Original Proceeding, Superior Los Angeles County,
Nos. BS125233, 2/8 B232655, Thomas I. McKnew, Jr., Judge.
Elkins Kalt Weintraub Reuben Gartside, John M. Bowman and C. J. Laffer for Plaintiff and Appellant.
Alexander T. Henson for Sunnyvale West Neighborhood Association as Amicus Curiae on behalf of 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.
Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza and Matthew S. Levinson for Associated General Contractors of California as Amicus Curiae on behalf of Defendants and Respondents.
Marcia L. Scully, Adam C. Kear; Brownstein Hyatt Farber Schreck, Lisabeth D. Rothman and Amy M. Steinfeld for Association of California Water Agencies as Amicus Curiae on behalf of Defendants and Respondents.
Andrea Sheridan Ordin and John F. Krattli, County Counsel, Ronald W. Stamm, Principal Deputy County Counsel; Remy Moose Manley, Tiffany K. Wright, Sabrina V. Teller and Amanda R. Berlin for Real Parties in Interest.
Remy, Thomas, Moose and Manley, Tiffany K. Wright; Woodruff, Spradlin & Smart, Bradley R. Hogin and Ricia R. Hager for Southern California Association of Governments, Foothill/Eastern Transportation Corridor Agency, San Joaquin Hills Transportation Corridor Agency, Metropolitan Water District of Southern California, San Joaquin Council of Governments, Madera County Transportation Commission, Riverside County Transportation Commission, Contra Costa Transportation Authority, Metro Gold Line Foothill Extension Construction Authority, Santa Clara Valley Transportation Authority, Orange County Transportation Authority and San Francisco County Transportation Authority as Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest.
Cox, Castle& Nicholson, Michael H. Zischke, Andrew B. Sabey, Rachel R. Jones; Carmen A. Trutanich, City Attorney (Los Angeles), Andrew J. Nocas, Timothy McWilliams and Siegmund Shyu, Deputy City Attorneys; Marsha Jones Moutrie, City Attorney (Santa Monica), Joseph Lawrence, Deputy City Attorney; Carol Schwab, City Attorney (Culver City); John F. Kratli, County Counsel (Los Angeles), Thomas J. Faugnan, Assistant County Counsel, and Helen S. Parker, Principal Deputy County Counsel, for League of California Cities, California State Association of Counties, City of Los Angeles, County of Los Angeles, Culver City and City of Santa Monica as Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest.
Kurt R. Wiese, Barbara B. Baird and Veera Tyagi for South Coast Air Quality Management District as Amicus Curiae on behalf of Defendants and Respondents and Real Parties in Interest.
Sedgwick, Anna C. Shimko, Matthew D. Francois and Sigrid R. Waggener for California Building Industry as Amicus Curiae on behalf of Defendants and Respondents and Real Parties in Interest.
Shute, Mihaly & Weinberger, Robert S. Perlmutter and Maya Kuttan for Sierra Club and Center for Biological Diversity as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion): John M. Bowman, Elkins Kalt Weintraub Reuben Gartside, Robert D. Thornton, Nossaman
This case presents a challenge under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) to the approval by defendant Exposition Metro Line Construction Authority (Expo Authority) of a project to construct a light-rail line running from Culver City to Santa Monica. Once completed, the transit line is to be operated by real party in interest Los Angeles County Metropolitan Transportation Authority (MTA).
Plaintiff Neighbors for Smart Rail (Neighbors) contends the Expo Authority’s environmental impact report (the EIR) for the project is deficient in two respects: (1) by exclusively employing an analytic baseline of conditions in the year 2030 to assess likely impacts on traffic congestion and air quality, the EIR fails to disclose the effects the project will have on existing environmental conditions in the project area; and (2) the EIR fails to incorporate mandatory and enforceable mitigation measures for potentially significant spillover parking effects in the neighborhoods of certain planned rail stations.
