Stanford Law School - Robert Crown Law Library

Filed 7/10/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S203744
v.
Ct.App. 2/8 B231338
DARLENE A. VARGAS,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. KA085541

We consider in this case whether two prior convictions arising out of a
single act against a single victim can constitute two strikes under the Three Strikes
law. We conclude they cannot.
INTRODUCTION
The consequences in this state of repeated criminal conduct changed
dramatically in 1994. First the Legislature,1 and then the electorate,2 introduced
into this state‘s jurisprudence what is now known collectively as the Three Strikes
law. Under that law, if a defendant reoffends after having suffered a first
qualifying felony conviction, a doubled sentence is mandatory. If, after having
suffered two qualifying felony convictions, an offender commits a third qualifying

1
See Penal Code section 667, subdivisions (b)–(i). All statutory references
are to the Penal Code.

2
Section 1170.12 was enacted as part of Proposition 184 in 1994.

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felony, the Three Strikes law presumes he or she is incorrigible and requires a life
sentence. ―Sentence enhancement based on recidivism flows from the premise
that the defendant‘s current criminal conduct is more serious because he or she
previously was found to have committed criminal conduct and did not thereafter
reform.‖ (People v. Nguyen (2009) 46 Cal.4th 1007, 1024.) The typical third-
strike situation thus involves a criminal offender who commits a qualifying felony
after having been afforded two previous chances to reform his or her antisocial
behavior, hence the law‘s descriptive baseball-related phrase, ― ‗Three Strikes and
You‘re Out.‘ ‖ (People v. Hazelton (1996) 14 Cal.4th 101, 104.)
Despite this paradigm, situations have occurred that have challenged the
assumption that an offender has had two prior opportunities to reform. For
example, in a case in which an offender‘s two previous qualifying felony
convictions were for crimes so closely connected in their commission that they
were tried in the same proceeding, we held that such convictions can nevertheless
constitute two separate strikes because the Three Strikes law does not require that
prior convictions, to qualify as strikes, be brought and tried separately. (People v.
Fuhrman (1997) 16 Cal.4th 930.) Similarly, in a case in which the offender‘s
previous two crimes could not be separately punished at the time they were
adjudicated because they were committed during the same course of conduct
(§ 654), we held such close factual and temporal connection did not prevent the
trial court from later treating the two convictions as separate strikes when the
accused reoffended. (People v. Benson (1998) 18 Cal.4th 24 (Benson).)
The instant case presents a more extreme situation: Defendant‘s two prior
felony convictions—one for robbery and one for carjacking—were not only tried
in the same proceeding and committed during the same course of criminal
conduct, they were based on the same act, committed at the same time, against the
same victim. As we explain, because neither the electorate (§ 1170.12) nor the
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Legislature (§ 667, subds. (b)–(i)) could have intended that both such prior
convictions would qualify as separate strikes under the Three Strikes law, treating
them as separate strikes is inconsistent with the spirit of the Three Strikes law, and
the trial court should have dismissed one of them and sentenced defendant as if
she had only one, not two, qualifying strike convictions.
FACTS
A. The Present Crimes
The facts of the present crimes have no bearing on the legal issue we
resolve in this case and so may be stated briefly. Petitioner Darlene Vargas and
codefendant Oscar Velasquez illegally entered the Claremont home of victims
Lynn Burrows and William Alves and stole various items, including a suitcase and
a trash can. Defendants were detained while prowling near another home in the
same neighborhood; police found them in possession of both burglary tools and
items taken from the Burrows/Alves home. A witness later identified Velasquez
and Vargas as the man and woman she saw walking near the victims‘ home with
the suitcase and trash can.
Vargas was charged and convicted of first degree burglary (§ 459), grand
theft (§ 487, subd. (a)), and conspiracy to commit grand theft (§ 182, subd. (a)(1)).
In addition, the court sustained allegations that she had suffered a prior serious
felony conviction (§ 667, subd. (a)), as well as two strikes within the meaning of
the Three Strikes law: a 1999 conviction for carjacking (§ 215) and another for
robbery (§ 211). Because her three present crimes (burglary, grand theft,
conspiracy) were qualifying felonies under the version of the Three Strikes law
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applicable at the time,3 all three felonies were potentially subject to enhancement
by her two alleged strikes, rendering her vulnerable to three consecutive terms of
25 years to life, or an aggregate prison term of 75 years to life. She moved to
dismiss the carjacking strike as to all counts. The trial court granted the motion in
part, dismissing the carjacking strike conviction as to the grand theft and
conspiracy counts, but declining to dismiss the remaining conviction for burglary.
B. Appeal and Resentencing
Defendant appealed and also filed a petition for a writ of habeas corpus.
The Court of Appeal denied relief on appeal but granted the habeas corpus petition
in part, finding Vargas‘s defense counsel had been constitutionally ineffective for
failing to place before the trial court the transcript of the preliminary hearing in the
1999 case. Because the preliminary hearing transcript demonstrated Vargas‘s
carjacking and robbery convictions were based on the same act of taking the
victim‘s car by force, the appellate court concluded that ―a different outcome was
reasonably probable had the trial court known that a single act was involved [in
1999], . . . .‖ Accordingly, it directed the trial court to conduct a new sentencing
hearing after considering these additional facts.
On remand, the trial court denied defendant‘s motion to dismiss one of the
1999 prior convictions. It noted that under our decision in Benson, supra, 18

3
Neither grand theft nor conspiracy to commit grand theft would now
qualify for Three Strikes treatment under the version of the law as amended by the
Three Strikes Reform Act of 2012, approved by the electorate as Proposition 36 on
November 6, 2012.

Because defendant‘s burglary was of a home, it constitutes burglary in the
first degree and is thus a ―serious felony‖ pursuant to section 1192.7, subdivision
(c)(18). (See People v. Cruz (1996) 13 Cal.4th 764, 768.) Accordingly, defendant
is not entitled to have her Three Strikes sentence for burglary recalled under the
terms of the new law. (See § 1170.126, subd. (b).)

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Cal.4th 24, ―the central focus is not on the single act[,] . . . , it‘s on the defendant‘s
status as a repeat felon‖ and observed, further, that defendant had received a
benefit in 1999 when she was allowed to plead to a negotiated plea of only three
years in prison for two serious felonies. Considering the totality of the
circumstances, the trial court concluded defendant fell ―squarely within the spirit
of [Three] Strikes.‖
On appeal from the resentencing, defendant contended the trial court erred
by declining to strike one of her prior convictions and sentence her as a two-strike
offender. The Court of Appeal found no abuse of discretion and affirmed. We
granted review.
DISCUSSION
A. Introduction
The issue we decide today is whether the trial court should have dismissed
one of defendant‘s two prior felony convictions, alleged as strikes under the Three
Strikes law, where both convictions were based on the same act. The question has
two potential aspects: First, when faced with two prior strike convictions based on
the same act, is the trial court required to dismiss one of them? Second, assuming
the sentencing court retains discretion to dismiss a strike or not, did the trial court
here, on the facts of this case, abuse its discretion by declining to dismiss one of
defendant‘s two strikes? Because we find the first question dispositive, we need
not continue and discuss whether the trial court abused its discretion.
B. Analysis
Given the intent of both the Legislature and the drafters of the initiative
version of the Three Strikes law to punish repeat criminal offenders severely, to
drastically curtail a sentencing court‘s ability to reduce the severity of a sentence
by eliminating alternatives to prison incarceration, and to limit an offender‘s
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ability to reduce his or her sentence by earning credits, a question arose soon after
enactment of the parallel Three Strikes schemes whether a trial court retained its
traditional authority under section 1385 to dismiss an enhancement ―in furtherance
of justice.‖4 We settled the issue in People v. Superior Court (Romero) (1996) 13
Cal.4th 497, 529–530 (Romero), where we concluded ―that section 1385[,
subdivision] (a) does permit a court acting on its own motion to strike prior felony
conviction allegations in cases brought under the Three Strikes law.‖
Accordingly, the trial court below had the power under the law to grant
defendant‘s motion and dismiss one of her two strike convictions.
In order to guide the lower courts when ruling on such motions to dismiss,
People v. Williams (1998) 17 Cal.4th 148, 161, explained that when facing a
motion to dismiss a strike allegation, the trial court ―must consider whether, in
light of the nature and circumstances of [the defendant‘s] present felonies and
prior serious and/or violent felony convictions, and the particulars of [the
defendant‘s] background, character, and prospects, the defendant may be deemed
outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.‖ (Italics added.) We quoted this language with approval in People v.
Carmony (2004) 33 Cal.4th 367, 377, and further explained that ―[b]ecause the
circumstances must be ‗extraordinary . . . by which a career criminal can be
deemed to fall outside the spirit of the very scheme within which he squarely falls

4
Section 1385, subdivision (a), states: ―The judge or magistrate may, either
of his or her own motion or upon the application of the prosecuting attorney, and
in furtherance of justice, order an action to be dismissed. The reasons for the
dismissal must be set forth in an order entered upon the minutes. No dismissal
shall be made for any cause which would be ground of demurrer to the accusatory
pleading.‖
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once he commits a strike as part of a long and continuous criminal record, the
continuation of which the law was meant to attack‘ [citation], the circumstances
where no reasonable people could disagree that the criminal falls outside the spirit
of the three strikes scheme must be even more extraordinary.‖ (Id. at p. 378.)
That a case would be extraordinary in which an offender with two prior
qualifying convictions would fall outside the spirit of the Three Strikes law does
not mean such cases do not exist. We must decide whether defendant‘s case falls
into this rare category, that is, where the facts—here, that defendant‘s two strikes
were based on the same act—demonstrate that no reasonable person would
disagree that defendant fell outside the spirit of the Three Strikes law. This court
faced a related issue in Benson, supra, 18 Cal.4th 24, where the defendant had two
prior strike convictions based on a single incident: after returning his neighbor‘s
vacuum cleaner, which he had borrowed, he returned to her apartment ostensibly
to retrieve his keys, whereupon he grabbed her, forced her to the floor, and
eventually stabbed her multiple times. Based on this incident, he was convicted of
residential burglary (§ 459) and assault with the intent to commit murder (former
§ 217). Because these two felonies were based on the same course of conduct, the
trial court stayed one of the defendant‘s two prior convictions pursuant to section
654,5 which expressly prohibits separate punishment for two crimes based on the
same act, but has been interpreted to also preclude multiple punishment for two or
more crimes occurring within the same course of conduct pursuant to a single
intent. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.)

5
Section 654, subdivision (a), provides in pertinent part: ―An act or
omission that is punishable in different ways by different provisions of law shall
be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision.‖
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When the Benson defendant reoffended 15 years later, his new crime was
charged as his third strike under the Three Strikes law. He argued that because
punishment had been stayed for one of his prior convictions, he had only one
qualifying prior conviction under the Three Strikes law. This court disagreed,
explaining that the prefatory phrase ―[n]otwithstanding any other provision of
law,‖ as used in both the initiative and legislative versions of the Three Strikes
law, meant that the statutory definition of a qualifying strike conviction was
exclusive. Therefore, because the Three Strikes law states specifically that a ―stay
of execution of sentence‖ does not disqualify a conviction from being a strike, a
stay under section 654 did not affect whether a felony conviction qualified under
the Three Strikes law. (Benson, supra, 18 Cal.4th at pp. 28–31.) Thus, ―the
language of section 1170.12, subdivision (b)(1), unequivocally establishes that the
electorate intended to qualify as separate strikes each prior conviction that a
defendant incurred relating to the commission of a serious or violent felony,
notwithstanding the circumstance that the trial court, in the earlier proceeding,
may have stayed sentence on one or more of the serious or violent felonies under
compulsion of the provisions of section 654.‖ (Benson, supra, at p. 31.)
Benson also rejected the defendant‘s argument that permitting a conviction
for which punishment was stayed to qualify as a strike would lead to ― ‗dramatic
and harsh results‘ ‖ (Benson, supra, 18 Cal.4th at p. 35), explaining that ―[i]n the
absence of any constitutional infirmity, . . . we are not at liberty to alter the
intended effect of a statute on such grounds.‖ (Id. at p. 36.) But as if presaging
the current case, Benson continued: ―It is worth noting . . . that our decision in
Romero, supra, 13 Cal.4th 497, affirms that a trial court retains discretion in such
cases to strike one or more prior felony convictions under section 1385 if the trial
court properly concludes that the interests of justice support such action.‖ (Ibid.)
The court expounded on this point in an accompanying footnote, adding:
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―Because the proper exercise of a trial court‘s discretion under section 1385
necessarily relates to the circumstances of a particular defendant‘s current and past
criminal conduct, we need not and do not determine whether there are some
circumstances in which two prior felony convictions are so closely connected—for
example, when multiple convictions arise out of a single act by the defendant as
distinguished from multiple acts committed in an indivisible course of conduct—
that a trial court would abuse its discretion under section 1385 if it failed to strike
one of the priors.‖ (Benson, supra, p. 36, fn. 8, italics added.)
Thus, although Benson concerned only whether a conviction for which
punishment was stayed qualified as a strike under the Three Strikes law, the
opinion nonetheless suggests that a trial court should dismiss one of two prior
strike convictions if they were based on the same act. We echoed this sentiment a
few years later in People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez),6
underscoring Benson‘s recognition that where two prior crimes are based on the
same act, such a close connection might require a sentencing court to strike one of
them pursuant to its authority under section 1385. (Sanchez, supra, at p. 993.)
The bench and bar took notice. (See, e.g., Menaster & Ricciardulli, 3
Strikes Manual (July 2009 supp.) p. 12 [referring to Benson‘s ―Famous
Footnote 8‖].) The first published appellate decision to address the issue was
People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos). In Burgos, the jury
convicted the defendant of two qualifying felonies and found he had suffered two
strike convictions: one for attempted robbery and one for attempted carjacking,
both in April 1999. The defendant moved to dismiss one of his strike convictions
on the ground that they were based on the same act of forcibly attempting to take

6
Sanchez was overruled on an unrelated point in People v. Reed (2006) 38
Cal.4th 1224, 1228.
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the victim‘s car. The trial court denied the motion and sentenced him under the
Three Strikes law to consecutive sentences of 25 years to life in prison for his two
current felonies.
On appeal, the defendant argued the trial court should have dismissed one
of his two strike convictions. The Burgos court, relying on Benson, supra, 18
Cal.4th 24, and Sanchez, supra, 24 Cal.4th 983, agreed. Burgos explained that the
defendant‘s prior felony convictions were, in Benson‘s language, ― ‗so closely
connected,‘ having arisen from the same single act, that the failure to strike one of
them must be deemed an abuse of discretion.‖ (Burgos, supra, 117 Cal.App.4th at
p. 1216.) Burgos noted further that (1) the carjacking statute specifically
precludes double punishment for both carjacking and robbery based on the same
act (§ 215, subd. (c)); (2) the defendant‘s criminal history was not particularly
severe or extensive, and his current offenses were not ―the worst of crimes‖
(Burgos, supra, at p. 1216); and (3) the defendant‘s maximum two-strike
sentence—20 years in prison—was itself quite severe (ibid.). Based on all these
factors, the Burgos court concluded the trial court erred in failing to dismiss one of
the strikes.
Five years later, the issue again arose in People v. Scott (2009) 179
Cal.App.4th 920 (Scott). In Scott, a jury convicted the defendant of two
felonies—possession by a prisoner of a sharp instrument and simple assault
(§§ 4502, subd. (a), 240) 7—and found two strike allegations true. He moved to

