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Court Orders Review of Desert Paving Process

(CN) - The California agency that oversees air quality in the Mojave Desert failed to consider the negative impacts of paving desert roads to reduce dust, a state appeals court ruled.

In 2007 the Mojave Desert Air Quality Management District approved a new rule concerning the paving process without performing an environmental review. The agency relied on a categorical exemption under the California Environmental Quality Act to green light the rule, saying that paving would have little or no impact, or that any harm was mere speculation.

But the agency "failed to show that these effects would be either de minimus or too speculative to analyze," Justice Richli wrote. The management district did not guarantee that the rule would "assure the maintenance, restoration, enhancement, or protection of the environment" - a California legal requirement to skip the environmental review process.

Richli reversed the trial court's judgment, granting a petition to overturn the rule filed by California Unions for Reliable Energy, the Center for Biological Diversity and Frank Leivas.

The agency relied on its logic instead of hard evidence to claim an exemption, the court noted, while the plaintiffs presented evidence that the paving trucks would emit larger, more dangerous air particles than the ones being reduced by potential paving.

These particles "would stay in the air longer, spread more widely, and be more likely to cause disease," the ruling states. The management district bore the burden of proof but failed to meet it, the 4th District Court of Appeal ruled.

When the government agency adopted the rule, the ruling states, it was required to look at the effects of the underlying activity - the paving itself. The district had tried to claim that the government approval process was the extent of the project up for review, but the appeals court disagreed, citing the need to avoid piecemeal environmental review. The agency may not be paving any roads itself, but it is encouraging others to do so by putting the process in place, according to the opinion.

"An agency action is not exempt from CEQA simply because it will not have an immediate or direct effect on the environment," Justice Richli wrote. "CEQA applies if it is reasonably foreseeable that environmental impacts will ultimately result."

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