We agree with Neighbors on its first claim, but not on its second. (1) While an agency has the discretion under some circumstances to omit environmental analysis of impacts on existing conditions and instead use only a baseline of projected future conditions, existing conditions “will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” (Cal. Code Regs., tit. 14, § 15125, subd. (a).) A departure from this norm can be justified by substantial evidence that an analysis based on existing conditions would tend to be misleading or without informational value to EIR users. Here, however, the Expo Authority fails to demonstrate the existence of such evidence in the administrative record. (2) The EIR’s mitigation measure for spillover parking effects satisfied CEQA’s requirements by including enforceable mandates for actions by MTA and the Expo Authority, as well as planned actions to be implemented by the municipalities responsible for parking regulations on streets near the planned rail stations. (§ 21081, subd. (a); Cal. Code Regs., tit. 14, § 15091.)
Although we conclude the EIR fails to satisfy CEQA’s requirements in the first respect claimed, we also conclude the agency’s abuse of discretion was nonprejudicial. Under the particular facts of this case, the agency’s examination of certain environmental impacts only on projected year 2030 conditions, and not on existing environmental conditions, did not deprive the agency or the public of substantial relevant information on those impacts. (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 485-486.) We will therefore affirm the judgment of the Court of Appeal, which affirmed the superior court’s denial of Neighbors’s petition for writ of mandate.
Factual and Procedural Background
Formally known as phase 2 of the Exposition Corridor Transit Project (Expo Phase 2), the project at issue consists of a light-rail transit line running from a station in Culver City (the western terminus of phase 1, which connects to downtown Los Angeles), through the Westside area of the City of Los Angeles, to a terminus in Santa Monica. The project’s purpose is to provide high-capacity transit service between the Westside area of Los Angeles and Santa Monica, thereby accommodating population and employment growth in the area, improving mobility for the large population of transit-dependent Westside residents, providing an alternative to the area’s congested roadways, and enhancing access to downtown Los Angeles, Culver City, Santa Monica, and other destinations in the corridor.
The Expo Authority issued a notice of preparation of an EIR for Expo Phase 2 in February 2007, circulated a draft EIR for public comment in January 2009, and published its final EIR in December 2009. In February 2010, it certified the EIR’s compliance with CEQA, selected the transit mode and route recommended in the EIR, and approved the Expo Phase 2 project.
Neighbors petitioned the superior court for a writ of mandate, alleging the Expo Authority’s approval of Expo Phase 2 violated CEQA in several respects. The superior court denied the petition in full, and the Court of Appeal affirmed, rejecting all of Neighbors’s CEQA claims on the merits. We granted Neighbors’s petition for review, which raised only two issues: the propriety of the Expo Authority’s exclusive use of a future conditions baseline for assessment of the project impacts on traffic and air quality, and the adequacy of the mitigation measure the Expo Authority adopted for possible impacts on street parking near planned transit stations. We resolve those two issues below.
I. Use of Future Conditions as a Baseline for Analysis of Project Impacts
The fundamental goal of an EIR is to inform decision makers and the public of any significant adverse effects a project is likely to have on the physical environment. (§ 21061; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428.) To make such an assessment, an EIR must delineate environmental conditions prevailing absent the project, defining a “baseline” against which predicted effects can be described and quantified. (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 315 (Communities for a Better Environment).) The question posed here is whether that baseline may consist solely of conditions projected to exist absent the project at a date in the distant future or whether the EIR must include an analysis of the project’s significant impacts on measured conditions existing at the time the environmental analysis is performed.
The Expo Authority’s chosen analytic method and its stated reasons for that choice will be described in detail below; suffice it here to say the agency first projected the traffic and air quality conditions that would exist in the project area in the year 2030, then estimated the effect that operation of the Expo Phase 2 transit line would have on those conditions at that future time. With regard to traffic delays due to the rail line crossing streets at grade, the EIR found some adverse effects were likely in 2030, but none rising to a level deemed significant. With regard to air quality, no adverse effects were projected to occur; the project was expected to have a generally beneficial impact on air quality by slightly reducing automobile travel in the study area in comparison with conditions otherwise expected in 2030.
