Transcript California Bar Environmental Law Conference Presentation

FUTURE BASELINES UNDER CEQA:
Population, Evaporation and Climate Change
PAUL STANTON KIBEL
Golden Gate University School of Law / Water and Power Law Group
Environmental Baselines Panel
October 2014 Yosemite Conference of State Bar of California Environmental Section
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Baseline Conditions – Core Component of CEQA
Environmental Impact Assessment Methodology
► Baseline
Conditions
►Impact
Analysis
►Significance
►Alternatives
Determinations
and Mitigation
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
CEQA Guidelines §15125(a)
“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…This environmental setting will
normally constitute the baseline physical conditions by which a lead
agency determines whether an impact is significant.”
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Population and Smart Rail (2012 CA Court of Appeal Decision)
“…[t]he important point, in our view, is the reliability of the
projections and the inevitability of the changes on which those
projections are based…Population growth, with its concomitant
effects on traffic and air quality, is not hypothetical in Los Angeles, it is
inevitable.”
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Population and Smart Rail (2013 CA Supreme Court Decision)
“A departure from this norm [existing conditions as baseline] 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.”
“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 judgment on how
to best define such a baseline under the circumstances of rapidly
changing environmental conditions.”
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Population and Smart Rail (2013 CA Supreme Court Decision)
“The question posed here is whether that baseline may consist solely of
conditions projected to exist absent the projects at the date in the distant
future.”
“By focusing solely on the project’s operation impacts in the distant future, the
EIR neglects to inform the public and decision-makers explicitly of any of the
operational impacts that could occur in the project’s first 15 years of
operation.”
“…nothing in CEQA precludes an agency from considering both types of
baselines – existing and future conditions – in its primary analysis of the
project’s significant adverse impacts.” [multiple baselines]
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Application of Smart Rail in City of Petaluma v. County of Sonoma
(Unpublished 2014 CA Court of Appeal Decision)
“Neighbors for Smart Rail recognizes the discretion of an agency to
include projected future conditions in a baseline in unusual
circumstances…Whether the County could permissibly have exercised
its discretion to use other conditions as the baseline, an issue we do
not decide, nothing in Neighbors for Smart Rail leads to the conclusion
that the County was required here to depart from the usual rule.”
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Evaporation and QSA Coordinated Cases
(2013 Sacramento County Superior Court Decision)
“Where the surrounding physical conditions existing at the time of
environmental review may vary independent of the project over the course of
project implementation, the project’s significant impacts can be accurately
determined and disclosed in accordance with CEQA requirements only if the
baseline is defined to include both the conditions existing at the time of
environmental review and the changes predicted to occur in the
environment during the project implementation. Thus, to accurately assess
the significance of the Transfer project’s impacts on the Salton Sea, it was
necessary and appropriate for the EIR to use a baseline which took account
both of existing conditions and existing trends in the Sea’s hydrology during
the term of the project and used a baseline that included existing conditions
and predicted future conditions at the Salton Sea.” [multiple baselines]
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Evaporation and QSA Coordinated Cases
(April 2014 Brief of Imperial Irrigation District to the CA Court of Appeal)
“An agency’s decision to use projected future conditions rather than
existing conditions is reviewed for substantial evidence. Neighbors v.
