccscesssssssccerccccccsssscecsseesceessceussesssaeees 5 Code § 21060.6woeccscccsssssssssecsseeseessesssssssessseeseeeseenenes 16 Code § 21068 oun... ccccec ccc ccceccececcccsseeeceseeeeceeseusuueeessesssseseeee 5, 6, 16 Code § 21083(D)(3)......cccceecccccccccesesssssnseeeseeceseseesereteceseeesesseees 6, 31 Code § 21100...icccccsssccsececsesessssceeceseeseecsessseesesseeeeseseeaes 26 Code § 20151 occciccccecssccsecessessecssceecaeeeesuseessassessseseveeseees 26 Code § 2115 1.1(a)(2) ...cceeccccccescccccsssscsccessesesnseecesssecessessesseceeseees 20 Code § 2115 1.1(a)(5) oo... cececceccccccccesssesssseeeaeeeeeseescrseeeseseseseesees 20 Code § 21155. 1(C)D) oo... ceecececccceccecesesssssecseeceseeeeeesersseeessereceeeeeess 19 Code § 21159.22(a)(2)(B) ...cccccccccccssscccssseccecessseceecesssenseessssesseass 19 Code § 21159.22(a)(2)(C) o...ccccccccccscssccccessssssscecessseecsseesstsseseseens 19 Code § 21159.23(a)(1) .....ccceecccccccccssssssssscececeeceeeeessssseesseesseeeeseess 19 Code § 21159.24(a)(7).....cccccccssscccccssssececesssessssscesssseseseenseseceeeees 19 Code § 21168.6.6 o.oocccccececcecseecsescesesseeeeseessssesesseseseeess 19 Code § 21183(a)0... cccccccccessscceceeessesseseeeccceeeececcessseseeessceeeeeeseees 20 Code § 21183(b) oo...ee ceeeeeceeeseeeseeeeseeseessaseessessecsseeseaeeneeesas 20 Code § 21201 occccecececteeseesssecereceeeceessaeeeaeessesteeeseesaeeees 26 Rules and Regulations Cal. Code Regs., tit. 5, § 14010 oo...eeeeeceeeeenneeeeeeseessseeeeaeeeneeseeeeeeas 20 Cal. Code Regs., tit. 5, § 14010(d).....eeeeeececeeeneeceareeseeeeeeaeeerseseseeaeeeees 25 Cal. Code Regs., tit. 5, § 14010(€) oo...ee eececeenneeeeeeseeeeeeeseneneesseeeeenes 25 Cal. Code Regs., tit. 5, § 140100) ....eeeeeeesneeeceseeeeseeeeetteseeeteeeeaeees 25 Cal. Code Regs., tit. 5, § 14010GM) ooo.eeeereeeeceseesseetenseeeteeeeaeees 25 Cal. Code Regs., tit. 14, § 15126.2 ooo.ceesceeeeteeeeeeeceaeteeeeneneteeses 26 Other Authorities Kostka & Zischke, Practice Under the CEQA (2nd ed. 2013)...ccc cecccccescccscessssccecssssececsssceeccepsesesseesecsseeeesesessneeeeseaas 24 Miller & Star, Cal. Real Estate (3d Ed. 2013)...cee eecccecssssccecessessescessnseeccssnseeeeecsscsessseseeessecesseenseceeeseeas 24 Remyet al., Guide to CEQA (11th ed. 2007)occ.ccceeseseserseeseeeesa eaeeeeaeeeeeceueesesecesessssessaserseseencecees 24 0625 19\6061798v5 INTRODUCTION The District contends there is no such thing as reverse CEQA analysis. The District contends that CEQAproperly applies to any project that may expose humanbeingsto “disagreeable conditions,” regardless of whether the project contributes to those conditions. Attracting people to areas where they may be exposedto such conditions is enough. (Answering Brief (“Ans.Br.”’) at 22). The District’s version of CEQAis untethered by the fundamental requirementthat a project must have a potentially significant impact on the environment, andinstead, threatens to convert CEQAto an all-encompassing human wellness law that seeks to remedy existing environmental conditions. While the District primarily is concerned with health impacts from degraded air quality-and no one disagrees that air quality is an important governmental policy concern-the District fails to acknowledge that its reading of CEQAis not confinedto air quality. It applies to any potentially substantial direct or indirect “adverse effect” on human beings that can be associated with attracting people to a given location. The breadth of this reading can be seen in the reverse application of core CEQAconcernsoften associated with development projects. The District contends that siting a developmentin an area with existing odor requires the lead agency to analyze the issue and impose mitigation measures on the developer even if the new development makes no contribution to the existing odors. Urban decay isa recognized impact that must be studied when a newproject threatens to cause physical blight. The District’s interpretation meansthat siting a new developmentin an area suffering from existing physical blight, regardless of whether the new project would contribute to it, will require environmental review for the impactof the blight conditions on the new inhabitants. A proposed project that would cast substantial shadows on neighboring development can be found to have a significant environmental impact. Is building within the shadow of existing buildings now a CEQA impact? Interpreting CEQA in this fashion not only perverts traditional CEQAanalysis, it opens the floodgates of new potentially significant adverse effects for projects that may not otherwise trigger CEQAreview.The adverse effect of urban living is an area of great scientific interest. Evidence regarding stress, exposure to communicable diseases, crime, physical injury in city crosswalks,are all viable topicsfor a fair argumentof a potentially significant impact ofattracting people to inhabit urban areas. This scienceis as credible as the 70-year exposure modelthat the District relies on for its TAC Receptor Thresholds. (See Opinion below at 27-28). Under the District’s proffered interpretation, these are areas of inquiry that lead agencies muststudy, not as a matter of planningor zoning policy, but on a case-by-case basis under CEQA.If the “impacts” could notbe mitigated to less than significance, the lead agency would be unable to approve the project without preparing an EIR and adopting a statementof overriding considerations. Further, if CEQA is triggered by merely attracting new people to locations with risk, its newfound reach would not be confined to urban areas. It would apply equally to a new park in mountain lion country; or an area known to haveticks with LymeDisease;or an area with poison oak. Does CEQArequire the lead agencies considering trail improvements (that are designed to attract more people) in these areas to analyze and mitigate for increased human exposure to these potentially significant adverse effects? TheDistrict bases its proposal for dramatic expansion of CEQAon a reading ofthe statute that ignores both the plain meaning of the words, the context, and the overall purpose ofthe law.It pits the Resources Agency’s contention, as expressed in the administrative history of Guidelines section 15126.2, against a plain reading of the statute, as interpreted in an unbrokenline of Courts of Appeal cases decided between 1995 and 2011.! The more recent case law,in particular SOCWA,includes 1 These cases, which are referenced throughoutthis Reply Brief, are: Baird v. Cnty. of Contra Costa (1995) 32 Cal.App.4th 1464 [“Baird’]; City ofLong Beach v. L.A. Unified Sch. Dist. (2009) 176 Cal.App.4th -3- a thoughtful analysis of Legislative intent to support the conclusion that reverse CEQAis notauthorized by statute. The District is disdainful of the Courts of Appeal’s longstanding analysis, but its proffer of various expressions of disagreement by the Resources Agencyis not a persuasive rebuttal. This Court should preserve the proper reading of CEQA by affirming Baird, Long Beach, SOCWA,and Ballona.In so doing, this Court should remand the matter to the trial court to issue a writ commandingthat the District’s Receptor Thresholdsbeset aside. ARGUMENT I. CEQA