7
Although many types of assaultive crimes qualify for treatment under the
Three Strikes law, simple assault not involving deadly weapons, great bodily
injury, or specific victims such as peace officers or firefighters, does not. The
defendant in Scott was thus found to have committed only one felony that
qualified under the Three Strikes law: possession by a prisoner of a sharp
instrument (§ 4502, subd. (a)).
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dismiss one of his two prior strike convictions claiming, as here, that his prior
convictions (for robbery and carjacking) arose from the same act of forcibly taking
the victim‘s car. The trial court denied the motion and sentenced him to 25 years
to life in prison. On appeal, the Scott court declined to follow Burgos, finding the
basis of its holding ―difficult to discern. It can reasonably be read to state that in
such cases one strike must be stricken, or that the connection between the two
strikes is but one factor a trial court must consider in conducting a traditional
Romero analysis.‖ (Scott, supra, at p. 923, citing Romero, supra, 13 Cal.4th 497.)
After noting the confusion engendered by this lack of clarity, the Scott court
concluded that ―the ‗same act‘ circumstances posed by robbery and carjacking
cases provide a factor for a trial court to consider, but do not mandate striking a
strike.‖ (Scott, supra, at p. 931.) Because the trial court had applied that line of
reasoning and did not abuse its discretion, the Scott court affirmed the judgment.
The Court of Appeal in the instant case followed Scott.
The Scott court reasonably characterized the rationale in Burgos as unclear,
for if a trial court must always dismiss one of two strikes when they are based on
the same act, then the other considerations discussed by Burgos (such as the
offender‘s past criminal record, and the length and adequacy of a possible two-
strike sentence), would be irrelevant to the analysis. But although Scott references
Benson‘s ―Famous Footnote 8‖ and its endorsement in Sanchez (Scott, supra, 179
Cal.App.4th at pp. 927–928), it rejected the footnote‘s clear import, concluding
that the circumstance a robbery and carjacking arose out of the same act is only
one factor for a trial court to consider, not a reason categorically to dismiss a strike
(id. at p. 931).
Benson and Sanchez necessarily spoke of the ―same act‖ issue
hypothetically, as in neither case was the defendant before the court facing two
separate strikes from two prior convictions based on a single criminal act. Indeed,
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in Sanchez, no question of prior convictions was presented at all: The defendant
was presently convicted of both murder and gross vehicular manslaughter while
intoxicated and argued that in a hypothetical future prosecution, ―he still could be
subject to enhanced punishment under the ‗Three Strikes‘ law [citation], because
he could be treated as having two strikes on the basis of the two convictions.‖
(Sanchez, supra, 24 Cal.4th at p. 993.)
In the instant case the issue is not hypothetical. Defendant was convicted in
1999 of two different crimes (robbery and carjacking) that were based on her
commission of the same act (forcibly taking the victim‘s car), and the trial court
used both convictions to sentence her to the ultimate three-strike term of 25 years
to life in prison. Faced for the first time with the exact situation mentioned in
Benson‘s ―Famous Footnote 8‖ (Menaster & Ricciardulli, 3 Strikes Manual, supra,
at p. 12), and later endorsed in Sanchez, we adhere to the views expressed in those
cases and hold that, on these facts, the trial court was required to dismiss one of
defendant‘s two prior strike convictions.
We reach this conclusion because, as Benson and Sanchez recognized, the
trial court‘s failure in these circumstances to dismiss one of defendant‘s two prior
strike convictions, and instead to treat her as a third-strike offender, was
inconsistent with the intent underlying both the legislative and initiative versions
of the Three Strikes law. (See People v. Garcia (2001) 25 Cal.4th 744, 756–757
[― ‗As with any other statute, our task in construing a provision of the Three
Strikes law ―is to ascertain and effectuate legislative intent.‖ ‘ ‖].)
The initiative version of the Three Strikes law came into being when 1994‘s
Proposition 184 was passed by the voters. As the ballot argument in favor of that
initiative explained: ―Here‘s how it works: [¶] Strike One: One serious/violent
felony serves as a first strike toward a stiffer prison term. [¶] Strike Two: second
felony conviction with one prior serious/violent felony, DOUBLES the base
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sentence for the conviction. Any additional enhancements under existing law,
including those for prior convictions, are then added. [¶] Strike Three: A third
felony conviction, with two serious/violent prior felonies, TRIPLES the base
sentence or imposes 25 years to life, whichever is greater.‖ (Ballot Pamp., Gen.
Elec. (Nov. 8, 1994), argument in favor of Prop. 184, p. 36 (Ballot Pamphlet); see
generally, Romero, supra, 13 Cal.4th at p. 528 [ballot arguments of Three Strikes
initiative is evidence of voters‘ intent].)
Given this information, the voting public would reasonably have
understood the ―Three Strikes‖ baseball metaphor to mean that a person would
have three chances—three swings of the bat, if you will—before the harshest
penalty could be imposed. The public also would have understood that no one can
be called for two strikes on just one swing. Permitting the trial court below to
treat defendant‘s 1999 robbery and carjacking convictions as separate strikes—
despite the fact they were based on a single criminal act—would do just that, and
thus contravene the voter‘s clear understanding of how the Three Strikes law was
intended to work. Given the obvious twinning of the language used in the
legislative version of the Three Strikes law, we discern no different intent with that
version of the law.
We have explained that when ruling on a defendant‘s Romero motion
(Romero, supra, 13 Cal.4th 497), trial courts should consider, among other things,
the nature and circumstances of the prior convictions and whether the defendant
falls outside the spirit of the Three Strikes law. (See People v. Carmony, supra,
33 Cal.4th at p. 377; People v. Williams, supra, 17 Cal.4th at p. 161.) In this case,
the nature and circumstances of defendant‘s convictions show she committed just
one criminal act, not two. Nevertheless, the Attorney General argues that the
―electorate may deem offenders who have simultaneously violated more than one
criminal statute to pose a qualitatively higher risk to public safety than those who
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have not. This is because such offenders invade more than one societal interest
that the Legislature has designated for distinct protection by the enactment of more
than one statute.‖ We would agree had the offender committed more than one act,
whether separately or during a continuous course of conduct, as in Benson, supra,
18 Cal.4th 24. As we stated in Benson, ―the electorate and the Legislature
rationally could—and did—conclude that a person who committed additional
violence in the course of a prior serious felony (e.g., shooting or pistol-whipping a
victim during a robbery, or assaulting a victim during a burglary) should be treated
more harshly than an individual who committed the same initial felony, but whose
criminal conduct did not include such additional violence.‖ (Id. at p. 35.) But
where, as here, an offender committed but a single act, we disagree she poses a
greater risk to society merely because the Legislature has chosen to criminalize the
act in different ways. The Legislature is free to criminalize an act in multiple
ways, but that it has done so does not of itself make an offender more
blameworthy, or more dangerous, within the meaning of the Three Strikes law.8
Similarly, logic demonstrates that defendant falls outside the spirit of the
Three Strikes law. In requiring severe punishment the Three Strikes law
responded to a belief that prior law contained too many loopholes favoring
criminals, and that judges exercised too much discretion in reducing an offender‘s
overall punishment. When these loopholes and discretion were added together,
the perception was that serious and violent criminals who committed multiple

8
Although the Three Strikes law provides that it applies ―[n]otwithstanding
any other provision of law‖ (§§ 667, subd. (c), 1170.12, subd. (a)), and we have
interpreted that phrase broadly to effectuate the intent to the law, to interpret this
catchall phrase so broadly as to permit the artificial inflation of the number of
qualifying strikes in this case from one to two is unjustified. To do so would
essentially recognize no limit at all to the ―[n]otwithstanding any other provision
of law‖ proviso.
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crimes were allowed to escape their just desserts. (Ballot Pamp., supra, rebuttal to
argument against Prop. 184, p. 37 [―soft-on-crime judges, politicians, defense
lawyers and probation officers care more about violent felons than they do
victims. They spend all of their time looking for loopholes to get rapists, child
molesters and murderers out on probation, early parole, or off the hook
altogether.‖]) Defendant falls outside of these concerns because the law prescribes
the just desserts of a two-strike offender should be a doubled sentence, not a
tripled, or a 25-years-to-life, term. Unlike those rightfully subject to a third-strike
sentence, defendant has had only two swings of the bat. Under these
circumstances, the law directs that she should have her sentence doubled, itself a
serious penalty, as well as suffer all the other attendant Three Strike law
disabilities imposed on her. (For example, offenders subject to the law have
reduced opportunities for earning conduct credit or obtaining diversion for drug
addiction, two options that seem particularly relevant to someone in defendant‘s
circumstances.) Treating her more harshly than that—i.e., as a third-strike
offender—when she has committed but one prior qualifying act, upsets this tiered
penalty structure, skipping the second step.
Although not dispositive here, were more evidence needed to demonstrate
the Legislature intended the forcible theft of a victim‘s car cannot be considered
two different crimes, we need look no further than the actual terms of the
carjacking statute itself. Section 215, subdivision (c), provides that a person can
be charged with both robbery and carjacking based on the same incident, but no
defendant may be punished for both crimes if based on the ―same act.‖9 This

9
Section 215, subdivision (c), states: ―This section shall not be construed to
supersede or affect Section 211. A person may be charged with a violation of this
section and Section 211. However, no defendant may be punished under this

(footnote continued on next page)
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prohibition on doubling punishment is not uncommon (see, e.g., § 496, subd. (a)
[―no person may be convicted [of] both [receiving stolen property] and of the theft
of the same property‖]), and reflects the Legislature‘s assessment of the relative
moral blameworthiness and danger to society of such offenders.
That Benson placed primary emphasis on the fact of each conviction, and
not on the number of opportunities an offender had to reform, does not change the
analysis. Benson admittedly reasoned that ― ‗the Legislature and the voters
through the initiative process clearly intended that each conviction for a serious or
violent felony counts as a prior conviction for sentencing purposes under the Three
Strikes law, even where the convictions were based upon conduct against a single
victim committed at the same time with a single intent, and where pursuant to
section 654 the defendant was punished for only a single crime.‘ ‖ (Benson,
supra, 18 Cal.4th at p. 30, italics added.) But as noted, Benson involved multiple
criminal acts (albeit committed in a single course of conduct) and not, as here,
multiple criminal convictions stemming from the commission of a single act.
Benson itself recognized this distinction in its ―Famous Footnote 8‖ (Menaster &
Ricciardulli, 3 Strikes Manual, supra, at p. 12), by observing that where multiple
convictions stem from the same act, they may be so closely connected that treating
them as separate strikes would be contrary to the spirit of the Three Strikes law.
Although Benson focused on the mere existence of prior convictions, its analysis
must be read with this footnote in mind.

(footnote continued from previous page)

section and Section 211 for the same act which constitutes a violation of both this
section and Section 211.‖
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The Attorney General argues the terms of the Three Strikes law itself
suggest the Legislature (and the framers of the initiative version of the law)
considered the effect of two crimes stemming from one act, at least as it affects
current convictions, suggesting both of defendant‘s prior convictions can be
separate strikes. Thus, section 1170.12, subdivision (a)(6), provides, ―If there is a
current conviction for more than one felony count not committed on the same
occasion, and not arising from the same set of operative facts, the court shall
sentence the defendant consecutively on each count pursuant to this section.‖
Section 667, subdivision (c)(6), says the same thing. The negative implication of
this provision is that if two or more crimes are committed on the same occasion,
and arise from the same set of facts, the trial court need not sentence the counts
consecutively. The Attorney General argues that because the Legislature
addressed the ―same act‖ circumstance in the context of current convictions, but
included no similar language addressing prior convictions, we should presume the
omission of parallel language by the Legislature and, presumably, the electorate,
was intentional and purposeful. (See California Fed. Savings & Loan Assn. v.
City of Los Angeles (1995) 11 Cal.4th 342, 349 [― ‗We must assume that the
Legislature knew how to create an exception if it wished to do so‘ ‖].) This
suggested inference of legislative intent, leaping from how courts should consider
current crimes to how courts should view prior convictions, is too weak to
overcome the plain meaning of the Three Strikes scheme that one may not commit
but two criminal acts (here, forcibly taking a victim‘s car in 1999, burglarizing a
house in 2008) yet be assessed three strikes. Indeed, we might also observe the
Legislature knows how to impose a life term on fewer than three convictions, but
has not done so here. (See § 667.61 [One Strike law for certain sex offenders].)
17

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CONCLUSION
We conclude this is one of the extraordinary cases (People v. Carmony,
supra, 33 Cal.4th at p. 378) in which the nature and circumstances of defendant‘s
prior strike convictions demonstrate the trial court was required to dismiss one of
them because failure to do so would be inconsistent with the spirit of the Three
Strikes law. Accordingly, the judgment is vacated and the case ordered remanded
to the trial court for resentencing, consistent with the views expressed above.10

WERDEGAR, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
O’ROURKE, J.*

10
To the extent People v. Scott, supra, 179 Cal.App.4th 920, is inconsistent
with this decision, it is disapproved.

*
Associate Justice of the Court of Appeal, Fourth Appellate District,
Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
18

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Vargas
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 206 Cal.App.4th 971
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S203744
Date Filed: July 10, 2014
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Bruce F. Marrs

__________________________________________________________________________________

Counsel:

Melanie K. Dorian, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Taylor Nguyen, David Zarmi, Lawrence M. Daniels, Noah P. Hill and Kimara
A. Aarons, Deputy Attorneys General, for Plaintiff and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Melanie K. Dorian
P.O. Box 5006
Glendale, CA 91221-5006
(818) 241-5837

Kimara A. Aarons
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2270

2

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Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. This case includes the following issues: (1) Was the trial court required to dismiss one of defendant's two prior convictions under the three strikes law, when they arose from the same prior incident and were based on the same act? (2) If dismissal of one prior conviction was not mandatory, did the trial court abuse its discretion by failing to dismiss one?

Filed 8/5/13



IN THE SUPREME COURT OF CALIFORNIA



NEIGHBORS FOR SMART RAIL,

Plaintiff and Appellant,

S202828

v.

Ct.App. 2/8 B232655

EXPOSITION METRO LINE

CONSTRUCTION AUTHORITY et al.,

Los Angeles County

Defendants and Respondents; )

Super. Ct. No. BS125233

LOS ANGELES COUNTY

METROPOLITAN TRANSPORTATION )
AUTHORITY et al.,

Real Parties in Interest.



This case presents a challenge under the California Environmental Quality

Act (CEQA; Pub. Resources Code, § 21000 et seq.)1 to the approval by defendant

Exposition Metro Line Construction Authority (Expo Authority) of a project to

construct a light-rail line running from Culver City to Santa Monica. Once

completed, the transit line is to be operated by real party in interest Los Angeles

County Metropolitan Transportation Authority (MTA).


1

All statutory references are to the Public Resources Code unless otherwise

specified.

