On April 20, 2022, the Bay Area Air Quality Management District (“BAAQMD”) adopted updated CEQA thresholds of significance that it recommends for public agencies’ use in evaluating the impacts of land use projects and plans on climate change. The thresholds and substantial evidence supporting them are contained in a “Justification Report” that can be reviewed on BAAQMD’s website here.
BAAQMD states its new climate change thresholds follow an approach endorsed by the Supreme Court in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, my 12/2/15 post on which can be found here. Under this approach, BAAQMD considers projects that do their “fair share” of what is required to meet the state’s ambitious long-term climate goals to have a less-than-significant impact on climate change for CEQA purposes, and it defines the long-term climate goals as achieving carbon neutrality by 2045.
Land Use Projects
BAAQMD finds that in order to do its required “fair share” a land use project must either be consistent with a robust local GHG reduction strategy meeting the criteria of CEQA Guidelines § 15183.5(b) or it must include certain minimum design elements.
For both residential and non-residential buildings, the “design elements” include that the buildings (1) not include natural gas appliances or natural gas plumbing, and (2) not result in any wasteful, inefficient, or unnecessary energy usage as determined by relevant CEQA analysis pursuant to Pub. Resources Code, § 21100(b)(3) and CEQA Guidelines § 15126.2(b)). Projects must also achieve vehicle miles traveled (VMT) reductions – consistent with CARB’s Scoping Plan or a locally-adopted SB 743 VMT target – as follows: (i) Residential projects: 15% below existing VMT per capita; (ii) Office projects: 15% below existing VMT per employee; and (iii) Retail projects: no net increase in existing VMT. All projects must also comply with the off-street electric vehicle (EV) infrastructure requirements of the most recent version of CALGreen Tier 2.
BAAQMD considers land use projects meeting the above elements to not make a cumulatively considerable contribution to adverse global climate change impacts for CEQA purposes, while projects not meeting them should be found to have a significant impact because they will hinder the State’s efforts to address climate change. (BAAQMD’s new thresholds do not address GHG emissions from construction-related activities, which are considered to represent a very small portion of an individual project’s lifetime emissions.)
General Plans And Related Long-Range Planning Documents
Applying the same general standard – i.e., consistency with California’s long-term climate goal of carbon neutrality by 2045 – BAAQMD recommends that general plans and related planning documents must either be consistent with a local GHG reduction strategy meeting CEQA Guidelines § 15183.5(b)’s criteria or reduce GHG emissions to 40% below 1990 levels by 2030 and achieve carbon neutrality by 2045. BAAQMD “strongly recommends” that cities and counties adopt climate action plans (CAPs) to document strategies and implementation measures to achieve those goals.
Caveats, Conclusions And Implications
BAAQMD’s new “fair share” based thresholds, which are based on consistency with achieving the State’s overarching goal of carbon neutrality by 2045, are ultimately recommendations that may, or may not, be adopted and followed by California local agencies tasked with approving specific land use projects or planning documents and conducting related CEQA compliance. BAAQMD’s Justification Report supplies both the thresholds and supporting substantial evidence, should local lead agencies elect to follow them. It also clarifies that the thresholds were developed to evaluate climate change impacts from the operational GHG emissions of “typical” residential and commercial land use projects and plans, and, as such, may not be appropriate to apply to other types of projects that don’t fit into the “typical” mold.
In addition to providing important guidance regarding BAAQMD’s view of what will be required of most land use projects to support a CEQA finding of a less-than-significant climate change impact, the new BAAQMD thresholds underscore the benefits that would result from local agencies’ adoption of robust and legally compliant CAPs and GHG reduction plans, in terms of increased certainty in approving individual projects and ability to tailor analysis to the specific needs and policy goals of individual communities, as opposed to relying on BAAQMD’s more general standards.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com