DOES NOT REQUIRE AN ANALYSIS OF THE EXISTING ENVIRONMENT’S IMPACT ON A PROJECT’S USERS Theparties agree that the plain language of CEQAcontrols. However, the District’s theory regarding the “clear” intent ofthe Legislature requires this Court to read words out of context and then give great deferenceto the contentions of a regulatory agency while dismissing the Court of Appeal’s decisions interpreting the plain meaningofthe statute. Statutory interpretation is a judicial function and this Court owes no deference to an agency’s disagreement with the Court of Appeal. | 889 [“Long Beach’’}; S. Orange Cnty. Wastewater Auth. v. City ofDana Point (2011) 196 Cal.App.4th 1604 [“SOCWA”]; Ballona Wetlands Land Trust v. City ofL.A. (2011) 201 Cal.App.4th 455 [“Ballona’’]. -4- A. CEQA’s Plain Language Indicates That CEQAIs Intended To Reduce Or Avoid A Project’s Physical Impacts On The Environment CEQAdefines the “environment” as the “physical conditions which exist within the area which will be affected by a proposed project.” (Pub. Resources Code, § 21060.5.)2 The District agrees that “‘[a] significant effect on the environment’ is ‘a substantial, or potentially substantial, adverse change’ in those physical conditions.” (Ans.Br. at 15- 16 [emphasis added], quoting § 21068.) Read together, a “significant effect on the environment”is “a substantial, or potentially substantial, adverse change”in the “physical conditions which exist within the area which will be affected by a proposed project.” (§§ 21060.5, 21068.) This plain reading is consistent with the entire thrust of the statute. (See Op.Br.at 18.) The District attempts to avoid the commonsense and ordinary meaning of the above wordsby relying on section 21083(b), which states that a public agencyshall find that a project may havea significant effect on the environmentif any of three conditions exist: (1) “[a] proposed project has the potential to degrade the quality of the environment, curtail the range of the environment, or to achieve short-term, to the disadvantage 2 All subsequent references are to the Public Resources Code, unless noted otherwise. of long-term, environmental goals”; (2) “[t]he possible effects of a project are... cumulatively considerable”; or (3) “[t]he environmental effects ofa project will cause substantial adverse effects on human beings, either directly or indirectly.” (§ 21083(b) [emphasis added].) The District argues that “the environmental effects of a project” include bringing people to the existing environment. The District is wrong. The proper approachto statutory construction is to harmonize section 21083(b)(3) with sections 21060.5 and 21068. (Select Base Materials v. Bd. ofEqualization (1959) 51 Cal.2d 640, 645.) CEQA requires that a public agency concludethat an impactis significant when a substantial, or potentially substantial, adverse changein the physical conditions that exist within the area affected by a proposedproject will cause “substantial adverse effects on human beings.” (See §§ 21060.5, 21068, 21083(b)(3) .) By contrast, the District’s approach reads words and phrases in isolation and without context. CEQAcaselaw is replete with examples of analyses of a project being a source of direct or indirect substantial adverse impacts on humanbeings.(See, e.g., Ocean View Estates Homeowners Ass’n, Inc.v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 401-03 [visual impacts)]; Newberry Springs Water Ass’n v. Cnty. ofSan Bernardino (1984) 150 Cal.App.3d 740, 749 [causing odors andattractingflies]; Citizensfor Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1340-41 [causing noise disturbing neighbors]; Berkeley Keep Jets Over the Bay Comm.v. Bd. ofPort Commissioners (2001) 91 Cal.App.4th 1344, 1372 -83 [causing noise and being a source of TAC]; Bakersfield Citizensfor Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1219-1220 [causing air quality impacts].) Each of these examples is consistent with CEQA’s statutory text that public agencies should consider a project’s adverse changesto the physical environment that may adversely affect human beings. The District instead asserts that a project does not need to result in an adverse change in the environmentin orderto have a significant effect on the environment. Rather, the District contends that a project need only result in a change in the environmentthat results in attracting people to an area. (Ans.Br. at 16.) Once that minimum threshold is passed, the District argues, a public agency must consider adverse effects that the existing environment may have on the future occupants orusers of a project. Ud.) The District’s proposed interpretation would require a public agency to analyze, at least during the initial study phase, whether a project that involves humanusersthat creates no odors nonetheless has a significant odor impact, or that creates no noise has a significant noise impact, or that has no nighttime lighting or reflective surfaces has a significant nighttime light or glare impact.If this were the meaning of CEQA’s statutory text, the fair argument standard of review would require an EIR for almost any project used or occupied by human beingsin an urban environment. (Cnty. Sanitation Dist. v. Cnty. ofKern (2005) 127 Cal.App.4th 1544, 1588-89 [exceeding air district threshold requires preparation of EIR]; Op.Br. at 9 n. 3.) The District misplaces reliance on San Lorenzo Valley Community Advocates v. San Lorenzo Valley Unified School District for the proposition that reverse CEQAis required because CEQAprotects human health. (Ans.Br. at 17-18.) The San Lorenzo opinion correctly concludes that “the overriding purpose of CEQAis to ensure that agencies regulating activities that may affect the quality of the environment give primary consideration to preventing environmental damage.” (San Lorenzo Valley Cmty. Advocates v. San Lorenzo Valley Unified Sch. Dist. (2006) 139 Cal.App.4th 1356, 1372 [emphasis added].) To determineif a project would havea significant effect on the environment, the San Lorenzo court explained: “First, the impact must constitute a change in environmental conditions.” (/d. at 1390 [original emphasis].) “[W]e will not consider evidence or arguments about the impact from the existent [ ] plant.” “Second, the impact mustaffect the environment. ... Third, the impact must constitute a physical environmental change, as opposed to a social or economic one. | (Id. at 1390 [original emphasis, citations omitted].) The court then rejected claims aboutrisks to students from preexisting mold because “there is no indication that the presence of mold is a change in environmental conditions. The mold wasa preexisting condition at [the school], and there is no evidence it would be exacerbated by the presence of additional pupils.” (/d. at 1392.) The courtalso rejected claims regarding geologic hazards because there was no evidencethat “any geologic hazard is new,so as to constitute a change in environmental conditions.” (/d.) The San Lorenzo court therefore applied the same principles found in the Baird line of cases and rejected claimsrelated to impacts from the existing environment, even wherethe project involved bringing students to those existing impacts. Having cited the case with approval, the District then seemsto suggest San Lorenzo is amongthe cases reaching an “trrational” result because if causing an air quality problem such as moldis a cognizable impact, the District would argue that exposing humansto that same impact should also be CEQA impact. (Ans.Br.at 18.) B. The Resources Agency’s Misinterpretation Of Statutory Law Is Not Entitled To Deference CBIA informed the Court in its Opening Brief that Guidelines section 15126.2 has been inconsistent with CEQAsinceits adoption. (Op.Br. at 28.) The District points out that the Resources Agency’s attempt to expand the scope of CEQA goesback to 1982. (Ans.Br. at 21.) But whether Guidelines section 15126.2(a) is valid does not turn on the dateits language was adopted.