United States of America
Declaratory Relief, Property, Contract, Permits, Evidence, Biodiversity, Civil, Air pollution, Standing, Administrative
The CEQA “baseline” rules have received a lot of judicial attention in the last several years, and rightly so.  The baseline or “environmental setting,” is the fundamental “benchmark” from which a project’s environmental impacts are measured. The baseline also determines the scope of the “reasonable range of [project] alternatives” required to be considered in an EIR, since “alternatives shall be limited to ones that avoid or substantially lessen any of the significant effects of the project.”  By definition, adverse environmental conditions already existing as part of the baseline are not significant impacts of the proposed project.  Discretionary permit, contract and lease renewals have always presented problematic baseline issues where existing conditions were never subject to CEQA review. In the present case, affirming the trial court’s judgment denying a writ of mandate, the Court upheld the State Lands Commission’s approval of a 30-year lease renewal allowing Chevron U.S.A., Inc. to continue operating a marine terminal in San Francisco Bay waters near Chevron’s Richmond refinery.  Ships dock at the terminal to off-load crude oil to be processed at the privately-owned, on-shore refinery, and to load refined products, both through a pipeline system connecting the marine terminal to the refinery.  The marine terminal and refinery had existed since 1902; Chevron’s predecessor (Standard Oil) bought the refinery and began operating it and the terminal in 1905.  Various modifications were made in the 1940’s and 1970’s to improve the terminal, and in the 2000’s Chevron completed a major seismic upgrade and electrical system revamp. In 1947, the Lands Commission granted Standard Oil a 50-year lease, which Chevron assumed in 1976, and which expired in 1997, after which Chevron operated the terminal on a holdover basis until – after a nearly 9-year CEQA review process – the Lands Commission approved the 30-year lease renewal and a related EIR in 2009.  Plaintiffs sued challenging the renewal and EIR on CEQA and public trust grounds.  They argued that the CEQA baseline used by the Commission – which included both the existing marine terminal structure and Chevron’s existing operations there – was illegal and that, among other flaws, the EIR failed to consider the alternative of removing the causeway and burying the pipeline connecting the terminal and refinery.  The court ruled that the conditions when the project is approved must be the baseline, not possible conditions if the use were different or eliminated. The current conditions at the property might interest enforcement agencies (if the use or user violated existing law); however, when preparing a FEIR, the normal baseline rule applies: the conditions existing when the environmental analysis begins. In addressing Citizens' public trust doctrine argument, the court again relied on the existing, longstanding public trust use of the navigable waters and partially submerged land in question to reject Citizens' challenge to the renewal of the lease. Citizens asserted that the Commission failed to take the proper procedural steps to conduct an analysis of the public trust doctrine; therefore, the court utilized de novo review when addressing the procedural question before it. In rejecting Citizens' procedural argument, the court relied on the fact that there was no proposed change in the public use at the property as a result of the lease renewal; to the contrary, a longstanding public use would be continued. Despite this finding in the Commission's favor, the court went on to discuss that the public trust doctrine did not impose any procedural matrix that would require the Commission to consider alternative public trust uses. In fact, the court said that the CEQA procedural requirements followed by the Commission could not be overridden by invoking the public trust doctrine, in particular, the CEQA procedural requirement that the baseline used to assess environmental impacts be the current property conditions.