California Supreme Court to Local Agencies: Hypothetical Future Baselines in CEQA are not per se Improper in All Cases, but likely are Improper in the Vast Majority

by Jeffer Mangels Butler & Mitchell LLP

An August 5, 2013, the California Supreme Court provided some additional flexibility to local agencies in deciding what conditions properly constitute the "baseline" for analysis under the California Environmental Quality Act ("CEQA"). The decision, Neighbors for Smart Rail v. Exposition Metro Line Construction Authority ("Neighbors"), Case No. S202828, narrowly upholds the environmental impact report ("EIR") prepared for phase 2 of the Exposition Corridor Transit Project ("Expo Phase 2") and strikes a middle ground among previous decisions regarding the use of various future baselines. The court ruled, among other things, that although an agency may, in very limited circumstances, evaluate project impacts on the basis of conditions anticipated to exist at the time of certification of an environmental impact report ("EIR") for the project, or on a hypothetical longer-term future baseline, these cases remain the exception, rather than the rule. If using only a hypothetical future conditions and omitting existing conditions as a baseline, an agency must demonstrate that an analysis based on existing conditions "would detract from an EIR's effectiveness as an informational document" by providing an uninformative or misleading analysis. In most cases, an agency must still evaluate the impacts of a project in comparison to existing conditions, though nothing prevents additional analysis of long-term impacts, particularly in the context of a cumulative analysis or a "no project" alternatives analysis.

Existing Conditions in CEQA

CEQA and the CEQA Guidelines require an environmental document to evaluate the effects of a project on "the environment." Generally, "the environment" consists of the physical conditions that exist in an area at the time of publication of the notice of preparation ("NOP") for an EIR or, if no NOP is published, the time of commencement of environmental review. Exceptions to this general rule exist, but are rare, and substantial evidence in the administrative record for the project must support such an exception. One such exception, articulated in Sunnyvale West Neighborhood Association v. City of Sunnyvale ("Sunnyvale"), 190 Cal.App.4th 1351 (2009), is when conditions at the time of NOP publication somehow do not reflect typical circumstances, such as an unusual occurrence that would materially distort the conclusions of the EIR analysis. Another, articulated in Communities for a Better Environment v. South Coast Air Quality Management District ("CBE"), 48 Cal. 4th 310 (2010), is a fluctuating baseline. The overarching principle is the selection of the most realistic, accurate baseline possible, based on substantial evidence in the record.

The EIR in Neighbors and the Expo Authority's Error

In this case, the Los Angeles County Metropolitan Transportation Authority (the "Expo Authority") published an NOP in February 2007 and circulated a Draft EIR for the Expo Phase 2 project in January 2009. Most analyses in the EIR relied on conditions in or around February 2007. However, the traffic and air quality analyses measures conditions that existed at that time, but then generated hypothetical year 2030 scenarios (with and without the project) that formed the basis of those conclusions. The Expo Authority provided several justifications for this choice--which generally involved planning, implementation, operation, and anticipated project benefits--each of which the Court dismissed as unsupported by evidence in the record.

First, the Court noted the common practice for EIRs to assume for analytical purposes that a project can instantaneously reach full construction and operation. In this case, the Expo Authority could have assumed full ridership as well as full implementation of other aspects of the project, as ridership constitutes a feature of the project itself, not the environmental baseline.

The Court also posited that use of existing conditions generally yields both greater accuracy and comprehension. An agency can in most cases directly measure existing conditions and readers of an analysis can more readily understand comparisons to existing conditions that they have directly observed. However, agencies must derive or model future conditions, which can introduce substantial error, and such derivations also may pose a barrier to a reader's clear understanding.

Moreover, the Court noted that the routine use of future baselines rather than existing conditions would effectively allow agencies to choose a baseline depending on which impacts it wished to disclose (or hide), or to conceal short- and medium-term impacts for any project with long-term aspirations. Even if an agency anticipates a long project life or the provision of long-term benefits, CEQA requires that decision-makers and the public still must know the environmental costs of achieving those benefits. As various courts have held in previous cases, nothing prevents an agency from evaluating the impact of a project using both short- and long-term horizons.

Consequently, the Court determined that the Expo Authority erred in its use of a 2030 baseline for traffic and air quality impacts.

The Error was Not Prejudicial

The Court then conducted a detailed examination of the conclusions of the traffic and air quality analyses to determine whether the use of existing conditions would have provided substantially different information, and determined that no substantial change would have occurred. Among other things, the Court was persuaded by the following:

• No significant traffic or air quality impacts were projected to occur;
• A small number of intersections (less than seven percent) experienced traffic delays of more than ten seconds;
• The most impacted intersections were not close enough to an unacceptable level of traffic service that application of project-related traffic to existing conditions would have yielded different results, and the project actually would have beneficially affected most of these intersections;
• Overall, the project included features that reduced traffic delay, generally slowing the onset of impacts over time, compared to existing conditions; and
• The project would reduce vehicle miles travelled, which would reduce air emissions, creating a beneficial air quality impact, a general proposition that the Court characterized the plaintiffs as not having disputed.

As a result of the above, the Court concluded that, under the particular circumstances of this case, the use of an incorrect baseline constituted an "insubstantial, technical error" that did not deprive the public or decision makers of information necessary to make an informed decision regarding the project. Therefore, the error was not prejudicial, and the EIR survived the challenge.


Despite this decision, agencies should not rely on any court to conduct a similarly searching analysis of an EIR to determine whether the use of an incorrect baseline was prejudicial. Rather, agencies should carefully consider, in light of all available facts, whether any deviation from the use of existing conditions is necessary for greater accuracy or to avoid misleading the public and decision-makers, and whether substantial evidence exists or could exist in the record to support the decision to deviate.

Written by:

Jeffer Mangels Butler & Mitchell LLP

Jeffer Mangels Butler & Mitchell LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.