“The question is whether the regulation alters or amends the governing statute or case law, or enlarges or impairs its scope. In short, the question is whether the regulation is within the scope of the authority conferred;if it is not, it is void.” (Cmtys. for a Better Envt. v. Cal. Res. Agency (2002) 103 Cal.App.4th 98, 108 [“CBE”].) The District admits that no legislative history supports its position. (Ans.Br. at 19.) Instead, the District relies almost exclusively on the Resources Agency’s administrative history of Guidelines section 15126.2, the very Guideline SOCWA and Ballona found unlawful to the extent it requires reverse CEQA analysis. 3 (SOCWA, 196 Cal.App.4th at 1616; Ballona, 201 Cal.App.4th at 474.) The Resources Agency’s proffered 3 This Court has not determined whetherthe CEQA Guidelines are regulatory mandatesor onlyaids to interpreting CEQA.(Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 391, fn. 2.) -10- interpretation of the statute, after the statute is adopted, “is only as persuasiveas its reasoning.” (Grupe Development Co. v. Superior Court (1993) 4 Cal4th911, 922 [“Grupe”].) 1. The 1979 Version of the Guidelines Does Not Support Reverse CEQA The District points to a 1979 version of the Guidelines to argue reverse CEQAis required. But the 1979 Guidelines offer no such support. Rather, the 1979 Guidelinesstated that “[a] project will normally havea significant effect on the environmentif it will . . . [e]xpose people or structures to major geologic hazards.” This language would not require reverse CEQA.For example, in El Dorado County Taxpayersfor Quality Growth v. County ofEl Dorado (2004) 122 Cal.App.4th 1591, 1601-02, a county analyzed the potential for a mining reclamation project to cause landslides that would impact Highway 49. (See also No Oil, Inc. v. Occidental Petroleum Corp. (1975) 50 Cal.App.3d 8, 12-13 [oil well project studied to understand if a well blowout could “trigger a disastrous landslide,” with “severe environmental consequences’”’].) Next, in a sleight of hand, the District argues that the 1979 CEQAGuidelines stated a project may havea significanteffect on the environmentif it exposes people to “existing” high levels of air pollution. (Ans.Br. at 20.) This is false. The documentthe District relies on states that -ll- such an impact could occurif a project would “[vJiolate any ambientair quality standard, contribute substantially to an existing or projected air quality violation, or expose sensitive receptors to substantial pollutant concentrations.” (District Motion for Judicial Notice [“MJN”], Exhibit B, p. 1.) This threshold is ubiquitously applied to sources of air pollution in environmental documents. It does not create an inference that reverse CEQAis lawful. Building a power-plant or other industrial facility next to an apartment building likely would “expose sensitive receptors to substantial pollutant concentrations.”’ None of the other examples the District points to in the 1979 Guidelines supports a different conclusion. (SOCWA,196 Cal.App.4th at 1616; Ballona, 201 Cal.App.4th at 474.) 2. The Legislature’s Failure to Amend CEQAin Response to the Baird line of Cases is More Persuasive Than the Resources Agency’s and Membersof the State Bar’s Interpretation of CEQA The District asks this Court to defer to the Resources Agency’s interpretation of CEQA rather than the consistent interpretation of the Court of Appeal in Baird, et al. No such deference is due. (CBE, 103 Cal.App.4th at 108-10.) In matters of statutory interpretation, the Resources Agency has no “comparative interpretive advantage overthe courts.” (Bonnell v. Med. Bd.of Cal. (2003) 31 Cal.4th 1255, 1265 [“Board’s -12- interpretation is incorrect in light of the unambiguous language of the statute. We do not accord deference to an interpretation that is ‘clearly erroneous.’’’].) This Court has held that “[b]ecause an interpretation is an agency’s legal opinion, however ‘expert,’ rather than the exercise of a delegated legislative power to make law, it commands a commensurably lesser degree of judicial deference.” (Yamaha Corp. ofAm. v. State Bd. of Equalization (1998) 19 Cal.4th 1, 11 [emphasis in original].) And “[{d]jepending on the context, [an interpretation] may be helpful, enlightening, even convincing. It may sometimesbe of little worth.” (Jd. at 7-8.) The Resources Agency’s interpretationis of little worth in this case. The Resources Agency’s argument that harmonizing CEQA section 21060.5’s definition of the environment and CEQAsection 21083(b)(3)’s concern regarding adverse effects on humans requires reverse CEQAanalyses is unpersuasive.‘ (Ans.Br. at 22.) As explained in Part I.A, above, there is no need to expand the scope of CEQA through interpretive gymnastics to harmonize those sections. CEQA requires an analysis of a project’s direct and indirect adverse effects on humans, such 4 The Resources Agency’s post-Baird explanation of whyit considers CEQAGuidelines section 15126.2 lawful - that is, that there must be at least some similarity in impact between that of the project and the existing environment, is inconsistent with this unconstrained interpretation from 1982. (See Op.Br. at 30.) Vacillating interpretations are not entitled to deference. -13- as a project’s air emissions, and notthe existing environment’s effects ona project or its users. The District next contends that the Legislature was well aware of the Resources Agency’s interpretation of CEQA and implies that the Legislature’s failure to amendthe statute on such grounds somehow should affect this Court’s analysis of the question presented. (Ans.Br. at 23- 24.) The District bases this argument on a State Bar committee report (“State Bar Report”) that offers no statutory analysis. (Ans.Br. at 23-24; District MJN Exhibit H.) Instead, the State Bar Report only cites the CEQA Guidelines as a basis to require an analysis of the impacts of the environmenton a project. (District MJN Exhibit H, p. 45; c.f Grupe, 4 Cal.4th at 922 [interpretation only as goodas it reasoning]; see also CBIA’s Opposition to District’s MJN at pp. 4-5.) Also, even assuming that the Legislature had knowledgeof the Resources Agency’s interpretation, its failure to act directly in response to such knowledgeis not indicative of the Legislature’s implicit adoption of or acquiescence to the Resources Agency’s interpretation. Rather, where an agency’s interpretation alters or enlarges the