No. B2326SS. Los Angeles Superior Court Case No. BS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION EIGHT

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1 f No. B2326SS os Angees Supeio Cout Case No. BS N THE COURT OF APPEA OF THE STATE OF CAFORNA SECOND APPEATE DSTRCT, DVSON EGHT NEGHBORS FOR SMART RA, A Non-Pofit Caifonia Copoation Petitione and Appeant, v. f -t: EXPOSTON METRO NE CONSTRUCTON AUTHORTY; _ EXPOSTON METRO NE CONSTRUCTON AUTHORTY BOARD, Respondents, OS ANGEES COUNTY METROPOTAN TRANSPORTATON AUTHORTY; OS ANGEES COUNTY METROPOTAN TRANSPORTATON AUTHORTY BOARD, Rea Paties in nteest and Respondents. On Appea Fom the Supeio Cout of os Angees County Honoabe Thomas. McKnew, J., Judge Pesiding AMCUS CURAE BREF N SUPPORT OF RESPONDENTS EXPOSTON METRO NE CONSTRUCTON AUTHORTY; EXPOSTON METRO NE CONSTRUCTON AUTHORTY BOARD, AND REA PARTES N NTEREST AND RESPONDENTS OS ANGEES COUNTY METROPOTAN TRANSPORTATON AUTHORTY; OS ANGEES COUNTY METROPOTAN TRANSPORTATON AUTHORTY BOARD COX, CASTE & NCHOSON MCHAE H. ZSCHKE, SBN ANDREW B. SABEY, SBN RACHE R. JONES, SBN Caifonia Steet, 1Oth Foo San Fancisco, CA Teephone: Facsimie: Attoneys fo Amicus Cuiae eague of Caifonia Cities Caifonia State Association of Counties 61667\ v

2 f '. f : CTY OF OS ANGEES, OFFCE OF THE CTY ATTORNEY CARMEN A. TRUTANCH, City Attoney (86629X) ANDREW J. NOCAS, Supevising Attoney (36090) TMOTHY MCWAMS, Deputy City Attoney (166769) SEGMUND SHYU, Deputy City Attoney (208076) 200 Noth Main Steet, 701 City Ha East os Angees, Caifonia Teephone (213) Facsimie (213) Attoneys fo Amicus Cuiae City of os Angees 2

3 TABE OF CONTENTS! f. NTRODUCTON...! T. ARGUMENT A. n CEQA cases, couts defe to agency deteminations on questions of fact B. Detemination of the appopiate envionmenta baseine is a. question of fact C. Sunnyvae West and Madea Ovesight confict with CBE's statement of the standad of eview appicabe to envionmenta basein deteminations Sunnyvae West and Madea Ovesight Sunnyvae West's confict with CBE stems fom an uneasonabe intepetation ofceqa Guideine 15125(a)...., Sunnyvae West and Madea Ovesight wi pevent agencies fom competing meaningfu envionmenta eview of age infastuctue pojects CONCUSON f - {_ ' 61667\ v

4 -. c J Cases TABE OF AUTHORTES Chey Vaey Pass Aces & Neighbos v. City of Beaumont (2010) 190 Ca. App.4th Citizens of Goeta Vaey v. Boad of Supevisos (1990) 52 Ca1.3d Cove Vaey Foundation v. City of Rockin (2011) 197 Ca.App.4th 200, Communities fo a Bette Envionment v. Caifonia Resouces Agency (2002) 103 Ca.App.4th Communities fo a Bette Envionment v. South Coast Ai Quaity Management Distict (2010) 48 Ca.4th passim Fat v. County of Sacamento (2002) 97 Ca.App.4th Kenney v. Antioch ive Oak Schoo Dist. (1936) 18 Ca.App.2d 226, aue Heights mpovement Assn. v. Regents of the Univ. of Caifonia (1988) 47 Ca1.3d 3762, 5 aue Heights mpovement Assoc. v.' Regents of U.C. (1993) 6 Ca1.4th Madea Ovesight Coaition, nc. v. County of Madea (2011) 199 Ca.App.4th passim Pfeiffe v. City of Sunnyvae (Octobe 28, 2011) Ca.App.4th 2011 DAR 16916] 3, 12 San Joaquin Rapto Rescue Ct. v. County of Meced (2007) 149 Ca.App.4th Save Ou Peninua v. Monteey County Bd. of Supevisos (2001) 87 Ca.App.4th Sunnyvae West Neighbohood Association v. Sunnyvae City Counci (2010) 190 Ca.App.4th passim Vineyad Aea Citizens v. City of Rancho Codova (2007) 40 Ca.4th , 5 Statutes Gov. Code, Pub. Res. Code, 21100(b)(1) Pub. Resouces Code, , 10, 11, 13 Pub. Resouces Code, Pub. Resouces Code, 2116a.s... 5 Reguations CEQA Guideines, 14 Ca. Code Regs 15002(a)... 2, 13 CEQA Guideines, 14 Ca. Code Regs (a)....5 CEQA Guideines, 14 Ca. Code Regs CEQA Guideines, 14 Ca. Code Regs 15125(a)... 2, 4, 5, 9 Othe Authoity 16 Ca.Ju.3d (2002) Couts, initiative-acceeate-tansit-pojects/... 1, 2 0/... 1, \ v