1

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Plaintiff Neighbors for Smart Rail (Neighbors) contends the Expo

Authority‟s environmental impact report (the EIR) for the project is deficient in

two respects: (1) by exclusively employing an analytic baseline of conditions in

the year 2030 to assess likely impacts on traffic congestion and air quality, the EIR

fails to disclose the effects the project will have on existing environmental

conditions in the project area; and (2) the EIR fails to incorporate mandatory and

enforceable mitigation measures for potentially significant spillover parking

effects in the neighborhoods of certain planned rail stations.

We agree with Neighbors on its first claim, but not on its second. (1) While

an agency has the discretion under some circumstances to omit environmental

analysis of impacts on existing conditions and instead use only a baseline of

projected future conditions, existing conditions “will normally constitute the

baseline physical conditions by which a lead agency determines whether an impact

is significant.” (Cal. Code Regs., tit. 14, § 15125, subd. (a).) A departure from

this norm 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. Here, however, the Expo Authority fails to demonstrate the existence

of such evidence in the administrative record. (2) The EIR‟s mitigation measure

for spillover parking effects satisfied CEQA‟s requirements by including

enforceable mandates for actions by MTA and the Expo Authority, as well as

planned actions to be implemented by the municipalities responsible for parking

regulations on streets near the planned rail stations. (§ 21081, subd. (a); Cal. Code

Regs., tit. 14, § 15091.)

Although we conclude the EIR fails to satisfy CEQA‟s requirements in the

first respect claimed, we also conclude the agency‟s abuse of discretion was

nonprejudicial. Under the particular facts of this case, the agency‟s examination

of certain environmental impacts only on projected year 2030 conditions, and not

2

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on existing environmental conditions, did not deprive the agency or the public of

substantial relevant information on those impacts. (Environmental Protection

Information Center v. California Dept. of Forestry & Fire Protection (2008) 44

Cal.4th 459, 485-486.) We will therefore affirm the judgment of the Court of

Appeal, which affirmed the superior court‟s denial of Neighbors‟s petition for writ

of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

Formally known as phase 2 of the Exposition Corridor Transit Project

(Expo Phase 2), the project at issue consists of a light-rail transit line running from

a station in Culver City (the western terminus of phase 1, which connects to

downtown Los Angeles), through the Westside area of the City of Los Angeles, to

a terminus in Santa Monica. The project‟s purpose is to provide high-capacity

transit service between the Westside area of Los Angeles and Santa Monica,

thereby accommodating population and employment growth in the area,

improving mobility for the large population of transit-dependent Westside

residents, providing an alternative to the area‟s congested roadways, and

enhancing access to downtown Los Angeles, Culver City, Santa Monica, and other

destinations in the corridor.

The Expo Authority issued a notice of preparation of an EIR for Expo

Phase 2 in February 2007, circulated a draft EIR for public comment in January

2009, and published its final EIR in December 2009. In February 2010, it certified

the EIR‟s compliance with CEQA, selected the transit mode and route

recommended in the EIR, and approved the Expo Phase 2 project.

Neighbors petitioned the superior court for a writ of mandate, alleging the

Expo Authority‟s approval of Expo Phase 2 violated CEQA in several respects.

The superior court denied the petition in full, and the Court of Appeal affirmed,

rejecting all of Neighbors‟s CEQA claims on the merits. We granted Neighbors‟s

3

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petition for review, which raised only two issues: the propriety of the Expo

Authority‟s exclusive use of a future conditions baseline for assessment of the

project impacts on traffic and air quality, and the adequacy of the mitigation

measure the Expo Authority adopted for possible impacts on street parking near

planned transit stations. We resolve those two issues below.

DISCUSSION

I. Use of Future Conditions as a Baseline for Analysis of Project

Impacts2

The fundamental goal of an EIR is to inform decision makers and the

public of any significant adverse effects a project is likely to have on the physical

environment. (§ 21061; Vineyard Area Citizens for Responsible Growth, Inc. v.

City of Rancho Cordova (2007) 40 Cal.4th 412, 428.) To make such an

assessment, an EIR must delineate environmental conditions prevailing absent the

project, defining a “baseline” against which predicted effects can be described and

quantified. (Communities for a Better Environment v. South Coast Air Quality

Management Dist. (2010) 48 Cal.4th 310, 315 (Communities for a Better

Environment).) The question posed here is whether that baseline may consist

solely of conditions projected to exist absent the project at a date in the distant

future or whether the EIR must include an analysis of the project‟s significant

impacts on measured conditions existing at the time the environmental analysis is

performed.

The Expo Authority‟s chosen analytic method and its stated reasons for that

choice will be described in detail below; suffice it here to say the agency first


2

With the exception of part II.B.5., post, which addresses prejudice, the

analysis in this part (as well as that in pt. II., post) expresses the view of a majority
of the court. (See conc. & dis. opn. of Liu, J., post, at pp. 1-3, 5.)

4

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projected the traffic and air quality conditions that would exist in the project area

in the year 2030, then estimated the effect that operation of the Expo Phase 2

transit line would have on those conditions at that future time. With regard to

traffic delays due to the rail line crossing streets at grade, the EIR found some

adverse effects were likely in 2030, but none rising to a level deemed significant.

With regard to air quality, no adverse effects were projected to occur; the project

was expected to have a generally beneficial impact on air quality by slightly

reducing automobile travel in the study area in comparison with conditions

otherwise expected in 2030.

Neighbors contends the Expo Authority proceeded contrary to CEQA‟s

commands, thus abusing its discretion as a matter of law (§ 21168.5), in its choice

of a baseline for analysis of traffic and air quality impacts. The Expo Authority

and the MTA contend agencies have discretion to choose future conditions

baselines if their choice is supported by substantial evidence, as the Expo

Authority‟s choice assertedly was here.3 We first ask whether an agency‟s

discretion ever extends to use of a future conditions baseline to the exclusion of

one reflecting conditions at the time of the environmental analysis. Concluding

that existing conditions is the normal baseline under CEQA, but that factual

circumstances can justify an agency departing from that norm when necessary to

prevent misinforming or misleading the public and decision makers, we then ask


3

The Expo Authority also contends Neighbors failed to exhaust the future

conditions baseline issue in the administrative forum. The Court of Appeal held
the issue exhausted, and the Expo Authority did not raise the exhaustion issue in
its answer to Neighbors‟s petition for review. As the exhaustion question was not
raised in the petition for review or answer, and is not fairly included in the merits
of the baseline issue on which we granted review, we decline to address it here.
(See Cal. Rules of Court, rule 8.520(b)(3).)

5

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whether the administrative record here contains substantial evidence of such

circumstances.

A. Use of Future Conditions Baselines Generally

For the proposition that the baseline for an EIR‟s significant impacts

analysis must reflect existing conditions, Neighbors relies heavily on section

15125, subdivision (a) of the CEQA Guidelines,4 which provides: “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, or if no

notice of preparation is published, at the time environmental analysis is

commenced, from both a local and regional perspective. This environmental

setting will normally constitute the baseline physical conditions by which a lead

agency determines whether an impact is significant.” (Cal. Code Regs., tit. 14,

§ 15125, subd. (a) (Guidelines section 15125(a)), italics added.)

In Communities for a Better Environment, we relied on Guidelines section

15125(a) and CEQA case law for the principle that the baseline for an agency‟s

primary environmental analysis under CEQA must ordinarily be the actually

existing physical conditions rather than hypothetical conditions that could have

existed under applicable permits or regulations. (Communities for a Better


4

The CEQA Guidelines, promulgated by the state‟s Natural Resources

Agency, are authorized by section 21083 and found in title 14 of the California
Code of Regulations, section 15000 et seq. By statutory mandate, the Guidelines
provide “criteria for public agencies to follow in determining whether or not a
proposed project may have a „significant effect on the environment.‟ ” (§ 21083,
subd. (b).) In interpreting CEQA, we accord the Guidelines great weight except
where they are clearly unauthorized or erroneous. (Communities for a Better
Environment, supra, 48 Cal.4th at p. 319, fn. 4; Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 428,
fn. 5.)

6

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Environment, supra, 48 Cal.4th at pp. 320-322.) Applying this principle, we held

the air pollution effects of a project to expand a petroleum refinery were to be

measured against the existing emission levels rather than against the levels that

would have existed had all the refinery‟s boilers operated simultaneously at their

maximum permitted capacities. (Id. at pp. 322-327.)

In a separate part of the Communities for a Better Environment analysis, we

addressed the problem of defining an existing conditions baseline in circumstances

where the existing conditions themselves change or fluctuate over time, as the

refinery‟s operations and emissions assertedly did. (Communities for a Better

Environment, supra, 48 Cal.4th at pp. 327-328.) We concluded that despite the

CEQA Guidelines‟ reference to “the time the notice of preparation is published, or

if no notice of preparation is published, . . . the time environmental analysis is

commenced” (Guidelines, § 15125(a)), “[n]either CEQA nor the CEQA

Guidelines mandates a uniform, inflexible rule for determination of the existing

conditions baseline. Rather, an agency enjoys the discretion to decide, in the first

instance, exactly how the existing physical conditions without the project can most

realistically be measured, subject to review, as with all CEQA factual

determinations, for support by substantial evidence.” (Communities for a Better

Environment, at p. 328.)

Communities for a Better Environment provides guidance here in its

insistence that CEQA analysis employ a realistic baseline that will give the public

and decision makers the most accurate picture practically possible of the project‟s

likely impacts. (Communities for a Better Environment, supra, 48 Cal.4th at

pp. 322, 325, 328.) It did not, however, decide either the propriety of using solely

a future conditions baseline or the standard of review by which such a choice is to

be judged. Our holding that the analysis must measure impacts against actually

existing conditions was in contrast to the use of hypothetical permitted conditions,

7

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not projected future conditions. And our holding that agencies enjoy discretion to

choose a suitable baseline, subject to review for substantial evidence, related to the

choice of a measurement technique for existing conditions, not to the choice

between an existing conditions baseline and one employing solely conditions

projected to prevail in the distant future.

Justice Baxter therefore errs in citing Communities for a Better

Environment for the proposition that an agency‟s future baseline choice is valid if

it is “a realistic measure of the physical conditions without the proposed

project . . . .” (Conc. & dis. opn. of Baxter, J., post, at p. 7.) In Communities for a

Better Environment, we held an agency‟s discretionary decision on “exactly how

the existing physical conditions without the project can most realistically be

measured” is reviewed for substantial evidence supporting the measurement

method. (48 Cal.4th at p. 328, italics added.) We did not hold or imply agencies

enjoy equivalent discretion under CEQA and the CEQA Guidelines to omit all

analysis of the project‟s impacts on existing conditions and measure impacts only

against conditions projected to prevail 20 or 30 years in the future, so long as their

projections are realistic.

Nor does the concurring and dissenting opinion‟s citation to Cherry Valley

Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316 aid its

argument. (Conc. & dis. opn. of Baxter, J., post, at p. 6.) The cited decision

merely applied Communities for a Better Environment to determine that a water

allocation approximating the property‟s recent historical use constituted a realistic

measure of existing conditions. (Cherry Valley Pass Acres & Neighbors v. City of

Beaumont, supra, 190 Cal.App.4th at pp. 337-338.) The case has nothing to say

about an agency‟s decision to omit an existing conditions analysis and employ

solely a baseline of conditions in the distant future.

8

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The Courts of Appeal, however, have since addressed the future conditions

baseline question directly in Sunnyvale West Neighborhood Assn. v. City of

Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (Sunnyvale West), Madera

Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, and

Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552 (Pfeiffer),

as well as in the present litigation.

In Sunnyvale West, the appellate court held inadequate an EIR‟s analysis of

a road extension project‟s traffic impacts because it used projected conditions in

the year 2020 as its only baseline, even though EIR preparation began in 2007 and

the project was approved in 2008. (Sunnyvale West, supra, 190 Cal.App.4th at pp.

1358, 1360, 1370.) While acknowledging that Guidelines section 15125(a) and

our decision in Communities for a Better Environment provided agencies

discretion on how best to measure existing conditions, the court concluded

“nothing in the law authorizes environmental impacts to be evaluated only against

predicted conditions more than a decade after EIR certification and project

approval.” (Sunnyvale West, at p. 1380.) The use of a single future conditions

baseline was per se a violation of CEQA; it was not a discretionary choice that

could be justified by substantial evidence. (Sunnyvale West, at p. 1383.)

The Sunnyvale West court observed that, although in its view the baseline

for analysis of a project‟s direct impacts must be existing conditions, “discussions

of the foreseeable changes and expected future conditions . . . may be necessary to

an intelligent understanding of a project‟s impacts over time and full compliance

with CEQA.” (Sunnyvale West, supra, 190 Cal.App.4th at p. 1381.) In particular,

the effects of the project under predicted future conditions, themselves projected in

part on the assumption that other approved or planned projects will proceed, are

appropriately considered in an EIR‟s analysis of cumulative impacts (see Cal.

Code Regs., tit. 14, § 15130) or in a discussion comparing the project to the “no

9

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project alternative” (id., § 15126.6, subd. (e)). (Sunnyvale West, at pp. 1381-

1382.) So long as the EIR evaluated the project‟s significant impacts on existing

conditions, the court saw “no problem” with also examining the effect on

projected future conditions “where helpful to an intelligent understanding of the

project‟s environmental impacts.” (Id. at p. 1382.)

The court in Madera Oversight Coalition, Inc. v. County of Madera,

considering the adequacy of an EIR‟s discussion of a mixed-use property

development‟s traffic impacts, followed Sunnyvale West on the baseline question.

Without extensive additional statutory analysis, the court adopted from Sunnyvale

West the rule that agencies “do not have the discretion to adopt a baseline that uses

conditions predicted to occur on a date subsequent to the certification of the EIR.”

(Madera Oversight Coalition, Inc. v. County of Madera, supra, 199 Cal.App.4th at

p. 90.)

In Pfeiffer, a different panel of the same court that decided Sunnyvale West

reviewed the EIR for a medical center‟s expansion project. The EIR‟s analysis of

traffic impacts compared, for various road segments and intersections in the

project‟s vicinity, existing traffic conditions with various growth and project

scenarios. (Pfeiffer, supra, 200 Cal.App.4th at p. 1571.) Holding the plaintiffs

had not shown this analysis inadequate under CEQA, Pfeiffer distinguished

Sunnyvale West as involving the use of only a future conditions baseline, whereas

in Pfeiffer “the traffic baselines included in the EIR were not limited to projected

traffic conditions in the year 2020, but also included existing conditions and the

traffic growth anticipated from approved but not yet constructed developments.”

(Pfeiffer, at p. 1573.)

The appellate court in the present case flatly disagreed with the Sunnyvale

West analysis. Noting that Guidelines section 15125(a) states the EIR‟s

description of existing environmental conditions “ „normally‟ ” serves as the

10

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baseline for analysis of project impacts, the court reasoned that “[t]o state the

norm is to recognize the possibility of departure from the norm” and concluded the

Sunnyvale West court erred in finding in the law an absolute rule against use of

projected future conditions as the baseline. In the lower court‟s view, future

conditions are properly used as a baseline if the projections on which they are

based are reliable and their use “provide[s] information that is relevant and permits

informed decisionmaking.”

