Judge Strikes Down Air Quality Rules

An Alameda County (California) Superior Court judge recently struck down CEQA guidelines established by the Bay Area Air Quality Management District (BAAQMD).  The Guidelines sought to "better protect the health and well being of Bay Area residents by addressing new health protective air quality standards, exposure to toxic air contaminants and adverse effects from climate change."  A challenge to the Guidelines was brought by representatives of the building industry, economic development groups and others claiming that the new rules would make the cost of development prohibitively expensive.

As often happens in court decisions, the judge did not rule on the substance of the Guidelines, but rather found that  BAAQMD, itself bound by CEQA, had not undertaken the necessary environmental review of the impacts of the Guidelines.  Solely on this basis, the rules were determined to be improper.

While the plaintiffs in the lawsuit are claiming victory, it is important to remember that his ruling was based on BAAQMD not following the proper procedures; the agency may promulgate the same Guidelines after conducting the necessary environmental review.

Proposed Amendments to 'New Source Review of Toxic Air Contaminants'

The Bay Area Air Quality Management District (BAAQMD) is accepting comments through this Thursday, December 3, on proposed amendments to Regulation 2, Rule 5, New Source Review of Toxic Air Contaminants and the Health Risk Screening Analysis (HRSA) Guidelines for this rule.

Regulation 2, Rule 5 prevents significant increases in health risks resulting from new and modified sources of toxic air contaminants based on preconstruction permit review. The program also reduces existing health risks by requiring updated control requirements when older, more highly polluting sources are modified or replaced.

The proposed amendments incorporate revised California Office of Environmental Health Hazard Assessment (OEHHA) health risk assessment methodologies for proposed projects throughout the district. The proposed amendments revise Table 2-5-1 to incorporate changes to risk assessment guidelines that have been adopted by OEHHA as of June 1, 2009. These revisions include cancer potency factors, RELs, and emission trigger levels. The proposed amendments contain a toxics tracking provision for each Priority Community under the BAAQMD’s Community Air Risk Evaluation program. Under this provision, the BAAQMD will track and report emissions changes of toxic air contaminants from permitted stationary sources, mobile sources, and area-wide source over time.

On Wednesday, December 16, 2009, the BAAQMD Board of Directors will conduct a public hearing to consider the proposed amendments and to consider adoption of a CEQA Negative Declaration. The hearing will be held in the 7th floor Board Room of the BAAQMD office, 939 Ellis Street, San Francisco, commencing at 9:45 am.

Transportation, Land Use, Housing, and SB 375

The California Sustainable Communities and Climate Protection Act (SB 375) links regional transportation planning processes to planning for land use and housing with the goal of reducing greenhouse gas emissions. The goal of this legislation is to develop regional plans that encourage compact development served by high quality public transit.

This caucus will explore the relationship between transportation, land use, housing, and climate change and the opportunities that SB 375 may offer in advancing regional equity as it meets its goal of reducing greenhouse gas emissions. The program will explain how local land use planning processes (and related boards and commissions) will contribute to regional development and equity through the SB 375-mandated Sustainable Communities Strategy (SCS).

Wednesday, October 21, 6 pm to 8 pm
David Brower Center, 2150 Allston Way, Berkeley
Seating is limited. RSVP early to guarantee your reservation.
RSVP to Laurie Jones Neighbors at Urban Habitat.

Super Center Needs to Consider Carbon Emissions Under CEQA

WalMart's analysis of greenhouse gas emissions is inadequate
Margot Roosevelt, Los Angeles Times, May 15, 2009

A San Bernardino Superior Court judge ruled against Wal-Mart’s plan for a super center in the desert city of Yucca Valley, partly on the grounds that the giant retailer failed to take measures to reduce its contribution to global warming.

The retailer contended that the estimated 7,000 metric tons per year of greenhouse gases (GHGs) that would result from the store’s operation was too insignificant to require such measures under the California Environmental Quality Act (CEQA).

Judge Barry Plotkin, relying on contrary evidence from state air quality officials, ruled otherwise, in a case that signals a growing legal consensus that climate change must be considered by businesses and governments promoting new developments. Judge Plotkin also found the retailer’s economic analysis flawed and the retailer’s analysis of ozone and dust pollution inadequate.

"California is in the forefront," said Matthew Vespa, an attorney for the Center for Biological Diversity, which sued Wal-Mart and Yucca Valley. The center also won a case last year against Desert Hot Springs after the city failed to analyze the GHG emissions that would result from a golf course and 2,600-home development.

Environmental activists have had a powerful ally in California Attorney General Jerry Brown, who has won agreements from San Bernardino County, ConocoPhillips, the Port of Los Angeles, the San Diego Airport Authority, and Cilion, a Kern County ethanol plant, to measure or mitigate GHGs.

Read the complete article in the LA Times.

CEQA Guidelines for Greenhouse Gas Emissions

Senate Bill 97 mandates the development of California Environmental Quality Act (CEQA) guidelines "for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions."

The Governor’s Office of Planning and Research (OPR), the California Resources Agency, Cal EPA, and the California Air Resources Board have issued a technical advisory containing informal guidance for addressing climate change in CEQA documents.

How does this affect you and your clients?

Many development, redevelopment, and remediation projects are subject to CEQA.
- a CEQA project is one that requires discretionary approval by a government agency

Affected agencies must now address greenhouse gases (GHGs) in addition to other environmental issues and impacts.
-Identify all the GHG emission sources
-Calculate/estimate GHG emissions
-Identify mitigation measures and alternative methods/approaches
-Identify preferred mitigation strategies

OPR is required to prepare, develop, and transmit the guidelines to the Resources Agency on or before July 1, 2009, and the Resources Agency must certify and adopt the guidelines on or before January 1, 2010.

Visit the OPR website to view the Preliminary Draft CEQA Guideline Amendments and submitted written comments.

Climate Change and Water Resources

On January 29, 2008 the Santa Clara Valley Water District's (SCVWD) Board of Directors hosted a special meeting and work study session to explore climate change, its potential local impacts, and policy implications.

One of the outcomes was the adoption of a resolution stating that the SCVWD will "apply understanding of climate change and climate change impacts as appropriate in water supply plans, flood management project plans, asset management and infrastructure plans, CEQA assessments and EIRs, energy management plans, business plans, and strategic plans". It also states that the SCVWD "will strive to minimize its greenhouse gas (GHG) emissions, work with the community to reduce its GHG emissions related to utilization and management of water resources and enhance community understanding of climate change".

They have posted materials from their meeting here: http://www.valleywater.org/Water/Where_Your_Water_Comes_From/Water%20Supply%20Sustainability%20Planning/Climate%20Change/_BODWorkstudy.shtm