Filed 4/7/20
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION EIGHT



 COMMUNITIES FOR A                   B294732
 BETTER ENVIRONMENT,
                                     (Los Angeles County
     Plaintiff and Appellant,        Super. Ct. No. BS169841)

         v.

 SOUTH COAST AIR QUALITY
 MANAGEMENT DISTRICT,

     Defendant and Respondent;

 TESORO REFINING AND
 MARKETING COMPANY, LLC,

 Real Party in Interest and
 Respondent.

     APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard L. Fruin, Jr., Judge. Affirmed.
     Shana Lazerow, Jennifer Ganata; Law Office of Jonathan
Weissglass and Jonathan Weissglass for Plaintiff and Appellant.
       Woodruff, Spradlin & Smart, Bradley R. Hogin, Lucas V.
Grunbaum; Bayron Gilchrist, Barbara Baird and Veera Tyagi for
Defendant and Respondent.
       Gibson, Dunn & Crutcher, Daniel M. Kolkey, Peter S.
Modlin, Cynthia Mullen and William F. Cole for Real Party in
Interest and Respondent.
                        ____________________
       A group called Communities for a Better Environment
attacks an environmental impact report about an oil refinery
project. The report found the main environmental impact of the
project would be to reduce air pollution. The agency and the trial
court certified the report.
       Communities criticizes this environmental impact report in
four respects.
       First, it used the wrong “baseline.”
       Second, the agency did not obtain information about the
pre-project composition of crude oil the refinery processes, but
instead merely found the post-project input would remain within
the refinery’s “operating envelope.”
       Third, the report did not explain how the agency calculated
its so-called “6,000 barrel” figure.
       Fourth, the report did not disclose either the existing
volume of crude oil the refinery processes as a whole or the
refinery’s unused capacity.
       We resolve these issues as follows.
       First, the agency properly used its discretion to adopt a
logical and conventional federal baseline.
       Second, the law did not require the report to detail
immaterial information about input crude oil composition.




                                2
       Third, Communities forfeited its right to complain about
the 6,000-barrel figure because it was essential for Communities
to raise this issue before the agency but Communities never did.
       Fourth, the law did not require the agency to list either the
refinery’s pre-project volume or its unused capacity because these
data were immaterial.
       We therefore affirm the judgment of the trial court, which
rejected Communities’ attacks on this environmental impact
report.
       The governing statute is the California Environmental
Quality Act, which begins at section 21000 of the Public
Resources Code. Environmental professionals often call the Act
CEQA, but this acronym is not universally known, so we call it
the Act. All unspecified citations are to that Code.
                                   I
       We begin with the essential facts, starting with crude oil.
                                   A
       Crude oil is a smelly, yellow-to-black liquid from
underground and from around the world. Its precise chemical
composition varies by its place of origin and is important to oil
refiners, who design and build chemical plants to process crude
oils of various kinds.
       A fundamental of the refinery business is the variousness
of crude.
       Crude’s chemical composition can vary by sulfur content.
Sweet crude has less sulfur than sour crude, and so sweet crude
is easier to refine than sour, and for that reason is more valuable.
       Crude also is light or heavy, depending on the length of its
hydrocarbon chains. Light crude has shorter hydrocarbons and
takes less energy to refine than does heavy crude.




                                 3
       The shortest hydrocarbon molecules have only a few atoms
of hydrogen and carbon. Examples are methane, ethane,
propane, and butane, which normally are gases. Longer
hydrocarbon molecules like those in gasoline and diesel are
liquids. Very long hydrocarbon molecules like those constituting
asphalt and tar are solids. (See Rodeo Citizens Assn. v. County of
Contra Costa (2018) 22 Cal.App.5th 214, 217 (Rodeo).)
       A refinery is an industrial plant that distills oil. The
process separates the various hydrocarbons by their boiling or
vaporization temperatures. These temperatures are related to
each hydrocarbon’s molecular weight. Think of distilling a
mixture of water and alcohol: the alcohol boils off more easily
than the water and thus is concentrated in the vapor.
       At a refinery, you put crude in one end, the crude goes
through pipes and processing units, and at the other end out
flows gasoline, jet fuel, diesel, and such. The two refinery
operations in this case have more than two dozen different
processing units: the Crude Unit, Delayed Coker Unit, the Fluid
Catalytic Cracking Unit, and so forth.
       Refineries are designed to process only particular ranges of
crude. A refinery built to specialize in light sweet, for example,
may not be able to handle heavy sour. That range is the
refinery’s operating envelope.
       The processing units in a refinery are in a fixed chain: a
mandatory order. Pipes connect these units. Their diameters
limit the rate of total refinery throughput. Think of your car: gas
tank, then engine, then muffler. Your car is a sequential system
of tubes and pipes connecting these components. If you try to
rearrange the components’ order, your car will suffer. And if you
install a larger gas tank, that enlargement at one point in the




