California Unions for Reliable Energy v. Mojave Desert Air Quality Management District

In 2007, the Mojave Desert Air Quality Management District (the District) adopted “Rule 1406.” Rule 1406 concerns the use of road paving—which reduces airborne dust—to offset increases in airborne dust as well as other forms of particulate air pollution.

The parties offer strikingly different characterizations of Rule 1406.

According to the District, Rule 1406 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 at this point, their environmental effects are speculative.

Based on this characterization, the District found that its adoption of Rule 1406 was exempt from environmental review under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) under the “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…