In a series of decisions that had agency planners and environmental consultants scratching their heads, various courts of appeal last year held that every CEQA document must take account of existing conditions in assessing environmental impacts. (See Sunnyvale West Neighborhood Assoc. v. City of Sunnyvale City Council (6th Dist. 2010) 190 Cal.App.4th 1351; Pfeiffer v. City of Sunnyvale City Council (6th Dist. 2011) 100 Cal.App.4th 1552; Madera Oversight Coalition, Inc. v. County of Madera (5th Dist. 2011) 199 Cal.App.4th 48; see also “CEQA Baselines: New Sunnyvale Case Sanctions EIR’s Use of Multiple Traffic Baselines,” by Arthur F. Coon, posted December 9, 2011.) These decisions meant agencies and private applicants had to incur the expense associated with additional studies and model runs, even where a project’s “opening day” would not occur for years. And further, while these decisions specifically concerned traffic studies, in light of their reasoning a prudent applicant would conduct existing baseline model runs for other impact areas such as noise and air quality. Costs for such studies easily ran into the five figures.
A recent decision by the Second District Court of Appeal runs counter to these holdings, declaring that, in certain circumstances, one can rely solely on future projected baselines.
In Neighbors for Smart Rail v. Exposition Metroline Construction Authority (4/17/12) ____ Cal.App.4th ____, Case No. B232655, the Court considered a challenge to a light rail line betweenCulver City andSanta Monica inLos AngelesCounty that would not become operational until 2015. Project studies focused exclusively on 2030 traffic scenarios. Owing to CEQA’s requirement that an environmental document “include a description of the physical environmental conditions … at the time the notice of preparation if published, or if no notice of preparation is published at the time environmental review commenced” (14 Cal. Code Regs., § 15125(a)), as well as the recent line of decisions interpreting this requirement, petitioner argued the project EIR failed because it did not look at 2009 conditions (or at conditions occurring anytime between the project’s notice of preparation in 2007 or the lead agency’s certification of a final EIR in 2010.)
The Court in Neighbors for Smart Rail determined that, “in a proper case, and when supported by substantial evidence, use of projected conditions may be an appropriate way to measure the environmental impacts that a project will have on traffic, air qualify and greenhouse gas emissions.” Though a CEQA guideline provision fixes the appropriate baseline at the time the notice of preparation is published or, alternatively, the commencement of environmental review, the same regulation provides this setting “normally” will constitute the appropriate baseline – not “always.” The Court distinguished a recent California Supreme Court decision holding that a future, projected baseline offended the general rule mandating that baselines reflect actual conditions. Whereas the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310 (“CBE”) outlawed the use of “hypothetical” or “illusory” baselines, the Court in Neighbors for Smart Rail held future baselines, based on substantial evidence, are not “illusory.” The CBE decision disapproved a baseline that accounted for permitted levels of activity, where the actual, historical level of activity never reached the permitted amount. By contrast, the Neighbors for Smart Rail Court held “there is nothing ‘illusory’ about population growth and its inevitable impacts on traffic and air quality: Population is growing, and population increases do affect traffic and air quality, with or without the project.” In supporting the adoption of a future baseline, the Court held, it is key to demonstrate the “reliability of the projections and the inevitability of the changes on which those projections are based.”
The Neighbors for Smart Rail decision would restore flexibility to the environmental review process — a flexibility to which agencies and consultants were accustomed — but it also creates a split of authority among the Second, Fifth, and Sixth Appellate Districts. Review by the California Supreme Court may be forthcoming … stay tuned.