Over the last few years, I’ve written a number of articles in this blog about issues relating to CEQA, the California Environmental Quality Act. For those of you who may not be readily familiar, CEQA is a far-reaching law that requires state and local jurisdictions in California to describe and mitigate, if feasible, the significant environmental impacts of their own actions as well as those private projects that are subject to their discretionary approval. CEQA topics that have been discussed here have ranged from challenges to local zoning bans against mobile medical marijuana dispensaries, to the expansion of the use of “categorical exemptions” from CEQA review, to changes in the methods of measuring traffic impacts of development projects.
The CEQA Guidelines are the administrative regulations that are employed to implement the CEQA statute by providing objectives, criteria and procedures for the systematic evaluation, description and mitigation of proposed projects. The Governor’s Office of Planning and Research (“OPR”) has been charged with the task of developing and preparing the Guidelines, and the California Natural Resources Agency (“CNRA”) is responsible for certifying and adopting these regulations following a formal rulemaking process. Due to the scope and complexity of this field, the CEQA Guidelines are subject to ongoing review and revision by these agencies.
In November 2017, at the conclusion of a process that started in 2013, the OPR transmitted to the CNRA its recommended revisions to the CEQA Guidelines. These proposed updates, comprising over 160 pages, touch on almost all of the existing Guidelines and encompass nearly every step of the environmental review process. Given the comprehensiveness of environmental concerns in our state, it is easy to see how this undertaking has become so long and involved.
Perhaps unsurprisingly, at least one of the proposed updates to the CEQA Guidelines is already outdated, based on recent CEQA case law developments on the question of establishing a baseline environmental setting against which potential environmental impacts are measured. Proposed Section 15125(a)(2) addresses the use of a “historic conditions” baseline rather than an “existing conditions” baseline to assess environmental impacts. This draft rule states that “[a] lead agency may use…a historic conditions baseline … as the sole baseline for analysis only if it demonstrates with substantial evidence that use of existing conditions would be either misleading or without informative value to decision-makers and the public.”
However, in the recent case of Association of Irritated Residents v. Kern County Board of Supervisors, (Nov. 21, 2017, F073892) ______ Cal. App. 5th ______, the Fifth District held that the use of a “historic conditions” baseline need not satisfy this rigorous standard in order to be valid. In that case, the Court found that Kern County’s approval of an EIR for the modification of an oil refinery that used conditions existing in 2007 as the baseline (rather than the conditions existing in 2013, when notice of the EIR was published) was proper based on the refinery’s history of fluctuating operations, in reliance on existing case law governing refineries and a finding of substantial evidence in support of its choice, in contrast with the standard outlined in the draft rule. While the proposed update’s variation from current case law will likely be corrected when the final CEQA Guidelines emerge from the formal rulemaking process, it is “an interesting commentary on the pace and complexity of CEQA case law development generally” that such variances can occur during this enterprise.