Agencies Can Make Adjustments to Environmental Baseline Early in the Review Process
In Citizens for East Shore Parks v. California State Lands Commission (Dec. 30, 2011) 202 Cal.App.4th 549, a citizen group challenged the California State Lands Commission’s (Commission) approval of a lease renewal for Chevron’s marine terminal in the San Francisco Bay near its refinery in Richmond, California. At the onset of the review process, the Commission stated it would analyze the lease renewal project in relation to an environmental baseline that assumed no terminal operations ever existed. After release of the notice of preparation, but prior to release of the Draft EIR, the Commission changed its position and concluded that the environmental baseline must consider existing conditions, including existing terminal operations.
The court upheld the Commission’s revised baseline, explaining that Chevron’s terminal was a valid existing condition and the baseline should consider all existing conditions, even when those conditions have never been reviewed previously. The court rejected petitioner’s argument that the Commission improperly changed its position concerning the appropriate baseline, finding that agencies not only can, but should make appropriate adjustments as the environmental review process unfolds.
Petitioners also challenged the adequacy of the project description, alternatives analysis, cumulative analysis, and land use compatibility. The court rejected each of these arguments in short order, emphasizing that petitioner’s arguments were premised on a misunderstanding of the scope of the lease renewal project and an inappropriate baseline. The court also found that the Commission complied with its responsibility to consult trustee agencies and to adequately respond to public comments. The court declined to consider petitioner’s attack on the Commission’s CEQA findings because the arguments constituted nothing more than “a recycled medley” of their challenges to the EIR.
The court also disagreed with petitioner’s argument that the lease renewal violated the public trust doctrine, explaining that because the lease renewal simply continued a permissible and long-standing trust use, there was no violation.
The decision demonstrates that a lead agency does not violate CEQA by reconsidering methodologies utilized during the environmental review process. The adjustments in this case occurred prior to the release of the Draft EIR; therefore, a lead agency must still consider whether recirculation is required when changes in methodology occur after the release of the Draft or Final EIR.
Written By: Tina Thomas and Chris Butcher
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