CALIFORNIA COURT OF APPEAL SMART RAIL CEQA DECISION ─ RETHINKING BASELINE CONDITIONS IN LIGHT OF PROJECTED CLIMATE CHANGE

Paul Stanton Kibel, Associate Professor and Co-Director of the Center on Urban Environmental Law (CUEL) at Golden Gate University School of Law

It is now well established that environmental impact reports (EIRs) prepared pursuant to the California Environmental Quality Act (CEQA) must assess the extent to which greenhouse gas emissions from proposed projects are contributing to climate change. What is less clear, however, is whether CEQA EIRs should take account of how projected climate change effects (such as sea level rise) will impact the environmental setting in which proposed projects are undertaken. The Second District California Court of Appeals’ April 2012 decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (Smart Rail) may provide important new guidance on this question. Court Decision

The Smart Rail case involved a challenge to the description of baseline conditions in a CEQA EIR prepared by an agency for an urban rail transportation project. The starting point for CEQA’s approach to baseline conditions is CEQA Guideline 15125, which provides: “An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time” the EIR is prepared and that “this environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” Guideline In Smart Rail, the lead agency departed from the default “existing conditions” approach set forth in CEQA Guideline 15125 in its analysis of traffic levels, and instead relied upon future anticipated population growth to establish the “baseline” traffic conditions upon which the project’s environmental impact would be assessed.

The petitioner in Smart Rail alleged that the agency’s use of this future baseline for traffic conditions was not permitted under CEQA. The California Court of Appeal rejected petitioner’s position and upheld the use of the future baseline in this instance, holding: “The traffic and air quality conditions of 2009 will no longer exist (with or without the project) when the project is expected to come on line in 2015 or over the course of the 20-year planning horizon for the project. An 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 Smart Rail Court continued: “The important point, in our view, is the reliability of the projections and the inevitability of the changes on which those projections are based…Population growth, with its concomitant effects on traffic and air quality, is not hypothetical in Los Angeles County; it is inevitable.”

Smart Rail’s holding on future baseline conditions provides a potential roadmap for how to address projected climate change impacts in the context of CEQA EIRs. As a result of the work of the United Nations Intergovernmental Panel on Climate Change and other scientific bodies, there now appears to be substantial evidence of the inevitability of certain projected climate change-induced alterations in the physical environment, such as higher temperatures, glacier melt and sea level rise. Consistent with the reasoning in Smart Rail, it would therefore be appropriate under CEQA for lead agencies to rely on future baseline conditions (that reflect these anticipated climate change-induced alterations) when evaluating the environmental impacts of a proposed project.

Smart Rail’s approach to projected climate change under CEQA is an interesting companion to the Second District California Court of Appeal’s November 2011 decision in Ballona Wetlands Land Trust v. City of Los Angeles (Ballona Wetlands), 201 Cal.app.4th 415. Court Decision Ballona Wetlands involved a coastal development in Playa Del Rey, in which the petitioner alleged that the CEQA EIR was inadequate because it did not address the impact of climate-induced sea level rise on the proposed project. The Ballona Wetlands Court did not accept petitioner’s argument, finding: “The purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.”

Ballona Wetlands’ holding on sea level rise did not reference baseline conditions per se, but rather focused on the scope of CEQA project impact analysis. Some have interpreted Ballona Wetlands more broadly, however, as standing for the premise that a CEQA EIR should exclude consideration of the extent to which anticipated climate change (occurring independent of a proposed project) may alter physical conditions in the vicinity of a proposed project. Smart Rail suggests that this expansive reading of Ballona Wetlands is not warranted.

What Smart Rail suggests, which is in no way inconsistent with Ballona Wetlands, is that the appropriate place in a CEQA EIR to account for anticipated climate change impacts on the location where a project is proposed is through the lead agency’s reliance on “future baseline conditions” for its environmental analysis. Per Smart Rail, if there is substantial evidence that physical conditions in the project area (e.g. higher temperatures, sea levels, glacier melt, storm severity and frequency) will be altered inevitability due to climate change, then these inevitable climate change induced alterations can and should provide the baseline upon which the project’s environmental impacts are evaluated under CEQA

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