5 . NTRODUCTON Amici cuiae Caifonia State Association of Counties, eague of Caifonia Cities, and the City of os Angees (coectivey "Amici") suppot the aguments aticuated by espondents Exposition Meto ine Constuction Authoity and Exposition Meto ine Constuction Authoity Boad, and by ea paties in inteest and espondents os Angees County Metopoitan Tanspotation Authoity and os Angees County Metopoitan Tanspotation Authoity Boad. We uge this Cout to uphod the supeio cout decision. Amici offe the added pespective of the oca agencies acoss this state that ae tasked with competing Caifonia Envionmenta Quaity Act ("CEQA") eview of age infastuctue pojects. As municipaities acoss f.. Caifonia pan fo popuation gowth, attempt to catayze economic gowth, and wok to compy with Caifonia's vaious aws equiing substantia eductions in geenhouse gas emissions, age pojects aimed at addessing ong-tem concens and at meeting ong-ange goas wi ony poifeate. The poject at issue in this case is a pime exampe. The Expo Phase 2 Poject ("Poject") is pat of os Angees Mayo Antonio Viaaigosa's 30/10 initiative. See acceeate-tansit-pojects/. The 30/10 initiative woud use ong-tem saes tax evenue as coatea fo ong-tem bonds and a fedea oan that wi enabe competion of tweve mass tansit pojects in ten yeas, athe than the oiginay pojected thity yeas. The 30/10 initiative is expected to spu ceation of 160,000 new jobs and ead to sevea annua benefits, incuding 77 miion moe tansit hoadings, 61667\ v

6 f., 1 521,000 fewe pounds of mobie souce poution, 10.3 miion fewe gaons of gasoine used, and 191 miion fewe vehice mies taveed. /d. Majo infastuctue pojects ike this one ae typicay evauated and appoved ong befoe they ae schedued to come on ine. As a esut, the potentia impacts of majo infastuctue pojects may be best measued against the physica conditions that wi exist when they ae schedued to come on ine. This is especiay tue fo "physica" conditions such as taffic, which is not a fixed physica condition, but athe, a function of many suounding cicumstances. Seection of an appopiate envionmenta baseine is cucia to infomed decision-making. Municipaities must be aowed to choose a baseine that wi best infom the decision-making pocess by identifying the ea impacts of a poject. An agency's discetion to estabish the pope baseine to evauate envionmenta impacts is captued by CEQA Guideine 15125(a). CEQA Guideines, 14 Ca. Code Regs 15125(a). Couts shoud espect agency discetion to seect an envionmenta baseine so ong as the agency's detemination is suppoted by substantia evidence. 1_ By especting agency discetion to seect a futue baseine in appopiate cases, couts ensue that CEQA's puposes, such as engaging in meaningfu envionmenta eview, ensuing good-faith discosue, and enabing infomed decision-making, ae fufied. See, e.g., CEQA Guideines, 14 Ca. Code Regs 15002(a) & 15151; aue Heights mpovement Assn. v. Regents of the Univ. of Caifonia (1988) 47 Ca. 3d 376, 402 (identifying fosteing of infomed decision-making as CEQA' s "fundamenta goa"); Cove Vaey Foundation v. City of Rockin (2011) 197 Ca.App.4th 200, 232 ("An ER, when ooked at as a whoe, must 2

