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CEQA Does Not Apply In Reverse

CP&DR Staff on
Dec 17, 2015

The California Environmental Quality Act does not apply in reverse, the California Supreme Court ruled Thursday.

Overturning the First District Court of Appeal, the Supreme Court ruled that, with a few exceptions, CEQA analysis must be limited to the project's impacts on the environment (and, by extension, the project's environmental impacts on its own population) but not the environment's impact on the project.

Among other things, the ruling would seem to suggest that a CEQA analysis cannot analyze and mitigate the effect of future sea level rise or other climate change effects on a proposed project. 

[W]e conclude that agencies subject to CEQA generally are not required to analyze the impact of existing environmental conditions on a project's future users or residents," wrote Justice Mariano-Florentino Cuellar for the unanimous court. "But when a proposed project risks exacerbating those environmental hazards or conditions that already exist, an agency must analyze the potential impacts of such hazards on future residents or user. In those specific instances, it is the project's impact on the environment -- and not the environment's impact on the project -- that compels an evaluation of how future residents or users could be affected by exacerbated conditions. Cuellar, a longtime Stanford law professor and expert on administrative law, was appointed to the court last January by Gov. Jerry Brown.

The court carved out exceptions to the "No-CEQA-In-Reverse" rule for airport-related safety hazards and noise problems (Public Resources Code Section 21096), schools locatd in close proximity to hazards, waste, or freeways that might emit hazardous substances (Section 21151.8), and housing developments located close to hazardous substances and sites subject to wildland fire, seismic, landslide, or flood hazards (Section 21159 and Section 21155.)

The case, California Building Industry Association v. Bay Area Air Quality Management District, can be found here. A fuller CP&DR writeup is pending.