California Supreme Court Settles the CEQA Baseline Debate

A transportation authority planned a light-rail extension line and prepared an Environmental Impact Report (“EIR”).  In analyzing traffic and air quality impacts, the EIR omitted an existing conditions baseline and instead employed a baseline solely based on conditions in the year 2030.  An organization sued claiming the EIR’s use of a future baseline violated the California Environmental Quality Act (“CEQA”).  The trial and appellate courts rejected the organization’s argument and dismissed the suit.  The California Supreme Court affirmed the dismissal, but held that use of a future-only baseline is permissible only when an agency justifies its use by showing that use of an existing conditions baseline would be uninformative or misleading.  (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 [160 Cal.Rptr.3d 1, 304 P.3d 499].


The Exposition Metro Line Construction Authority (“Expo Authority”) in Los Angeles planned an expansion of the city’s mass transit system, a light-rail line to extend from Culver City to Santa Monica.  The project was called the Exposition Corridor Transit Project (“Project”), and was aimed at improving mobility, accommodating growth, and enhancing access to the west side of the city.  Because the Project required review under CEQA, the Expo Authority issued a Notice of Preparation in 2007 and began preparing an EIR for the Project.  The EIR examined the effects of the Project on air quality and traffic in the region.  In doing so, the EIR compared the possible impacts of the Project to a baseline of projected conditions in the area in the year 2030.  The EIR explained that a future baseline was used for comparison because by the time the Project was built, the air quality and traffic conditions existing in 2007 would no longer exist.

The EIR also noted that because some stations along the Project line did not include parking lots, neighborhoods in those areas might experience spillover parking congestion from riders parking nearby.  The EIR proposed mitigation measures to try to reduce potential parking effects of the Project.

After the Expo Authority certified the EIR in February 2010, an organization named Neighbors for Smart Rail (“Neighbors”) sued, filing a petition for writ of mandate in state superior court challenging the EIR.  Neighbors claimed that the EIR violated CEQA by using a future baseline instead of existing conditions to analyze air quality and traffic impacts of the project.  Neighbors also asserted that the mitigation measures for spillover parking effects were inadequate because they could not be enforced.  The superior court denied Neighbors’ petition, and the court of appeal affirmed the superior court decision.  Neighbors petitioned the California Supreme Court for review.


The California Supreme Court affirmed the court of appeal decision denying Neighbors’ petition for writ of mandate.  The California Supreme Court agreed with Neighbors that the exclusive use of a future baseline was not justified in the EIR and violated CEQA.  The Court held that an agency may not substitute use of a future baseline for an existing conditions baseline unless the agency provides an explanation and evidence showing that use of an existing conditions baseline would be uninformative or misleading.  Although, the Court found that the Expo Authority violated CEQA by exclusive use of a future baseline, the Court held the error was nonprejudicial and did not withhold “substantial relevant information” on traffic and air quality impacts.  The Court disagreed with Neighbors regarding mitigation measures for spillover parking, finding that they were adequate and enforceable.

The Court noted at the outset the purpose of an EIR and CEQA is to inform the public and decisionmakers on a project of the significant adverse environmental effects the project might create.  To weigh those potential effects, an EIR compares environmental conditions predicted to flow from the project to a baseline of current conditions as they exist before the project.

The Court noted that in its previous decision in the case Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, it had stated that the baseline must be based on actually existing physical conditions rather than hypothetical conditions.  At the same time, Communities held that in situations where existing conditions fluctuate over time, an agency had flexibility to devise a realistic method of determining the baseline.  The ultimate goal in fixing a baseline is to “give the public and decision makers the most accurate picture practically possible of the project’s likely impacts.”

However, the Supreme Court noted it had never decided whether it was permissible for an EIR to substitute a baseline of future conditions instead of an existing conditions baseline.  The Court surveyed cases from the courts of appeal that had addressed that question.  In Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, a court of appeal examined an EIR that used year 2020 conditions as the baseline for a traffic analysis.  The appellate court found that this future-only baseline was a per se violation of CEQA.  The case Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 adopted the rule stated in Sunnyvale West and held that agencies could not use a baseline of conditions occurring later than the certification of an EIR.

In Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, the same district court of appeal that decided Sunnyvale West reviewed an EIR that compared a project’s traffic impacts to several baselines, including an existing conditions baseline and future baselines.  Pfeiffer held that because the analysis included a baseline based on existing conditions, it met CEQA requirements.

After discussing these decisions, the Supreme Court announced a new rule: “Projected future conditions may be used as the sole baseline for impacts analysis if their use in place of measured existing conditions . . . is justified by unusual aspects of the project or the surrounding conditions.”  In order to justify complete omission of the current conditions in the baseline, an agency must provide an explanation and evidence for how the existing conditions baseline “would detract from an EIR’s effectiveness as an informational document, either because an analysis based on existing conditions would be uninformative or because it would be misleading to decision makers and the public.”

The Court also stated that when appropriate, an EIR could adjust an existing conditions analysis to reflect a major, imminent change in environmental conditions that is likely to occur before the project is implemented.  The Court stated that a large-scale transportation project with a long construction period such as the Los Angeles Exposition Corridor Project could permissibly consider shifting background conditions as part of the baseline.  Using such a baseline would have the advantage of not overlooking impacts generated during a project’s early years of operation.