                                4
system does not increase throughput elsewhere: the bigger tank
by itself can boost neither the gasoline flow into the engine nor
the exhaust flow out the muffler. This principle is important in
this case, as will appear.
       Tesoro owns and operates two adjacent oil refining facilities
in Carson and Wilmington. These date from the early 1900s and
originally had different owners and separate operations. Tesoro
bought both and integrated them to a degree.
       The project triggering this case is Tesoro’s Los Angeles
Refinery Integration and Compliance Project, which involves both
the Carson and Wilmington facilities.
       As its name implies, the Los Angeles Refinery Integration
and Compliance Project aimed to improve the integration of the
Wilmington and Carson facilities and to comply with air quality
regulations.
       The improved integration would increase Tesoro’s flexibility
in altering the ratio of outputs like gasoline and jet fuel. If the
price of one goes up and the other goes down, for instance, Tesoro
(like any commercial enterprise) would like to respond to price
signals by shifting its output to maximize profits.
       The project’s increased compliance would reduce air
pollution. The main reduction would be of emission of gases from
burners, which are also called heaters. Some refinery units heat
petroleum over a fire the way a gas stove heats water in a pot.
The fire’s combustion can emit air pollutants. Reducing these
pollutants was a major goal of Tesoro’s project and
correspondingly a major focus of the environmental impact report
at the heart of this case.
       Tesoro’s Los Angeles Refinery Integration and Compliance
Project has three main components. We describe the first two for




                                 5
the sake of an overview, but it is the third component that has
generated the four issues in this case.
        The first component involves shutting down a major
pollution source called the Wilmington Fluid Catalytic Cracking
Unit. A Fluid Catalytic Cracking Unit converts heavy
hydrocarbons into lighter ones. This requires much heat, and so
creates many emissions. Shuttering this unit would reduce air
pollution.
        In addition, the first component would install new pipelines
and would physically modify hydrocrackers, hydrotreaters, and
other equipment. This component also would increase usage of
certain equipment.
        The second component would involve installing new storage
tanks. Increased storage tank capacity would mean oil tankers
could make fewer trips, which would decrease shipping costs and
air pollution.
        The third component is the source of this case’s
controversies. This component would change the thermal
operating limit of a particular heater in the Wilmington facility.
        The jargon for this particular heater is “H-100.” We simply
call it the Heater. We describe the Heater and the proposed
change to its level of operation.
        The Heater heats petroleum going into the Wilmington
Delayed Coker Unit, which we refer to merely as the Coker. Like
a gas range in a home kitchen, the Heater has burners, and these
burners can operate at different heat rates. On a home gas stove,
for instance, you turn the burner to full power by twisting the
knob all the way open. This maximizes heat output. The
Heater’s industrial burners operate on the same principle,
although they dwarf any home stove.