Neighbors contends the Expo Authority proceeded contrary to CEQA’s commands, thus abusing its discretion as a matter of law (§ 21168.5), in its choice of a baseline for analysis of traffic and air quality impacts. The Expo Authority and the MTA contend agencies have discretion to choose future conditions baselines if their choice is supported by substantial evidence, as the Expo Authority’s choice assertedly was here. We first ask whether an agency’s discretion ever extends to use of a future conditions baseline to the exclusion of one reflecting conditions at the time of the environmental analysis. Concluding that existing conditions is the normal baseline under CEQA, but that factual circumstances can justify an agency departing from that norm when necessary to prevent misinforming or misleading the public and decision makers, we then ask whether the administrative record here contains substantial evidence of such circumstances.
A. Use of Future Conditions Baselines Generally
For the proposition that the baseline for an EIR’s significant impacts analysis must reflect existing conditions, Neighbors relies heavily on section 15125, subdivision (a) of the CEQA Guidelines,  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 notice of preparation is published, or if no notice of preparation is published, at the time 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.” (Cal. Code Regs., tit. 14, § 15125, subd. (a) (Guidelines section 15125(a)), italics added.)
In Communities for a Better Environment, we relied on Guidelines section 15125(a) and CEQA case law for the principle that the baseline for an agency’s primary environmental analysis under CEQA must ordinarily be the actually existing physical conditions rather than hypothetical conditions that could have existed under applicable permits or regulations. (Communities for a Better Environment, supra, 48 Cal.4th at pp. 320-322.) Applying this principle, we held the air pollution effects of a project to expand a petroleum refinery were to be measured against the existing emission levels rather than against the levels that would have existed had all the refinery’s boilers operated simultaneously at their maximum permitted capacities. (Id. at pp. 322-327.)
In a separate part of the Communities for a Better Environment analysis, we addressed the problem of defining an existing conditions baseline in circumstances where the existing conditions themselves change or fluctuate over time, as the refinery’s operations and emissions assertedly did. (Communities for a Better Environment, supra, 48 Cal.4th at pp. 327-328.) We concluded that despite the CEQA Guidelines’ reference to “the time the notice of preparation is published, or if no notice of preparation is published, ... the time environmental analysis is commenced” (Guidelines, § 15125(a)), “[n]either 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.” (Communities for a Better Environment, at p. 328.)
Communities for a Better Environment provides guidance here in its insistence that CEQA analysis employ a realistic baseline that will give the public and decision makers the most accurate picture practically possible of the project’s likely impacts. (Communities for a Better Environment, supra, 48 Cal.4th at pp. 322, 325, 328.) It did not, however, decide either the propriety of using solely a future conditions baseline or the standard of review by which such a choice is to be judged. Our holding that the analysis must measure impacts against actually existing conditions was in contrast to the use of hypothetical permitted conditions, not projected future conditions. And our holding that agencies enjoy discretion to choose a suitable baseline, subject to review for substantial evidence, related to the choice of a measurement technique for existing conditions, not to the choice between an existing conditions baseline and one employing solely conditions projected to prevail in the distant future.
Justice Baxter therefore errs in citing Communities for a Better Environment for the proposition that an agency’s future baseline choice is valid if it is “a realistic measure of the physical conditions without the proposed project....” (Conc. & dis. opn. of Baxter, J., post, at p. 7.) In Communities for a Better Environment, we held an agency’s discretionary decision on “exactly how the existing physical conditions without the project can most realistically be measured” is reviewed for substantial evidence supporting the measurement method. (48 Cal.4th at p. 328, italics added.) We did not hold or imply agencies enjoy equivalent discretion under CEQA and the CEQA Guidelines to omit all analysis of the project’s impacts on existing conditions and measure impacts only against conditions projected to prevail 20 or 30 years in the future, so long as their projections are realistic.
