Pillsbury Winthrop Shaw Pittman

Like Athena from the head of Zeus: Neighbours For Smart Rail authorises future baselines in CEQA review

By Norman F Carlin and Alina J Fortson

A new California Supreme Court decision, Neighbors for Smart Rail v Exposition Metro Line Construction Authority, authorises reliance on anticipated future conditions as the ‘baseline’ for evaluating impacts of long-term infrastructure projects under the California Environmental Quality Act.

To the perplexity of land use and transportation planners, recent cases had directed agencies to analyse a project’s impacts on current traffic and population conditions, ignoring expected changes in those conditions by the time construction is completed, as though major transportation improvements suddenly sprang into existence fully formed, like Athena from the head of Zeus. In Neighbors, the Court concluded that agencies have discretion to utilise a future conditions baseline, in circumstances where a baseline of conditions that have long ceased to exist would only mislead and undermine the informative purposes of CEQA for decision-makers and the public.

The California Environmental Quality Act (CEQA) requires public agencies to consider and, if feasible, avoid or mitigate the potentially significant environmental impacts of projects that they undertake or approve. A critical early step in conducting CEQA review is identifying the existing environmental setting or ‘baseline’ conditions for the proposed project. For example, locating a project in a pristine site, such as a wetland, may be expected to result in environmental impacts. Conversely, agencies and private project developers are not responsible for degraded environmental conditions that already exist…

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