Builders mount challenge to air-quality guidelines

Builders mount challenge to air-quality guidelines

Bob Egelko
Published 3:13 pm, Wednesday, November 27, 2013
The state Supreme Court has agreed to hear a challenge by the building industry to new air-quality guidelines for Bay Area construction projects.

But a lawyer for the Bay Area Air Quality Management District said Tuesday's court order, which granted review on only one of several issues raised by the California Building Industry Association, will allow the guidelines to take effect for the first time since the district adopted them in 2010.

The guidelines are nonbinding recommendations that a developer prepare an environmental impact report if a proposed project would emit a specific level of air pollutants - soot particles, toxic substances such as lead and diesel exhaust, or climate-changing greenhouse gases.

An environmental report must describe any available less-polluting alternatives and allow input from the public. A California law that Gov. Ronald Reagan signed in 1970 requires the reports for any development that could have a significant effect on the environment. Developers who consider the reports time-consuming and expensive have fought to limit the scope of the law.

The builders' association argued that the Bay Area guidelines, which are more restrictive than standards the district had adopted in 1999, would discourage projects near existing developments, leading to more urban sprawl and increased pollution. As a consequence, the builders contended, the air district's action was itself a "project" that would affect air quality, and should have been preceded by an environmental impact report.

An Alameda County judge agreed in January 2012 and blocked the guidelines from taking effect. A state appeals court reversed that ruling this August, saying the builders' forecasts of environmental harm were too speculative. The appeals court noted that the district had conducted more than a year of public hearings and workshops before adopting the guidelines.

On Tuesday, the state's high court voted unanimously to review another argument by the builders' association: that the guidelines violate state law by advising developers to consider the impact of local environmental conditions, such as air pollution from nearby freeways, on a proposed project's construction workers and future residents.

In measuring environmental impact, developers and regulatory agencies usually focus on a project's likely effects on air and water quality. In its new guidelines, the air district said standards for regional development can also take into account the effect of ongoing pollution on the people who would live and work in a new development, an argument accepted by the First District Court of Appeal in its Aug. 13 ruling.

The state Supreme Court said Tuesday it would decide whether California's environmental law authorizes such reviews. Its order leaves that section of the guidelines on hold.

But Ellison Folk, a lawyer for the air district, said the court's order would not prevent the rest of the guidelines from taking effect. Most local government agencies in the Bay Area are already relying on the district's recommended pollutant levels in assessing new projects, she said.

"Most of the (pollution) thresholds are not at issue" in the court case, Folk said.

The Building Industry Association was unavailable for comment.

The case is California Building Industry Association vs. BAAQMD, S213478.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail:

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