The California Supreme Court has both resolved a split in the appellate courts and forged new law on the baselines agencies may use to assess projects’ environmental effects under CEQA. Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, Case No. S202828 (Cal. Supreme Court, August 5, 2013).
In an unusual 3-3-1 decision, the court has held:
An EIR may use an “existing condition” baseline that is not limited to conditions as they existed when environmental review began. Four justices have redefined “existing conditions” to encompass “environmental conditions that will exist when the project begins operations.”
Use of a baseline in the distant future requires special justification. The majority concluded that agencies have discretion to use a date in the distant future, “well beyond the date the project is expected to begin operation,” as the EIR’s sole baseline for impacts analysis, but only if the agency shows that use of an “existing project” baseline would be “misleading or without informational value.”
Sunnyvale West and Madera Oversight Coalition are disapproved. All seven justices disapproved two recent appellate court decisions “insofar as they hold an agency may never employ predicted future conditions as the sole baseline for analysis of a project’s environmental impacts.”
Unjustified reliance on a distant future baseline isn’t necessarily prejudicial. Reflecting an accelerating judicial trend, the lead opinion found that although the agency improperly relied only on a distant future baseline (the year 2030) the error did not deprive the public and decision makers of substantial relevant information about the project’s likely adverse impacts. Six justices agreed to deny the project opponents’ petition for a writ of mandate.
For more detailed discussion and analysis of this important decision, see our August 6, 2013 post in Perkins Coie's California Land Use & Development Law Report.