termsofa statute, the interpretation does not govern the interpretation of thestatute, “even though the statute is subsequently reenacted without change.” (Traverso v. People ex. rel. Dep’t of Transp. (1996) 46 Cal.App.4th 1197, 1206-07; see also -14- Whitcomb Hotel, Inc. v. Cal. Emp’t Comm’n (1944) 24 Cal.2d 753, 757-58 [same].) On the other hand, when the Legislature amendsa statute without altering portions of the provision that have previously been judicially construed,“the Legislature is presumed to have been aware of and to have acquiescedin the previousjudicial construction.” (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734-35.) Thus, the Legislature’s inactionin light of the Baird line of cases is more probative of Legislative intent than the the Resources Agency’s overreaching regulations. C. The District’s Reliance On Cases That Do Not Analyze TheIssue Presented Is Unavailing On pages 33 and 34 of its Opening Brief, CBIA notes that a number of CEQAcases discuss reverse CEQA impacts. But CBIA also explains that none of these cases discuss whether such impacts are properly within the scope of CEQA. (Op.Br. at 33.) These cases have no bearing on whether CEQArequires an analysis of the existing environment’s impact on a projector its users. Nonetheless, the District provides several examples of such cases and proffers the facile conclusion that “[t]hese cases would not have -15- been decided as they were if CEQA did not require an analysis of these [reverse CEQA] impacts.” (Ans.Br. at 27.) The District provides no basis to reject a long standing theory of jurisprudence that it is improperto infer a holding that does not exist. (Santa Clara Cnty. Transp. Auth. v. Guardino (1995) 11 Cal.4th 220, 243.) D. CEOAIdentifies The Specific Circumstances In Which The Existing Environment Should Be Considered The plain reading of CEQA’s definition of the “environment” and a “significant effect on the environment” demonstrates that the impact of the existing environment on a project ordinarily is not required when preparing an environmental document. (See §§ 21060.6, 21068; SOCWA, 196 Cal.App.4th at 1615.) As explained in CBIA’s Opening Brief, CEQA does contain certain exceptionsto this rule. (Op.Br. at 34-39.) The District argues that this Court ignore CEQA’s definitions and conclude that CEQA’s exceptionsare in fact evidence of a generalrule. The District is wrong. (Witt Home Ranch,Inc. v. Cnty. ofSonoma (2008) 165 Cal.App.4th 543, 558-59 [“Internal definitions are controlling.”].). 1. CEQASection 21096 The District first argues that CEQA section 21096 is evidence of a general reverse CEQA requirement. The District relies on enrolled bill reports prepared by the Office of Planning and Research (“OPR”) and the -16- Resources Agencyrelated to section 21096. (Ans.Br. at 29.) But enrolled bill reports are of limited persuasive value. (See Kaufman & Broad Cmtys., Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 40-42.) Indeed, one of the cited enrolled bills states that “the sponsor recognizes that . . . agencies should already consider the effectof airports on a proposed project.” (District MJN Exhibit J.) The view of an individual legislator is irrelevantto legislative history. (Quintano v. Mercury Casualty Co. (1997) 11 Cal.4th 1049, 1062.) These reports do not demonstrate a general rule for reverse analyses. (Grupe, 4 Cal.4th at 922.). The District also relies on an enrolled bill report by the Department of Finance, whichstates that “the Department of Finance defers to the Resources Agencyregarding the policies and merits of the proposed changes.” (District MJN Ex. L at 1.) This echo chambercreated by OPR and the Resources Agency doesnot establish a general statutory requirement for reverse CEQA. Finally, the District relies on a documentactually presented to the Legislature related to CEQA section 21096 - the Legislative Counsel’s Digest for the bill creating that section. (District MJN, Ex. M.) The digest states that CEQA requires an EIR whena project “may havea significant effect on the environment.” No party disputes that contention.It also states that SB 1453 would “impose a state-mandated local program by imposing -17- new duties on local lead agencies.” That is accurate. The digest provides no support for a general requirement to conduct reverse CEQA analyses. 2. CEQASection 21151.8 The District next attempts to persuade the Court that CEQA’s special provisions specific to schools are evidence of a generalrule that reverse CEQAanalyses are required. But the need for specific rules unique to schools suggests that these special rules do not apply generally. The District further admits that the “[lJegislative history for this provision does not explicitly address whether the Legislature believed it created an exception to CEQA’s general requirements or merely specified how agencies must undertake their preexisting duties.” (Ans.Br. at 31.) That should have been the end of the District’s discussion, butit is not. The District goes on to rely on a document of unknownorigin that is entitled an “Enrolled Bill Report.” (Cf Kaufman, 133 Cal.App.4th at 37[noting that document of unknownauthorship or with an unknown purposeis notlegislative history].) The District quotes the portion entitled “Argument: Pro.” (District MJN Ex N.) There is no evidence whetherthis is the author’s view orthat of a third party stakeholder. Exhibit N does not show that the Legislature focused on whether CEQA generally requires an analysis of the existing environment’s impact on a project when adopting CEQAsection 21151.8. - 18 - 3, CEQA’s Exemptions for Housing Development Continuing to conjure a phantom legislative intent for reverse CEQAwhere none exists, the District points to several CEQAstatutory exemptions for certain housing projects. (Ans.Br. at 32-33.) The District argues that, because a project must meetcertain requirements to qualify for several housing statutory exemptions, this Court should infer that those requirements demonstrate that the Legislature considered those prerequisites significant effects on the environment. (Ans.Br. at 32-33.) This is incorrect. The requirements that must be met reflect policy decisions by the Legislature for when a project should benefit from statutory CEQAstreamlining. CEQAis full of such policy decisions unrelated to whether a project would have a significant environmental impact. For example, to qualify for a “transit project” exemption, the project must includespecific ratios of affordable housing. (§ 21155.1(c)(1).) To qualify for a “qualified housing project,” a project must include public assistance and affordability guarantees. (§ 21159.22(a)(2)(B)-(C); see also §§ 21159.23(a)(1), 21159.24(a)(7).) Legislative considerations divorced from any environmental consideration can yield CEQA exemptions. Section 21168.6.6 provides CEQA streamlining for “‘an arena facility that will become the new hometo the City of Sacramento’s National Basketball Association (NBA)team.” (See ~19- also § 21183(a)-(b) [investment and job creation requirements for ‘streamlining].) Thesiting requirements found in the housing exemptions appearto reflect policy decisions unrelated to any purported general requirement for reverse CEQA.