7 povide a easonabe, good faith discosue and anaysis of the poject's envionmenta impacts.''). Recent cout of appea decisions Sunnyvae West Neighbohood Association v. Sunnyvae City Counci (2010) 190 Ca.App.4th 1351 ("Sunnyvae West''), and Madea Ovesight Coaition, nc. v. County of Madea (2011) 199 Ca.App.4th 48 ("Madea Ovesight") cast doubt on the abiity of oca agencies to execise discetion when detemining the appopiate envionmenta baseine fo evauation of age infastuctue pojects. These cases confict with Communities fo a Bette Envionment v. South Coast Ai Quaity Management Distict, whee the Caifonia Supeme Cout stated that an agency's detemination of envionmenta baseine is a factua question subject to eview fo suppot by substantia. evidence. Communities fo a Bette Envionment v. South Coast Ai Quaity Management Distict (2010) 48 Ca.4th 310, 328 ("CBE"). Sunnyvae West has aeady been caed into question by the cout that decided it. n Pfeiffe v. City of Sunnyvae (Octobe 28, 2011) Ca.App.4th _, 2011 DAR 16916, (11125/11) the Sixth Distict distinguished its own decision whie uphoding the use of a futue baseine to assess the taffic impacts of a poject. To enabe municipaities to engage in meaningfu panning, we espectfuy ask this cout to eject Sunnyvae West's and Madea. Sunnyvae West is paticuay suspect given the Sixth Distict Cout of Appea's ecent decision in Pfeiffe. See Kenney v. Antioch ive Oak Schoo Dist. (1936) 18 Ca.App.2d 226, 231(whee thee is confict between two cout of appeas decisions, ate decision pevais); 16 Ca.Ju.3d (2002) Couts, 297 ("As a genea ue, whee thee ae two o moe conficting decisions endeed by a cout o by couts of equa dignity, the decision ast endeed shoud pevai."). 3

8 Ovesight's incoect statement of the standad of eview fo envionmenta baseine deteminations as inconsistent with standad announced by the ' J {_. Caifonia Supeme Cout in CBE. CBE, supa, 48 Ca.4th at 328; Sunnyvae West, supa, 90 Ca.App.4th 1.351; Madea Ovesight, supa, 199 Ca.App.4th 48.. ARGUMENT n CBE, when the Supeme Cout stated that the detemination of the envionmenta baseine is a question of fact subject to eview fo suppot by substantia evidence, it affimed a pincipe that was aeady weestabished in CEQA case aw. See CBE, supa, 48 Ca.4 th at 328. The depatue by Sunnyvae West and Madea Ovesight fom this basic pincipe is unwaanted and stems fom miseading the CEQA Guideines and the statutoy povisions those guideines ae intended to impement. Nothing in CEQA's statutoy anguage mandates a time at which existing envionmenta conditions must be measued, and the CEQA Guideines ecognize this by affoding agencies the discetion to deviate fom the nom, if necessay. See CEQA Guideines, 14 Ca. Code Regs 15125(a). When municipaities engage in CEQA eview of age infastuctue pojects, the discetion to choose a futue baseine is vitay impotant to ensuing that the envionmenta eview pocess meets CEQA's fundamenta pupose of fosteing infomed decision-making. A. n CEQA cases, couts defe to agency deteminations on questions of fact. Couts eview agency compiance with CEQA fo pejudicia abuse of discetion. Vineyad Aea Citizens v. City of Rancho Codova (2007) 40 Ca.4th 412, 426. Abuse of discetion is estabished if the agency fais to poceed in the manne equied by aw o if a detemination made by the 4

9 (.1 agency is not suppoted by substantia evidence. d.; Pub. Resouces Code, Whee a question of fact is invoved, couts eview the agency's decision to detemine whethe it is suppoted by substantia evidence in the administative ecod. See aue Heights mpovement Assn. v. Regents of Univ. of Caifonia (1988) 47 Ca.3d 376, 393. B. Detemination of the appopiate envionmenta baseine is a question of fact. f.., -. As the Caifonia Supeme Cout stated in CBE, designating the envionmenta baseine fo a poject is a factua detemination that couts t ( eview fo suppot by substantia evidence. CBE, 48 Ca.4th at 328. n so hoding, the Supeme Cout ecognized the inheent fexibiity buit into CEQA Guideines 15125(a) and affimed a we-estabished ine of cout of appeas decisions. Guideines 15125(a) states that the physica envionmenta conditions in the vicinity of the poject as they exist at the time the notice of pepaation ("NOP") is pubished o at the time envionmenta eview commenced "wi nomay constitute the baseine physica conditions by which a ead Agency detemines whethe an impact is significant." CEQA Guideines, 14 Ca. Code Regs 15125(a) (emphasis added); see aso CEQA Guideines, 14 Ca. Code Regs (a) ("n assessing the impact of a poposed poject on the envionment, the ead Agency shoud nomay imit its examination to change in the existing physica conditions in the affected aea as they exist at the time the notice of pepaation is pubished, o... at the time envionmenta anaysis is comnienced." (emphasis added)). By incuding the wod "nomay," the guideines impicity ecognize the need fo fexibiity in detemining the appopiate envionmenta baseine fo envionmenta eview of a poject. 5