                                 6
       The British thermal unit, or Btu, is the familiar measuring
unit for the heat output of a burner, whether it is on a home stove
or in the Heater. One Btu raises the heat of one pound of water
by one degree Fahrenheit.
       The Heater has 36 burners. Each has a maximum output
of 8.4 million Btu per hour. Thus the Heater as a whole has a
maximum heat release of 36 times 8.4 million Btu per hour,
which equals 302.4 million Btu per hour. To simplify, the
Heater’s maximum rate is 302.4.
       Beside this “maximum” heat rate, a different heat rate —
the “guaranteed” heat rate — also figures in this case. The
guaranteed heat rate is the rate at which the Heater’s
manufacturer guarantees the Heater will operate. That
guaranteed rate is 7 million Btu per hour. With 36 burners, the
total guaranteed rate is 36 times 7 equals 252 million Btus per
hour. Again to simplify, the Heater’s guaranteed rate is 252.
       To recap, the total maximum rate for the Heater is 302.4,
while the guaranteed rate is 252. The maximum rate of 302.4
exceeds the guaranteed rate of 252, as one might suspect.
       This difference between 302.4 and 252 is important. In the
past, the Heater had a federal air pollution permit keyed to the
guaranteed rate of 252, even though Tesoro has operated the
Heater above this rate when it had to perform certain tasks.
Nothing in the record suggests Tesoro did wrong by burning over
the guaranteed rate. A car warranty may be good for 36,000
miles, for instance, but still you can drive your car further than
that. The only issue might be who pays if there is a breakdown.
       The third component of the project proposed rewriting the
Heater’s permit in terms of the maximum rate of 302.4 instead of




                                7
the guaranteed rate of 252. This change would align the permit
with standard industry and agency practice.
       In other words, the third component of the project change
would be to replace the old figure with a new figure of 302.4 in
the Heater’s federal air pollution permit.
       This permit change has three important aspects.
       First, this change would be on paper only: there would be
no physical changes to the Heater or to other hardware.
       Second, the agency simultaneously would impose a new
permit limitation on air pollution from the Heater to maintain
levels that would be generated if the Heater never operated above
252 million Btus per hour.
       Third, by raising the thermal operating limit, the Coker
either could potentially process a heavier blend of crude (heavier
crude requires more heat to break it down), or could increase
throughput through the Coker by 6,000 barrels per day. The
change could do either but not both.
       This third aspect is the source of the 6,000-barrel figure,
which in turn has created an issue in this appeal.
                                  B
       We summarize the procedural history of this case.
       If a governmental agency is considering approving certain
kinds of projects, the Act demands the agency first prepare a
“Draft” Environmental Impact Report. The agency must
circulate it for public comment and respond to all public
comments in a “Final” Environmental Impact Report certified by
the agency. (Guidelines, §§ 15084–15090.)
       That relevant agency here is respondent South Coast Air
Quality Management District.




                                8
       After issuing its Initial Study and Notice of Preparation in
September 2014 (which itself resulted in a 100-page report), the
agency circulated a draft report for public comment in March of
2016.
       The agency then prepared a draft report of more than 1,700
pages analyzing impacts to air quality, hazards and hazardous
materials, hydrology and water quality, noise, solid and
hazardous waste, transportation and traffic, and greenhouse
gases, with supporting reports.
       The Act requires an environmental impact report to be
circulated for 45 days. (Cal. Code Regs., tit. 14, § 15105.) At
Communities’ request, however, the agency extended this period
an additional 49 days, for a total review interval of 94 days.
       The agency received 2,102 comments to the report.
       Communities actively participated throughout the drafting
of the report. It submitted 1,112 pages of comments, to which the
agency responded.
       Most comments (1,798 or 85%) supported the project. In
response to comments questioning portions of the project, the
agency clarified and supplemented parts of the report and
responded individually to each comment in Appendix G1, which
exceeds 5,700 pages.
       After the public comment period closed, the agency certified
the Final Environmental Impact Report on May 12, 2017. This is
the operative environmental impact report on appeal, which on
occasion we call the Final Report or simply the Report.
       The Final Report contained 6,075 pages of comments
received on the Draft Report and responses.
       The agency submitted the Final Report, including the
comments on the Draft Report and the responses, to the federal




                                9
Environmental Protection Agency (EPA) in May of 2017. In June
of 2017, the EPA completed its review and informed the agency
that the EPA had no objection to issuing the revised Heater
permit.
       On June 22, 2017, the agency certified the Final Report and
issued the necessary permits to Tesoro.
       This completed a three-year process.
       The Final Report is many thousands of pages. The index to
the Report is 180 pages in length.
       Communities challenged the agency’s certification of the
Report by filing an action in the superior court in June 2017. The
action alleged the Report was inadequate under the Act. The
trial court carefully assessed each of Communities’ arguments
and ruled they all lacked merit. The court wrote out its ruling in
a 17-page single-spaced analysis. Communities appealed.
                                  II
       We review the governing law.
                                  A
       The fundamental statute is the California Environmental
Quality Act. Our state enacted this landmark Act in 1970. In
that same year was the first Earth Day, the passage of the
National Environmental Policy Act, and the advent of the federal
Environmental Protection Agency, now widely known as the
EPA.
       The state Act aims to inform the public and government
decision makers about the potential environmental effects of
proposed activities. To facilitate this disclosure function, the Act
requires the pertinent public agency to prepare an environmental
impact report. This report must give decision makers what they
need to take appropriate account of environmental consequences.




