In a ruling that will force substantial changes in
how many lead agencies approach their California
Environmental Quality Act (CEQA) analysis of traffic
impacts, a California appellate court has ruled that
traffic impact analyses may not measure impacts
against predicted future traffic conditions.
Instead, impacts must be measured against the
baseline defined by CEQA’s implementing regulations,
which for traffic purposes normally will constitute
the conditions existing at the time the agency
commences its preparation of an environmental impact
report (EIR).
Faced with the challenge of understanding traffic
impacts that will not be fully realized until a
project is completed, which in many cases can be a
decade or more, lead agencies and traffic engineers
often measure proposed projects’ traffic impacts
against predicted future conditions expected to
occur when the project is built out. The Sixth
District Court of Appeal last month rejected this
approach and invalidated an EIR certified by the
City of Sunnyvale that set the baseline conditions
for a road improvement project far beyond the
project approval date. (Sunnyvale
West Neighborhood Assn. v. City of Sunnyvale City
Council (2010) 190 Cal.App.4th 1351 (Sunnyvale).)
The court ruled that while lead agencies are given
some flexibility in calculating the “existing
conditions” to serve as an EIR baseline, this
flexibility does not extend to predicted conditions
more than a decade after preparation of the EIR.
This decision clarifies an area of CEQA that was
left open by recent court decisions, and describes
the parameters in which lead agencies must operate
when setting baseline conditions in an EIR.
Background
CEQA generally requires preparation and
certification of an EIR for any proposed project
that may have a significant effect on the
environment. The CEQA Guidelines (14 Cal. Code Regs.
§§ 15000 et seq.) require the lead agency to
establish an accurate baseline of environmental
conditions in an EIR to properly gauge the impacts
of the proposed project. Specifically, the
Guidelines direct:
[A]n EIR must include a description of the
physical environmental conditions in the
vicinity of the project,
as
they exist at the time the notice of preparation
is published, or if no notice of
preparation is published,
at
the time the environmental analysis is commenced,
from both a local and regional perspective.
This environmental setting will normally
constitute the baseline physical conditions by
which a lead agency determines whether an impact
is significant. (CEQA Guidelines, § 15125(a),
emphasis added.)
The project approved by the Sunnyvale City Council,
the Mary Avenue Extension (MAE) project, was a
proposed roadway extension designed to alleviate
traffic congestion in the adjacent area. The
project EIR used as its baseline for measuring
traffic impacts year 2020 traffic conditions, under
the rationale that the 2020 conditions represented
an estimate of when the MAE project would actually
be open to traffic given various funding and design
considerations. In the City Council’s opinion, the
2020 conditions also best described the reasonably
foreseeable consequences of the project and followed
the Santa Clara Valley Transportation Authority
(SCVTA) Guidelines for transportation impact
analyses. Because noise and emission impacts of the
proposed traffic project are based on the conditions
surrounding vehicle travel, the use of 2020
conditions impacted the baseline analyses in these
areas as well.
Analysis
Opening the Door for Flexibility in Establishing a
Baseline
While the plain language of the CEQA Guidelines
directs that the baseline in an EIR should identify
existing conditions at the time environmental
analysis is commenced, some prior case law could be
viewed as supporting the City Council’s position to
employ a different baseline. For example, in
Fairview
Neighbors v. County of Ventura (1999) 70
Cal.App.4th 238 (Fairview
Neighbors), a County Board of Supervisors
approved an expansion of an existing mining
operation, a decision which was then challenged on
the basis that the traffic impacts analyzed under
the EIR were arbitrary, speculative, and did not
analyze the actual existing traffic. The court in
Fairview
Neighbors found that because traffic
fluctuates considerably based on a number of
factors, and the project was an ongoing operation
that might have been approved under a supplemental
EIR or related categorical exemption, the EIR
appropriately assumed the “existing” traffic impact
level to be the traffic generated when the mine
operates at full capacity. (Fairview
Neighbors, 70 Cal.App.4th at pp. 242-243.)
Similarly in
Save Our
Peninsula Committee v. Monterey County Board of
Supervisors (2001) 87 Cal.App.4th 99 (Save
Our Peninsula), the court in dicta provided a
hypothetical describing 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
at 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.” (Save
Our Peninsula, 87 Cal.App.4th at pp.
125-126.)
More recently, the California Supreme Court’s
decision in
Communities for a Better Environment v. South Coast
Air Quality Management District (2010) 48
Cal.4th 310 (Communities
for a Better Environment), may have impliedly
opened the door to wider claims of flexibility in
adopting a baseline. Quoting
Save Our
Peninsula, the Supreme Court stated that:
[T]he date for establishing baseline cannot be a
rigid one. Environmental conditions may vary
from year to year and in some cases it is
necessary to consider conditions over a range of
time periods .... Where environmental
conditions are expected to change quickly during
the period of environmental review ... project
effects might reasonably be compared to
predicted conditions at the expected date of
approval, rather than to conditions at the time
analysis is begun .... (Communities
for a Better Environment, 48 Cal.4th at
p. 328.)
The Supreme Court went on to state:
Neither CEQA nor the CEQA Guidelines mandates a
uniform, inflexible rule for determination of
the existing conditions baseline. Rather, an
agency enjoys the discretion to decide, in the
first instance, exactly how the existing
physical conditions without the project can most
realistically be measured, subject to review, as
with all CEQA factual determinations, for
support by substantial evidence. (Ibid.)
These cases could be construed to allow approval of
an EIR employing a baseline of future estimated
conditions if the approving agency had substantial
evidence that such a baseline would more accurately
reflect project impacts.
