CEQA Baseline –
Has the Supreme Court Clarified It?
For decades, lead agencies and environmental professionals have wrestled with one of the trickier challenges in CEQA – properly defining the all-important point of comparison for determining the significance of an environmental impact, i.e., the “baseline.” CEQA Guidelines Section 15125(a) indicates that existing physical conditions at the time of a Notice of Preparation or commencement of environmental analysis will “normally” constitute the baseline. How much flexibility does the term, “normally,” provide? Should the baseline be existing conditions or adopted plans for future conditions? If a permit authorizes a level of operation of a facility, should the permitted level become the baseline? If illegal activities or unauthorized uses created the existing condition, should it be recognized as the baseline? Does it matter whether a project is new or a modified version of a prior project?
Between 1982 and 2007, a litany of appellate court cases addressed these and other CEQA baseline questions. The cases have dealt with a variety of projects and situations, including a playground, general plan land uses, airport, quarry, office development, aggregate mine, water projects, residential rezoning, pipeline, and medical waste treatment. Then, in March 2010, the California Supreme Court published an opinion about the proper CEQA baseline for evaluating a diesel fuel project at the existing ConocoPhilips refinery in Communities for a Better Environment v. South Coast Air Quality Management District. Did the Supreme Court clarify all the baseline questions?
The history of CEQA baseline decisions is presented in the chart below. If you click on the court cases in the chart, you will link to the decision for each case listed.
(click below to enlarge)
While the Supreme Court made helpful clarifications, careful judgment and evaluation of a project’s characteristics and the facts surrounding its setting are still necessary to determine the proper baseline. Ascent Environmental has prepared a paper discussing the issues that are clearer and the areas where judgment calls are still needed. To help environmental professionals, the paper also summarizes the “practice pointers” from each of the key court cases. To download the paper, please click here.
Several of the principles and practice pointers discussed in the paper for defining the CEQA baseline are derived from the appellate and Supreme Court decisions. They include the following:
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If a proposed action involves a new project, courts have required that the baseline reflect existing conditions.
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Illegal past activities and unauthorized land uses have not changed the requirement to define baseline as the existing conditions.
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If an action involves modification of a prior project where an EIR was certified, courts have applied the tests in CEQA Section 21166 and Guidelines Section 15162, rather than require the baseline to be updated to current current conditions.
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Use of a permitted level of operation as the baseline may be permissible only in very select situations, e.g., where an action modifies a prior project and has a certified EIR, and the facts about the actual project operations support it.
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Lead agencies maintain discretion about how to define existing conditions that constitute the CEQA baseline, subject to normal CEQA standards, including a basis in substantial evidence (i.e, the facts support the definition).
These principles and pointers are discussed in more detail in the Ascent paper; please click here. If you have any questions, or are struggling with the concept of baseline on a project, please feel free to contact us at Ascent Environmental, Inc.
Ascent Environmental, Inc. is a forward-looking environmental and natural resources consultancy. We do not practice law nor give legal advice, but rather apply our extensive CEQA experience in our environmental practice with the goal of developing defensible environmental documents.
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