The Sixth District Court of Appeal, in Pfeiffer v. Sunnyvale, recently upheld the use of a traffic baseline that included future projects despite an earlier Sixth District case that had raised serious questions about that practice.

Traffic engineers preparing an Environmental Impact Report had a long-standing practice of evaluating the traffic impacts of a project by asking whether roadways could accommodate project-generated traffic under the circumstances that were expected to exist when the project would be constructed and generating traffic.  A typical formulation they used was to assess a background level consisting of existing traffic plus traffic from approved but not yet built projects and anticipated growth, and then compare that background level to the traffic circumstances that would be expected when project-generated traffic was added.  The background level of traffic typically would not exist until after project approval.

The viability of that common practice was severely questioned in a 2010 decision issued by the Sixth District Court of Appeal.  In Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council, the court acknowledged that an agency has discretion to determine what constitutes the “existing physical conditions” that the California Environmental Quality Act  requires be used as a baseline for measuring impacts.  However, it concluded that “[t]he Supreme Court never sanctioned the use of predicted conditions on a date subsequent to EIR certification or project approval as the baseline. . . .”  It held the EIR at issue inadequate because “[t]he FEIR in this case did not use the anticipated traffic conditions on the expected date of project approval . . . .”  The court made clear that it did not construe the CEQA Guideline that describes the baseline “to mean that a lead agency has carte blanche to select the conditions on some future, postapproval date as the ‘baseline’ so long as it acts reasonably as shown by substantial evidence.” 

The decision caused many practitioners to rethink their standard analyses, and exclude approved but not built projects, as well as anticipated growth, from the baseline.  Instead, a new practice has arisen of assessing project impacts by comparing project traffic against circumstances existing no later than the project approval date, even when a project would not be expected to generate traffic effects until several years into the future.  That comparison is often considered unhelpful by public agencies because they need to determine whether road capacity will be sufficient for a project plus background growth in the future, when the project starts generating traffic.  Accordingly, some EIR preparers have added another layer of analysis.  EIRs may now contain three traffic scenarios:  the Sunnyvale West analysis in which no future growth – not even from projects that are already approved – are included in the baseline; a near-term cumulative analysis in which approved but not built projects (and sometimes other near-term growth) are included in the background traffic; and a long-term cumulative analysis that evaluates traffic impacts at general plan buildout or some other future date.  The result is added complexity, and confusion about both the time period when mitigation requirements should be triggered and the extent to which project proponents are required to fund mitigation.

A different panel of the Sixth District Court of Appeal has now indicated that the Sunnyvale West decision may be limited to its specific facts.  In Pfeiffer v. City of Sunnyvale, the city identified existing conditions measured by traffic counts.  It then used background conditions, consisting of the existing peak-hour volumes multiplied by a growth factor derived from the city’s travel demand forecasting model, plus traffic from approved but not yet built projects, to determine that the project would not result in significant near-term impacts or any significant intersection impacts. 

The Pfeiffer court upheld this analysis, noting that there was substantial evidence that traffic conditions could vary from existing conditions due to traffic growth and construction of already-approved developments.  It also explained that the EIR did address existing conditions based on actual traffic counts in its analysis. 

The Pfeiffer court then distinguished Sunnyvale West.  The court noted that the EIR at issue in Sunnyvale West had used a baseline consisting of projected conditions in the year 2020, more than a decade after project approval.  “Sunnyvale West is therefore distinguishable from the present case, where the traffic baselines included in the EIR were not limited to projected traffic condition[s] in the year 2020, but also included existing conditions and the traffic growth anticipated from approved but not yet constructed developments.”  The Pfeiffer court emphasized that the CEQA Guidelines expressly provide for consideration of potential future conditions; it quoted Guidelines 15126.2 and 15125 insofar as they state requirements that EIRs consider “long-term effects” and “potential future conditions . . . .”

Pfeiffer restores some of the traditional deference that courts have given to a lead agency's determination as to how to establish baseline conditions in order to prepare a rational, useful analysis.  However, the brevity of the Pfeiffer court’s discussion of Sunnyvale West, and its statements noting that existing traffic counts were figured into the Pfeiffer analysis, caution a careful consideration of the particular aspects of any given project and its corresponding EIR.

© 2011 Perkins Coie LLP