We conclude CEQA and the Guidelines dictate a rule less restrictive than

Sunnyvale West‟s but more restrictive than that articulated by the Court of Appeal

below. Projected future conditions may be used as the sole baseline for impacts

analysis if their use in place of measured existing conditions—a departure from

the norm stated in Guidelines section 15125(a)—is justified by unusual aspects of

the project or the surrounding conditions. That the future conditions analysis

would be informative is insufficient, but an agency does have discretion to

completely omit an analysis of impacts on existing conditions when inclusion of

such an analysis would detract from an EIR‟s effectiveness as an informational

document, either because an analysis based on existing conditions would be

uninformative or because it would be misleading to decision makers and the

public.

Before addressing the use of a future conditions baseline, we pause to

clarify some potentially confusing aspects of the standard analysis, in which the

project‟s impacts are assessed against existing environmental conditions. First,

although most projects for which an EIR is prepared do not yet exist or are not yet

in operation at the time the EIR is written, it is common for an EIR‟s impacts

analysis to assume, counterfactually, that the project exists and is in full operation

at the time the environmental analysis is conducted. (See, e.g., Gilroy Citizens for

Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 916-917, 933

11

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[EIR analyzed impacts on city‟s existing central business district of developing

proposed outlying retail center]; Association of Irritated Residents v. County of

Madera (2003) 107 Cal.App.4th 1383, 1389, 1393-1394 [EIR analyzed impacts on

wildlife of replacing existing farm fields with proposed dairy operation]; cf.

1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act

(Cont.Ed.Bar 2d ed. 2008) Significant Environmental Effects, § 13.21, p. 635 (rev.

3.13) [EIR must analyze significant effects of entire project, including phases to be

implemented later].) In such an analysis, the EIR attempts to predict the impacts a

project would have on the existing environment if approved and implemented.

CEQA‟s wording reflects the fact that projects generally are not yet operating

when an EIR is prepared: an EIR must be prepared for any project “that may

have” a significant environmental effect (§ 21100, subd. (a)); the report‟s purpose

is to inform the public and decision makers as to the effects a proposed project “is

likely to have” on the environment (§ 21061); and the “environment” referred to is

the set of physical conditions in the area “which will be affected” by the project

(§ 21060.5).

Second, we note that in appropriate circumstances an existing conditions

analysis may take account of environmental conditions that will exist when the

project begins operations; the agency is not strictly limited to those prevailing

during the period of EIR preparation. 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 discretion on how best to

define such a baseline under the circumstance of rapidly changing environmental

conditions. (Communities for a Better Environment, supra, 48 Cal.4th at p. 328.)

As we explained in our earlier decision, CEQA imposes no “uniform, inflexible

rule for determination of the existing conditions baseline,” instead leaving to a

12

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sound exercise of agency discretion the exact method of measuring the existing

environmental conditions upon which the project will operate. (Ibid.) Interpreting

the statute and regulations in accord with the central purpose of an EIR—“to

provide public agencies and the public in general with detailed information about

the effect which a proposed project is likely to have on the environment”

(§ 21061)—we find nothing precluding an agency from employing, under

appropriate factual circumstances, a baseline of conditions expected to obtain at

the time the proposed project would go into operation.

For example, in an EIR for a new office building, the analysis of impacts on

sunlight and views in the surrounding neighborhood might reasonably take

account of a larger tower already under construction on an adjacent site at the time

of EIR preparation. For a large-scale transportation project like that at issue here,

to the extent changing background conditions during the project‟s lengthy

approval and construction period are expected to affect the project‟s likely

impacts, the agency has discretion to consider those changing background

conditions in formulating its analytical baseline. Contrary to Justice Baxter‟s view

(conc. & dis. opn. of Baxter, J., post, at p. 15), such a date-of-implementation

baseline does not share the principal problem presented by a baseline of conditions

expected to prevail in the more distant future following years of project operation

— it does not omit impacts expected to occur during the project‟s early period of

operation.

Is it ever appropriate for an EIR‟s significant impacts analysis to use

conditions predicted to prevail in the more distant future, well beyond the date the

project is expected to begin operation, to the exclusion of an existing conditions

baseline? We conclude agencies do have such discretion. The key, again, is the

EIR‟s role as an informational document. To the extent a departure from the

“norm[]” of an existing conditions baseline (Guidelines, § 15125(a)) promotes

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public participation and more informed decisionmaking by providing a more

accurate picture of a proposed project‟s likely impacts, CEQA permits the

departure. Thus an agency may forego analysis of a project‟s impacts on existing

environmental conditions if such an analysis would be uninformative or

misleading to decision makers and the public.5

Parenthetically, we stress that the burden of justification articulated above

applies when an agency substitutes a future conditions analysis for one based on

existing conditions, omitting the latter, and not to an agency‟s decision to examine

project impacts on both existing and future conditions. As the Sunnyvale West

court observed, a project‟s effects on future conditions are appropriately

considered in an EIR‟s discussion of cumulative effects and in discussion of the no

project alternative. (Sunnyvale West, supra, 190 Cal.App.4th at pp. 1381-1382.)6


5

Amicus curiae South Coast Air Quality Management District provides a

hypothetical example of factual conditions in which use of an existing conditions
baseline would arguably mask potentially significant project impacts that would be
revealed by using a future conditions baseline. In this illustration, an existing
industrial facility currently emits an air pollutant in the amount of 1,000 pounds
per day. By the year 2020, if no new project is undertaken at the facility,
emissions of the pollutant are projected to fall to 500 pounds per day due to
enforcement of regulations already adopted and to turnover in the facility‟s vehicle
fleet. The operator proposes to use the facility for a new project that will emit 750
pounds per day of the pollutant upon implementation and through at least 2020.
An analysis comparing the project‟s emissions to existing emissions would
conclude the project would reduce pollution and thus have no significant adverse
impact, while an analysis using a baseline of projected year 2020 conditions would
show the project is likely to increase emissions by 250 pounds per day, a
(presumably significant) 50 percent increase over baseline conditions.

6

A cumulative impacts analysis focuses on the effects of the proposed

project together with other projects causing related impacts and may rely on
projections of future conditions that are expected to contribute to a cumulative
adverse effect (Cal. Code Regs., tit. 14, § 15130, subds. (a)(1), (b)), while analysis
of the no project alternative includes a discussion of “what would be reasonably


(footnote continued on next page)

14

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But nothing in CEQA law precludes an agency, as well, from considering both

types of baseline—existing and future conditions—in its primary analysis of the

project‟s significant adverse effects. (Pfeiffer, supra, 200 Cal.App.4th at p. 1573;

Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150

Cal.App.4th 683, 707.) The need for justification arises when an agency chooses

to evaluate only the impacts on future conditions, foregoing the existing conditions

analysis called for under the CEQA Guidelines.

The need to justify omission of an existing conditions analysis derives in

part from the CEQA Guidelines, which clearly establish that the norm for an EIR

is analysis against a baseline of existing conditions. In addition to Guidelines

section 15125(a), which expressly so provides, the Guidelines provide that an EIR

“should normally limit its examination to changes in the existing physical

conditions in the affected area,” considering both direct and indirect effects and

“giving due consideration to both the short-term and long-term effects” of the

project. (Cal. Code Regs., tit. 14, § 15126.2, subd. (a), italics added.) Moreover,

the Guidelines explain that “[t]he no project alternative analysis is not the baseline

for determining whether the proposed project‟s environmental impacts may be

significant, unless it is identical to the existing environmental setting analysis

which does establish that baseline (see Section 15125).” (Cal. Code Regs., tit. 14,

§ 15126.6, subd. (e)(1).) While the latter regulation does not absolutely prohibit

the use of a future conditions baseline where appropriate, it makes clear that

normally the baseline for determining a project‟s significant adverse impacts is not


(footnote continued from previous page)

expected to occur in the foreseeable future if the project were not approved, based
on current plans and consistent with available infrastructure and community
services” (Cal. Code Regs., tit. 14, § 15126.6, subd. (e)(2)).

15

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the same as the no project alternative, which takes into account future changes in

the environment reasonably expected to occur if the project is not approved. (Id.,

subd. (e)(2), (3)(C).)

The CEQA Guidelines establish the default of an existing conditions

baseline even for projects expected to be in operation for many years or decades.

That a project will have a long operational life, by itself, does not justify an

agency‟s failing to assess its impacts on existing environmental conditions. For

such projects as for others, existing conditions constitute the norm from which a

departure must be justified—not only because the CEQA Guidelines so state, but

because using existing conditions serves CEQA‟s goals in important ways.

Even when a project is intended and expected to improve conditions in the

long term—20 or 30 years after an EIR is prepared—decision makers and

members of the public are entitled under CEQA to know the short- and medium-

term environmental costs of achieving that desirable improvement. These costs

include not only the impacts involved in constructing the project but also those the

project will create during its initial years of operation. Though we might

rationally choose to endure short- or medium-term hardship for a long-term,

permanent benefit, deciding to make that trade-off requires some knowledge about

the severity and duration of the near-term hardship. An EIR stating that in 20 or

30 years the project will improve the environment, but neglecting, without

justification, to provide any evaluation of the project‟s impacts in the meantime,

does not “giv[e] due consideration to both the short-term and long-term effects” of

the project (Cal. Code Regs., tit. 14, § 15126.2, subd. (a)) and does not serve

CEQA‟s informational purpose well. The omission of an existing conditions

analysis must be justified, even if the project is designed to alleviate adverse

environmental conditions over the long term.

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In addition, existing environmental conditions have the advantage that they

can generally be directly measured and need not be projected through a predictive

model. However sophisticated and well-designed a model is, its product carries

the inherent uncertainty of every long-term prediction, uncertainty that tends to

increase with the period of projection. For example, if future population in the

project area is projected using an annual growth multiplier, a small error in that

multiplier will itself be multiplied and compounded as the projection is pushed

further into the future. The public and decision makers are entitled to the most

accurate information on project impacts practically possible, and the choice of a

baseline must reflect that goal.

Finally, use of existing conditions as a baseline makes the analysis more

accessible to decision makers and especially to members of the public, who may

be familiar with the existing environment but not technically equipped to assess a

projection into the distant future. As an amicus curiae observes, “[a]nyone can

review an EIR‟s discussion of current environmental conditions and determine

whether [it] comports with that person‟s knowledge and experience of the world.”

But “[i]n a hypothetical future world, the environment is what the statisticians say

it is.” Quantitative and technical descriptions of environmental conditions have a

place in CEQA analysis, but an agency must not create unwarranted barriers to

public understanding of the EIR by unnecessarily substituting a baseline of

projected future conditions for one based on actual existing conditions. (See

Laurel Heights Improvement Assn. v. Regents of University of California (1988)

47 Cal.3d 376, 392 [EIR allows the public to “know the basis on which its

responsible officials either approve or reject environmentally significant action,”

thereby promoting “informed self-government”].)

Justice Baxter‟s concurring and dissenting opinion proposes a significantly

more lax rule, similar to that espoused by the Court of Appeal below, under which

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a future conditions baseline may be employed, in lieu of one based on existing

environmental conditions, so long as it is “a realistic measure of the physical

conditions without the proposed project” projected at the agency‟s chosen future

date. (Conc. & dis. opn. of Baxter, J, post, at p. 7.) As discussed earlier, such a

rule cannot be derived from Communities for a Better Environment or the other

authority cited for it. Moreover, it would drain Guidelines section 15125(a)‟s last

sentence (providing that existing environmental conditions “will normally

constitute the baseline physical conditions by which a lead agency determines

whether an impact is significant”) of virtually all prescriptive effect. Perhaps most

important, it would sanction the unwarranted omission of information on years or

decades of a project‟s environmental impacts and open the door to gamesmanship

in the choice of baselines.

Under the rule proposed in Justice Baxter‟s opinion, agencies evaluating

projects intended to exist and operate for many decades could seemingly choose a

baseline of conditions from any period of the project‟s expected operations, 15, 30

or 60 years in the future, so long as the agency‟s projections were supported by

reasonably reliable data and predictive modeling. Existing environmental

conditions would constitute the “normal[]” baseline for an EIR (Guidelines

§ 15125(a))—except for any case where the agency chose a different baseline.

Agencies would be empowered routinely to omit discussion of short- and medium-

term operational effects, preparing EIRs that told the public and decision makers

only what impacts could be expected decades down the road. An agency that

wished to hide significant adverse impacts expected to occur in the project‟s initial

years of operation could choose to analyze the project‟s environmental effects

only at some more distant period, when changes in background conditions might

mask or swamp the adverse effects seen in the shorter term. That no intentional

hiding of likely impacts appears in this case does not negate the potential for

18

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manipulation of the baseline under a rule that provides agencies unbounded

discretion in the choice.

Contrary to Justice Baxter‟s claim, our holding here does not impose any

“wasteful” or “additional” substantive requirement on agencies. (Conc. & dis.

opn. of Baxter, J., post, at p. 18.) We hold only that agencies normally must do

what Guidelines section 15125(a) expressly requires — compare the project‟s

impacts to existing environmental conditions, as that term is broadly understood,

to determine their significance. The question we would have an agency ask in

choosing a baseline is not, “Would an existing conditions analysis add information

to a future conditions analysis?” It is, “Do we have a reason to omit the existing

conditions analysis and substitute one based on future conditions?” Of course,

where an agency concludes an analysis of impacts on future conditions is also

needed in any portion of the EIR, it may include such an analysis. But any

duplication of effort therein involved is not a product of this decision.

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.

Because the standard articulated here involves a primarily factual

assessment, the agency‟s determination is reviewed only for substantial evidence

supporting it. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of

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Rancho Cordova, supra, 40 Cal.4th at p. 435.) If substantial evidence supports an

agency‟s determination that an existing conditions impacts analysis would provide

little or no relevant information or would be misleading as to the project‟s true

impacts, a reviewing court may not substitute its own judgment on this point for

that of the agency. (Ibid.)

B. The Expo Authority’s Use of a Year 2030 Baseline

1. Traffic congestion analysis

As proposed in the EIR, the Expo Phase 2 project will cross several streets

at grade rather than with bridges or tunnels. To analyze the resulting impacts on

traffic congestion, the Expo Authority used the following method:

(1) For numerous street intersections in the vicinity, the agency directly

observed existing congestion in 2007-2008, measuring it as the average delay in

travel through each intersection during the morning and afternoon peak travel

periods. The delay was expressed in terms of “Level of Service” (LOS), ranging

from LOS A (free flow) to LOS F (extreme congestion).7

(2) Using MTA‟s traffic projection model, which incorporates regional

growth projections from the Southern California Association of Governments, the

Expo Authority predicted the LOS for each intersection in the year 2030 if the

Expo Phase 2 project is not built (and assuming no other transit improvements

along the project corridor).


7

For signalized intersections, delay at LOS A is less than or equal to 10

seconds, at LOS B it is between 10 and 20 seconds, at LOS C it is between 20 and
35 seconds, at LOS D it is between 35 and 55 seconds, at LOS E it is between 55
and 80 seconds, and at LOS F it is greater than 80 seconds. The LOS thresholds
are lower for unsignalized intersections.