Nor does the concurring and dissenting opinion’s citation to Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316 aid its argument. (Conc. & dis. opn. of Baxter, J., post, at p. 6.) The cited decision merely applied Communities for a Better Environment to determine that a water allocation approximating the property’s recent historical use constituted a realistic measure of existing conditions. (Cherry Valley Pass Acres & Neighbors v. City of Beaumont, supra, 190 Cal.App.4th at pp. 337 338.) The case has nothing to say about an agency’s decision to omit an existing conditions analysis and employ solely a baseline of conditions in the distant future.
The Courts of Appeal, however, have since addressed the future conditions baseline question directly in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (Sunnyvale West), Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, and Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552 (Pfeiffer), as well as in the present litigation.
In Sunnyvale West, the appellate court held inadequate an EIR’s analysis of a road extension project’s traffic impacts because it used projected conditions in the year 2020 as its only baseline, even though EIR preparation began in 2007 and the project was approved in 2008. (Sunnyvale West, supra, 190 Cal.App.4th at pp. 1358, 1360, 1370.) While acknowledging that Guidelines section 15125(a) and our decision in Communities for a Better Environment provided agencies discretion on how best to measure existing conditions, the court concluded “nothing in the law authorizes environmental impacts to be evaluated only against predicted conditions more than a decade after EIR certification and project approval.” (Sunnyvale West, at p. 1380.) The use of a single future conditions baseline was per se a violation of CEQA; it was not a discretionary choice that could be justified by substantial evidence. (Sunnyvale West, at p. 1383.)
The Sunnyvale West court observed that, although in its view the baseline for analysis of a project’s direct impacts must be existing conditions, “discussions of the foreseeable changes and expected future conditions... may be necessary to an intelligent understanding of a project’s impacts over time and full compliance with CEQA.” (Sunnyvale West, supra, 190 Cal.App.4th at p. 1381.) In particular, the effects of the project under predicted future conditions, themselves projected in part on the assumption that other approved or planned projects will proceed, are appropriately considered in an EIR’s analysis of cumulative impacts (see Cal. Code Regs., tit. 14, § 15130) or in a discussion comparing the project to the “no project alternative” (id., § 15126.6, subd. (e)). (Sunnyvale West, at pp. 1381-1382.) So long as the EIR evaluated the project’s significant impacts on existing conditions, the court saw “no problem” with also examining the effect on projected future conditions “where helpful to an intelligent understanding of the project’s environmental impacts.” (Id. at p. 1382.)
The court in Madera Oversight Coalition, Inc. v. County of Madera, considering the adequacy of an EIR’s discussion of a mixed-use property development’s traffic impacts, followed Sunnyvale West on the baseline question. Without extensive additional statutory analysis, the court adopted from Sunnyvale West the rule that agencies “do not have the discretion to adopt a baseline that uses conditions predicted to occur on a date subsequent to the certification of the EIR.” (Madera Oversight Coalition, Inc. v. County of Madera, supra, 199 Cal.App.4th at p. 90.)
In Pfeiffer, a different panel of the same court that decided Sunnyvale West reviewed the EIR for a medical center’s expansion project. The EIR’s analysis of traffic impacts compared, for various road segments and intersections in the project’s vicinity, existing traffic conditions with various growth and project scenarios. (Pfeiffer, supra, 200 Cal.App.4th at p. 1571.) Holding the plaintiffs had not shown this analysis inadequate under CEQA, Pfeiffer distinguished Sunnyvale West as involving the use of only a future conditions baseline, whereas in Pfeiffer “the traffic baselines included in the EIR were not limited to projected traffic conditions in the year 2020, but also included existing conditions and the traffic growth anticipated from approved but not yet constructed developments.” (Pfeiffer, at p. 1573.)