(See also, Cal. Code Regs., tit. 5, § 14010; Education Code, § 17212 [similar siting requirements for schools.]5.) E. Legislative Committee Reports And Legislative Counsel’s Digests Are Persuasive In its Opening Brief, CBIA stated that “fijf the Legislature determines that the analyses advocated bythe District should be included within CEQA’s mandate, the Legislature may amend CEQAto abrogate the holdings of [the Baird line of cases].’”” CBIA then summarized the analyses by the Legislative Counsel, the Senate Committee on Environmental Quality, the Assembly Committee of Natural Resources, and the Senate 5 Exhibit O to the District’s MJN is not SB 375itself as the District claims, but a Senate transportation committee report analyzing that bill. The analysis does not identify which provisionsit states are “intended to ensure the project has no significant impacts.” SB 375 added,for example, section 21155.1, which has several provisions that could be the intended reference. (§ 21151.1(a)(2), (5).) One sentence in a 10 page analysis focused on transportation issues has limited persuasive value. Similarly, the District relies on an Assembly Committee on Agriculture Report, which points to the size of a project and its distance to transit when referring to “criteria established to ensure a project does not have a significant effect on the environment.” Again, a sentence in an analysis from a committee without CEQA expertise is of limited value. (Grupe, 4 Cal.4th at 922.) - 20 - Appropriations Committee thatall concluded a general reverse CEQA mandate doesnot currently exist. (Op.Br. at 37-39.) The District minimizes this issue by noting that unenacted bills’ histories can be the subject of conflicting inferences. (Ans.Br. at 33.) The Districtis correct that “[lJegislative history is only relevant to the extent a court can ascertain the intent of the Legislature as a whole.” (Ans.Br. at 35.) The Legislative Counsel analyses andlegislative committee reports, focused on the issue presented to this Court, meet this standard muchbetter than random sentencesthe District pulled from enrolled bill reports and a report by a committee of the State Bar.® (cf. Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1820 [“‘State Bar’s view of the meaning of proposedlegislation, even if it authored that legislation, is not an index oflegislative intent.”].) This Court will decide what weight to give to the fact that the Legislature did not adopteither of the two bills that would have abrogated the Baird line of cases.” (Op.Br. at 37, fn.8). But the structure of those bills 6 The District claims CBIA’s analyses support the District’s position. (Ans.Br. at 35.) Emblematic of the District’s position, it relies on quotes to the CEQA Guidelines not the CEQAstatute. 7 TheDistrict argues that California courts have refused to notice “unenacted bills’ histories.” (Ans.Br. at 36.) The cases cited, however, only speak to what inference should be given to the Legislature’s decision to not adopta bill. (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 735, fn. 7; Grupe, 4 Cal.4th at 923.) -21- demonstrates that there is no need for this Court to make the policy decision of when reverse CEQA analyses should be required. The Legislature has the tools to addressthat issue, and in choosingto do so will be presumed to have knowledge of Baird, Long Beach, SOCWA,and Ballona. Il THE 24/722LINE OF CASES CORRECTLY SETS FORTH THE REQUIREMENTSOF CEQA The District asks this Court to overrule an unbrokenline of cases basedsolely on the District’s and the Resources Agency’s interpretation of CEQAsections 21060.5, 21068, and 21083. The District suggests such extraordinary action is required because the Baird, Long Beach, SOCWA,and Ballona opinions “are notably lacking in any meaningful attempt to ascertain the Legislature’s intent andto interpret the statute consistent with its purposes.” The District is wrong. (See Op.Br.at 20-27.) A. The District Offers No BasisTo Overrule The 4277Line of Cases All four cases begin with the languageofthe statute itself. As explained in Part I.A above, CEQA’s definition of the “environment” and “significant effect on the environment” demonstrate the Legislature’s intent 22 - that public agencies consider the adverse impacts a project may have on the environment, not the existing environment’s impact on a project. And the District’s attempt to read the language from CEQAsection 21083(b)(3) regarding “adverse effects on human beings” withoutthe limitations imposed on it by CEQA’s definition of the “environment”or “significant effect on the environment”fails. 1. Baird The. District argues Baird should be overruled becauseit does not cite Guidelines section 15126.2 or CEQAsection 20183(b)(3). (Ans.Br. at 38.) Asto the first, the Guidelines cannot alter or expand the scope of CEQA,so the Baird opinion does not overlook any relevantlegislative intent. As to the second, CBIAhas already explained in Part I.A above how section 21083(b)(3) does not support the conclusion that reverse analyses are required by CEQA. The District’s reliance on secondary sourcesis unavailing. The District ignores that the analysis of Baird found in the 2007 version of Guide to CEQA containsthe following caveat: “absent further judicial decisions confirming and expanding upon the reasoning of Baird, EIRs and negative declarations should continue to include analyses of impacts that might occur due to existing environmental . . . conditions.” (Remyetal., -23- Guide to CEQA (11th ed. 2007) at 441.) The publication of Long Beach, SOCWA,and Ballona makethe 2007 commentary outdated. Likewise, the District quotes 2007 language from the Miller & Star California Real Estate treatise. This languagealso is outdated, as the authors ofthat treatise recognized. The 2013 supplementto that treatise states “CEQA is concerned with analyzing the impacts of the proposed project on the existing environment and not the impacts ofthe existing environment on the proposedproject.” (Miller & Star, Cal. Real Estate (3d ed. 2013) 2013-1014 Supplement, p. 111 § 25A:7; see also id. [SOCWA “based its holding on both the legislative intent and unambiguousstatutory language”].) The treatise also includes a new section entitled “Effect of the environment on the project beyond the scope of the EIR.” (/d. at 139 § 114.) This new section explainsin detail the holdings of Badlona without finding fault in that opinion’s analysis. Also, despite citing with favor CEB’s Practice Under the CEQAelsewhere in its Answering Brief, the District fails to address that treatise’s section entitled “Impacts of the Environment onthe Project,” whichstates “CEQA doesnot extendto situations in which the project, not the environment,is at risk” (Kostka & Zischke, Practice Under the CEQA (2nd ed. 2013) § 6.35.) 24 - Unable to distinguish Baird, the District endorses an untenable theory of jurisprudence - courts that do notagree with the motives of a party will misstate or misapply the law. (Ans.Br. at 39 [Baird “merely reflect[s] ‘judicial impatience with a lawsuit filed for social, rather than environmental purposes’”’].) The District has not identified any valid reason Baird should be overturned. 