On December 30, 2011, the Court of Appeal for the First Appellate District affirmed the Alameda County Superior Court’s rejection of petition for a writ of mandate based on California Environmental Quality Act (CEQA) and public trust doctrine claims. This case, Citizens for East Shore Parks v. Cal. State Lands Comm. (Cal.App., Dec. 30, 2011, No. A129896 [2011 Cal.App.LEXIS 1645]), involved the California State Lands Commission’s 2009 renewal of Chevron U.S.A. Inc.’s operating lease for a marine terminal in San Francisco Bay waters.
The marine terminal at issue was the Long Wharf Marine Terminal in Richmond, California, near Chevron’s Richmond-based refinery. Both the refinery and marine terminal have been operating since the early 1900s. Chevron acquired the refinery from Standard Oil in the mid-1970s. At that time, Chevron assumed the remainder of Standard Oil’s lease for the terminal. Because the terminal’s operation began nearly 70 years before CEQA existed, CEQA review of the terminal’s construction or operation did not occur. When Chevron’s lease expired in 1997, the State Lands Commission issued a Final Environmental Impact Report (EIR) and renewed the lease in early 2009.
The State Lands Commission used the current, operational condition of the marine terminal as the baseline in the Final EIR. Project opponents petitioned the Superior Court to force the State Lands Commission to re-open the CEQA record and reconsider the lease renewal. They argued that the baseline should have included only the existence of the terminal, not its operation. Because the action was a lease renewal, the project opponents argued that the baseline should assume a state of affairs in which the lease was rejected, even though their proposed baseline would have “reflect[ed] conditions that have not existed at the locale for more than a century.”[1]
The Court of Appeal confirmed that the proper baseline for CEQA analysis and evaluation of environmental impacts is “what [is] actually happening”, not what might happen or what should be happening.[2] This holding is consistent with a growing body of case law, including:
- Communities for a Better Env’t v. S. Coast Air Quality Mgmt. Dist (2010) 48 Cal.4th 310, 320-21 [holding that the baseline must reflect “existing physical conditions in the affected area that [constitutes] the real conditions on the ground, rather than the level of development or activity that could or should have been present according to a plan or regulation[]”].[3]
- Sunnyvale W. Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1376-93 [rejecting a municipality’s use of a baseline of projected traffic in the year 2020] [Sixth Appellate Dist.].
In sum, Citizens continues the growing trend in the case law indicating that the proper baseline for CEQA analysis must reflect current, operative conditions, not a hypothetical scenario based on projections into the future or normative ideas of what should be occurring.
[1] Citizens, supra, No. A129896, slip op. at p. 10.
[2] Id. at pp. 8-9.
[3] Internal citations, quotations, and emphasis omitted.
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