The appellate court in the present case flatly disagreed with the Sunnyvale West analysis. Noting that Guidelines section 15125(a) states the EIR’s description of existing environmental conditions “ ‘normally’ ” serves as the baseline for analysis of project impacts, the court reasoned that “[t]o state the norm is to recognize the possibility of departure from the norm” and concluded the Sunnyvale West court erred in finding in the law an absolute rule against use of projected future conditions as the baseline. In the lower court’s view, future conditions are properly used as a baseline if the projections on which they are based are reliable and their use “provide[s] information that is relevant and permits informed decisionmaking.”
We conclude CEQA and the Guidelines dictate a rule less restrictive than Sunnyvale West’s but more restrictive than that articulated by the Court of Appeal below. Projected future conditions may be used as the sole baseline for impacts analysis if their use in place of measured existing conditions—a departure from the norm stated in Guidelines section 15125(a)—is justified by unusual aspects of the project or the surrounding conditions. That the future conditions analysis would be informative is insufficient, but an agency does have discretion to completely omit an analysis of impacts on existing conditions when inclusion of such an analysis would detract from an EIR’s effectiveness as an informational document, either because an analysis based on existing conditions would be uninformative or because it would be misleading to decision makers and the public.
Before addressing the use of a future conditions baseline, we pause to clarify some potentially confusing aspects of the standard analysis, in which the project’s impacts are assessed against existing environmental conditions. First, although most projects for which an EIR is prepared do not yet exist or are not yet in operation at the time the EIR is written, it is common for an EIR’s impacts analysis to assume, counterfactually, that the project exists and is in full operation at the time the environmental analysis is conducted. (See, e.g., Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 916-917, 933 [EIR analyzed impacts on city’s existing central business district of developing proposed outlying retail center]; Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1389, 1393-1394 [EIR analyzed impacts on wildlife of replacing existing farm fields with proposed dairy operation]; cf. 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2008) Significant Environmental Effects, § 13.21, p. 635 (rev. 3.13) [EIR must analyze significant effects of entire project, including phases to be implemented later].) In such an analysis, the EIR attempts to predict the impacts a project would have on the existing environment if approved and implemented. CEQA’s wording reflects the fact that projects generally are not yet operating when an EIR is prepared: an EIR must be prepared for any project “that may have” a significant environmental effect (§ 21100, subd. (a)); the report’s purpose is to inform the public and decision makers as to the effects a proposed project “is likely to have” on the environment (§ 21061); and the “environment” referred to is the set of physical conditions in the area “which will be affected” by the project (§ 21060.5).
Second, we note that in appropriate circumstances an existing conditions analysis may take account of environmental conditions that will exist when the project begins operations; the agency is not strictly limited to those prevailing during the period of EIR preparation. An agency may, where appropriate, adjust its existing conditions baseline to account for a major change in environmental conditions that is expected to occur before project implementation. In so adjusting its existing conditions baseline, an agency exercises its discretion on how best to define such a baseline under the circumstance of rapidly changing environmental conditions. (Communities for a Better Environment, supra, 48 Cal.4th at p. 328.) As we explained in our earlier decision, CEQA imposes no “uniform, inflexible rule for determination of the existing conditions baseline, ” instead leaving to a sound exercise of agency discretion the exact method of measuring the existing environmental conditions upon which the project will operate. (Ibid.) Interpreting the statute and regulations in accord with the central purpose of an EIR—“to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment” (§ 21061)—we find nothing precluding an agency from employing, under appropriate factual circumstances, a baseline of conditions expected to obtain at the time the proposed project would go into operation.
For example, in an EIR for a new office building, the analysis of impacts on sunlight and views in the surrounding neighborhood might reasonably take account of a larger tower already under construction on an adjacent site at the time of EIR preparation. For a large-scale transportation project like that at issue here, to the extent changing background conditions during the project’s lengthy approval and construction period are expected to affect the project’s likely impacts, the agency has discretion to consider those changing background conditions in formulating its analytical baseline. Contrary to Justice Baxter’s view (conc. & dis. opn. of Baxter, J., post, at p. 15), such a date-of-implementation baseline does not share the principal problem presented by a baseline of ...