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Court Invalidates EIR’s Use of Post-Approval “Future” Baseline For Analysis of Project Impacts

The California Environmental Quality Act, or CEQA, requires agencies to compare the potentially significant impacts of proposed projects to an “environmental baseline” – which CEQA provides shall “normally” consist of environmental conditions as they exist when environmental review is commenced. The California Court of Appeal, Sixth District, has ruled that an Environmental Impact Report (“EIR”) may not compare impacts to a baseline consisting of projected future conditions when the project is expected to be complete.

The ruling, in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council, is important, since comparison to a “future” baseline had become a widespread “industry practice,” particularly for analysis of traffic and circulation impacts.

The City of Sunnyvale prepared an EIR for the proposed Mary Avenue Extension, consisting of a new bridge to be constructed over two freeways and light rail tracks. The EIR compared traffic impacts of the project, and noise and air quality impacts associated with traffic, to a baseline consisting of forecasted traffic conditions — without the project — in the year 2020, the year in which the City expected the project to be complete and in use. The EIR’s baseline included future traffic levels based on build-out under the City general plan, along with numerous roadway improvements planned to be in place by 2020. In response to comments criticizing the traffic analysis, city staff reported that it had been prepared consistent with impact-analysis guidelines of the Santa Clara Valley Transportation Authority, as part of that Authority’s responsibilities under the state’s Congestion Management Law.

In court, the petitioners attacked use of a future baseline. The petitioners cited CEQA Guideline section 15125, which requires an EIR to describe physical environmental conditions in the vicinity of a project “as they exist at the time the notice of preparation [of the EIR] is published or . . . , at the time environmental analysis is commenced, . . .” and which further provides that “[t]his environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.

In defense of its future baseline, the City cited Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, which the City argued gave it discretion to use a future baseline. In Save Our Peninsula, the court had stated that “. . . where the issue involves an impact on traffic levels, the EIR might necessarily take into account the normal increase in traffic over time. Since the environmental review process can take a number of years, traffic levels as of the time the project is approved may be a more accurate representation of the existing baseline against which to measure the impact of the project.” (Id. at 125 – 126.) Some agencies and legal practitioners had interpreted Save Our Peninsula to allow an agency with knowledge that environmental conditions would either improve or degrade by the time a project is constructed to select a future baseline, so long as the agency was careful to summarize the evidence supporting its selection of the future baseline.

Sunnyvale West Neighborhood Assn significantly narrows that interpretation. The decision acknowledges that the California Supreme Court, in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, endorsed Save Our Peninsula’s holding. But Sunnyvale West Neighborhood Assn further notes that the Supreme Court “never sanctioned the use of predicted conditions on a date subsequent to EIR certification or project approval as the ‘baseline’ for assessing a project’s environmental consequences.” Therefore, Sunnyvale West Neighborhood Assn. invalidated the EIR’s use of a future baseline consisting of projected conditions in 2020 — more than a decade after proposed project approval.

Sunnyvale West Neighborhood further holds that use of a post-approval future baseline is a “failure to proceed in a manner required by law,” and that agencies lack discretion to select such a baseline, regardless of whether they determine that a post-approval future baseline is supported by “substantial evidence.” The decision alternatively holds that, even if the City had possessed discretion to select a post-approval future baseline, the Santa Clara Valley Transportation Authority guidelines for traffic impact analysis under the Congestion Management Act would not provide an adequate basis for selecting a post-approval future baseline under CEQA. Finally, the court rejected an argument that the EIR’s use of a future baseline consisting of traffic conditions expected to be much worse than presently exist resulted in a “more conservative and realistic” impact assessment and was, therefore, not reversible “prejudicial” error. The court, after acknowledging that this argument had “some surface appeal,” held that use of a post-approval future baseline improperly “obscures the existence and severity of adverse impacts that would be attributable solely to the project under the existing conditions without the other assumed roadway improvements.”

Sunnyvale West Neighborhood does not rule out discussion of foreseeable changes and future conditions in an EIR, and notes that such discussion may be necessary to compliance with CEQA – for example, in discussion of cumulative impacts or the “no project” alternative. Nevertheless, the decision emphasizes the primacy of comparison to an “existing conditions” baseline. “Once a specific roadway project is proposed and becomes the subject of an EIR under CEQA, . . . a straightforward assessment of the impacts produced by the project alone on the existing environment is the foundational information of an EIR even where secondary analyses are included.”

Meyers Nave’s Land Use Group provides advice on local land use, subdivision, zoning, environmental impact reviews and CEQA issues. For more information about the Group, or the legal issues discussed in this alert, contact Amrit Kulkarni at 800.464.3559.