Appellate Court Finds Proper CEQA Baseline to be Existing Environmental Setting—Not Permitted Limit

In addressing CBE’s claims of an improper baseline, the Court evaluated two lines of cases: San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, where the court found that the proper baseline was actual operations, as opposed to permitted operations, and Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, where the court found that the proper baseline to be projected activity when the project operates at full capacity. The court in CBE v. SCAQMD reconciled the decisions by noting that the Fairview Neighbors cases had all involved prior environmental review, unlike the San Joaquin Raptor Rescue cases. Therefore, the court concluded that “a project’s baseline is normally comprised of the existing environmental setting—not what is hypothetically allowed pursuant to existing zoning or permitted plans. Where prior environmental review has occurred, though, the existing environmental setting may include what has been approved following CEQA review.”

In applying this standard to the refinery project, the court held that SCAQMD should have used existing emissions as a baseline for evaluation, rather than permitted emissions. Since there was no evidence of prior environmental review, the court analogized the circumstances to those of San Joaquin Raptor Rescue rather than the Fairview Neighbors line of cases. Because substantial evidence in the record supported a fair argument that in a worst case scenario the project could generate emissions in excess of the CEQA threshold, approval of the project required preparation of an environmental impact report.