10 Couts geneay ecognize this need fo fexibiity in making the envionmenta baseine detemination fo a poject, paticuay when envionmenta eview must gappe with the effects of inevitabe gowth. As the Cout of Appea noted in Save Ou Peninsua v. Monteey County Boad of Supevisos, "the date fo estabishing a] baseine cannot be a igid one... Fo instance, whee the issue invoves an impact on taffic eves, the ER might necessaiy take into account the noma incease in taffic ove time." Save Ou Peninsua, (2001) 87 Ca.App.4th 99, Buiding on this ecognized need fo fexibiity, couts have taditionay consideed the envionmenta baseine detemination a factua question subject to eview fo suppot by substantia evidence in the ecod. See e.g., Fat v. County of Sacamento (2002) 97 Ca.App.4th 1270, 1278 ("The centa issue emains whethe thee is substantia evidence to suppot the county's decision not to deviate fom the nom in seecting 1997 as the. baseine in the cicumstances of the case befoe us."); San Joaquin Rapto Rescue Ct. v. County of Meced (2007) 149 Ca.App.4th 645, 659 (concuding that County's detemination of baseine was suppoted by substantia evidence). n CBE, the Supeme Cout ecenty eaffimed that the envionmenta baseine detemination is a question of fact: Neithe CEQA no the CEQA Guideines mandates a unifom, infexibe ue fo detemination of the existing conditions baseine. Rathe, an agency enjoys the discetion to decide, in the fist instance, exacty how the existing physica conditions without the poject can most eaisticay be measued, subject to eview, as with a CEQA factua deteminations, fo suppot by substantia evidence. 48 Ca.4th at 328; see aso Chey Vaey Pass Aces & Neighbos v. City of Beaumont (2010) 190 Ca. App.4th 316, (citing CBEfo the 6

11 ' k poposi on that detemination of envionmenta baseine is not govened by an infexibe ue). C. Sunnyvae West and Madea Ovesight confict with CBE's statement of the standad of eview appicabe to envionmenta baseine deteminations. Sunnyvae West and Madea Ovesight fai to ecognize the impotance of agency expetise in envionmenta baseine deteminations. Any cout foowing those. decisions wi hampe the abiity of eviewing agencies to engage in meaningfu envionmenta eview of age scae infastuctue pojects, which often take yeas to move fom design to actua opeation and which ae typicay designed to addess inevitabe futue conditions ike inceased taffic congestion. See Sunnyvae Wes, supa, 190 Ca.App.4th 1351; Madea Ovesight, supa, 199 Ca.App.4th 48. Whie it is tue that couts must ensue agency compiance with the aw, Sunnyvae West and Madea Ovesight each fauty concusions concening CEQA aw govening envionmenta baseine deteminations. As a esut, they nuify CBE's mandate that envionmenta baseine deteminations be eviewed fo substantia evidence. See CBE, supa, 48 Ca.4th at Sunnyvae West and Madea Ovesight. n Sunnyvae West, the cout of appeas invaidated an ER concening the May Avenue Extension, a oad constuction poject designed to aeviate taffic congestion. Sunnyvae West, supa, 190 Ca.App.4th at To evauate poject impacts to taffic, the City of ' Sunnyvae consideed taffic impacts of the poject as compaed to pedicted taffic conditions without the poject in 2020, which is when poject poponents expected the extension woud be compete and opeationa. d. at