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(3) For each intersection studied, the Expo Authority then predicted the

LOS in the year 2030 if the Expo Phase 2 project is built and operated. These

projections took into account automobile trip reductions expected to result from

the project and additional peak hour trips to drop off or pick up passengers at

stations, as well as the impact of stoppages at grade crossings as each train passes.

(4) For each intersection, the predicted year 2030 LOS with the project was

compared to the predicted year 2030 LOS without the project and the significance

of any impact assessed. An adverse impact on delay was considered significant if

the project was projected to cause service to deteriorate from LOS A, B, C, or D to

LOS E or F or, for those intersections projected to be at LOS E or F in 2030

without the project, if the project would increase delay by four seconds or more.

Using this method, the EIR projects some additional local traffic congestion

in 2030 due to the project, but none rising above the significance thresholds just

described. For example, at the intersection of Stewart Street and Olympic

Boulevard, vehicles in the year 2030 are expected to experience a morning peak

period delay of 34.2 seconds absent the project and 49.0 seconds with the project,

but this 14.8-second increase in delay is not considered significant because it only

moves the intersection from LOS C to LOS D, and not into the unsatisfactory

categories of LOS E and F. At 20th Street and Olympic Boulevard, the project is

expected to cause an additional 0.8 seconds of delay, considered insignificant

because it does not change the projected LOS, which is expected to be

unsatisfactory (LOS E) in 2030 even without the project, and falls below the four-

second significance threshold. Several other intersections fit these patterns of

insignificant adverse impact, while at many other intersections the project is

projected to reduce traffic delay in 2030, due in part to intersection improvements

proposed in conjunction with the transit line.

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2. Air pollution analysis

Based on projections of an increase in vehicle miles traveled in the region,

the EIR predicts an increase in air pollution emissions by 2030 if the Expo Phase 2

project is not built. The project would result in fewer vehicle miles traveled, in

comparison to the no-build alternative, and hence in fewer emissions in 2030. By

reducing vehicle travel and the resulting emissions below those otherwise

expected, project implementation “would have a beneficial impact on regional

pollutant levels over the life of the project . . . .”

3. Explanation of baseline choice

In the introduction to the EIR‟s factual findings, the Expo Authority

explains that it found use of a future conditions baseline for traffic and air quality

impacts analysis necessary “so that the public and the decision makers may

understand the future impacts on traffic and air quality of approving and not

approving the project.” The EIR continues: “The evaluation of future traffic and

air quality conditions utilizes adopted official demographic and [sic] projections

for the project area and region. Past experience with the adopted demographic

projections indicate that it is reasonable to assume that the population of the

project area and the region will continue to increase over the life of the project.

The projected population increases will, in turn, result in increased traffic

congestion and increased air emissions from mobile sources in the project area and

in the region. [¶] For most of the environmental topics in the [EIR] and in these

Findings, the Authority finds that existing environmental conditions are the

appropriate baseline condition for the purpose of determining whether an impact is

significant. However, the Authority finds that the existing physical environmental

conditions (current population and traffic levels) do not provide a reasonable

baseline for the purpose of determining whether traffic and air quality impacts of

the Project are significant. The Authority is electing to utilize the future baseline

22

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conditions for the purposes of determining the significance of impacts to traffic

and air quality.”

Further explanation of the baseline choice is provided in a later section on

the EIR‟s methods for determining impacts: “A transportation project includes

significant capital infrastructure and is intended to meet long-term needs. As a

result, the permanent effects of those transportation projects are, and should be,

evaluated based on a longer-term perspective that takes increases in population

and programmed changes to the transportation system into account. Since the

project is addressing both existing and long-term transportation shortfalls, that

longer-term perspective should include reasonably foreseeable other

improvements. [¶] For this project the long-term permanent impacts are evaluated

against what is [sic] expected to be existing conditions in 2030. This assumes the

planned growth (jobs and employment) and related funded transportation

improvements as proposed in the [Southern California Association of

Governments Regional Transportation Plan]. In addition, short-term impacts

associated with the construction period (2011 to 2015) of the project have also

been evaluated. [¶] . . . Because population and traffic are anticipated to increase

over the life of the project, this approach provides the public and decision makers

with a realistic evaluation of the significance of air quality and traffic impacts over

the life of the project.”

The Expo Authority‟s explanation of its baseline choice in its briefing

places similar reliance on the inevitability of population and traffic growth in the

project area: “It is undisputed that the population, employment and concomitant

traffic congestion will continue to increase through 2030 on the west side.

[Citation.] It is absurd to suggest that the Authority use 2007 population,

employment and traffic to determine the Project‟s operational impacts when the

2007 conditions will no longer exist when the Project is fully operational.”

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4. Propriety of baseline choice

We discern no substantial evidence supporting the Expo Authority‟s

decision to omit an analysis of the project‟s traffic and air quality impacts on

existing environmental conditions. Although the agency did not expressly find an

existing conditions analysis would have been misleading or without informational

value, its finding that for analysis of traffic congestion and air pollution impacts

“existing physical environmental conditions . . . do not provide a reasonable

baseline” may be construed as so asserting. Unfortunately, nothing in the record

supports that determination, and without such evidence the Expo Authority cannot

justify its decision to completely omit an analysis of the project‟s impacts on

existing traffic congestion and air quality.

The Expo Authority observes that “2007 conditions will no longer exist

when the Project is fully operational.” As discussed earlier, CEQA allows an

agency to adjust its existing conditions baseline to account for an important

change that will occur between the time an EIR is prepared and the time of project

implementation. (See pt. I.A., ante.) But the Expo Authority did not measure

traffic congestion and air pollution impacts against existing environmental

conditions when the project begins operations. The agency used no existing

conditions baseline, adjusted or unadjusted, for analysis of these impacts, instead

employing only a baseline of projected 2030 conditions.

That the Expo Phase 2 project is “intended to meet long-term needs” for

public transportation is an insufficient justification. By focusing solely on the

project‟s operational impacts in the distant future, the EIR neglects to inform the

public and decision makers explicitly of any operational impacts that could occur

in the project‟s first 15 years of operation. (The only short-term impacts on traffic

and air quality analyzed were those resulting from the project‟s construction.) The

absence of such “due consideration to both the short-term and long-term effects”

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of the project (Cal. Code Regs., tit. 14, § 15126.2, subd. (a)) threatens to deprive

the EIR‟s users of the opportunity to weigh the project‟s environmental costs and

benefits in an informed manner.

Similarly, that project area population, traffic, and emissions of air

pollutants are expected to continue increasing through and beyond 2030 does not

justify the agency‟s failure to analyze operational impacts under earlier conditions.

The expectation of change may make it important for the agency to also examine

impacts under future conditions (whether in the significant impacts analysis, the

cumulative impacts analysis, or the discussion of the no project alternative), but it

does not constitute substantial evidence supporting a determination that an existing

conditions analysis would be uninformative or misleading.

Nor does the fact ridership is not expected to reach maximum levels

immediately upon the transit line‟s opening constitute substantial evidence

justifying the failure to examine impacts on existing conditions.8 The level of

ridership on the proposed transit line is a characteristic of the project in operation,

not a characteristic of the environmental baseline against which project impacts

are measured. As noted earlier, an existing conditions analysis often assumes the


8

The record does not indicate full ridership will first be achieved in 2030.

The passage cited in the Expo Authority‟s brief, found in the EIR‟s discussion of
parking impacts and mitigation along Colorado Avenue, reads as follows: “On
opening day, 71 to 92 percent of the 2030 parking demand would be provided
depending on the Preferred Alternative selected. This would be reasonably
consistent with opening day ridership, which is estimated at approximately 77
percent of the year 2030 forecasts.” While this makes clear ridership on opening
day is expected to be below its ultimate maximum, it does not purport to predict
how fast ridership will increase or when it will reach its full level, other than
assuming that level will be reached by or before the year 2030. From common
experience, one might expect fewer than 15 years will be needed for commuters to
start using a new transit line.

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project exists and is in full operation at the time the environmental analysis is

conducted, measuring the likely impacts against a baseline of conditions existing

at the time of environmental analysis. Thus the Expo Authority did not need to

employ a baseline of predicted 2030 background conditions in order to measure

the impacts of full ridership; those likely impacts could have been predicted

against an existing conditions baseline. Justice Baxter‟s concurring and dissenting

opinion, in suggesting the year 2030 baseline was chosen as representative of full

ridership, ignores the fact that ridership is not a baseline condition but a

characteristic of the project‟s operations. (Conc. & dis. opn. of Baxter, J., post, at

p. 11.) In any event, neither the EIR, nor the Expo Authority‟s briefs, nor Justice

Baxter‟s opinion explain whether ridership levels would affect the project‟s

impacts on traffic congestion and air pollution, and if so, whether the effect would

be positive or negative; the likelihood of changing ridership levels thus cannot be

considered substantial evidence an existing conditions analysis—whatever

ridership level it assumed—would be useless or misleading.

In its brief, the Expo Authority states it “chose 2030 because when it issued

the [notice of preparation of the EIR] in 2007, 2030 was the planning horizon for

transportation projects in the adopted [Southern California Association of

Governments] Regional Transportation Plan,” and asserts that federal law requires

the use of this long-term perspective in planning for federally funded

transportation projects. To the extent the agency is arguing that a technique used

for planning under another statutory scheme necessarily satisfies CEQA‟s

requirements for analysis of a project‟s impacts, we disagree. Except where

CEQA or the CEQA Guidelines tie CEQA analysis to planning done for a

different purpose (see, e.g., § 21081.2, subd. (a) [CEQA findings on traffic

impacts not required for certain residential infill projects that are in compliance

with other municipal plans and ordinances]), an EIR must be judged on its

26

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fulfillment of CEQA‟s mandates, not those of other statutes. And while we try to

interpret CEQA in a manner consistent with other planning schemes (see Vineyard

Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40

Cal.4th at pp. 432-434), no issue of conflict or incompatibility arises here.

Nothing prevents an agency preparing an EIR from analyzing the impacts of a

project against an existing conditions baseline even if the agency has also planned

under other statutes for the project‟s long-term operation. Moreover, the use of

multiple baselines for direct impacts analysis does not violate CEQA (see Pfeiffer,

supra, 200 Cal.App.4th at p. 1573; Woodward Park Homeowners Assn., Inc. v.

City of Fresno, supra, 150 Cal.App.4th at p. 707), and even when the EIR uses

solely an existing conditions baseline for direct impacts analysis, available

information about the longer term impacts of the project, together with other

foreseeable developments, is appropriately incorporated into the EIR under the

rubric of a cumulative impacts analysis (Cal. Code Regs., tit. 14, § 15130). There

is thus no necessary connection between use of a year 2030 horizon for

transportation planning generally and the agency‟s choice of conditions in that

year as the sole baseline for project impacts analysis under CEQA.

In summary, the administrative record does not offer substantial evidence

to support the Expo Authority‟s decision to limit its analysis of project impacts on

traffic congestion and air quality to predicted impacts in the year 2030, to the

exclusion of likely impacts on conditions existing when the EIR was prepared or

when the project begins operation.

5. Prejudice

An omission in an EIR‟s significant impacts analysis is deemed prejudicial

if it deprived the public and decision makers of substantial relevant information

about the project‟s likely adverse impacts. Although an agency‟s failure to

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disclose information called for by CEQA may be prejudicial “regardless of

whether a different outcome would have resulted if the public agency had

complied” with the law (§ 21005, subd. (a)), under CEQA “there is no

presumption that error is prejudicial” (id., subd. (b)). Insubstantial or merely

technical omissions are not grounds for relief. (Environmental Protection

Information Center v. California Dept. of Forestry & Fire Protection, supra, 44

Cal.4th at pp. 485-486.) “A prejudicial abuse of discretion occurs if the failure to

include relevant information precludes informed decisionmaking and informed

public participation, thereby thwarting the statutory goals of the EIR process.”

(Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712.)

With regard to the analysis of Expo Phase 2‟s traffic congestion impacts,

we conclude the EIR‟s use exclusively of a future conditions baseline had no such

prejudicial effect. Although the EIR failed to analyze the project‟s impacts on

existing traffic congestion, it did include an extensive analysis of year 2030

congestion effects, finding no significant adverse impacts. That detailed analysis

demonstrates the lack of grounds to suppose the same analysis performed against

existing traffic conditions would have produced any substantially different

information.

The EIR revealed that project impacts on congestion at intersections along

the chosen rail route are expected in most cases to be favorable in 2030, that most

of the adverse impacts expected are small, and that even the few relatively large

adverse impacts expected would not, if applied to existing conditions, result in

significant changes in delay status.9 Although Neighbors has argued that


9

For the majority of the more than 100 intersection/peak period

combinations studied, the project‟s expected impact in 2030 is favorable or
nonexistent. Where the predicted impact is adverse, it is generally minor,


(footnote continued on next page)

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intersections expected to reach unsatisfactory status by 2030 without the project

might do so earlier because of project impacts, the EIR showed that those

intersections would experience favorable, or in one instance adverse but very

minor, impacts in 2030 due to the project.10 Design changes reducing delay are

built into the project at many intersections, and the expected gradual increase in

traffic generally could not reasonably be thought likely to result in substantially

larger project impacts on congestion under existing conditions than under 2030

conditions.11 In these particular factual circumstances, the EIR‟s omission did not


(footnote continued from previous page)

exceeding 10 seconds in only seven instances. And of the 10 currently satisfactory
intersections (those in LOS status A through D) on which the rail project is
expected to have the greatest adverse impacts in 2030, including the seven on
which the projected 2030 impact exceeds 10 seconds, none are currently close
enough to LOS E so that the 2030 impact, if applied to existing conditions, would
put the intersection into unsatisfactory status. Only two currently satisfactory
intersections are within 10 seconds of the LOS E threshold, and the project is
projected to affect delay favorably at both.

10

Five intersection/peak period combinations along the proposed transit line

meet the criteria of being currently in a satisfactory LOS and projected to turn
unsatisfactory by 2030 in the project‟s absence. For four of the five, the project‟s
2030 impact on congestion is expected to be favorable, reducing delay in amounts
ranging from 1.1 seconds to 30.1 seconds. The single projected adverse impact in
this group is very small, 0.8 seconds. And since the existing morning peak delay
at that intersection (20th Street and Olympic Boulevard) is 42.6 seconds, the
adverse project impact under existing conditions would have to be 12.4 seconds,
or more than 15 times the adverse impact in 2030, to put the intersection over the
55-second threshold into LOS E. To posit such an extreme difference in impacts
would be unsupported speculation.
11

The record shows that, baseline conditions aside, the project‟s operations

may differ somewhat on opening day from later periods, in that ridership on the
transit line is expected initially to be only 77 percent of its eventual level. As
noted earlier, however, an existing conditions impacts analysis ordinarily assumes,
counterfactually, that the project is in full operation. And even if an existing
conditions analysis assumed 77 percent ridership, no substantial difference in
impacts would be likely. The rail project‟s favorable effect on project area traffic


(footnote continued on next page)

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“preclude[] informed decisionmaking and informed public participation.” (Kings

County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at p. 712.)