                                10
The report is also a document of accountability. It must arm
those outside the approval process with an accessible and
empowering document. If people disagree with the proposed
project, the report is to help them respond accordingly. (Laurel
Heights Improvement Assn. v. Regents of Univ. of California
(1988) 47 Cal.3d 376, 392.)
                                  B
       Many cases have construed the Act since 1970. These
parties point us to four particular decisions. Two are from the
Supreme Court; two are from courts of appeal. These four cases
are ConocoPhillips, Smart, Richmond, and Rodeo. (Communities
for a Better Environment v. South Coast Air Quality Management
Dist. (2010) 48 Cal.4th 310 (ConocoPhillips); Neighbors for Smart
Rail v. Exposition Metro Line Construction Authority (2013) 57
Cal.4th 439 (Smart); Communities for a Better Environment v.
City of Richmond (2010) 184 Cal.App.4th 70 (Richmond); Rodeo,
supra, 22 Cal.App.5th 214.)
       These four precedents support the following general
statement of law.
       The agency must select a baseline based on actual
conditions rather than hypothetical possibilities. There is,
however, no single fixed method for measuring actual conditions.
Measuring peak impacts can be appropriate under the right
circumstances. The agency enjoys discretion to decide how best
to measure actual conditions. Courts will review that choice for
support from substantial evidence. An environmental impact
report cannot, without explanation, present inconsistent and
contradictory information on an important issue, or else it will
fail on review.




                               11
       We now describe in more detail these four cases:
ConocoPhillips, Smart, Richmond, and Rodeo.
                                   1
       ConocoPhillips is a 2010 Supreme Court decision. We refer
to the decision under the name of the real party in interest,
which was ConocoPhillips, rather than by the official case title,
which is Communities for a Better Environment v. South Coast
Air Quality Management District. The official case title is exactly
the same as the official case title for this case: here we have the
same plaintiff organization and the same defendant agency.
Indeed, the 2010 case even involved the same Wilmington oil
refinery (back when ConocoPhillips rather than Tesoro owned it).
These name similarities invite confusion we aim to avoid, so we
depart from customary usage with the shorthand label of
ConocoPhillips.
       ConocoPhillips is the leading case about the concept of a
baseline in California environmental law.
       Refinery owner ConocoPhillips planned to add, replace, and
modify equipment at the Wilmington refinery. The plan was to
increase some refinery operations to produce diesel fuel with a
lower sulfur content. (ConocoPhillips, supra, 48 Cal.4th at p.
317.)
       Based on an initial analysis flawed by a poor choice of a
baseline, the agency decided no environmental impact report was
necessary for ConocoPhillips’s project. The Supreme Court
condemned the agency’s bad baseline decision.
       The agency’s bad decision was to pick an illusory baseline
instead of an actual one. The project planned to increase the use
of boilers, which would add more air pollution: between 201 and
420 more pounds per day, depending on which of four boilers




                                12
were used. Was that a significant increase? Not compared to a
baseline defined by the total of the refinery’s existing regulatory
permits for operating this equipment, because the equipment
would continue to operate within their total existing permit
limits. (ConocoPhillips, supra, 48 Cal.4th at p. 320.)
       The problem was this baseline was entirely unreal and
thus was bad. The permit maximums were strictly theoretical.
The actual reality, however, was a boiler ran at maximum only if
another boiler was down for maintenance, which was atypical.
Simultaneous and maximum operation therefore was not a
realistic description of conditions before the project, so this
baseline definition did not describe the boilers’ actual operation
before the project. (ConocoPhillips, supra, 48 Cal.4th at p. 322.)
       By comparing the proposed project’s effects to what could
happen according to merely theoretical limits, rather than to
what was actually happening, the agency had picked a “‘merely
hypothetical’” baseline that was “illusory.” (ConocoPhillips,
supra, 48 Cal.4th at p. 322.)
       A freeway example can illustrate this point. The
notoriously congested Interstate 405 has a speed limit of 65 miles
per hour, but, during a typical Los Angeles rush hour, the real
traffic speed is dramatically slower. For this illustration, suppose
the rush hour average is about 10 miles per hour. Suppose also
CalTrans wants to see if adding lanes to the 405 would increase
the rush hour speed. To make this comparison, CalTrans would
need a baseline. If the agency compared the speed after the lane
increase with the 65 mph permitted limit beforehand, this
baseline would be bad. It would yield unreal and illusory results,
because today it is atypical for anyone actually to drive at 65
miles per hour on the 405 during rush hour. A meaningful