12 The cout of appeas affinned the tia cout's gant of a wit of mandate, and detemined that using a 2020 envionmenta baseine constituted a faiue to poceed as equied by aw. /d. at To suppot this hoding, it concuded that the tem "nomay" in Guideines 15125(a) extended to agencies the option to choose a baseine that does not epesent conditions at the time of NOP pubication o commencement of envionmenta eview ony whee conditions at that time woud "not be epesentative of the geneay existing conditions." /d. at Sunnyvae West faied to ecognize CBE' s mandate that detemination of enviomnenta baseine is eviewed fo suppot by substantia evidence. See CBE, 48 Ca.4 th at 328 ("An agency enjoys the discetion to decide, in the fist instance, exacty how the existing physica conditions without the poject can most eaisticay be measued, subject to eview, as with a CEQA factua deteminations, fo suppot by substantia {. evidence." (emphasis added)). Buiding on Sunnyvae West's inaccuate statement of the aw concening eview of an agency's envionmenta baseine detemination, in Madea Ovesight, anothe Cout of Appeas pane concuded that "ead agencies do not have the discetion to adopt a baseine that uses conditions pedicted to occu on a date subsequent to the cetification of the ER." Madea Ovesight, supa, 199 Ca. App.4th at Sunnyvae West's confict with CBE stems fom an uneasonabe intepetation of CEQA Guideine 15125(a). The Sunnyvae West cout's concusion that choosing a futue baseine amounted to a faiue to poceed as equied by aw stemmed fom its uneasonabe intepeta on of the wod "nomay" in CEQA Guideine 15125(a). See Sunnyvae West, supa, 190 Ca.App.4th at Guideine 15125(a) states in eevant pat: 8

13 An ER must 4cude a desciption of the physica envionmenta conditions in the vicinity of the poject, as they exist at the time the notice of pepaation is pubished, o if no notice of pepaation is pubished, at the time envionmenta anaysis is commenced, fom both a oca and egiona pespective. This envionmenta setting wi nomay constitute the baseine physica conditions by which a ead Agency detemines whethe an impact is significant. CEQA Guideines, 14 Ca. Code Regs 15125(a) (emphasis added). Despite the pain anguage of the Guideine, the Sunnyvae West cout concuded that ony in extemey imited cicumstances may an agency deviate fom an envionmenta baseine consisting of conditions at the time of NOP pubication o envionmenta eview commencement Sunnyvae West, supa 190 Ca.App.4th at As appied to age infastuctue pojects, this intepetation of 15125(a) is inconsistent with CEQA's! statutoy pupose, and as such shoud be ejected. See Gov. Code, ("wheneve... a state agency has the authoity to adopt eguations to impement, intepet, make specific, o othewise cay out the povisions of a] statute, no eguation adopted is vaid uness (1) consistent and not in confict with the statute, and (2) easonaby necessay to effectuate the pupose of the statute"); Communities fo a Bette Envionment v. Caifonia Resouces Agency (2002) 103 Ca.App.4th 98, 108 (A eguation shoud not enage o impai the scope of the govening statute). Guideine 15125(a) impements CEQA and See CEQA Guideines, 14 Ca. Code Regs 15125(a); Pub. Resouces Code, & Section 21100(b)() equies an ER to set foth "a significant effects on the envionment of the poposed poject," and defines "envionment" as "the physica conditions which exist within the poject aea which wi be affected by a poposed poject." 9

14 - - c. c Section does not specify the time at which conditions must exist to be identified as the affected envionment. Thus, contay to the concusion eached in Sunnyvae West and eaboated on in Madea Ovesight, CEQA itsef does not equie that the effects of a poposed poject be evauated eative to envionmenta conditions as they existed at the time of NOP pubication o the competion of envionmenta eview. See Sunnyvae West, supa, 190 Ca.App.4th 1351; Madea Ovesight, supa, 199 Ca.App.4th 48. f anything, ' s statement that the envionment consists of physica conditions "which wi be affected by a poposed poject" suggests that a futue baseine may be mandatoy fo accuate assessment of potentia impacts of age, ong-tem pojects whee inevitabe envionmenta change wi esut fom factos othe th poject competion. n such a case, the poject may not be buit unti yeas afte appova, and physica conditions as they exist at the time of NOP pubication o the stat of envionmenta eview wi diffe fom the physica conditions that "wi be affected" by the poject. Pub. Resouces Code n the case of taffic impacts, the conditions existing at the time of poject appova may be of itte eevance to the impacts of the poject that wi not be impemented fo yeas. Thus, whie it might "nomay'' make sense fo the majoity of pojects subject to CEQA eview to be evauated against envionmenta conditions as they exist at the time of NOP pubication o the stat of envionmenta eview, in othe cases it makes no sense. Guideine 15125(a) 's incusion of the wod "nomay" acknowedges that agency discetion is necessay to addess such situations. Howeve, Sunnyvae West's intepetation of' 15125(a) and its undeying statutoy povisions 10

