California Appellate Court Requires Assessment of Healthcare Effects of New Development

In a decision that will likely impact projects all across the state, the Court of Appeal for the Fifth Appellate District issued its second major CEQA decision of the year, finding that when a project will result in pollutant emissions that exceed thresholds established by an air quality district, an Environmental Impact Report ("EIR") must provide a detailed evaluation of the human health risks associated with each exceedance.  (Sierra Club v. County of Fresno (2014) 2014 Cal.App. LEXIS 459.)  As such, the decision arguably raises the bar with respect to a lead agency's obligation to analyze a project's air quality impacts on human health.

The EIR estimated that a proposed master-planned community for persons age 55 or older located in north-central Fresno County (the "project") would emit approximately 117.38 tons per year of PM10, 109.52 tons per year of reactive organic gases ("ROG"), and 102.19 tons per year of nitrogen oxides (NOx) at build out.  These amounts were approximately 7 to 10 times great than the respective thresholds established by the San Joaquin Valley Air Pollution Control District.  While the EIR provided an air quality mitigation measure, it concluded that the mitigation measure would not reduce the emissions below the thresholds, and thus there was an unavoidable significant impact with respect to air quality.  The County subsequently approved the project with a statement of overriding consideration.

While the Superior Court denied the Sierra Club's challenge to the EIR, the Court of Appeal reversed that decision, finding that (1) the EIR failed to adequately analyze the project's air quality impacts on human health, (2) the mitigation measures for the project's long term air quality impacts failed to comply with CEQA, and (3) the conclusion that the mitigation measure would "substantially reduce" air quality impacts was not supported by substantial evidence.