By William W. Abbott
It is refreshing when a court lays it on the line. And, that is exactly what Division Eight of the Second Appellate District did in addressing CEQA’s requirements for baseline selection for projects with future implementation dates. The case, Neighbors for Smart Rail v. Exposition Metro Line Construction (April 17, 2012, B232655) __Cal.App.4th __ (“Neighbors”) provides a counterweight to recent decisions from the Fifth and Sixth Appellate Districts, setting a possible stage for California Supreme Court review.
The case involves an EIR prepared for a phase II rail line extension. While the EIR used existing physical conditions in a number of impact discussions, the lead agency used a future scenario for traffic and air quality. The lead agency’s rationale was that 2009 population and traffic numbers, as compared to forecasted numbers, were less reliable in assessing impacts for a project with a construction date of 2015, at its earliest.
Opponents filed a CEQA challenge, asserting that the use of a future baseline scenario violated CEQA, pointing to the recent decisions of Sunnyvale West Neighborhood Association v. City of Sunnyvale (2010) 190 Cal.App.4th 1351 ("Sunnyvale") and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 ("Madera"). The appellate court in Neighbors critically reviewed not only Sunnyvale and Madera, but the California Supreme Court decision in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310 (“CBE”), reaching several noteworthy conclusions. First, the CBE court dealt with baseline in a case involving an existing operation, looking at a hypothetical baseline of maximum permitted activity, a baseline which overstated actual current conditions. Second, the Neighbors court went on to say that to the extent that Sunnyvale and Madera stood for the proposition that CEQA precluded the use of a future baseline, “we disagree with those cases.” The court went on to uphold the balance of the EIR challenges. However, the court ordered published only that portion of the decision pertaining to the baseline.
Comment: In taking a different path to the baseline, the Neighbors court concurred in a critical point well known to planners, that being that in the right set of circumstances, a CEQA evaluation of a project compared to existing physical conditions will lead to information which is less useful and reliable to the public and the decisionmakers. Given that CEQA is intended to foster more informed decision making, rigid adherence to the use of existing physical conditions in every instance may miss the mark in terms generating meaningful analysis. Lead agencies, when following the lead set in CBE, would be well served to the follow the Authority’s use of a variable baseline, utilizing existing conditions for many, if not most, of CEQA’s impact discussions.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.