Smart Rail, supra 57 Cal. 4th at p. 449…That standard is met here. As
the program EIR explained, ‘because the impacts of the proposed
project would be realized over a long period of time, it is appropriate to
measure them against both current and projected future conditions
in order to provide a more accurate description of the proposed
project’s effects.’” [multiple baselines]
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Evaporation and QSA Coordinated Cases (April 2014 Brief of
San Diego County Water Authority to the California Court of Appeal)
“For long-term water projects (45-75 years), such as the Transfer and
QSA Projects, a predicted or future baseline predicated upon modeling
was needed to evaluate Salton Sea impacts…Because the EIR also
included an existing baseline [ ] the trial court’s decision that use of
the future baselines complied with CEQA should be affirmed…The
Court [in Smart Rail] made clear that no justification is required where,
as here, the lead agency examines project impacts against both
existing and future conditions.” [multiple baselines]
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Climate Change and the 2013 BDCP Draft EIR-EIS
(EIR Appendix 2.C – Climate Change Implications and Assumptions)
“Scenarios modeled by the California Climate Action Team project sea level
rise increases along the California coast of 1.0 to 1.5 feet by 2050 and 1.8 to
4.6 feet by 2100. However, if California’s sea level continues to mirror global
trends, increases in sea level during this century could be considerably
greater.” [salinity impacts from seawater intrusion]
“Projections for the period 2010 to 2099 indicated significant increases in water
temperatures in both the Sacramento River and the Delta under both B1 (low)
and A2 (high) emissions scenarios…projected increases in water
temperatures, if realized, would have serious implications for the Delta’s native
fisheries [salmon, steelhead, smelt].”
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Climate Change and 2013 BDCP Draft EIR-EIS
(Section 5.2.3, Definition of the Environmental Baseline)
“The CEQA baseline for assessing the significance of impacts of any proposed
project is normally the environmental setting, or existing conditions, at the time
the NOP is issued (State CEQA Guidelines § 15125). This directive was
recently interpreted and applied by the California Supreme Court (Neighbors for
Smart Rail). According to the Court, “the CEQA Guidelines establish the
default of an existing conditions baseline even for project’s expected to be in
operation for many years or decades…The CEQA baseline [for the BDCP EIR]
is…existing conditions at the time of the NOP (February 2009).
- Result of this approach is that projected sea level rise/seawater intrusion and
projected increases in water temperatures were not considered in the BDCP
CEQA impact analysis, significance determinations or alternatives/mitigation.
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Climate Change and Future Baselines: Comparing CEQA with NEPA
- (Council on Environmental Quality’s 2010 Draft Guidance on Climate
Change) “…it may be useful to consider the effect of any proposed
action or its alternatives against a baseline of reasonably foreseeable
future conditions that is drawn as distinctly as the science of climate
change effects will support.” [not yet approved by CEQ]
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Climate Change and Future Baselines: Comparing CEQA with NEPA
(Section 5 of 2013 Draft BDCP EIR-EIS)
•
(Consideration of Climate Change-Induced Future Baseline in NEPA
Documents Through “No Action Alternative” Assumptions) “In the interest
of informing the public of what DWR believes to be the true reasonably
foreseeable impacts of the project alternatives, DWR has reported some of
the CEQA effects with an explanation regarding the extent to which the
impacts of sea level rise and climate change are reflected in the bare
impact conclusions as modeled. To help explain these points, DWR has
frequently pointed the reader to the NEPA conclusions…Thus, although the
CEQA analysis relies on Existing Conditions as a baseline, the CEQA
analysis often points to the NEPA analysis as a way of helping readers to
better understand the actual impacts of alternatives vis-à-vis Existing
Conditions.”
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FUTURE BASELINES UNDER CEQA
Paul Stanton Kibel
Climate Change and Future Baselines: Comparing CEQA with ESA
–
(2011 9th Circuit Court of Appeals Decision in Greater Yellowstone
Coalition v. Servheen) Ninth Circuit held that best science indicates
that whitebark pines (critical food source) are expected to decline due
to global warming and that FWS failed to properly take this projected
future decline into account when delisting Yellowstone grizzly bear
under the ESA.
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2007 Federal District Court Decision in NRDC v. Kempthorne and
2008 Federal District Court Decision in PCFFA v. Gutierrez) Former
Judge Oliver Wanger faults FWS/NMFS Biological Opinions (BiOps) for failing to consider anticipated climate change effects on Delta
fisheries related to hydrology, temperature and snowpack but no
specific mention of use of future baselines.
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