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 1

FUTURE BASELINES UNDER CEQA Paul Stanton Kibel Baseline Conditions – Core Component of CEQA Environmental Impact Assessment Methodology ► Baseline►Impact►Significance►Alternatives Conditions Analysis Determinations and Mitigation 2

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.” 3

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.” 4

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.” 5

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] 6

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.” 7

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] 8

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. 4 th 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] 9

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] 10

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 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].” 11

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. 12

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] 13

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.” 14

FUTURE BASELINES UNDER CEQA Paul Stanton Kibel Climate Change and Future Baselines: Comparing CEQA with ESA – ( th 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. – 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 (Bi- Ops) 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. 15