California Appellate Court Upholds Baseline Composed of Peak Emissions

Communities for a Better Environment v. South Coast Air Quality Management District

2020 Cal. App. LEXIS 285

April 15, 2020

California’s Second Appellate District, in a well-written opinion, held that a CEQA baseline for a refinery was properly measured by peak levels of emissions, rather than by average emission levels over a period of time, as advocated by opponents.

The case arose from a Tesoro project to modify its operations at two adjacent oil refineries in the Los Angeles area. The South Coast Air Quality Management District prepared an EIR which defined Tesoro’s emissions baseline as the 98th percentile or “near peak” emission levels reached during past operations. The district selected this baseline due to the importance of reducing peak air impacts to protecting public health, although the 98th-percentile emissions had been reached on only 15 of the 730 days of the baseline period.

On appeal, opponents contended that the 98th-percentile baseline did not realistically gauge the existing environmental conditions, as CEQA required. The court disagreed, observing that 98th-percentile emissions had actually occurred, and were not hypothetical or illusory within the meaning of earlier cases. The court also rejected the claim that the district was required to use a baseline composed of an average of past emissions, and found that the district acted rationally by selecting a baseline designed to reduce the number of smog alert days.

The decision is important to the mining and materials industry because, like refineries, the materials industry is characterized by fluctuating output. Baseline conditions often cannot be realistically measured by a “snapshot” of emissions at the moment that the CEQA review begins. Baselines which rely on an average of past intensity or output are well established, but it is less clear when peak conditions may be used. This decision helps to answer that question.

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Sean Hungerford is a Partner at Harrison, Temblador, Hungerford & Guernsey LLP in Sacramento, California.

© 2020 – Harrison, Temblador, Hungerford & Guernsey LLP. All rights reserved. The information in this article has been prepared by Harrison, Temblador, Hungerford & Guernsey LLP for informational purposes only and does not constitute legal advice.