2. Long Beach The District’s attack on Long Beach followsits attack on Baird: the opinion does not havethecitations the District wouldlike it to have. (Ans.Br. at 40.) Also, there should be no surprise that the EIR in Long Beach addressed student pedestrian safety issues. (Ans.Br. at 40.) School projects are required to address a host of student pedestrian safety requirements. (Cal. Code Regs., tit. 5, § 14010(d) [safety analyses required related to railroad tracks]; id. § 14010(e) [prohibition of siting school near road or freeway where study shows would havesafety problems]; id. § 14010()[all traffic hazards must be mitigated]; id. § 14010(m)[existing and proposed zoning must not pose safety risk to students and staff based on traffic studies].) School siting is heavily regulated and subject to unique rules. It does not provide a general template. The Long Beach decisionis particularly compelling becauseit clearly distinguishes between the specific -25- schoolsiting rules that permit limited reverse analysis and the general - CEQA tule that does not. (See Op.Br. at 22.) 3. SOCWA and Ballona The District argues that the pages of statutory interpretation found in SOCWAand Ballona analyzing the intent of CEQA is too cursory to be upheld.’ (Ans.Br. at 41-42.) The District argues that despite citing the legislative intent sections of CEQAtwice, the SOCWAopinion ignores those sections. (Id.) A reading of the SOCWA opinion showsthe opposite. (SOCWA, 196 Cal.App.4th at 1613-17 [basing its holding on §§ 21000, 21001, 21060.5, 21100, 21201, 21151, CEQA Guidelines § 15126.2, Appendix GJ]; Op.Br. at 23-25 [summarizing SOCWA’s analysis.].) SOCWA relied on the text of CEQA,the touchstone oflegislative intent, and concludedthatthe “statutory definition of ‘environment’ - ‘the physical conditions . . . which will be affected by a proposed project’ (§ 21060.5) - precludes”an analysis of the impacts of existing odors on a project. (See SOCWA, 196 Cal.App.4th at 1614-15.) The District’s disdain for the court’s conclusion is not evidence of a poorly reasoned analysis. The District’s 8 TheDistrict posits that the Baird line of cases could have been decided by rejecting the claims on substantial evidence grounds. (Ans.Br.at 47.) They were not. The District’s preferred approach to the analyses of the claims in Baird, Long Beach, SOCWA,and Ballonais nota basis to overturn those opinions’ holdings. - 26 - criticism of Ballona mirrorsits criticism of SOCWAandfails for the same reasons. Nor can the District argue that this plain reading of the statute runs contrary to this Court’s directive to interpret CEQA “in such a manner as to afford the fullest possible protection to the environment within the reasonable scopeof the statutory language.” (See Laurel Heights, 47 Cal.3d at 390 [emphasis added].) The “environment”is the “physical conditions ... Which will be affected by a proposed project.” (§ 21060.5.) An interpretation that requires an analysis of the environment’s impact ona projectis not within the reasonable scope of the statutory language, nor would it act to protect the environment. This Court should decline the District’s request to uphold Guidelines section 15126.2 and overrule Baird, Long Beach, SOCWA,and Ballona. B. The District’s Interpretation Of CEOA Would Lead To Uncertainty In The Law And Absurd Results 1. Reverse CEQA Would Represent a Paradigm Shift The District argues that overturning the Bairdline of cases would not expand the reach of CEQA.(Ans.Br. at 43-46.) That is incorrect. If CEQA requires an analysis of the “adverse effects” on human beings resulting from attracting or bringing people to an existing environmental -27 - condition, the reach of CEQA would extendsituationsthat there is no evidence the Legislature intended. The Districtargues that the cause of an adverse environmental condition is irrelevant, and the only meaningful consideration is whether an action by a public agencyresults is additional people experiencing that condition. (Ans.Br. at 18 [if a source impact must be analyzed and mitigated under CEQA,it is “irrational” not to also require a receptor analysis of the same type of impact]; 45-46 [impacts caused by a project are subject to CEQA;“Accordingly, agencies should also analyze whether these types of impacts will have a substantial, adverse impact on future project residents.”].) Though the District is concerned with the public health impacts associated with air pollution, CEQAis not limited to health issues alone. The documents providedbythe district show that the Resources Agencyitself believes that, under CEQA,“disagreeable conditions . . . must be seen as a significant effect of the project.” (Ans.Br. at 22.) Thus, the District embraces the conceptthat bringing additional people to a smelly environment would bea significant impact under CEQA.(Ans.Br. at 52.) And there is no languagein the statute that would prevent CEQA from applyingto all aspects of siting decisions. For example, under existing law a project that increases the numberof vectors, - 28 - such as mosquitoes, may havea significant impact on the environment. (See Cal. Farm Bureau Fed’n v. Cal. Wildlife Conservation Ba. (2006) 143 Cal.App.4th 173, 185-87 [causing potential standing water would create mosquito breeding habitat, therefore CEQA commonsense exception did not apply].) The District’s proposed construction would then lead to a significant impactif a building, amphitheater, park, or public facility, was proposed for an area with high numbers of mosquitoes to which new users would be exposed. The risk of communicable disease from mosquitoesis on par with the increased cancerrisk in the Receptor Thresholds. (See Opinion at 27-28 [ten in a million risk of cancer based on 70 years of assumed exposure].) Blight is a CEQA impact, so underthe District’s reasoning, attracting people to a blighted area through construction of new housing in a troubled neighborhood could bea significant effect on the environment. Again, there is nothing in the text of CEQA that would preclude experiencing blight being an “adverse effect” on humanbeings. The potentially substantial adverse effects associated with the urban environmentis a growing area of study, and if CEQA is concerned with attracting people to disagreeable conditions,it will know no bounds.? 