15 pev nts agencies fom execising discetion to seect an envionmenta baseine that wi enabe meaningfu envionmenta eview. See Sunnyvae West, supa, 190 Ca.App.4th 1351; see aso Madea Ovesight, supa, 199 Ca. App.4th 48. The pincipe undeying CBE is that pojects subject to CEQA eview ae poposed in aeas with widey vaying envionmenta conditions and come in too many shapes and sizes to estabish a igid ue govening envionmenta baseine deteminations. See CBE, supa, 44 Ca.4th at 328. Given that envionmenta baseine deteminations have ong been consideed a question of fact, and that the Guideines equie defeence to agency decision-making on questions of fact, a moe easonabe intepetation of 15125(a) is equied. The Guideines shoud be intepeted to ecognize that agency expetise is citica to detemining how to best anayze a poject's envionmenta impacts. Specificay, shoud be intepeted to aow agencies to seect an atenate baseine when envionmenta conditions as they exist at the time of NOP pubication o the stat of envionmenta eview do not accuatey epesent "the physica c conditions which exist within the poject aea which wi be affected by a poposed poject." Pub. Resouces Code, (emphasis added). Futhe, agencies shoud be affoded the discetion to choose an envionmenta baseine that wi accuatey epesent the con itions that wi be affected by the poject. Because Sunnyvae West and Madea Ovesight fai to meet this standad, we espectfuy ask this cout to eject the hodings in those cases when evauating the envionmenta baseine detemination at issue in this case. Sunnyvae West, supa, 190 Ca. App.4th 1351; Madea Ovesight, supa, 199 Ca.App.4th

16 ( 1: c c ndeed, in Pfeiffe v. City of Sunnyvae City Counci, (Octobe 28, 2011) _ Ca.App.4th_, 2011 DAR16916, the imits of Sunnyvae West's intepetation of 15125(a) was impicity acknowedged by the same cout that issued Sunnyvae West. n Pfeiffe, the Sixth Distict Cout of Appea uphed the City of Sunnyvae's use of a futue b. aseine fo its taffic anaysis that mutipied existing taffic voume by a gowth facto and consideed inevitabe additiona taffic that woud esut fom appoved but not yet constucted deveopments in the poject aea. /d. at n uphoding the city's use of a futue baseine in Pfeiffe, the cout eied on the discetion affoded to agencies und CBE. /d. at The taffic anaysis eied on to detemine baseine conditions in the instant case is simia to that uphed in Pfeiffe.. Pfeiffe demonstates that couts ae f. c aeady ecognizing the uneasonabe imitations paced on eviewing agencies by Sunnyvae West and its J?ogeny Madea Ovesight. See id.; Sunnyvae West, supa, 190 Ca.App.4th 1351; Madea Ovesight, supa, 199 Ca.App.4th Sunnyvae West and Madea Ovesight wi pevent agencies fom competing meanin u envionmenta eview of age infastuctue pojects. As discussed supa, age infastuctue pojects hep municipaities pan fo inevitabe popuation gowth, spu economic gowth, and compy with vaious aws govening geenhouse gas emissions and othe panning initiatives. Fo eview of these pojects, anayzing poject impacts eative to physica conditions at the time of NOP pubication, the stat of envionmenta eview, o the time of appova does not povide a meaningfu metic because it ignoes inevitabe gowth and change that wi occu befoe the poject is undetaken. Futhe, such pojects have no impacts at the time of appova, and evauating against such an eay 12