                                13
comparison must be against actual conditions, not against some
illusory hypothetical.
       Failure to use a real measure of actual baseline conditions
was the agency error in ConocoPhillips. That error violated the
Act. (ConocoPhillips, supra, 48 Cal.4th at pp. 320–322.)
       ConocoPhillips showed one wrong way to set a baseline.
But what baseline is right? The ConocoPhillips opinion declined
to limit the discretion of future decision makers and declined to
rule there is only one correct method. Rather, ConocoPhillips
carefully explained why the right approach would vary in
different circumstances and was up to the agency in the first
instance.
       For our case, this portion of ConocoPhillips is crucial. We
pore through it.
       The Supreme Court in ConocoPhillips rejected the
suggestion an average emissions baseline was the one proper
refinery baseline. There is no “uniform, inflexible rule for
determination of the existing conditions baseline.”
(ConocoPhillips, supra, 48 Cal.4th at p. 328.) The reason is
environmental conditions can vary. Variability can make one or
another baseline measure appropriate. In some circumstances,
peak impacts may be as important environmentally as average
conditions. The agency enjoys the discretion to decide how the
existing physical conditions can most realistically be measured.
Courts will review the agency’s choice to see whether substantial
evidence supports it. (Id. at pp. 327–328.)
       ConocoPhillips also ruled agencies have flexibility to decide
what time interval best captures actual baseline conditions.
There is no one rigid rule. Environmental conditions can vary
over time, so it might be better in some situations to measure




                                14
pre-project conditions over a time interval rather than on one
single day. (ConocoPhillips, supra, 48 Cal.4th at pp. 327–328.)
       We now continue on to the second of the four key
precedents: the Smart case.
                                  2
       Smart is our second Supreme Court baseline case. This
2013 opinion endorsed the baseline rules from ConocoPhillips.
       Smart reaffirmed ConocoPhillips (although it did not use
the case label “ConocoPhillips,” which we have adopted for
reasons peculiar to this suit). Smart recited ConocoPhillips’s rule
that the baseline for environmental analysis ordinarily must be
the actual physical conditions rather than hypothetical
conditions. (Smart, supra, 57 Cal.4th at p. 448.)
       The facts in Smart differed considerably from the facts
here. The Smart project was not about a refinery, much less this
refinery. Rather it was a proposed rail extension from Culver
City to Santa Monica: the Expo Line.
       The Smart case was about using a future baseline instead
of a past one. The Los Angeles County Metropolitan
Transportation Authority was the agency in Smart, and it
analyzed the impact of the proposed extension according to how it
would affect traffic conditions in 2030. The agency projected the
traffic and air quality conditions that would exist in the year
2030, then estimated the effect the transit extension would have
at that future time. So the baseline was in the future rather than
at the time before the project began. (Smart, supra, 57 Cal.4th at
pp. 447–463.) This situation is not pertinent to this case, which
involves no future baseline.
                                  3