We reach the same conclusion as to the analysis of air quality impacts.

Based on the prediction that operation of the Expo Phase 2 project would reduce

the vehicle miles traveled in the project area and hence reduce emissions of

pollutants, the EIR concluded project implementation “would have a beneficial

impact on regional pollutant levels over the life of the project . . . .” But the

project will begin reducing vehicle miles travelled as soon as it starts operating, as

some of those who would otherwise drive decide to take the new train. Under the

EIR‟s logic, to which Neighbors raises no objection other than the choice of a

baseline, the project‟s impact on air quality will thus be beneficial throughout its

operation, not only in 2030. The EIR‟s formal use of a year 2030 baseline for this

analysis was thus an insubstantial, technical error that cannot be considered

prejudicial. (Environmental Protection Information Center v. California Dept. of

Forestry & Fire Protection, supra, 44 Cal.4th at pp. 486-488.)

To comply fully with CEQA‟s informational mandate, the Expo Authority

should have analyzed the project‟s effects on existing traffic congestion and air

quality conditions. Under the specific circumstances of this case, however, its

failure to do so did not deprive agency decision makers or the public of substantial

information relevant to approving the project, and is therefore not a ground for

setting that decision aside.

(footnote continued from previous page)

is projected to be modest even at full ridership: a reduction of 0.38 percent in
vehicle miles traveled in 2030. Even if the 77 percent initial ridership implies that
initially the project will reduce vehicle miles traveled only by 0.29 percent, there
are no grounds to believe such an extremely minor difference (0.09 percent) could
substantially alter the project impacts on existing congestion at the individual
intersections studied.

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II. Adequacy of Mitigation Measure for Spillover Parking Effects

As proposed in the EIR, the Expo Phase 2 project does not include

construction of parking facilities at several stations. The EIR recognizes that some

transit patrons will nevertheless attempt to park near these stations, and near-

station streets where parking is neither time limited nor restricted to those with

residential permits “could be impacted by spillover parking.” To mitigate this

potential impact, the EIR proposed, and the agency adopted, a series of measures.

On-street parking in areas where spillover effects are anticipated will be monitored

before and for six months after the opening of the transit line. If a parking

shortage results, MTA will help the responsible local jurisdiction establish an

appropriate permit parking program, for which MTA will pay the signage and

administrative costs. If a permit program is inappropriate for the area, MTA “will

work with the local jurisdictions” to decide on another option, such as time-

restricted, metered, or shared parking arrangements. By means of this mitigation

measure, the EIR concludes, any adverse spillover parking effect will be rendered

less than significant.

Neighbors contends this mitigation measure is insufficiently enforceable

because it depends on the cooperation of municipal agencies having jurisdiction

over parking in the vicinity of the stations. CEQA, however, allows an agency to

approve or carry out a project with potential adverse impacts if binding mitigation

measures have been “required in, or incorporated into” the project or if “[t]hose

changes or alterations are within the responsibility and jurisdiction of another

public agency and have been, or can and should be, adopted by that other agency.”

(§ 21081, subd. (a); see Cal. Code Regs., tit. 14, § 15091, subd. (b) [findings to

this effect “shall be supported by substantial evidence in the record”].) The Expo

Authority made both findings as to its spillover parking mitigation measure, and

both findings are supported by substantial evidence.

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Under the adopted mitigation measure, MTA is required to monitor parking

in the potentially affected neighborhoods, to pay for a residential permit parking

program where station spillover has resulted in a street parking shortage, and to

assist in developing other measures where a residential permit program is

inappropriate. But as MTA cannot institute street parking restrictions without the

cooperation of the local municipalities, some part of the mitigation, to the extent it

is needed, will indeed be the responsibility of other public agencies, which “can

and should” (§ 21081, subd. (a)(2)) adopt parking programs and restrictions to

alleviate pressure from commuters using the new transit line.

Neighbors relies on Federation of Hillside & Canyon Associations v. City

of Los Angeles (2000) 83 Cal.App.4th 1252, 1260-1262, in which the appellate

court found a city‟s proposed measures to mitigate the transportation impacts of a

general plan framework were inadequate. The transportation plan involved in that

case, however, was designed to mitigate the effects of massive population and

employment growth planned for the city and would have required $12 billion from

various sources, of which the city‟s own portion far exceeded its available funds.

(Id. at p. 1256.) The city thus “acknowledged in the [mitigation plan] that there

was great uncertainty as to whether the mitigation measures would ever be funded

or implemented” (id. at p. 1261), leading the court to find no substantial evidence

that enforceable mitigation measures had been incorporated into or were required

by the project.

The circumstances in Federation of Hillside & Canyon Associations are not

comparable to those here, where the mitigation measure at issue involves only the

monitoring of parking near several transit stations and, if a shortage develops, the

cooperative implementation of one or more relatively low-cost solutions. While

the Expo Authority and MTA cannot guarantee local governments will cooperate

to implement permit parking programs or other parking restrictions, the record

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supports the conclusion these municipalities “can and should” (§ 21081, subd.

(a)(2)) do so. Neighbors‟s speculation a municipality might not agree to a permit

parking program—which MTA would pay for and which would benefit the

municipality‟s own residents—is not sufficient to show the agency violated CEQA

by adopting this mitigation measure. (See City of Marina v. Board of Trustees of

California State University (2006) 39 Cal.4th 341, 364-365 [the finding that

mitigation through sharing the cost of necessary improvements with the

responsible agency is infeasible was not justified by speculation that the agency

might not agree to undertake the improvements].)

DISPOSITION

The judgment of the Court of Appeal is affirmed.

WERDEGAR, J.

WE CONCUR:

KENNARD, J.
CORRIGAN, J.

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CONCURRING AND DISSENTING OPINION BY BAXTER, J.




Enacted by the Legislature in 1970, the California Environmental Quality

Act (CEQA; Pub. Resources Code,1 § 21000 et seq.) aims to enhance the

environmental quality of the state and promote long-term protection of the

environment. (§ 21001.) To achieve these objectives, CEQA establishes a

comprehensive review process for analyzing the potential environmental impacts

of a proposed project and assessing how such impacts might be mitigated.

Inasmuch as the review process can be quite lengthy and involved, the Legislature

has declared it our state policy that the public agencies responsible for carrying out

the process must do so “in the most efficient, expeditious manner,” so as to

conserve the available financial, governmental, and other resources for application

toward mitigation efforts. (§ 21003, subd. (f).) It is also the Legislature‟s intent

that courts “shall not” interpret the statutory and regulatory requirements of CEQA

“in a manner which imposes procedural or substantive requirements beyond those

explicitly stated in [CEQA] or in the state guidelines.” (§ 21083.1.)


1

All further statutory references are to this code unless otherwise indicated.

1

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The majority‟s analysis of the baseline issue fails to honor these legislative

prerogatives.2 The upshot of that analysis is this: An environmental impact report

(EIR) may omit an analysis of a proposed project‟s impacts on existing conditions

only when its inclusion “would detract from [the] EIR‟s effectiveness as an

informational document.” (Lead opn., ante, at p. 11.) The majority‟s categorical

rule means that, notwithstanding the particular nature and circumstances of a

proposed project, a lead agency abuses its discretion when it evaluates

environmental impacts with a baseline of projected future conditions in lieu of an

existing conditions baseline, even though selection of the former is reasonable

under the circumstances and substantial evidence supports the analysis. In short,

even if an EIR‟s analysis of impacts using a future conditions baseline, standing

alone, would provide a realistic measure of a project‟s impacts that allows for

informed decisionmaking and public participation, the majority mandates that the

EIR also undertake and include an existing conditions analysis, so long as such an

analysis would not in fact diminish the effectiveness of the document. (Lead opn.,

ante, at p. 11.)

Although it is easy to see the wastefulness of requiring an existing

conditions analysis when a future conditions analysis provides a realistic

assessment of a project‟s significant adverse effects, there are several legal reasons

why the majority‟s holding is in error. Most notably, the majority‟s restrictions on

agency discretion find no support in CEQA or in the regulations promulgated

thereunder. (See pt. II.A., post.) In addition, the restrictions are contrary to our


2

I use the term “majority” to refer to those portions of the lead opinion‟s

analysis in which Justice Liu concurs. (See conc. & dis. opn. of Liu, J., post, at
pp. 1-3, 5.)

2

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decisions recognizing an agency‟s discretion in selecting a baseline and case law

requiring deferential review of agency decisions. (See ibid.)

Apart from these legal defects, the majority‟s analysis is objectionable for

the further reason that it adds a significant level of complexity and uncertainty to

an already arduous environmental review process. To begin with, the stated

restrictions are ambiguous and create opportunities for litigation over their

applicability. Moreover, the ease of alleging an abuse of discretion under the

majority‟s analysis is likely to prompt challenges whenever an existing conditions

baseline is omitted, causing delays that may add significantly to a project‟s costs

or derail it altogether. (See pt. II.B., post.) The mere threat of such challenges

may prompt lead agencies to engage in existing conditions analyses as a matter of

course, even if such exercises would not materially improve public disclosure or

informed decisionmaking, and this despite the declared state policy requiring that

the review process be conducted efficiently and expeditiously in order to conserve

financial and governmental resources. (See ibid.) That the majority needlessly

complicates and protracts the CEQA review process is most unfortunate, for both

the public and the environment.

In sum, I concur in the ultimate affirmance of the Court of Appeal

judgment, which upheld certification of the EIR for the proposed light rail project

at issue (Expo Phase 2). I also concur in the majority‟s rejection of the spillover

parking contentions of plaintiff Neighbors for Smart Rail (Neighbors). But I

dissent from the majority‟s analysis of the baseline issue and its conclusion that

the lead agency (Expo Authority) abused its discretion in approving the EIR‟s use

of an analytic baseline of traffic and air quality conditions projected to exist in the

year 2030 (the 2030 baseline), in lieu of a baseline of the conditions existing in

2007 when the notice of preparation of the EIR was published.

3

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As a major infrastructure project designed specifically to address projected

long-term increases in traffic congestion and air pollution, Expo Phase 2‟s very

operation will, over time, achieve environmental objectives and efficiencies in

complete alignment with CEQA‟s goals of enhancing and protecting the

environment in this state. The majority does not disagree that the traffic and air

quality conditions in 2007 will no longer exist when Expo Phase 2 is fully

operational. But despite Expo Authority‟s reliance on this reality as a justification

for omitting an impacts analysis based on the 2007 conditions, the majority

proceeds to fault the agency for failing to analyze the conditions projected to exist

eight years after that date, when Expo Phase 2 is scheduled to begin operations in

2015. (See lead opn., ante, at pp. 24, 27.) The unfairness of today‟s decision is

stunning: the majority finds an abuse of discretion based on the lead agency‟s

failure to use a baseline that is nowhere mentioned in the CEQA statutes,

regulations, or case law, and that no agency or member of the public ever

advocated in the administrative review process below.

Unlike the majority, I conclude, consistent with the statutory and decisional

law governing review in CEQA proceedings, that the record amply supports Expo

Authority‟s use of the 2030 baseline in place of an existing conditions baseline.

(See pt. I., post.) The record also confirms that substantial evidence supports the

2030 baseline as a realistic baseline for measuring the project‟s operational

impacts on traffic and air quality conditions. (Ibid.)

I.

The basic purpose of an EIR is “to provide public agencies and the public

in general with detailed information about the effect which a proposed project is

likely to have on the environment; to list ways in which the significant effects of

such a project might be minimized; and to indicate alternatives to such a project.”

(§ 21061; see also § 21002.1, subd. (a).) CEQA defines a “significant effect on

4

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the environment” as meaning “a substantial, or potentially substantial, adverse

change in the environment.” (§ 21068.)

In order to provide meaningful information to the decision makers and the

public, an EIR must clearly and accurately identify the effects of the proposed

project as distinguished from nonproject effects. To determine if a project is likely

to have a significant effect on the environment, the lead agency “must use some

measure of the environment‟s state absent the project.” (Communities for a Better

Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310,

315 (Communities for a Better Environment).) The “environment” means the

physical conditions existing within the area “which will be affected by a proposed

project.” (§ 21060.5.)

As relevant here, “[a]n 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, or if no notice of preparation is published, at the

time environmental analysis is commenced, from both a local and regional

perspective. This environmental setting will normally constitute the baseline

physical conditions by which a lead agency determines whether an impact is

significant.” (Cal. Code Regs., tit. 14, § 15125, subd. (a), italics added;3 see also

Guidelines, § 15126.2, subd. (a).) In using the word “normally,” Guidelines

section 15125, subdivision (a) (Guidelines section 15125(a)), “necessarily

contemplates” that physical conditions at a point in time other than the two

specified may constitute the appropriate baseline or environmental setting.


3

Henceforth, all references to “Guidelines” are to the CEQA Guidelines in

title 14 of the California Code of Regulations.


5

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(Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190

Cal.App.4th 316, 336 (Cherry Valley).)

In Communities for a Better Environment, we emphasized that “ „the date

for establishing a baseline cannot be a rigid one. Environmental conditions may

vary from year to year and in some cases it is necessary to consider conditions

over a range of time periods.‟ ” (Communities for a Better Environment, supra, 48

Cal.4th at pp. 327-328.) An agency‟s selection of a baseline is, fundamentally, a

factual determination of how to realistically measure the physical conditions

without the proposed project. (Id. at p. 328; see Cherry Valley, supra,

190 Cal.App.4th at pp. 336-337.) Although Communities for a Better

Environment did not approve the use of projected future conditions as the sole

baseline for evaluating environmental impacts, neither did it prohibit such use or

otherwise impose restrictions on an agency‟s discretion to omit an existing

conditions baseline.4 This should be obvious from the fact that the decision is the

only support the majority cites for its purported holding that an agency may base

an EIR‟s impacts analysis exclusively on the conditions “expected to obtain” —

i.e., projected to obtain — when a proposed project begins operating. (Lead opn.,

ante, at pp. 12-13, italics added; see pt. II.B., post.) The important takeaway from

Communities for a Better Environment is our recognition that, while flexibility in

establishing a baseline must be allowed, the selected baseline must result in a

reliable evaluation of a project‟s impacts.


4

As the majority acknowledges, to the extent Court of Appeal decisions have

held or suggested that sole use of a projected future conditions baseline is
forbidden, they are wrong. (E.g., Pfeiffer v. City of Sunnyvale City Council (2011)
200 Cal.App.4th 1552; Madera Oversight Coalition, Inc. v. County of Madera
(2011) 199 Cal.App.4th 48; Sunnyvale West Neighborhood Assn. v. City of
Sunnyvale City Council (2010) 190 Cal.App.4th 1351.)

6

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Generally, an abuse of discretion is established under CEQA “if the agency

has not proceeded in a manner required by law or if the determination or decision

is not supported by substantial evidence.” (§ 21168.5.) Because the language of

Guidelines section 15125(a) clearly contemplates that an agency may depart from

the norm of an existing conditions analysis, the proper inquiry is whether the

agency acted reasonably given the nature and circumstances of the project, and

whether substantial evidence supports its selected alternative baseline as a realistic

measure of the physical conditions without the proposed project that provides an

impacts analysis allowing for informed decisionmaking and public participation.

