Sedina L. Banks

California Supreme Court Rules that Air District Must Use Existing Conditions as the Baseline for Environmental Review

Environmental Litigation

On March 15, the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management District ruled that the South Coast Air Quality Management District violated the California Environmental Quality Act or CEQA when it failed to prepare an environmental impact report before approving a major refinery project in the Los Angeles area. (Read the case here.)

The closely-watched decision was important because it established that a project’s environmental impacts should be assessed by comparing the potential impacts to existing conditions, instead of the maximum permitted conditions. The court also found that even if a project proponent has a “vested right” to continue its operations at a certain level, CEQA requires the public agency to still consider the project’s true impacts.


In the case, the project’s proponent, ConocoPhilips Co. and the air district both argued that an EIR was not necessary because the new project would not emit any more nitrogen oxide or NOx emissions than were already allowed under the company’s existing permits.

Environmentalists and labor organizations argued that the environmental impact from the new refinery project should instead be compared to a baseline of what the refinery was actually emitting (which was below the levels allowed under the existing permits), instead of what could potentially be emitted under the existing permits. The Supreme Court agreed.

That’s because the Supreme Court rejected ConocoPhilips’ argument that the failure to use the maximum permitted operations as a baseline would deprive it of the rights vested in its early permits. In fact, the court noted emphatically that Conoco Philips has “no vested right to pollute the air at any particular level.” (emphasis in the original decision) The court held that even if ConocoPhilips’ vested rights would be impacted, “CEQA would still demand an analysis of the project’s true effects.” The court emphasized that the air district’s way of doing the analysis was illusory because it did not consider the refinery’s true environmental impacts.

This case reaffirms a long-line of Court of Appeals decisions. The decisions hold that the impacts of a proposed project must be compared to the environmental conditions that already exist, rather than to conditions simply “allowed” under older permits.

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