9 Indeed,a quick review of the growing bodyofscientific inquiry into howthe built environment may adversely impacts human beings underscores how dramatically the District’s untethered interpretation could alter CEQA’s application to virtually every infill project. Handy, How the Built Environment Affects Physical Activity (August 2002) -29 - 2. The District Fails to Identify any Limits on CEQA’s Reach The District’s non-sequitur-that impact significance conclusions must be based on substantial evidence and not speculation- seems to ignore the issue presented to this Court. (See Ans.Br. at 43-45.) This Court asked when does CEQA “require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project.” The existing environmentis not speculative.If the existing environment is degraded related to noise, odors, vibration, aesthetics, air quality, traffic, hazards, urban decay, or myriad other substantial risks, the future users of a project will be exposedto that degraded environment. And the fair argument standard of review would likely require an EIR be prepared for such impacts resulting from such exposure if any substantial evidence exists, such as a scientific journal article, that those impacts could be significant. Indeed, the Opinion finds that studies related to the impacts of stationary sources over a presumed 70 American Journal of Preventive Medicine; Ewing, Relationship Between Urban Sprawl and Weight of United States Youth (December 2006) American Journal; Lee, Relationship Between the Built Environment and Physical Activity Levels: The Harvard Alumni Health Study (October 1, 2010) American Journal of Preventive Medicine; Lucy, Mortality Risk Associated with Leaving Home: Recognizing the Relevanceofthe Built Environment (May 10, 2003); Economic Research Service, Access to Affordable and Nutritious Food: Measuring and Understanding Food Deserts and Their Consequences (June 2009) United States Department of Agriculture). - 30- years of exposure was substantial evidence supporting the identical threshold being applied to both sources and receptors. (Opinion at 27-28.) Further, the District attempts to provide comfort that a public agency “will not need to discuss every possible way in which environmental conditions may harm people.” (Ans.Br. at 44.) But if this Court were to adopt the District’s construction, the limits of the reverse CEQAline will only be determined on a case-by-case basis through successive lawsuits. There is no principle the District can pointto that would limit reverse analyses only to air impacts or serious physiological health impacts. (See § 21083(b)(3) [referring to “adverse effects on human beings” not adverse human health impacts].) Though the District is willing to concede that reverse CEQA would only apply to “environmental” impacts (Ans.Br.at 45), it is unclear what this supposed limitation would exclude other than social or economic impacts that are unrelated to environmental conditions. (Anderson First Coalition v. City ofAnderson (2005) 130 Cal.App.4th 1173, 1182 [discussing why causing blightis germane to CEQAJ.) This supposed limitation would do nothing to foreclose the claims described above. !9 10 The District’s suggested requirement for CEQAanalysis and mitigation of existing conditions invites this Court to open a veritable Pandora’s Box regarding the varying sensitivities of different populations and sub- populationsto particular ambient environmental stressors. The District’s TACThresholds implicate the category of age (youth and elderly -3]- C. The District’s Argument That Other Laws DoNot Supplant CEQAIs A Red Herring CBIA doesnot argue that other laws supplant CEQA. (Contra Ans.Br. at 48.) CBIA agrees with the Baird lines of cases andthe plain reading of the statute that CEQA does not require an analysis of the existing environment’s impact on a proposed project. CBIA informed the Court that, as acknowledged by Baird and SOCWA,laws other than CEQA address the environment’s impact on projects and their users, and CBIA provided numerous examples of such laws. (Op.Br. at 49.) In light of the Legislature’s prerogative to determine how to address valid policy concerns regarding the impact of the existing environment on humans, CBIA asked this Court to abide by the mandate found in CEQAsection 21083.1, and not expand CEQA’s procedural or substantive requirements as requested by the District. TheDistrict’s reliance on cases regarding a project’s impacts on the environment is misplaced. CBIA doesnot arguethat if a law other than CEQAalready addresses a project’s physical impact on the environment that CEQAshould not apply. (See Wildlife Alive v. Chickering populations), but if the legal trigger is any substantial adverse effect on humanbeings, there would be no principled basis to avoid EIRsto investigate the differing medical and neurological sensitivities of other discrete human populations when they would be the users (receptors) of a project. -32- (1976) 18 Cal.3d 190 [impacts of hunting season and permits on bears]; Neighborsfor Smart Rail v. Exposition Metro Line Constr. Auth. (2013) 57 Cal.4th 439 (impacts of transportation project); CBE, 103 Cal.App.4th at 112 (concerned with restricting fair argument standard application to “a proposed project [that] has an environmental effect that complies witha... regulatory standard”]; Ebbetts Pass Watch v. Cal. Dep’t ofForestry and Fire Prot. (2008) 43 Cal.4th 936 [impacts of timber harvest plans on the environment].) Instead, CBIA andthe District fundamentally disagree on the scope of CEQA. Ill. THE DISTRICT’S THRESHOLDS SHOULD BE OQVERTURNED The Thresholds should be overturned “if clearly unauthorized or erroneous under CEQA.” (See Op.Br. at 41.) They are. Unlike the laws and regulations in the cases the District cited, the Thresholds include specific guidance on how they should be applied. For example, the Thresholdsstate that a significant impact exists where existing sources within 1,000 feet of a receptor’s property cause increasesin health risks. (AR 9:2063.) This statement cannot be squared with the Baird line of cases. Likewise, the Thresholds require reverse CEQA analyses when they require an analysis of whether a project includes exposing a new receptor “to existing or planned odor sources.” (AR 9:02066, 2121; see also Op.Br. 7- - 33 - _11.) The Thresholds are inconsistent with the CEQA statute. Attempting to save the Thresholds by devising hypothetical new uses for the Thresholds - as opposed to the District’s expressly intended uses - is unavailing. The resolution adopting the Thresholdsstates that the Thresholds are intended to determine whether a project would have a “significant effect on the environment” under CEQA.(AR 1:00003.) Whether the science behind the Thresholds may be used for a purpose other than determining if a project has a “significant effect on the environment” is irrelevant. CBIA does not argue that the scientific concerns underpinning the Thresholds are unlawful, but instead argues that it would be improperto use the Thresholds in the manner intended by the District (and expressed in the Thresholds themselves) to determine whethera project has a significant effect on the environment. The District continues to argue thatif the analysis proposed in the Thresholds can be used for any legal purpose, regardless of whetherthat purpose is inconsistent with the District’s intent as stated in its Resolution 2010-06, that should somehowsave the Thresholds themselves.!! This is 11 The District also continues to argue that because the Thresholds are not “mandatory,” they are immune from legal challenge. (Ans.Br. at 61.) But the courts have overturned CEQA Guidelines over the years without deciding whether they are mandatory or advisory. If the District’s Receptor Thresholds violate CEQA,they mustbeset aside. (Cf. Cnty Sanitation District, 127 Cal.App.4th at 1601-1603; Friends ofSierra - 34- absurd. (cf. San Remo Hotel v. City & Cnty. ofS.F. (2002) 27 Cal4th 643, 673 [must only show actionis inconsistent with governing principle in “the generality or great majority of