(§ 21168.5; see Communities for a Better Environment, supra, 48 Cal.4th at

pp. 315, 322.) A reviewing court will “indulge all reasonable inferences from the

evidence that would support the agency‟s determinations and resolve all conflicts

in the evidence in favor of the agency‟s decision.” (Save Our Peninsula

Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117

(Save Our Peninsula).)

“[A]s with all CEQA factual determinations,” the selection of a baseline is

a discretionary determination reviewed “for support by substantial evidence.”

(Communities for a Better Environment, supra, 48 Cal.4th at p. 328; see Fat v.

County of Sacramento (2002) 97 Cal.App.4th 1270, 1278 [decision not to deviate

from the norm also reviewed for substantial evidence].) Substantial evidence

supporting a predicted baseline may consist of reasonable assumptions and expert

evaluations that are supported by facts. (§ 21080, subd. (e)(1); Guidelines,

§ 15384, subd. (b); see Eureka Citizens for Responsible Government v. City of

Eureka (2007) 147 Cal.App.4th 357, 371-372; Save Our Peninsula, supra,

87 Cal.App.4th at p. 120.) The requirement that an agency‟s decision be

supported by substantial evidence helps to ensure that a particular baseline will not

7

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be selected unless there is evidence of a solid and credible nature warranting its

use.

During the lengthy administrative review process here, plaintiff Neighbors

complained the EIR should have used a baseline of projected conditions in the

year 2035 to allow for a proper evaluation of traffic congestion and air quality

impacts. In filing this lawsuit, however, Neighbors switched tactics and now

claims the EIR is deficient in failing to use the regulatory baseline norm of the

physical conditions existing “at the time the notice of preparation is published”

(Guidelines, § 15125(a)), namely, a 2007 baseline. No deficiency appears.

The EIR explicitly states that Expo Phase 2 is designed, inter alia, to

“provide high-capacity transit service,” to “[a]ccommodate existing population

and employment growth and transit-supportive land use densities,” to “[p]rovide

an effective transit alternative to the current and expected increase in roadway

congestion in the corridor,” and to “[r]ealize environmental benefits associated

with increased transit usage, such as improved air quality and energy efficiencies.”

Thus, unlike projects that are industrial or commercial in nature, Expo Phase 2

was conceived specifically to alleviate traffic congestion and improve air quality

in full alignment with CEQA‟s objectives to enhance environmental quality and

promote long-term protection of the environment. (See § 21001; Mountain Lion

Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.)

As pertinent here, the EIR presented and relied upon state-of-the-art

forecasting models that accounted for existing traffic conditions, approved

population and employment growth projections, and resulting changes in traffic.

These models project, among other things, that between 2005 and 2030, daily

vehicle miles traveled within the study area will increase by 27 percent (31 percent

to 32 percent during peak hours), and daily vehicle hours will increase by 74

percent (93 percent to 105 percent during peak hours). In light of this and other

8

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data, including the forecast that the transit system‟s opening day ridership in 2015

will be only 77 percent of the ridership in 2030, Expo Authority approved the

EIR‟s exclusive use of a 2030 baseline to evaluate the traffic and air quality

impacts that would be associated with the system‟s usage at that time.5

Significantly, no one here disputes the validity of the forecasting models

and data used to project the physical conditions in 2030 or the accuracy of the

EIR‟s analysis of the transit system‟s operational impacts using the 2030 baseline.

As the EIR reflects, it evaluated the system‟s impacts on traffic utilizing an

independently developed forecasting model6 that has been subjected to extensive

peer review and certified by the Federal Transit Administration for use in

environmental documents. Notably, the model was updated and refined

specifically for use in the EIR, in close coordination with that federal agency.

Likewise, there is no evidence that the 2030 baseline was selected to

manipulate the analysis of traffic congestion and air quality impacts. As even

5

Consistent with CEQA requirements, Expo Authority reviewed the EIR at

issue and approved its evaluation of Expo Phase 2‟s potential impacts and possible
alternatives with an existing conditions baseline on all other environmental topics,
including the impacts during the projected four-year construction period (2011-
2015). (Guidelines, § 15125(a).) These topics included visual quality (aesthetics),
biological resources (vegetation and wildlife), cultural resources (including
archaeological and historical resources), paleontological resources, geology, soils,
and seismicity, hydrology and water quality, land use and planning, noise and
vibration, parks and community facilities, safety and security (including delay of
emergency service vehicles when waiting for light rail vehicles to cross an
intersection), socioeconomics (including potential displacement and relocation of
housing, residents, and businesses), and energy resources. Expo Authority also
reviewed the potential hazardous materials or conditions that could be
encountered, given the existing conditions.

6

The Los Angeles County Metropolitan Transit Authority developed the

model with data inputs from a regional travel demand model developed by the
Southern California Association of Governments.

9

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Justice Werdegar acknowledges, use of the 2030 baseline resulted in an

“extensive” and “detailed” analysis that demonstrates no grounds “to suppose the

same analysis performed against existing traffic [and air quality] conditions would

have produced any substantially different information.” (Lead opn., ante, at p.

28.)

Indulging all reasonable inferences from the evidence that support Expo

Authority‟s determinations and resolving all evidentiary conflicts in favor of its

decision (Save Our Peninsula Committee, supra, 87 Cal.App.4th at p. 117), and

for the reasons below, I conclude the agency did not abuse its discretion in

forgoing an existing conditions baseline in favor of a 2030 baseline to measure

Expo Phase 2‟s operational impacts.

Expo Phase 2 was specifically designed to alleviate expected increases in

“roadway congestion” and to “realize environmental benefits . . . such as improved

air quality” based on a 2030 transit planning horizon. Accordingly, Expo

Authority could reasonably decide that an evaluation of the environmental

conditions with and without the transit system in the year 2030, when the system

will actually be operating, will allow for a meaningful understanding of its

operational impacts on traffic and air quality. Certainly, the fact that state-of-the-

art forecasting models predict substantial increases in the percentages of daily

vehicle miles and vehicle hours from 2005 to 2030 provides ample basis for the

agency‟s decision to dispense with an analysis based on 2007 traffic conditions

which will no longer exist when the system is in operation. Given the

uncontroverted expert projections showing that traffic conditions and congestion

at the studied intersections will be worse in 2030 than in 2005 (and in 2007), it

stands to reason that analyzing the system‟s operational impacts under the more

congested conditions of 2030 is not only realistic, but yields a more

environmentally rigorous measure of such impacts than an analysis based on the

10

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outdated and less congested conditions existing in 2007. Selecting the 2030

planning horizon as representative of operational conditions is logical for the

additional reason that, despite the system‟s anticipated opening date of 2015,

ridership at that point is projected to be at only 77 percent of the capacity

anticipated in 2030.

Moreover, as the validity of the forecasting models and the accuracy of the

projected future conditions are not even in dispute, there can be no question that

substantial evidence supported Expo Authority‟s predicted baseline. (Guidelines,

§ 15384, subd. (b); see Eureka Citizens for Responsible Government v. City of

Eureka, supra, 147 Cal.App.4th at pp. 371-372; Save Our Peninsula, supra, 87

Cal.App.4th at p. 120.) Indeed, Justice Werdegar‟s prejudice analysis confirms

that the EIR‟s assessment of Expo Phase 2‟s impacts, using the 2030 baseline,

fulfilled the essential purpose of an EIR to provide the decision makers and the

public in general with “detailed information about the effect which [the] proposed

project is likely to have on the environment.” (§ 21061; see also § 21002.1, subd.

(a).)

II.

Instead of applying a straightforward abuse of discretion analysis, the

majority holds: “Projected future conditions may be used as the sole baseline for

impacts analysis if their use in place of measured existing conditions — a

departure from the norm stated in Guidelines section 15125(a) — is justified by

unusual aspects of the project or the surrounding conditions. That the future

conditions analysis would be informative is insufficient, but an agency does have

discretion to completely omit an analysis of impacts on existing conditions when

inclusion of such an analysis would detract from an EIR’s effectiveness as an

informational document, either because an analysis based on existing conditions

would be uninformative or because it would be misleading to decision makers and

11

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the public.” (Lead opn., ante, at p. 11, italics added.) Applying these rigid

limitations, the majority concludes Expo Authority abused its discretion in

approving the EIR‟s sole use of a 2030 baseline to measure Expo Phase 2‟s

impacts on traffic and air quality.

As explained below, the majority‟s analysis suffers from several significant

flaws.

A. The Majority’s Restrictions Find No Support in CEQA and are

Contrary to Principles Governing Review of Agency Decisions

First and foremost, the stated restrictions find no support in CEQA or its

Guidelines. Apart from emphasizing Guideline language stating that existing

physical conditions will “normally” constitute the baseline for an impacts analysis

(Guidelines, § 15125(a)) and that a lead agency should “normally” limit its

examination to changes in the existing physical conditions (Guidelines, § 15126.2,

subd. (a)), the majority offers no statutory or regulatory basis, and no evidence of

legislative intent, reflecting that an agency has no discretion to omit an existing

conditions analysis unless such an analysis is so utterly devoid of value that it is

uninformative or misleading. Without more, it is a stretch to construe the bare

language of the Guidelines in this manner. Nor are the Guidelines reasonably

susceptible of a construction that bars an agency from selecting a projected future

conditions analysis in lieu of an existing conditions analysis when the former

(1) reflects a rational selection given the nature and circumstances of the project;

(2) is realistic and furnishes substantial relevant information about a project‟s

significant effects; and (3) otherwise allows for informed decisionmaking and

informed public participation.7


7

The majority‟s citation to Guidelines section 15126.6, which requires an

EIR to consider and discuss a range of reasonable alternatives to a proposed


(footnote continued on next page)

12

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In addition, the majority‟s restrictions do not align with the principle that an

agency‟s selection of a baseline involves a discretionary determination of how to

realistically measure a project‟s impacts. (See Communities for a Better

Environment, supra, 48 Cal.4th at pp. 327-328.) When an agency reasonably

relies on an alternative baseline, requiring an extra analysis with an existing

conditions baseline is superfluous and runs counter to the CEQA principle that a

reviewing court must defer to an agency‟s baseline selection when it is supported

by the record, even if a different baseline would be equally reasonable — or

perhaps even more reasonable — than the one selected. (See Vineyard Area

Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40

Cal.4th 412, 435; Guidelines, § 15384, subd. (a).)

The majority‟s abuse of discretion analysis also ignores the basic precepts

that a certified EIR is presumed adequate and that “the party challenging the EIR

has the burden of showing otherwise.” (Santa Clarita Organization for Planning

the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 158; see

Save Our Peninsula, supra, 87 Cal.App.4th at p. 117.) To wit, the majority finds

the record lacking in substantial evidence justifying Expo Authority‟s decision to

omit an analysis based on existing traffic congestion and air quality conditions.8

Neighbors, however, never once contended during the administrative review

process that the EIR was deficient for failing to use an existing conditions


(footnote continued from previous page)

project, adds nothing to the analysis. In the majority‟s own words, the Guideline
“makes clear that normally the baseline for determining a project‟s significant
adverse impacts is not the same as the no project alternative.” (Lead opn., ante, at
pp. 15-16, first italics added.)]

8

As explained, I conclude to the contrary. (See pt. I., ante.)

13

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analysis. Although Neighbors‟s reply brief refers to other individuals who

supposedly did so, none of the alleged comments or EIR responses thereto is

included as part of the stipulated administrative record presented to the trial court

or to this court. Hence, while the record‟s perceived inadequacy on this point

comes as no surprise under the circumstances, what is startling is the majority‟s

determination that the inadequacy inures to the benefit of the EIR‟s challenger.

Finally, the majority‟s gloss on Guidelines section 15125(a) is entirely

unnecessary to advance the environmental goals of CEQA. This is so because any

baseline analysis — whether it evaluates the so-called norm of conditions existing

before project approval or the conditions projected to exist at some future point —

cannot be illusory and instead must be realistic and supported by substantial

evidence. (§ 21168.5; Guidelines, § 15384; see Communities for a Better

Environment, supra, 48 Cal.4th at p. 322.)

B. The Majority’s Analysis Creates Uncertainties Regarding CEQA

Compliance and Will Increase Project Costs and Delays

The majority‟s analysis also suffers from ambiguity on a number of levels.

In particular, the majority fails to clarify whether its restrictions apply to all

departures from the regulatory baseline norm. By its terms, Guidelines section

15125(a) designates only two environmental settings as the normal baseline: “at

the time the notice of preparation is published, or if no notice of preparation is

published, at the time environmental analysis is commenced.” The majority,

however, identifies an alternative baseline based on a distinct third environmental

setting — which it calls the “date-of-implementation baseline” — that reflects

environmental conditions projected to exist “at the time the proposed project

would go into operation.” (Lead opn., ante, at p. 13.) As the majority sees it, an

agency might use such a baseline to analyze impacts when a project is not

14

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scheduled to begin operations until years after the two events specified in

Guidelines section 15125(a).9

Although the majority finds that an agency has discretion to employ a date-

of-implementation baseline, it fails to explicitly state whether or not its restrictions

on agency discretion apply when such a baseline is selected. Logically, the

restrictions should apply because the problems perceived by the majority

regarding future conditions baselines in general would seem to apply equally to

date-of-implementation baselines, particularly when a project takes several years

to implement. (See lead opn., ante, at pp. 16-17 [criticizing use of predictive

models to forecast future conditions, even though the validity and accuracy of the

models used here are not disputed].)

Moreover, the term “date of implementation” is nowhere mentioned in

Guidelines section 15125(a), and the majority points to no other CEQA Guideline

or statute providing a definition. While the majority offers its own definition of

the term (the “environmental conditions that will exist when the project begins

operations”; lead opn., ante, at p. 12), the absence of actual CEQA guidance on

the issue creates uncertainty as to how much operation or implementation may be

too much when determining the implementation date.


9

In this case, for example, a so-called date-of-implementation baseline

would have measured Expo Phase 2‟s predicted impacts on conditions projected to
exist in 2015, a full eight years after the notice of preparation of an EIR was
published in 2007. Although the majority essentially holds that use of a 2015
baseline would have been a reasonable and proper exercise of discretion (see lead
opn., ante, at pp. 12-13, 24, 27), there is no indication that view was shared by any
agency or member of the public participating in the administrative review process.
And as previously noted, Neighbors complained during the review process that a
2035 baseline was required to accurately reflect the project‟s operational impacts.

15

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Despite all this ambiguity, the majority appears to contemplate that use of a

date-of-implementation baseline falls squarely within the existing conditions

default. (Lead opn., ante, at pp. 12-13.) But the language of Guidelines section

15125(a) is clear in designating only two environmental settings — both of which

refer to physical conditions existing in the study area prior to a project’s approval

— as the normal baseline. Under the guise of construing the physical conditions

in those two environmental settings as encompassing conditions predicted to exist

years in the future when a project is scheduled to begin operations, the majority

accomplishes two things: while adding language to restrict an agency‟s discretion

to omit an existing conditions analysis, the majority redefines what the Guideline

means by “existing conditions,” so as to exempt this particular category of future

conditions analysis from those restrictions. But that is not all — the majority

further suggests that a date-of-implementation analysis is properly understood as

including an analysis based on yet another distinct environmental setting not

mentioned in Guidelines section 15125(a), i.e., “impacts expected to occur during

the project‟s early period of operation.” (Lead opn., ante, at p. 13.) Although the

judicial maneuvering on this point is creative, this court has no power to rewrite

the Guideline so as to make it conform to a presumed intention that is not

expressed. (See Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 26.)

