Baseline for Traffic Impact Analysis in the Wake of Sunnyvale
Few issues have generated more CEQA court challenges than the definition of the environmental baseline. The baseline is the condition against which a project is compared in assessing whether it would have an environmental impact. Ascent Environmental, Inc. provided a synopsis of various court decisions in our Ascent Share article this past October (click here for previous synopsis).
Two cases published late last year, Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316 and, more notably, Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 add to the library of baseline definition cases. The Sunnyvale case is the most important to CEQA practitioners, because it clearly defines baseline for traffic analysis, and likely changes common analytical procedures employed by a great number of municipalities.
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Cherry Valley addressed several issues; the most relevant to the guidance here is the re-emphasis that the existing conditions at the time the Notice of Preparation is released will normally constitute the baseline for impact comparison (as instructed in CEQA Guidelines Section 15125(a)). In Cherry Valley, an egg farm used over 1,300 acre-feet per year (AFY), on average, in its operation; although this amount fluctuated year to year. At the time the NOP was released in 2004, the egg farm was operational, but later shut down in 2005, as the EIR was being prepared. Also, at the time of the NOP, the applicant had the right to use 1,484 AFY, based on adjudicated (i.e., judicially-settled) water rights to the groundwater basin. Water use was reduced to around 50 AFY after the egg farm closed. The project, a specific plan, was approved in 2007. The plaintiffs argued that the City should have used 50 AFY as the baseline for impact comparison. The Court agreed with the City of Beaumont, that the higher water use was sufficiently supported as a proper baseline because the 1,484 AFY adjudicated water right existed at the time of the NOP, was unaffected by the cessation of the egg farm, and approximated historic water use levels. While several considerations supported the use of 1,484 AFY as a proper baseline, the most important is reliance on conditions as of the date of NOP.
Sunnyvale tackles the issue of traffic and baseline. In short, the Sunnyvale court agreed that the baseline for traffic analysis is, generally, the existing setting. While this accurately reflects the CEQA Guidelines, it does not square well with existing practice throughout California, particularly in areas experiencing substantial urban growth. The argument by local municipalities goes like this: traffic conditions measured today are just a short-term snapshot. These conditions will change as other projects using the same roads are approved and constructed in the next year, two years, five years, and probably before the project under consideration is completed. So, why should an EIR (or negative declaration) base its conclusions on conditions measured today that will have changed by the time the project is in the ground?
In Sunnyvale, the City of Sunnyvale was considering a roadway extension that was not anticipated to be constructed for 10 years, and set its baseline as existing conditions plus approved projects, expecting that this would reflect conditions in place at the time the project would be constructed. The Court, however, was clear: case law requires an EIR to focus on impacts to the existing environment, not “hypothetical situations”; even if those situations are expected based on the approval of other projects. The Court left the door open a crack on the baseline reflecting potential changes in the existing conditions if there is clear evidence that other approved projects would be operational by the time the project was expected to be approved. The Court further made it clear, as does CEQA, that cumulative conditions also need to be considered (such as existing plus approved projects), and perhaps this is what the City had done in Sunnyvale instead of examining existing conditions as the baseline.
In considering Cherry Valley and Sunnyvale together, the courts’ view of baseline is clear: the conditions at the time the NOP is released, or environmental analysis is commenced if there is no NOP, are normally the baseline conditions to compare project changes. In the case of Sunnyvale¸ approved projects that might be constructed prior to completion of the project under consideration are not unusual circumstances. And, in fact, CEQA already requires that cumulative analysis considers, as one method of analysis, a “list of past, present, and probable future projects” producing cumulative impacts (Guidelines Section 15130(b)(1)(A)).
Traffic analysis should, therefore, measure the existing traffic conditions as the baseline. Project impacts should be evaluated against this baseline. It seems somewhat perilous, given the Court’s direction, to deviate from this approach, even if it can be argued that the baseline could include projects under construction and clearly expected to be operational by the time the project under consideration is expected to be approved. Rather, lead agencies should consider any “existing plus approved project” scenario as a cumulative impact scenario, even if other, longer term scenarios should also be considered. Nothing prohibits a lead agency from examining multiple scenarios, as long as the “existing setting plus project” is one of the scenarios evaluated and the one used to determine project-level, significant traffic impacts.
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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