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Baseline Must Include Existing Operations for CEQA Analysis

William W. Abbott, Abbott & Kindermann, LLP on
Feb 16, 2012

The best method for setting the proper baseline in a CEQA document still remains a matter of debate. For the project opponents, the payoff is often big if they can convince a court that the wrong baseline was used, as the ensuing analysis is all keyed to the baseline. If the wrong baseline is used, then the balance of the CEQA evaluations is upset. Citizens for East Shore Parks v. California State Lands Commission, the last CEQA decision for 2011, involves one of those baseline challenges. 

The facts involve a lease extension between Chevron and the State Lands Commission for a marine terminal in the Bay Area city of Richmond. Originally built in 1902, the terminal had been periodically upgraded. In 1947, the Lands Commission entered into a 50-year lease with Chevron's predecessor. Starting in 1998 with the NOP, the Commission eventually certified the EIR for the lease extension, nine years later. CEQA litigation followed, with a case filed by a neighborhood group.

The key issue in the case was the setting of the baseline. While administratively the Commission had considered the baseline as if no terminal was currently operating, it eventually determined that the appropriate baseline included existing active terminal operations. The opponents argued that a "no terminal" baseline was appropriate on the basis that the Commission had the right to not extend the lease, effectively terminating the activity. The appellate court disagreed. 

The lead agency had the discretion to include the existing operations, and whether viewed as a question of substantial evidence or as a question of law, the appellate court held that the Lands Commission chose correctly. The commission's actions did not include the error of including hypothetical operations, a practice invalidated by the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 315.

Most of the opponent's remaining arguments were hinged to their initial argument that the commission erred in its baseline selection. The appellate court rejected those claims as well, including an argument that the commission erred in failing to study an alternative that assumed that the terminal did not exist. Because the proposed lease activity had no impacts to recreational activities, there was no duty to examine potential impacts to trail plans (land and aquatic).

The appellate court also rejected an argument that the project description was too narrowly drawn as it omitted the upland operations associated with the refinery. As the appellate court observed, the commission only had jurisdiction over the lease for the marine terminal, it was not required to consider the existing refinery as connected to the proposed lease.

The appellate court also considered the claim that the lease violated the public trust doctrine. Upon achieving statehood, the State of California acquired title to all tidal and navigable river lands, and holds them in trust for the public. However, the appellate court concluded that the granting of a lease for a marine terminal was consistent with the public trust, and declined the urgings of the project opponents to compel the commission to engage in a wide-ranging identification, evaluation and mitigation of other potential public trust uses.

The Case: 

Citizens for East Shore Parks v. California State Lands Commission 2011 Cal.App. LEXIS 1645. No. A129896. Filed December 30, 2011.

The Attorneys:

Law Offices of Stephan C. Volker, Stephan C. Volker, Stephanie L. Abrahams, Daniel Garrett-Steinman, Jamey M.B. Volker and Joshua A.H. Harris for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, John A. Saurenman, Senior Assistant Attorney General, Christiana Tiedemann, Supervising Deputy Attorney General and Joel S. Jacobs, Deputy Attorney General for Defendant and Respondent.

Pillsbury Winthrop Shaw Pittman, Ronald E. Van Buskirk, Kevin M. Fong and Todd W. Smith for Real Parties in Interest and Respondents.

William W. Abbott is a partner in the Sacramento law firm of Abbott & Kindermann, LLP. www.aklandlaw.com

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