Yesterday, the State Supreme Court handed down a ruling in the case of Neighbors for Smart Rail v. Exposition Metro Line Construction Authority.  And in doing so, it also “disapproved” the key legal precedent established in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (the Mary Avenue Extension Project) – that an environmental impact report (EIR) cannot be based only on future baselines.  This is a bit wonky, so I’ll try to explain what this means generally and specifically.  And keep in mind that 1) I’m not a lawyer, 2) I haven’t been fully briefed on what this means, and 3) I couldn’t tell you about it once I’m fully briefed anyway – attorney/client privilege, closed session, and so on.  Also keep in mind that I wasn’t on Council when this whole thing came down, so I don’t have the background on it that the previous council has.  This is just from reading through the decision.  First, some history as to why this matters.

When the city did the original Mary Avenue overpass EIR, it based its EIR on the future estimates of what traffic would be like when the overpass was finished – “here’s what things will be like if we do nothing, now here’s what things will be like if we build the overpass”.  An appellate court invalidated the EIR, saying that the California Environmental Quality Act requires EIRs to include current conditions, regardless of when the project would be finished.  So even if you were building a 30-year water sluice, the courts held that you had to look at conditions now, not just at conditions 30 years from now.

This case was followed by three other cases where appellate courts had different findings.  One of them was also in Sunnyvale involving the Palo Alto Medical Foundation building on Old San Francisco.  In that one, the appellate court sided with Sunnyvale and said that future baselines are fine if you have a present baseline as well (which the PAMF EIR did but the Mary EIR did not).  One other case, Madera Oversight Coalition, Inc. v. County of Madera, came to the same conclusion as the Mary lawsuit.  And in this latest one, Expo Metro Line, the appellate court actually said “Madera and the Sunnyvale West cases got the law wrong, future baselines are just fine”.  But Madera and Sunnyvale West had already caused a pretty big shake-up, because they stated that cities’ and agencies’ commonly used “best practices” were illegal under CEQA.  That plus the conflicting appellate decisions are what caused the Supreme Court to step in and try to shake it all out.

In reading through it, the Supreme Court seems to be saying the following:

1. normally, present conditions baseline should be used in an EIR
2. a future baseline plus a current baseline is just fine for future projects
3. using only a future baseline is just fine, if the agency can sufficiently justify that ignoring or omitting the current baseline is necessary and useful (because the present baseline is meaningless, because it would distract from the more important future baseline, whatever).

It’s with #3 that the Supreme Court is saying that the Sunnyvale West lawsuit came to the wrong conclusion.  The specific part of the decision that is interesting is this one:

For all these reasons, we hold that while an agency preparing an EIR does have discretion to omit an analysis of the project‟s significant impacts on existing environmental conditions and substitute a baseline consisting of environmental conditions projected to exist in the future, the agency must justify its decision by showing an existing conditions analysis would be misleading or without informational value. Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council, supra, 190 Cal. App. 4th 1351, and Madera Oversight Coalition, Inc.v. County of Madera, supra, 199 Cal. App. 4th 48, are disapproved insofar as they hold an agency may never employ predicted future conditions as the sole baseline for analysis of a project‟s environmental impacts.

Note the “insofar” clause – the Supreme Court threw out the legal principle claimed in the Sunnyvale West case, but not the specifics of the finding in that case.

So what does this mean for Sunnyvale in general, or the Mary Overpass in particular?

My guess is, nothing.

It won’t move the project back into an active state.  We put that project on the back-burner because staff found that fixing the Monster Interchange is quicker, cheaper, FUNDED, and projected to be very effective.  That hasn’t changed.  And by putting the project on the back-burner for several years (if not forever), a new EIR would probably be required if we ever decide to activate the project anyway.  So I wouldn’t expect to see any agenda items or closed sessions on the Mary overpass being scheduled because of this.

And, to put on my amateur lawyer hat now, the fact that the general principle established in the Sunnyvale West case has been tossed out doesn’t mean that the specifics weren’t still possibly an issue.  The Supreme Court didn’t say whether or not Sunnyvale had sufficiently justified only using the future baseline – it just said that the courts couldn’t automatically rule against the city for doing so, the way they did in ruling against Sunnyvale.

The real reason why this interests me isn’t even the Mary Overpass.  It’s the “best practices” aspect.  It’s just common sense that if you’re looking at a distant future project, then you should make decisions based on distant future conditions.  Having CEQA say “no, that’s not allowed” is just bad for the goal of “making a project as effective as possible”, and it’s gratifying to see the Supreme Court say so.

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