The Use of a Post Project Approval Baseline Was an
Abuse of Discretion
Focusing on the plain language of the Guidelines,
the Sixth Circuit rejected such arguments. In
upholding the superior court’s decision invalidating
the EIR, the Sixth District distinguished the above
referenced cases. Examining
Fairview
Neighbors, the court found that the project
at issue in that case was characterized as merely a
modification of a previously analyzed project. In
contrast, the MAE project was a new project that had
not been previously analyzed under CEQA, and hence
was not entitled to the same level of flexibility or
leeway to deviate from what would normally be
considered existing conditions. In distinguishing
Save Our
Peninsula and the more recent
Communities for a Better Environment, the
court examined the holdings contained therein and
determined that while the Supreme Court endorsed the
use of a baseline consisting of the reasonably
foreseeable conditions
on the
expected date of project approval under
limited circumstances, it did not sanction 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. In fact, the Sixth District found no
decision upholding the use of a future baseline
beyond the date of project approval, and chose not
to extend the rationale behind the limited
flexibility outlined in
Communities for a Better Environment to such
circumstances. The MAE project at issue in this
case was approved in 2008, yet the baseline
conditions in the EIR were set more than a decade
after project approval, in 2020, when the City
estimated that the project would actually be
completed. Approval of an EIR containing such an
improperly calculated baseline was an abuse of
discretion by the City Council.
Substantial Evidence Does Not Support the Deviation
from Existing Conditions
The court then looked to whether, even if it had
been appropriate to use the 2020 conditions as a
baseline in the EIR, there was substantial evidence
supporting the decision to deviate from what would
normally be required, and found none. The court
found that the anticipated project completion date
of 2020 was nothing more than a “guesstimate” based
on testimony and the application of the SCVTA
Guidelines to CEQA, a purpose for which they were
not intended. As such, this did not constitute
substantial evidence that supported deviation from
the Guidelines’ definition of the environmental
baseline. The court noted that the fact that it may
be industry practice in the traffic engineering
context to evaluate transportation improvement
projects based on future scenarios does not alter
the CEQA mandate that existing conditions normally
serve as the baseline for analysis.
Prejudice
Finally, the court looked to whether the failure to
proceed in a manner required by law resulted in
prejudice. The court found that the merits of the
project and each alternative in the EIR could not be
accurately compared if the significant effects, as
measured against a proper baseline, were not fully
ascertained and disclosed. The court held that even
if the use of future, post-approval estimates was
reasonable and supported by substantial evidence, it
does not give the lead agency the authority to use
those conditions as a baseline in the EIR.
Compliance with an accurate baseline is necessary
even if the results would have been no different.
The court made clear that even if a complete
analysis of the project’s traffic and related
impacts in the existing environment would have
produced no findings of different or greater
significance than the City Council found, the
actions of the City Council would have been
invalidated for failure to proceed in a manner
required by law. In sum, because the baseline was
inaccurately portrayed in the EIR, the decision
makers and the public lacked complete information
and could not grasp the true impacts of the project,
resulting in the requisite prejudice.
The Use of Flexible Baselines is Not Completely
Prohibited
Although the court did restrict the ability of lead
agencies to set a CEQA baseline beyond the project
approval date, it nonetheless provided several
examples of ways in which the lead agency has some
discretion in setting the baseline. For example, if
evidence demonstrates that traffic congestion has
temporarily decreased such that the “existing”
conditions are inconsistent with the usual
historical conditions (or near future anticipated
conditions), then the lead agency has the
flexibility to use traffic modeling or other
appropriate methodologies to determine the
“generally existing conditions.” In addition, if
there is data to support the assertion that traffic
levels are expected to increase significantly during
the environmental review process, the projected
traffic levels at the expected date of project
approval may still serve as the appropriate
baseline. In no circumstances, however, may
environmental impacts be evaluated only against a
baseline consisting of predicted conditions that may
exist after project approval.
Conclusions and Implications
Sunnyvale invalidates a common practice among
lead agencies in evaluating traffic impacts for
projects with long build-out periods. The case
squarely holds that an EIR may not measure project
impacts against future conditions beyond the date of
project approval. To the extent that the Supreme
Court’s decision in
Communities for a Better Environment left the
door open for an argument that lead agencies could
do so, this decision appears to foreclose that
possibility. For projects with a long build-out
period, where the future baseline may be
substantially different than that at the time the
project is approved, it may be helpful in
understanding a project’s impacts for an EIR to also
evaluate and disclose the effect of the project
against the predicted future conditions. Nothing in
Sunnyvale prohibits an EIR from including
such supplemental analysis. However, if an agency
elects to provide such supplemental analysis, it
should be careful that the EIR makes clear that
impact determinations, findings and adopted
mitigation measures are based on an analysis of
project effects that is measured against current
conditions. The project approval date appears to be
the latest date to which baseline conditions can be
set, and even then, the decision to set a baseline
at this date rather than at the publication of the
notice of preparation or commencement of the
environmental analysis constitutes a deviation from
the “norm” and requires a showing of substantial
evidence to support such a decision.
For further information on
Sunnyvale West Neighborhood Assn. v. City of
Sunnyvale City Council (2010) 190 Cal.App.4th
1351, please contact Adam D. Link at
alink@somachlaw.com.
Somach
Simmons & Dunn provides the information in its
Environmental Law & Policy Alerts and on its website
for informational purposes only. This general
information is not a substitute for legal advice,
and users should consult with legal counsel for
specific advice. In addition, using this
information or sending electronic mail to Somach
Simmons & Dunn or its attorneys does not create an
attorney-client relationship with Somach Simmons &
Dunn. |
