To evaluate the significance of a project’s impacts under CEQA, an agency must employ “some measure of the environment’s state absent the project.” (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 315 (Communities).) This measure is the project’s baseline. (Ibid.) The guiding principle in selecting the baseline is that it must not result in a misleading environmental analysis or one that lacks informative value. (CEQA Guidelines, § 15125(a)(1)-(3).)
A project’s baseline will normally be the existing environmental setting – “the physical environmental conditions in the vicinity of the project.” (CEQA Guidelines, § 15125(a).) An agency has discretion to choose how to measure these existing conditions, and that choice is subject to the substantial evidence standard of review. (Communities, supra, 48 Cal.4th at p. 328.) An agency only has discretion to adopt a future conditions baseline, omitting an analysis of impacts on existing conditions, if it shows that an existing conditions analysis would be misleading or without informational value.(CEQA Guidelines, § 15125(a)(2); Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 457 (Smart Rail).) Historic conditions may also be used as a baseline if supported by substantial evidence. (See North County Advocates v. City of Carlsbad (2015) 241 Cal.App.4th 94, 101-106 (North County Advocates).)
While CEQA Guidelines section 15125 only explicitly addresses the baseline to be used for an EIR, baseline issues may also arise for projects approved under a negative declaration (see, e.g., Communities, supra, 48 Cal.4th at pp. 320-323) or an exemption (see, e.g., North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 871-873 (North Coast); CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 504-507 (CREED-21)). (See also Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1278 (Fat).)
As the following demonstrates, the selection of a baseline for a particular project may be far from straightforward, as conditions are rarely inert.
Significance of Fluctuating Conditions and Entitled Use Levels
There are a number of difficulties that may occur in defining and measuring existing conditions, including the existence of fluctuating conditions. (See Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 337 (Cherry Valley); Communities, supra, 48 Cal.4th at p. 327-328.) In such cases, an agency may define “existing conditions” with reference to historic conditions and/or future conditions expected when the project becomes operational if such a formulation is necessary to provide the most accurate picture possible. (CEQA Guidelines, § 15125(a)(1).) For instance, an average of prior production levels over some period of time may be employed. (See, e.g., San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 657-659; San Francisco Baykeeper, Inc. v. State Lands Com. (2015) 242 Cal.App.4th 202, 216-219.)
The reliance on permitted maximum operation levels to set a baseline, however, may produce hypothetical and illusory comparisons at odds with CEQA. (Communities, supra, 48 Cal.4th at p. 322 [holding baseline based on maximum permitted capacity did not reflect actual conditions]; see alsoCity of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 246 [rejecting baseline based on development permitted under land use plan rather than existing conditions]; Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 708-711 (Woodward Park) [agency could not assume a hypothetical office park on currently vacant land simply because one would be allowed under the current zoning and plan designation].) Nonetheless, it may be permissible where the project at issue is merely a modification of a previously analyzed project requiring limited subsequent CEQA review, or is exempt as the continued operation of an existing facility. (See, e.g., Temecula Band of Luiseno Mission Indians v. Rancho Cal. Water Dist. (1996) 43 Cal.App.4th 425, 438-439 [baseline properly included entitlements subject to prior environmental review]; Bloom v. McGurk (1994) 26 Cal.App.4th 1307, 1311-1316 [permit renewal exempt from CEQA because it would not result in increased operations]; see also North Coast, supra, 227 Cal.App.4th at pp. 868, 871-874 [water contract renewing existing terms was exempt from CEQA and did not represent a change from baseline conditions].)
Courts have also upheld agencies’ reliance on historic conditions to set a baseline when conditions have fluctuated or been temporarily altered. (See, e.g., Cherry Valley, supra, 190 Cal.App.4th at pp. 336-340 [historic water use level was not hypothetical and provided substantial evidence justifying similar, entitled use level as a baseline]; Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17 Cal.App.5th 708, 727-729 [refinery that temporarily suspended operations could use prior operational level as a baseline]; see also, Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 121.) A vacant site with no current use may rely on historic use to avail itself of a more favorable baseline, provided its use provides an understanding of the project’s impacts. For instance, in North County Advocates, the city assumed that a currently vacant building in a shopping center was fully occupied in the baseline for an EIR’s traffic analysis. (North County Advocates, supra, 241 Cal.App.4th at pp. 102-103.) The court recognized that this deviated from the “normal rule” of “measuring conditions as they actually existed when environmental review began.” (Id. at p. 101.) However, it upheld the city’s decision, finding that it was not based solely upon the entitlement to re-occupy the building but also on the “actual historical operation of the space at full occupancy for more than 30 years.” (Id. at p. 105.)
Significance of Prior Actions and Ongoing Illegal Activity
Past activities are a part of the existing conditions baseline, including prior ministerial or otherwise CEQA-exempt acts, and their impacts are not attributable to the project. (See Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, 302-304 [prior demolition of historic cottage under a ministerial permit was not a part of the project to construct a new residence, even if the new residence was envisioned by the property owner at the time of the demolition]; CREED-21, supra, 234 Cal.App.4th at pp. 504-507 [changes to the project site from prior CEQA-exempt emergency repair work are a part of the baseline].)
Even if the past or ongoing activities are allegedly illegal, they are still considered as part of the existing conditions baseline. (See, e.g., Fat, supra, 97 Cal.App.4th at pp. 1277-1281; Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428, 1451-1453 (Riverwatch); Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 370-371.) “How present conditions come to exist may interest enforcement agencies, but that is irrelevant to CEQA baseline determinations—even if it means preexisting development will escape environmental review under CEQA.” (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 234 Cal.App.4th 214, 250; see also Riverwatch, supra, 76 Cal.App.4th at p. 1453; but see Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1196-1197 [city’s failure to enforce its guidelines did not allow the continued nonenforcement to be adopted as the baseline].)
Exclusively Future Conditions Baselines
The exclusive use of a future conditions baseline is expressly allowed in narrow circumstances under CEQA Guidelines section 15125(a)(2). This provision was enacted in response to the controlling opinion in Smart Rail. That case ruled that an exclusively future conditions baseline is permitted if justified, but expressed concerns that such practice may impede an EIR’s ability to “serve CEQA’s goals in important ways,” as it may hide shorter-term impacts, be less accurate, and be less accessible to the public. (Smart Rail, supra, 57 Cal.4th at pp. 451-452, 455-456.) While Smart Rail held that the agency’s use of one was unsupported in that instance, it nonetheless concluded that the error was not prejudicial, as the largely environmentally beneficial project’s impacts likely would not have been significant under an existing conditions baseline either. (Id. at pp. 460-465.)
The use of a projected future baseline has been upheld where the agency has engaged in considerable discussion of the projection relied upon, and its use was supported by substantial evidence. (See San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, 616-620; but see POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 80-81.) But where there exists uncertainty about the extent or likelihood of future changes, it is within an agency’s discretion to use existing conditions as a baseline without attempting to estimate the speculative changes. (See, e.g., John R. Lawson Rock & Oil, Inc. v. State Air Resources Bd. (2018) 20 Cal.App.5th 77, 104-106; but see Smart Rail, supra, 57 Cal.4th at p. 453 & fn. 5 [failing to take account of future changes may mask a project’s impacts in some cases].)
Multiple Baselines
The use of multiple baselines in an EIR does not violate CEQA. (Smart Rail, supra, 57 Cal.4th at p. 462; see, e.g., Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1571-1572.) However, it is only permissible if the agency actually carries out the analysis using each of the baselines. (Woodward Park, supra, 150 Cal.App.4th at pp. 707-709.)
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