Court Disagrees with Sunnyvale and Madera Decisions and Holds that use of Projected Future Conditions as a Baseline for Analyzing Environmental Impacts is Proper where Supported by Substantial Evidence
In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012 Cal.App. LEXIS 434), the Second Appellate District upheld the lead agency’s determination that a future 2030 baseline was proper for determining the significance of traffic and air quality impacts caused by a proposed light rail project in Los Angeles. The EIR at issue used the existing physical environmental conditions as the baseline conditions for most environmental topics; but for traffic and air quality impacts, the agency elected to utilize the future baseline conditions that consisted of existing transit services and improvements that the Regional Transportation Plan explicitly identified as projects to be constructed by the year 2030.
Petitioners objected to the agency’s approach, stating that the 2030 conditions represented a “hypothetical scenario” not unlike the scenario struck down by the Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310 (CBE). Petitioners also relied on Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (Sunnyvale) and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (Madera), both of which held that projected future conditions provided an improper baseline for determining traffic impacts.
In CBE, the Supreme Court rejected the use of “hypothetical allowable conditions” when those conditions did not provide a “realistic description of the existing conditions” without the project. There, the agency’s baseline assumed maximum operation of an oil refinery. Because the refinery did not operate at maximum capacity under normal circumstances, the Court determined that the EIR’s baseline was not a realistic description of the existing conditions without the project and concluded that using such a baseline provided an illusory basis for analyzing the significance of environmental impacts. In Neighbors for Smart Rail, the court distinguished CBE and found that “there is nothing ‘illusory’ about population growth and its inevitable impacts on traffic and air quality: population is growing, and population increases do affect traffic and air quality, with or without the project.” Thus, using a 20-year planning horizon to measure traffic and air quality impacts of a long-term rail infrastructure project is “eminently realistic.” The court found nothing to the contrary in CBE.
The court also stated that “to the extent Sunnyvale and Madera purport to eliminate a lead agency’s discretion to adopt a baseline that uses projected future conditions under any circumstances, we disagree with those cases.” According to the court, “[a]n analysis of the project’s impacts on anachronistic 2009 traffic and air quality conditions would rest on the false hypothesis that everything will be the same 20 years later.” The court explained that the proposed light rail project would not commence operation until 2015 at the earliest, therefore its “impact on presently existing traffic and air quality conditions will yield no practical information to decision makers or the public” and “does nothing to promote CEQA’s purpose of informed decisionmaking on a project designed to serve a future population.” The court therefore rejected the notion that CEQA forbids use of projected conditions as a baseline, and held that “an agency’s use of a projected future baseline, when supported by substantial evidence, is an appropriate means to analyze the traffic and air quality effects of a long-term infrastructure project.”
Depending on the type of project at issue, use of projected conditions may be an appropriate way to measure the environmental impacts that a project will have on traffic, air quality and greenhouse gas emissions. If a future baseline is selected, lead agencies are advised to carefully document the reliability of the projected future conditions as well as the inevitability of the changes on which those conditions are based. As is true in CEQA cases generally, substantial evidence in the record must support the agency’s selected baseline.
Until the Supreme Court addresses this issue, Madera and Sunnyvale remain good law. Thus, courts faced with this issue – especially in the Fifth District – may elect to follow Madera and Sunnyvale rather than Neighbors for Smart Rail. Until this issue is settled, agencies may wish to consider using multiple baselines, each supported by substantial evidence, for a “belt and suspenders” approach to their analyses.
Written By: Tina Thomas and Ashle Crocker
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