17 1-. C baseine invites iusoy anaysis that fais the pupose of CEQA, which is to identify the poject's significant envionmenta impacts. See CEQA Guideines, 14 Ca. Code Regs 15002(a). These age, ong-tem pojects pesent a cassic case in which agencies must be abe to take advantage of the discetion affoded them by 15125(a). Being equied to conside impacts eative to an eay baseine may not aow an agency to compiy with CEQA' s mandate that an ER identify "significant effects on the envionment of the poposed poject." Pub. Res. Code, 21100(b)() ("The envionmenta impacts epot sha incude a detaied statement setting foth... a significant effects on the envionment of the poposed poject.") (emphasis added). When anayzing a poject that wi not come on ine unti yeas afte appova, compaid.g physica conditions as they exist at the time of poject appova to conditions at the time the poject comes on ine may pevent the agency fom segegating changes in the existing envionment attibutabe to inevitabe gowth fom changes in the existing envionment uting fom the poject. This is paticuay tue in the case of a age tanspotation infastuctue poject such as the one at issue in this case; it often takes sevea yeas fo use of a tansit system to incease to the point that the system is fuy opeationa. Teasing out the effects of a poject fom the effects of inevitabe envionmenta change is especiay impotant when anayzing factos that ae paticuay susceptibe to change, such as taffic o wate suppy. dentifying a futue baseine that chaacteizes those inevitabe changes that wi occu between the time of NOP pubication (o the time of appova) and the time when a poject comes on ine aows an agency to identify the impacts esuting fom the poject itsef, as equied by CEQA. See Pub. Resouces Code, & 21100(b)(). 13

18 n shot, a meaningfu compaison cannot aways be made between conditions as they exist at the time of envionmenta eview and the conditions that wi exist when a poject comes on ine. n those cases, an agency shoud be fee to identify a futue baseine. CEQA equies identification of the significant impacts of a poject, and aowing agencies to focus on actua poject impacts fufis this pupose. See Pub. Resouces Code, 21100(b)(). CEQA is aimed at ensuing infomed decision,. making and discosue; it shoud not be used to foce expet agencies to engage in anaysis that wi not aid in consideation of the envionmenta effects of a poject. Cf. aue Heights mpovement Assoc. v. Regents of Univ. of Caifonia (1993) 6 Ca.4th 1112, 1132 ("Rues eguating the potection of the envionment must not be subveted into an instument fo the oppession and deay of socia, economic, o eceationa deveopment and advancement." (quoting Citizens of Goeta Vaey v. Boad of Supevisos (1990) 52 Ca. 3d 553, 576)). Requiing agencies to anayze age infastuctue pojects eative to an eay baseine woud vioate these basic tenets of CEQA. The instant case stands as a pime exampe of the shotcomings of Sunnyvae West and Madea Ovesight as appied to eview of age infastuctue pojects. The administative ecod ampy demonstates that taffic congestion and poutant emissions eated to automobie use wi incease in the poject aea.2 Whee the ecod demonstates an inevitabe envionmenta tend that the poject subject to CEQA eview was designed 2 Appeants have neve contested the inevitabiity of inceased taffic congestion in the poject aea o the fact that substantia evidence in the ecod suppots the concusion that congestion wi incease. 14

19 to addess, agencies shoud be abe to choose an envionmenta baseine that aows fo meaningfu envionmenta eview.. CONCUSON Fo the foegoing easons, Amici espectfuy equest that this Cout affim the tia cout's judgment and eject Appeant's invitation to adopt the fawed anaysis in Sunnyvae West, as foowed by Madea Ovesight. ead agencies must-and do unde the text of the statute and Supeme Cout pecedent-have the discetion to estabish the pope baseine fo pojects. When consideing ong-tem infastuctue pojects, this may ca fo using a futue baseine in appopiate cases, as Respondents did hee. - Dated: Decembe {S, 2011 Rache R. Jones Attoneys fo Amicus Cuiae Caifonia State Association of Counties, eague of Caifonia Cities CTY OF OS ANGEES, OFFCE OF THE CTY Camen A. Tutanic Andew J. Nocas Timothy Me Wiiams Siegmund Shyu 15 Attoneys fo Amicus Cuiae City of os Angees

20 CERTFCATE OF WORD COUNT (Ca. Rues of Cout, Rue 8.504(d)()) The text of this bief consists of 3,833 wods as counted by the Micosoft Wod vesion 2003 wod pocessing pogam used to geneate the bief. Dated: Decembe 15, 2011 Rache R. Jones \ v Attoneys fo Amicus Cuiae Caifonia State Association of Counties, eague of Caifonia Cities CTY OF OS ANGEES, OFFCE OF THE CTY ATT Andew J. Nocas Timothy McWiiams Siegmund Shyu Attoneys fo Amicus Cuiae City of os Angees