The Court emphasized that the key to determining whether a baseline based on only future conditions was whether such a baseline provided a “more accurate picture” of project impacts, to promote CEQA’s underlying policy of promoting “public participation and more informed decisionmaking.”  The Court stressed that an agency only faced an added “burden of justification” when using a baseline exclusively founded on future conditions.  The heightened burden does not apply when using a future baseline discussion in addition to an existing conditions baseline.  The Court also pointed out that CEQA permits use of future conditions to analyze cumulative effects and the “no project alternative.”

Regarding justification of a future-only baseline, the Supreme Court noted that the CEQA Guidelines establish current conditions as the norm for a baseline, with the aim of properly considering both short-term and long-term environmental effects of a project.  The Court noted that while a project may improve environmental conditions in the long-term, the public and decisionmakers are entitled to know whether short- or medium-term sacrifices will occur as a result.  The Court also noted that justification of a future-only baseline was necessary because measurement of existing conditions is direct and less prone to error than predictive modeling needed to generate a future baseline.  Additionally, use of an existing baseline is more accessible and understandable to the public and decisionmakers, and so special justification is needed in order to omit it entirely in favor of a future-only baseline.  The Supreme Court stated that without such a justification requirement, agencies might be tempted to “routinely” omit analysis of short- and medium-term effects and “hide significant adverse impacts . . . in the project’s initial years of operation.”

Finally, the Court stated that because its rule employs a fact-intensive assessment, an agency’s baseline determination would be subject to the substantial evidence standard in court.

Looking to the Los Angeles Exposition Corridor Project, the Court found that no substantial evidence supported the Expo Authority’s omission of existing conditions from the Project’s baseline analysis.  The Court disagreed with the Expo Authority’s argument that it was justified in using a year 2030 baseline because 2007 conditions would not exist when the Project was fully operational.  The Court noted that an agency has discretion to adjust its baseline to reflect important changes occurring between EIR preparation and project implementation, but that the agency failed to even compare existing conditions to conditions when the project begins operating.  Such an analysis failed to inform the public and decisionmakers of effects occurring during the Project’s first 15 years.

The Court also rejected the Expo Authority’s contention that a future-only 2030 baseline was justified because traffic and air pollutants were expected to increase through 2030.  The Court found that while ongoing change could support supplemental use of a future baseline, it did not support omission of an existing conditions analysis.  The Court was not sympathetic to Expo Authority’s argument that it used the future-only 2030 baseline because federal funding requirements required such a long-term view.  The Court explained that except where CEQA law or regulations said otherwise, an EIR had to adhere to CEQA requirements, not those of another statutory scheme.  Additionally, the EIR could have used both a future baseline and a current conditions baseline without violating CEQA.

Despite the Court’s finding that the EIR violated CEQA, the Court held that the violation was not prejudicial and did not deprive “the public and decision makers of substantial relevant information about the project’s likely adverse impacts.”  The Court found that the Project’s use of an existing baseline for traffic and air quality impacts likely would have produced similar results and information as the use of the future-only 2030 baseline.  The future-only baseline “was thus an insubstantial, technical error” that did not justify setting aside the EIR or the Project approval.

Turning to Neighbors’ challenge to the EIR’s mitigation measures for spillover parking effects at the Project’s Metro stations without parking lots, the Court observed that the EIR’s measures included monitoring of stations to determine whether a parking shortfall occurred.  If so, the transportation authority would assist the local parking jurisdiction with funding and establishing a neighborhood permit program.  If a permit program was not workable for the area, the transportation authority would coordinate with the local jurisdiction in devising other options such as metering.  The Court rejected Neighbors’ contention that the mitigation measure was unenforceable because it was dependent upon cooperation of local jurisdictions.  The Court noted that both the CEQA statute and regulations allow for mitigation measure involving cooperation with other agencies.


Justice Baxter

Justice Baxter wrote a lengthy concurrence and dissent to the decision joined by Chief Justice Cantil-Sakauye and Justice Chin.  Justice Baxter concurred in the Court’s holding that the EIR’s spillover parking mitigation was adequate and in the Court’s affirmation of the court of appeal’s denial of Neighbors’ writ petition.  The bulk of Justice Baxter’s analysis was devoted to discussion of flaws in the future baseline rule announced by the Court’s opinion.  Justice Baxter stated that the rule was not supported by CEQA statutes and regulations and ran contrary to the deferential nature of judicial review of agency decisions under CEQA.  Justice Baxter further stated that the new rule would encourage litigation whenever an agency used a future-only baseline, and that vagueness in the new rule would create uncertainties for agencies on how to comply with it.

Justice Baxter stated that a better rule would be to “simply adhere to precedent recognizing that an agency enjoys discretion to select an alternative baseline that is reasonably suited to the nature of the project . . . and the totality of the circumstances.”

Justice Liu

Justice Liu wrote a brief concurrence and dissent concurring with all aspects of the Court’s opinion except for the holding that the EIR’s use of a future-only baseline was nonprejudicial.  Justice Liu stated that the absence of an existing conditions baseline could have deprived the public of relevant information on the Project.  Justice Liu pointed out the most of the EIR’s other analyses besides traffic and air quality used an existing conditions baseline, and that it was “not implausible to think” that traffic and air quality impacts in the short- and medium-term could be worse than those in the long-term.


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