Observers of the California Environmental Quality Act may find it refreshing when a court lays it on the line. And that is exactly what Division Eight of the Second Appellate District did in addressing CEQA's requirements for baseline selection for projects with future implementation dates. Neighbors for Smart Rail v. Exposition Metro Line Construction provides a counterweight to recent decisions from the Fifth and Sixth Appellate Districts, setting a stage for a possible California Supreme Court review.

The case involves an EIR prepared for the second phase of a Los Angeles Metro light rail line extending from downtown Los Angeles to Santa Monica. While the EIR used existing physical conditions in a number of impact discussions, the lead agency used a future scenario to measure the project's impacts on traffic and air quality. The lead agency's rationale was that 2009 population and traffic numbers, as compared to forecasted numbers, were less reliable in assessing impacts for a project with a completion date of 2015, at its earliest.

A group of residents in Cheviot Hills—a relatively upscale neighborhood of single-family homes—filed a CEQA challenge, asserting that the use of a future baseline scenario violated CEQA, pointing to the recent decisions of Sunnyvale West Neighborhood Association v. City of Sunnyvale (2010) 190 Cal.App.4th 1351 and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.

The appellate court in Neighbors critically reviewed not only Sunnyvale and Madera, but also the California Supreme Court decision in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, reaching several noteworthy conclusions. First, the CBE court dealt with baseline in a case involving an existing operation, looking at a hypothetical baseline of maximum permitted activity, a baseline which overstated actual current conditions. Second, the Neighbors court went on to say that to the extent that Sunnyvale and Madera stood for the proposition that CEQA precluded the use of a future baseline, "we disagree with those cases." The court went on to uphold the balance of the EIR challenges. However, the court ordered published only that portion of the decision pertaining to the baseline.


In taking a different path to the baseline, the Neighbors court concurred in a critical point well known to planners: in the right set of circumstances, a CEQA evaluation of a project compared to existing physical conditions will lead to information which is less useful and reliable to the public and the decision-makers. Given that CEQA is intended to foster more informed decision making, rigid adherence to the use of existing physical conditions in every instance may miss the mark in terms generating meaningful analysis. Lead agencies, when following CBE, would be well served to the follow the Metro's use of a variable baseline, utilizing existing conditions for many, if not most, of CEQA's impact discussions.

The Case:

Neighbors for Smart Rail v. Exposition Metro Line Construction (April 17, 2012, B232655) 2012 Cal.App. LEXIS 434.

The Attorneys:

Elkins Kalt Weintraub Reuben Gartside: John M. Bowman and C.J. Laffer for Plaintiff and Appellant.

Nossaman: Robert D. Thornton, John J. Flynn III, Robert C. Horton, Lauren C. Valk and Lloyd W. Pellman for Defendants and Respondents Exposition Metro Line Construction Authority and Exposition Metro Line Construction Authority Board

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