21 PROOF OF SERVCE AND CERTFCATON D am empoyed i!1 the County of San Fancisco, State of Caifonia. am ove the age of 18 and not a paty to the within action; my business addess is 555 Caifonia Steet, 10th Foo, San Fancisco, Caifonia (FOR MESSENGER) My business addess is Nationwide ega, 1609 James M. Wood Bvd. 2nd F., os Angees CA On Decembe 15, 2011, seved the foegoing document(s) descibed as AMCUS CURAE BREF N SUPPORT OF RESPONDENTS EXPOSTON METRO NE CONSTRUCTON AUTHORTY; - o D D D EXPOSTON METRO NE CONSTRUCTON AUTHORTY BOARD, AND REA PARTES N NTEREST AND RESPONDENTS OS ANGEES COUNTY METROPOTAN TRANSPORTATON AUTHORTY; OS ANGEES COUNTY METRO PO T AN TRANSPORTATON AUTHORTY BOARD on A NTERESTED PARTES in this action by pacing D the oigina ii a tue copy theeof encosed in a seaed enveope addessed as foows: SEE ATTACHED SERVCE ST On the above date: (BY U.S. MAUBY D EXPRESS MA) The seaed enveope with postage theeon fuy pepaid was paced fo coection and maiing foowing odinay business pactices. am awae that on motion of the paty seved, sevice is pesumed invaid if the postage canceation date o postage mete date on the enveope is moe than one day afte the date of deposit fo maiing set foth in this decaation. am eadiy famiia with Cox, Caste & Nichoson P's pactice fo coection and pocessing of documents fo maiing with the United States Posta Sevice and that the documents ae deposited with the United States Posta Sevice the same day as the day of coection in the odinay couse of business. (BY FEDERA EXPRESS OR OTHER OVERNGHT SERVCE) deposited the seaed enveope in a box o othe faciity eguay maintained by the expess sevice caie o deiveed the seaed enveope to an authoized caie o dive authoized by the expess caie to eceive documents. (BY PERSONA DEVERY) By causing a tue copy of the within document(s) to be p.esonay handdeiveed to the office(s) of the addessee(s) set foth above, on the date set foth above. (BY PERSONA SERVCE) deiveed such enveope by hand to the offices of the addessee. (FEDERA ONY) decae that am empoyed in the office of a membe of the ba of this cout at whose diection the sevice was made. heeby cetify that the above document was pinted on ecyced pape. /:/ decae unde penaty of pejuy that the foegoing is tue and coect. Executed on Decembe 15, 2011, at San Fancisco, C aifonia... // -- / Robet A. Chang

22 SERVCE ST BY U.S. MA BY U.S. MA BY U.S. MA - - John M. Bowman, Esq. Robet D. Thonton, Esq. oyd W. Peman C. J. affe, Esq. John J. Fynn, Esq. NOSSAMAN P EKNS KA T WENTRAUB Robet C. Hoton, Esq. 777 S. Figueoa St., 34 1h F. REUBEN GARTSDE P auen C. Vak, Esq. os Angees, CA _2049 Centuy Pak East NOSSAMAN P Phone: Suite Von Kaman Avenue Fax: os Angees, CA Suite 1800 peman@ nossam&n.com Phone: vine, CA Fax: Phone: Attoneys fo Respondent Fax: EXPOSTON METRO NE Attoneys fo Petitione CONSTRUCTON AUTHORTY NEGHBORS FOR SMART RA Attoneys fo Respondent and EXPOSTON METRO EXPOSTON METRO NE NE CONSTRUCTON CONSTRUCTON AUTHORTY and AUTHORTY BOARD EXPOSTON METRO NE CONSTRUCTON AUTHORTY BOARD BY U.S. MA BY U.S. MA BY U.S. MA - Andea S. Odin, County Counse Hon. Thomas. McKnew, J. Supeme Cout of Caifonia Ronad W. Stamm, Pincipa Deputy Depatment SE H Office of the Cek, 1 st Foo County Counse c/o Cek of the Cout 350 McAiste Steet Office of the os Angees County os Angees County Supeio Cout San Fancisco, CA Counse Nowak Bouevad (4 copies) Tanspotation Division Nowak, CA Gateway Paza os Angees, CA Phone: Fax: Attoneys fo Respondent and Rea Paties in nteest OS ANGEES COUNTY METROPOTAN TRANSPORTATON AUTHORTY; OSANGEES COUNTY METROPOTAN TRANSPORTATON AUTHORTY BOARD 61667\ v 2