cases’].) First, the District argues that if the Thresholdsare altered by a lead agency, they could properly be used in a school endangerment assessment. (Ans.Br. at 56 [citing AR4:882 (“It is up to the lead agency to determineif the 1,000 foot radius line should be expanded to considerrisks from stationary source for siting a new receptor or source.”’)].) Rewriting the Thresholds is not a use of the Thresholds. Further, this is not an example of the Thresholds being used to determine a significant effect on the environment, the stated purpose of the Thresholds adopted by resolution under authority of CEQA Guidelines section 15064.7, but to analyze the impacts of the environment on the school project as specifically required in the Education Code and CEQA section 21151.8. The District argues that the Thresholds could properly be used to determine whether certain exemptions apply. (Ans.Br. at 56.) Again, this is not using the Thresholds to determineif a project has a significant effect on the environment. Using the Thresholdsfor purposes not found in Resolution 2010-06, or the Thresholds themselves, does not Madre v. City ofSierra Madre (2001) 25 Cal.4th 161, 196, [appropriate relief for noncompliance with CEQA wasinvalidation of ordinance].) 35 - speak to the legality of the Threshold’s expressly intended purpose. If the District wishes to rescind Resolution 2010-06 and issue new general guidance on how to conducta student hazard assessment or determine whethercertain exemptions apply,it is free to do so. Through Resolution 2010-06,it adopted generally applicable thresholds of significance intended to be used to determine whether a project has a significant impact on the environment. The Receptor Thresholds mustbesetaside. The District argues that its Receptor Thresholds could be used to analyze “whether a new project’s TAC emissions” will have a cumulative impact. (Ans.Br. at 57.) As explained in CBIA’s OpeningBrief, a project’s own emissions should be analyzed under a source threshold, which the District has already adopted. The District cannotfairly argue that its needs receptor thresholds to analyze the impacts of a new source. Thatis the province of source thresholds. Next, the District reads CEQA section 21083(b)(3) in isolation, ignoring CEQA’s definition of the “environment” and “significant effect on the environment,” to argue that the Thresholds could be used to determineif a project is consistent with local planning and zoning laws. Again, that is not a use of the Thresholds to determine whetherthe project has a significant effect on the environment. Indeed, OPRhasrecently issued draft guidance on planning andsiting issues as - 36 - required by the Planning and Zoning Law.!2 (Gov. Code, § 65040.12.) The draft guidance does not rely on reverse CEQA. Finally, the District argues that the Thresholds could be used in analyses beyondthose required by CEQA if apublic agencyelects to include reverse analysesin its environmental documents. (Ans.Br. at 58- 61.) Thoughit maybetrue that disclosuresthat are not required by CEQA may be included in an EIR,a lead agency would be foreclosed from determining that a reverse CEQA impact is a significant impact on the environment and impose mitigation for such reverse impacts. (§§ 21002.1(a)-(b), 21003.) Thus, Resolution 2010-06, which adopted generally applicable thresholds of significance to determine if a project would have a significant effect on the environment,is void." 12 This statutory language showsthe Legislature knows howto require analysis ofthe effects of siting new residencesin potentially problematic existing environments.It is telling that the CEQAstatute contains no such similar general directive. 13 The District contends that CBIA waived any challenge to the District’s odor thresholds. (Op.Br.at 9, fn. 3.) But CBIA put the District on notice that the Receptor Thresholds (requiring reverse CEQA)wereinvalid. The claim was not waived. (See Save Our Residential Env't v. City of W. Hollywood (1992) Cal.App.4th 1745, 1749-50 [apprising city on substance ofthe issue satisfied CEQA requirements].) Moreover, the District’s odor threshold is just another example of reverse CEQA- requiring a finding of significance by attracting new people to existing conditions. -37- IV. CONCLUSION CBIArespectfully requests that this Court adoptthe plain reading of CEQAand concludethat it does not generally require analysis of. how the existing environment will impact future users or residents (receptors) of a proposed project. Accordingly, the District’s Receptor Thresholds relying on reverse CEQAshould beset aside. Dated: March 17, 2014 Respectfully submitted, Cox, Castle &md By: Ve Andrew B. Sabey Attorneys for Plaintiff and Regpondent California Building Industry %ssociation - 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 CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S REPLY BRIEFis 8,345 words. I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Executed this 17th day of March, 2014 in San Francisco, California. Andrew B. Sabey-“/ ( PROOF OF SERVICE I am employedin the County of San Francisco, State of California. I am over the 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 March 17, 2014, I served the foregoing document(s) described as CALIFORNIA BUILDING INDUSTRY ASSOCIATION’S REPLY BRIEF on ALL INTERESTED PARTIESinthis action by placing a true copy thereof enclosed in a sealed envelope addressedas follows: Please see attached Service List Onthe abovedate: _x_ BYU.S.MAIL The sealed envelope with postage thereon fully prepaid wasplaced for collection and mailing following ordinary business practices. I am aware that on motion ofthe party served, service is presumed invalid if the postage cancellation date or postage meter date on the envelope is more than one dayafter 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 sameday as the day of collection in the ordinary course of business. I hereby certify that the above document wasprinted on recycled paper. I declare under penalty of perjury that the foregoingis true and correct. Executed on March 17, 2014, at San Francisco, California. ap =Michell Ho 0625 19\4232068v5 SERVICE LIST SupremeCourt of California Case No. S213478 CALIFORNIA BUILDING INDUSTRYASSOCIATION, etal. v. BAYAREA QUALITYMANAGEMENTDISTRICT APPELLATE CASE NOS. A135335 & A136212 Party” Attorney oe1 Bay AreaAir Quality Ellison Folk ManagementDistrict: Shute, Mihaly & Weinberger Defendant and Appellant 396 HayesStreet San Francisco, CA 94102-4421 Brian Charles Bunger Bay Area Air Quality Management District, 939 Ellis Street San Francisco, CA 94109 AlamedaCounty‘Superior| TheHonorableFrankRoesch_ Court Alameda County Superior Court Case No. RG10-548693 1221 Oak Street Oakland, CA 94612 Court of Appeal of the State of |Clerk of the Court California Court of Appeal of the State of California First Appellate District, Div. 5, |First Appellate District, Division 5 Appellate Case Nos. A135335 |350 McAllister Street & A136212 San Francisco, CA 94102-3600 Telephone: 415-865-7300 _ VIAHANDDELIVERY - Clerk of the Supreme Court Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 Telephone: 415-865-7000 |(Original and 9 copies) 0625 19\4232068v5 2