By Katherine J. Hart
In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 (Neighbors), the California Supreme Court held that a lead agency has discretion to omit existing conditions analyses by substituting a baseline consisting of environmental conditions projected to exist solely in the future, but to do so the agency must justify its decision by showing an existing conditions analysis would be misleading or without informational value.
The project in question was phase two of a light-rail transit project which would connect Santa Monica (on the westside of Los Angeles) to Culver City (“Expo Phase 2”). Phase one of the rail project was previously constructed; it operates to connect Culver City to downtown Los Angeles. The purpose of Expo Phase 2 was to provide high-capacity transit service between Santa Monica and downtown LA in order to alleviate extensive traffic congestion along the Interstate 10 freeway. Expo Phase 2 would be constructed and operated at street level in most areas. Thus, the rail trains could potentially temporarily impede vehicular and pedestrian traffic throughout the day at various intersections along the corridor.
Beginning in February 2007, the Expo Authority started studying Expo Phase 2 (a light-rail line running from a station in Culver City through the Westside area of Los Angeles to Santa Monica). The Authority released a Draft EIR in January 2009, published the Final EIR in December 2009, and certified the EIR and approved the Expo Phase 2 project in January 2010. Notably, the Expo Authority used a 2030 baseline in the EIR to analyze traffic and air since the project would not be complete until then. No existing conditions baseline or analysis was completed. The Neighbors challenged the Expo Authority’s future-only baseline, contending the agency should study the potential traffic impacts prior to 2030 that would need mitigating.
Traffic Impacts Analysis on Level of Service
The Exposition Authority studied the existing congestion in 2007-2008 along the various street intersections that would be impacted by the project. The Authority measured the delay or congestion in terms of the level of service (LOS). Then, the Authority looked at the Metropolitan Transit Authority’s traffic projections model, which included regional growth projections for the Southern California Association of Governments, to predict the LOS for each intersection in 2030 if the Expo Phase 2 project was not built and assuming no other transit improvements along the project corridor were built. The Authority also predicted the LOS in 2030 if the Expo Phase 2 project was built and operated. The projections included reductions of vehicle trips which were expected to result from the project, along with the impact of stoppages at grade crossings as each train would pass. The 2030 year with project was compared to the predicted year 2030 LOS without the project and the level of impacts were assessed.
Supreme Court Decision
The Supreme Court accepted the case for review in light of varying appellate court decisions on the baseline matter over the years. Interestingly, even the Supreme Court was divided in finally determining the baseline issue.
The majority of the Supreme Court held that the Expo Authority had not justified its decision to prepare only a future baseline analysis with any substantial evidence. The Court noted that even though many projects will have on operational lives, the CEQA Guidelines establish a default of existing conditions baseline because such a baseline serves CEQA’s goals – mainly to inform decision makers and members of the public about the short- and medium-term environmental costs of achieving the project. Furthermore, the Court noted that the use of existing conditions as a baseline make the impact analysis more understandable for the public. Notably, the majority held that the baseline error was not prejudicial.
In light of its holding, the high court disapproved the Sunnyvale West and Madera Oversight cases insofar as those cases hold that an agency may never employ predicted future conditions as the sole baseline for analysis of a project’s environmental impacts.
Justice Baxter wrote a fervent dissent on this issue (joined by Justice Liu), arguing that requiring an existing conditions analysis when a future conditions analysis would provide a realistic assessment of a project’s impacts is wasteful, and further, that “the majority’s restrictions on agency discretion find no support in CEQA or in the [Guidelines].” The majority of the Court dismissed Baxter’s dissent and proposed future-only baselines as sanctioning “the unwarranted omission of information on years or decades of a project’s environmental impacts and open[ing] the door to gamesmanship in the choice of baselines.” Justice Liu wrote his own dissent indicating he believed the baseline error in the EIR was in fact prejudicial.
The take away from this case is that a lead agency has discretion to omit existing conditions analyses by substituting a baseline consisting of environmental conditions projected to exist solely in the future, but to do so the agency must justify its decision by showing an existing conditions analysis would be misleading or without informational value. Meeting this test will be nearly impossible. For one thing, it is unclear what substantial evidence could show an existing conditions analysis would be “misleading or without informational value.”
Accordingly, as CEQA attorneys have been advising their agency clients since the Sunnyvale West case, lead agencies should analyze both existing and future condition baselines in their environmental documents.
Katherine J. Hart is senior counsel 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, or 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.