In any event, there is no need to rewrite Guidelines section 15125(a) to

provide for ordinary discretionary use of a date-of-implementation baseline in lieu

of an existing conditions baseline. Rather, consistent with the Guideline‟s express

contemplation that an existing conditions analysis is the norm but not mandatory,

we should simply adhere to precedent recognizing that an agency enjoys discretion

to select an alternative baseline that is reasonably suited to the nature of the project

under environmental review and the totality of the circumstances under which the

project is expected to occur. (See Save Our Peninsula, supra, 87 Cal.App.4th at

16

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pp. 125-126 [where environmental conditions vary over time it may be necessary

to consider conditions over a range of time periods; in some cases, conditions

closer to the date of project approval, which may be years after environmental

review is commenced, may be more relevant to the impacts determination]; see

also Communities for a Better Environment, supra, 48 Cal.4th at pp. 327-328

[quoting Save Our Peninsula].) Moreover, as with any analysis of impacts on

projected future physical conditions, a date-of-implementation analysis must be

realistic and supported by substantial evidence.

Another issue is that the majority‟s restrictions on the exercise of agency

discretion appear rather difficult to meet. It is unclear how an agency might show

that an existing conditions analysis would be “uninformative” or “misleading,”

without actually conducting such an analysis. (Lead opn., ante, at p. 11.) It is also

unclear just how “unusual” the aspects of a project or the surrounding conditions

must be in order for a departure from the baseline norm to be “justified.” (Ibid.)

Indeed, even though both the trial court and the Court of Appeal found substantial

evidence supporting Expo Authority‟s use of a 2030 baseline instead of a 2007

baseline (as do I), the majority‟s finding to the contrary demonstrates how

rigorous the burden is intended to be.

Finally, because the majority so narrowly circumscribes an agency‟s

discretion to depart from the regulatory baseline norm, the burdens and delay

associated with preparing and defending EIRs are likely to increase. That is, even

though CEQA expressly permits use of an alternative baseline in lieu of an

existing conditions baseline, and even though use of an alternative baseline,

standing alone, would allow for informed decisionmaking and public participation,

the EIR must also include an analysis of the project‟s impacts on existing

conditions unless its inclusion actually diminishes the EIR‟s effectiveness as an

informational document. The majority‟s imposition of this extra analytical

17

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requirement is wasteful and directly at odds with the dual legislative commands

that courts shall not interpret CEQA or the Guidelines in a manner that imposes

additional substantive requirements (§ 21083.1), and that agencies must not

engage in unnecessary and costly administrative processes that do not materially

improve public disclosure or informed decisionmaking (§ 21003, subd. (f)).

III.

In sum, it cannot be disputed that a lead agency‟s “determination of the

proper baseline for a project can be difficult and controversial, particularly when

the physical conditions in the vicinity of the project are subject to fluctuations” or

other significant changes. (Cherry Valley, supra, 190 Cal.App.4th at p. 337.) For

all the reasons above, I conclude that an agency retains discretion to omit an

analysis of a project‟s likely impacts with an existing conditions baseline, so long

as the selected alternative of a projected future conditions baseline is supported by

substantial evidence and results in a realistic impacts analysis that allows for

informed decisionmaking and public participation.

I further conclude that, given the nature and the circumstances of the light

rail project at issue, Expo Authority reasonably selected a 2030 baseline in lieu of

an existing conditions baseline for measuring the project‟s operational impacts on

traffic congestion and air quality. Finally, in light of the undisputed validity of the

forecasting models used to predict the future traffic and air quality conditions, I

also conclude that substantial evidence supports the 2030 baseline as a realistic

baseline for analyzing the project‟s impacts.













BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.
CHIN, J.

18

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CONCURRING AND DISSENTING OPINION BY LIU, J.




I agree with the entirety of the court‟s well-reasoned opinion except for the

conclusion that the error in the environmental impact report (EIR) was not

prejudicial. On this record, I cannot confidently infer that the EIR‟s failure to

measure impacts against a baseline of existing conditions did not deprive the

public of relevant information about the project.

The court‟s lucid analysis of the California Environmental Quality Act

(CEQA) and applicable regulations firmly supports its holding that existing

conditions comprise the normal baseline for measuring environmental impacts and

that an agency may forego analyzing impacts against a baseline of existing

conditions only “if such an analysis would be uninformative or misleading to

decision makers and the public.” (Maj. opn., ante, at p. 14, fn. omitted.) Further,

in light of Communities for a Better Environment v. South Coast Air Quality

Management Dist. (2010) 48 Cal.4th 310, 328, the court is correct that “an

existing conditions analysis may take account of environmental conditions that

will exist when the project begins operations; the agency is not strictly limited to

those prevailing during the period of EIR preparation.” (Maj. opn., ante, at p. 12;

see id. at p. 13 [“[A] date-of-implementation baseline does not share the principal

problem presented by a baseline of conditions expected to prevail in the more

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distant future following years of project operation — it does not omit impacts

expected to occur during the project‟s early period of operation.”].)

Here, the Exposition Metro Line Construction Authority (Expo Authority)

used a baseline of existing conditions to measure most of the predicted effects of

the light-rail project, but it used a baseline of conditions projected to exist in 2030

to measure the project‟s expected impacts on traffic congestion and air quality. It

is undisputed that the agency properly considered what the long-term impacts of

the project would be in 2030. The issue is whether the agency properly considered

those long-term impacts to the exclusion of any short-term impacts. In measuring

traffic and air quality impacts solely against projected conditions in 2030, the EIR

provided no analysis of such impacts against a baseline of existing conditions,

including conditions in 2015 when the project is scheduled to begin operations.

As today‟s opinion explains: “Even when a project is intended and

expected to improve conditions in the long term — 20 or 30 years after an EIR is

prepared — decision makers and members of the public are entitled under CEQA

to know the short- and medium-term environmental costs of achieving that

desirable improvement. These costs include not only the impacts involved in

constructing the project but also those the project will create during its initial years

of operation. Though we might rationally choose to endure short- or medium-term

hardship for a long-term, permanent benefit, deciding to make that trade-off

requires some knowledge about the severity and duration of the near-term

hardship.” (Maj. opn., ante, at p. 16.)

Here, there is “no substantial evidence supporting the Expo Authority‟s

decision to omit an analysis of the project‟s traffic and air quality impacts on

existing environmental conditions.” (Maj. opn., ante, at p. 24.) “By focusing

solely on the project‟s operational impacts in the distant future, the EIR neglects to

inform the public and decision makers explicitly of any operational impacts that

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could occur in the project‟s first 15 years of operation.” (Ibid.) The fact “that

project area population, traffic, and emissions of air pollutants are expected to

continue increasing through and beyond 2030 does not justify the agency‟s failure

to analyze operational impacts under earlier conditions. The expectation of

change may make it important for the agency to also examine impacts under

future conditions . . . , but it does not constitute substantial evidence supporting a

determination that an existing conditions analysis would be uninformative or

misleading.” (Id. at p. 25.)

After reaching these conclusions, the court holds that the EIR‟s failure to

measure traffic and air quality impacts against existing conditions was harmless in

this case. The court reasons that the EIR‟s extensive analysis of traffic congestion

against conditions projected to exist in 2030 “demonstrates the lack of grounds to

suppose the same analysis performed against existing traffic conditions would

have produced any substantially different information.” (Maj. opn., ante, at p. 28.)

But the fact that the project in 2030 is expected to have only a small effect on

traffic congestion when compared to conditions in 2030 provides no reason to

think that the project in 2015, at the start of operations, would have no greater

impact when compared to conditions in 2015.

The EIR compared measures of congestion in 2030 if the project is built to

measures of congestion in 2030 if the project is not built. But the measures of

congestion in 2030 if the project is not built reflect significant predicted increases

in congestion due to population growth. Thus it is not surprising that the project is

expected to have little impact on congestion in 2030 when measured against the

heightened congestion expected in 2030. But that finding sheds no light on the

extent or magnitude of the project‟s traffic impacts when it begins to operate in

2015, before the predicted increase in congestion due to population growth from

2015 to 2030. Without knowing how significant this transient impact on traffic

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congestion might be, how are the public and decision makers to decide whether

the short-term pain is worth the long-term gain promised by the light-rail project?

It is not speculative to suggest that examining the project‟s impact on traffic

congestion in 2015 would yield different results. When the project begins to

operate, ridership is expected to be at 77 percent of its eventual level. During that

initial period, there may be an influx of cars to areas around the new transit

stations, as people come to ride the train. While it is reasonable to assume that the

worsening of congestion solely due to population growth is a more-or-less linear

process, it is also reasonable to posit that the increase in congestion if the project is

built would take the shape of a curve, with an initial steep increase due to an influx

of cars and riders that later tapers off as the public adjusts to the new system. At

the very least, it is not implausible to think that things may get worse before they

get better. As Neighbors for Smart Rail contends, focusing solely on impacts in

2030 may mask earlier effects: intersections that are projected to worsen to

critical levels of congestion if the project is not built may reach those levels sooner

if the project is built. Or maybe not — but either way, CEQA does not permit the

agency to simply leave the public guessing.

The EIR‟s measure of air quality impacts suffers from the same problem.

The EIR says the project, at full ridership, is expected to reduce vehicle miles

traveled by 0.38 percent in 2030. The 0.38 percent figure reflects the differential

between (a) vehicle miles driven in 2030 if the project is built and (b) vehicle

miles driven in 2030 if the project is not built. From this, the court extrapolates

that “the 77 percent initial ridership implies that initially the project will reduce

vehicle miles traveled only by 0.29 percent.” (Maj. opn., ante, at p. 30, fn. 11.)

The court derives the 0.29 percent figure by comparing (a) vehicle miles driven in

2015 when the project begins operation with 77 percent ridership and (b) vehicle

miles driven in 2030 if the project is not built. The proper comparison, however,

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is the differential between (a) vehicle miles driven in 2015 when the project begins

operation with 77 percent ridership and (b) vehicle miles driven in 2015 if the

project is not built. As with traffic congestion, there is reason to believe the

project might actually increase vehicle miles driven in the short term, as new

transit stations attract people from near and far to ride the light rail. Further,

without some analysis of the issue, we can only guess what portion of light-rail

riders consists of people who would otherwise drive or ride cars to reach their

destinations as opposed to new commuters who, but for the project, would not

have traveled to their destinations at all, by car or otherwise.

For the reasons above, I respectfully disagree with the court‟s conclusion

that the EIR‟s failure to measure traffic congestion and air quality impacts against

a baseline of existing conditions “did not deprive agency decision makers or the

public of substantial information relevant to approving the project.” (Maj. opn.,

ante, at p. 30.) In all other respects, I join the court‟s opinion.

LIU, J.

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See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Neighbors for Smart Rail v. Exposition Metro Line Construction Authority
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 205 Cal.App.4th 552
Rehearing Granted

__________________________________________________________________________________

Opinion No. S202828
Date Filed: August 5, 2013
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Thomas I. McKnew, Jr.

__________________________________________________________________________________

Counsel:

Elkins Kalt Weintraub Reuben Gartside, John M. Bowman and C. J. Laffer for Plaintiff and Appellant.

Alexander T. Henson for Sunnyvale West Neighborhood Association as Amicus Curiae on behalf of
Plaintiff and Appellant.

Nossaman, Robert D. Thornton, John J. Flynn III, Robert C. Horton, Lauren C. Valk and Lloyd W. Pellman
for Defendants and Respondents.

Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza and Matthew S. Levinson for Associated General
Contractors of California as Amicus Curiae on behalf of Defendants and Respondents.

Marcia L. Scully, Adam C. Kear; Brownstein Hyatt Farber Schreck, Lisabeth D. Rothman and Amy M.
Steinfeld for Association of California Water Agencies as Amicus Curiae on behalf of Defendants and
Respondents.

Andrea Sheridan Ordin and John F. Krattli, County Counsel, Ronald W. Stamm, Principal Deputy County
Counsel; Remy Moose Manley, Tiffany K. Wright, Sabrina V. Teller and Amanda R. Berlin for Real
Parties in Interest.

Remy, Thomas, Moose and Manley, Tiffany K. Wright; Woodruff, Spradlin & Smart, Bradley R. Hogin
and Ricia R. Hager for Southern California Association of Governments, Foothill/Eastern Transportation
Corridor Agency, San Joaquin Hills Transportation Corridor Agency, Metropolitan Water District of
Southern California, San Joaquin Council of Governments, Madera County Transportation Commission,
Riverside County Transportation Commission, Contra Costa Transportation Authority, Metro Gold Line
Foothill Extension Construction Authority, Santa Clara Valley Transportation Authority, Orange County
Transportation Authority and San Francisco County Transportation Authority as Amici Curiae on behalf of
Defendants and Respondents and Real Parties in Interest.

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Page 2 – counsel continued

Counsel:

Cox, Castle& Nicholson, Michael H. Zischke, Andrew B. Sabey, Rachel R. Jones; Carmen A. Trutanich,
City Attorney (Los Angeles), Andrew J. Nocas, Timothy McWilliams and Siegmund Shyu, Deputy City
Attorneys; Marsha Jones Moutrie, City Attorney (Santa Monica), Joseph Lawrence, Deputy City Attorney;
Carol Schwab, City Attorney (Culver City); John F. Kratli, County Counsel (Los Angeles), Thomas J.
Faugnan, Assistant County Counsel, and Helen S. Parker, Principal Deputy County Counsel, for League of
California Cities, California State Association of Counties, City of Los Angeles, County of Los Angeles,
Culver City and City of Santa Monica as Amici Curiae on behalf of Defendants and Respondents and Real
Parties in Interest.

Kurt R. Wiese, Barbara B. Baird and Veera Tyagi for South Coast Air Quality Management District as
Amicus Curiae on behalf of Defendants and Respondents and Real Parties in Interest.

Sedgwick, Anna C. Shimko, Matthew D. Francois and Sigrid R. Waggener for California Building Industry
as Amicus Curiae on behalf of Defendants and Respondents and Real Parties in Interest.

Shute, Mihaly & Weinberger, Robert S. Perlmutter and Maya Kuttan for Sierra Club and Center for
Biological Diversity as Amicus Curiae.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

John M. Bowman
Elkins Kalt Weintraub Reuben Gartside
2049 Century Park East, Suite 2700
Los Angeles, CA 90067
(310) 746-4400

Robert D. Thornton
Nossaman
18101 Von Karman Avenue, Suite 1800
Irvine, CA 92612
(949) 833-7800

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Petition for review after the Court of Appeal affirmed the judgment in an action for writ of administrative mandate. This case includes the following issue: Under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.), is a public agency required to evaluate a project's potential traffic and other impacts using a baseline consisting of the existing physical conditions in the affected area during the period of environmental review, or may an agency elect to evaluate the impacts of a project only against projected future conditions?