The Bay Area Air Quality Management District (BAAQMD) in June 2010 adopted sweeping new policies governing project analysis and mitigation requirements under the California Environmental Quality Act (CEQA) related to toxic air contaminants and greenhouse gas emissions for projects of all types throughout the region.

 

The new rules were strenuously opposed by the building industry, affordable housing advocates and economic development groups on the grounds they would render infill residential and commercial development prohibitively expensive.

 

On Monday, Alameda County Superior Court Judge Frank Roesch, ruling in a lawsuit filed by the California Building Industry Association, sided with opponents, saying that BAAQMD itself is bound by CEQA and must first study the potential impacts of its new rules on future growth and transportation patterns.

 

“This is a massive victory for the economic and environmental prosperity of the Bay Area,” said Bobby Glover, executive director of Building Industry Association | Bay Area.

 

“It also points up the need for a more transparent, accountable and responsive attitude in regional government,” added Glover, “and why we are pleased to bring you news of the ruling in this our new email publication, the BIA | Bay Area’s Regional Regulatory Bulletin.”

 

According to Glover, the Regional Regulatory Bulletin will monitor and cover regional regulators at BAAQMD as well as the Association of Bay Area Governments, Bay Conservation and Development Commission, Metropolitan Transportation Commission and Regional Water Quality Control Board.

 

“The idea is that if we shed a little light we won’t find ourselves in the position of having to go to court to ensure regional agencies aren’t overstepping their authority and are serving widely shared economic and environmental objectives.”

 

The ruling Monday by Judge Roesch requires that BAAQMD rescind the measures and study the effects they could have on how the Bay Area grows in the future. If and when the District does restart the process, one piece of evidence that will be front and center will be a covert survey it conducted of local governments on the impact of the 2010 policies. Obtained by a Public Records Act request, the survey confirmed that the policies have had a significant negative impact on infill development even during the brief period they’ve been in effect.

 

Judge Roesch did not take up an argument in the lawsuit brought by opponents that CEQA is intend to require study and mitigation of the potentially negative impacts of development on the environment was never meant to be used by regional regulators or private parties to require the opposite—that is, the potential effects of environmental factors on development projects and occupants thereof. However, recent CEQA case law has confirmed that to be the case and the District’s approach to TAC regulation is clearly unlawful under these cases.

 

Be on the lookout for future editions of the Regional Regulatory Bulletin and we’ll let you know what happens next.

 

As state Senator Mark DeSaulnier was quoted recently by Contra Costa Times columnist Daniel Bornstein in reference to the likes of BAAQMD and the other big regional bodies, ABAG, BCDC, MTC and RWQCB: “These are fairly insular institutions with lots of power.”

 

We couldn't agree more--and we'll be there to keep an eye on how they exercise it.

 
Paul Campos is the General Counsel for the Building Industry Association/Bay Area.