By William W. Abbott
There is always a certain level of satisfaction at the end of the holidays when you find the last present, and for CEQA practitioners, the same holds true. On December 30, 2011, the First Appellate District issued a solid decision on baseline: Citizens for East Shore Parks v. California State Lands Commission (December 30, 2011, A129896) ___Cal.App.4th ___. The facts involve a lease extension between Chevron and the State Lands Commission for a marine terminal. Originally built in 1902, the terminal had been periodically upgraded. In 1947, the Lands Commission entered into a 50 year lease with Chevron’s predecessor. Starting in 1998 with the NOP, the Commission eventually certified the EIR for the lease extension, nine years later. The CEQA litigation followed.
The key issue in the case was the setting of the baseline. While administratively the Commission had considered the baseline as if no terminal was currently operating, it eventually determined that the appropriate baseline included existing active terminal operations. The opponents argued that a “no terminal” baseline was appropriate on the basis that the Commission had the right to not extend the lease, effectively terminating the activity. Not so in the opinion of the appellate court. The lead agency had the discretion to include the existing operations, and whether viewed as a question of substantial evidence or as a question of law, the appellate court held that the Lands Commission chose correctly. The Commission’s actions did not include the error of including hypothetical operations, a practice invalidated by the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 315.
Most of the opponent’s remaining arguments were hinged to their initial argument that the Commission erred in its baseline selection. The appellate court rejected those claims as well, including an argument that the Commission erred in failing to study an alternative which assumed that the terminal did not exist. As the proposed lease activity had no impacts to recreational activities, there was no duty to examine potential impacts to trail plans (land and aquatic).
The appellate court also rejected an argument that the project description was too narrowly drawn as it omitted the upland operations associated with the refinery. As the appellate court observed, the Commission only had jurisdiction over the lease for the marine terminal, it was not required to consider the existing refinery as connected to the proposed lease.
The appellate court also devoted considerable thought to the claim that the lease violated the public trust doctrine. Upon statehood, the State acquired title to all tidal and navigable river lands, and holds those in trust for the public. However, the appellate court concluded that the granting of a lease for a marine terminal was consistent with the public trust, and declined the urgings of the project opponents to compel the Commission to engage in a wide ranging identification, evaluation and mitigation of other potential public trust uses.
William W. Abbott is an attorney 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.