Air Quality Guidelines To Influence Development Projects
SAN FRANCISCO-In June, the Bay Area Air Quality Management District adopted new CEQA air quality guidelines that will substantially influence CEQA reviews of real estate development projects in the San Francisco Bay Area through new significant impact thresholds for greenhouse gas emissions and risks and hazards associated with the siting of residences, schools and medical facilities near emission sources.
The new GHG and local community risks and hazards thresholds complicate CEQA reviews for Bay Area real estate development projects. Although compliance is voluntary in most instances, development project CEQA reviews that do not apply the new thresholds run the risk of facing legal challenges claiming that the Guidelines and the evidence upon which they are based demonstrate a significant impact. On the other hand, projects that do apply the new GHG and risk and hazards thresholds are more likely to require an EIR. The stringency of the new significance thresholds may also make it harder to fully mitigate or justify significant and unavoidable air quality impacts. These issues may resolve once cities and counties address GHG and risks and hazards impacts at a programmatic level, as recommended by the Guidelines. This will take time, however.
The Guidelines set new construction and operational significance thresholds at the project and plan level for regional criteria air pollutants and precursors (ROG, NOx, PM10, PM2.5, CO), stationary source and non-stationary source GHGs, cancer and PM2.5 risks and hazards, and odors. The Guidelines also set a “no net increase” threshold for regional plans with regard to GHGs, criteria air pollutants and precursors, and toxic air contaminants. The following focuses on the new significance thresholds that are the most relevant to real estate development projects.
Project-level GHG Thresholds for Non-stationary Sources.
Real estate development projects are not deemed to cause a significant GHG impact under the Guidelines if they (i) emit less than 1,100, metric tons of CO2 equivalent per year (MTCO2E); or (ii) emit less than 4.6 MTCO2E per resident and employee generated by the project (i.e., total GHG emissions divided by total number of project residents and employees); or (iii) comply with a “Qualified Greenhouse Gas Reduction Strategy” (i.e., a programmatic framework for the reduction of GHGs adopted by local government that meets new State CEQA Guideline 15183.5).
To provide context, a project would exceed the 1,100 MTCO2E significance threshold if it consisted of more than 56 single-family homes, 78 condominium or apartment units, an 83-room hotel, a 19,000 square-foot shopping center or a 346,000 square-foot office building. The 4.6 MTCO2E standard may be an easier threshold to meet, but arguably disfavors retail and mixed-use projects. As mentioned above, the project-level compliance burden may lessen once local government adopts a Qualified Greenhouse Gas Reduction Strategy.
Project-level Local Community Risk and Hazard Thresholds.
Real estate development projects are deemed to cause a significant risk and hazard impact under the Guidelines if, by locating project receptors within 1,000 feet of existing emission sources or by locating project emission sources within 1,000 feet of existing receptors, receptor cancer risks increase above 10.0 in a million, non-cancer risks increase above a 1.0 Hazard Index, or ambient PM2.5 levels increase above a 0.3 µg/m3 annual average. However, a project does not cause a significant risk and hazard impact under the Guidelines if it complies with a “Qualified Community Risk Reduction Plan” (i.e., a community-wide plan to reduce toxic air contaminant and PM2.5 concentrations down to acceptable levels, as identified by the local jurisdiction and approved by BAAQMD). Similar thresholds also apply at the cumulative level (cancer risks above 100 in a million, non-cancer risks above a 10.0 hazard risk, PM2.5 levels above a 0.8 µg/m3, unless complies with a Qualified Community Risk Reduction Plan).
By way of example, a residential project may create a significant impact under these standards if it is sited within 1,000 feet of a freeway or arterial roadway bearing more than 10,000 vehicles per day, but this can only be determined through screening, and, in some cases, by substantial site-specific risk modeling. The standard arguably discourages transit-oriented development, at least until local governments lessen the project-specific compliance burden by adopting a Qualified Community Reduction Strategy.
The Guidelines took effect upon adoption, with the exception of the local community risk and hazards thresholds for new receptors, which do not take effect until Jan. 1, 2011. Projects are exempt if they initiated CEQA review prior to adoption of the Guidelines.
The views expressed in this column are those of the author and not necessarily GlobeSt.com.
Andrew C. Bell, Esq. provides focused land use and natural resources counsel to real estate and renewable energy developers in California and Nevada. He can be reached at 415.666.2296 or via andrewcbell.com.