ELR Citation: ELR 20248
No(s). E046687 (Cal. App. 4th Dist. Oct 30, 2009)

A California appellate court reversed a lower court decision that a local air district's adoption of a rule to reduce airborne dust is exempt from environmental review under the California Environmental Quality Act (CEQA). The rule concerns the use of road paving to offset increases in airborne dust as well as other forms of particulate air pollution. The district argued that its adoption of the rule was exempt from environmental review under CEQA's "Class 8" categorical exemption, which applies to "actions taken by regulatory agencies . . . to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment." The district claimed that the rule merely provides a protocol to be used in applying for, calculating, and issuing paving offsets. It does not authorize any actual road paving; hence, it cannot possibly have any environmental effects. Any future paving offsets will be subject to environmental review if and when applicants seek them. But there is insufficient evidence to support the district's finding. The administrative record contains no evidence that the environmental effects of the adoption of the rule are speculative. In fact, environmental groups offered at least some evidence that the quality of those effects would be adverse. In the absence of evidence that the negative environmental effects of the rule would not be significant, the exemption finding cannot be sustained.