                                15
       Richmond is our third case. It held an environmental
impact report cannot speak out of both sides of its mouth.
       In this 2010 decision from the Court of Appeal, Chevron
proposed upgrading a Bay Area refinery. The Richmond decision
found the environmental impact report, in describing this
refinery expansion, was internally inconsistent to a fatal degree.
(Richmond, supra, 184 Cal.App.4th at pp. 80–89.)
       This inconsistency doomed the report. The inconsistency
concerned the crude oil the refinery would process. Opponents of
Chevron’s project argued heavier, lower-quality crude requires
more intensive processing and is inherently more polluting than
lighter crude, and that the environmental impact report did not
stick to a straight story about whether the project would or would
not allow Chevron to refine heavier crude.
       The specific inconsistency was this. On one hand, the
report claimed the project would allow more flexibility in refining
increasingly heavier crude supplies. (Richmond, supra, 184
Cal.App.4th at p. 83.) Yet the report also denied the project
would enable the refinery to process heavier crude. (Ibid.) Given
this stark inconsistency, the Richmond decision disapproved the
report as contradictory. (Id. at pp. 80–89.)
       In this case, Communities invokes Richmond in its attack
on this report. We evaluate this attack shortly. But first we
complete our case law tour by turning to our fourth guiding
precedent: Rodeo.
                                  4
       Rodeo is a 2018 Court of Appeal decision about a refinery
near another refinery: the one in the Richmond case. The same
legal issue arose in both cases. The legal holdings in Richmond
and Rodeo are consistent, but they point in opposite directions




                                16
due to a key factual difference: the environmental impact
statement in Richmond was bad, but the report in Rodeo was
good. We explain.
       Phillips 66 owned the refinery in Rodeo. Phillips wanted to
alter its refinery to recover butane and propane from refinery fuel
gas. (Rodeo, supra, 22 Cal.App.5th at p. 218.) Objectors claimed
this project description was defective because it failed to disclose
the project would involve more processing of high-contaminant
crudes. (Id. at p. 219.) Phillips disputed this suggestion the
report masked a covert plan to change the refinery’s crude inputs,
arguing the project was designed and permitted based on the
refinery’s existing operations. The project did not require, and
was not required by, a switch in crude. (Id. at p. 220.)
       The court resolved this dispute by looking at one of the
“master responses” the agency created while receiving public
comments on the environmental impact report. (Rodeo, supra, 22
Cal.App.5th at p. 220.) The court underlined the project
description had remained “consistent” over time. (Id. at p. 221.)
The court found substantial evidence to support the report’s
treatment of this topic. (Id. at pp. 221–223.)
       Rodeo discussed and distinguished Richmond. The opinion
recited that the problem with the environmental impact report in
Richmond was inconsistency. By contrast, the report in Rodeo
was clear and consistent. Hence the Rodeo decision approved the
report and the project. (Rodeo, supra, 22 Cal.App.5th at pp. 223–
225.)
                                  III
       We turn to Communities’ four arguments.
                                   A
       Communities’ first challenge to the Report targets the




                                17
baseline the agency selected to measure the project’s impact on
air pollution.
                                   1
       What is a baseline?
       Logically, a baseline is simply a measure of some situation
before it changes. There is no “true,” “normal,” or “natural”
baseline. You decide what you want to measure, and then you
select a baseline appropriate to your goal. What one wants to
measure is a policy question, as is the choice of a baseline.
       To illustrate, suppose you want to determine the impact of
your next engine tune-up on your car’s mileage. Your baseline
would be your car’s gas mileage before the tune-up. You would
compare this baseline mileage to mileage after the tune-up to
determine the tune-up’s effect.
       In this example and in this case, there are many possible
baselines. A mileage baseline could be simply an overall average
of all miles you drove, divided by gas consumption. But if you
wanted to calculate freeway mileage, you would divide total
freeway miles by gas consumed while driving on the freeway.
And similarly for city mileage. These illustrations show three
different baselines: a total baseline, a freeway baseline, and a
city baseline. There are many other conceivable baselines as
well, depending on the specific issue you want to investigate.
                                   2
       The particular baseline controversy in this case pits a peak
(or near-peak) baseline against an average baseline.
       The agency used a peak value of a particular kind: a near-
peak or 98th percentile method. Communities argues for an
average-value baseline. Communities sometimes cloaks this
argument by omitting the word “average” and by saying merely




                                18
the agency should have analyzed environmental conditions
representing the entire period, but this formulation is an
equivalent proposition. That is because one definition of
“average” is to take data representing the entire period and divide
by the number of days. Another name for this is the arithmetic
mean. In short, Communities contests the agency’s selection of a
peak baseline by saying it was error not to use an average
baseline instead.
       Given this dispute about peak versus average, we state four
obvious facts about these competing ways to measure quantities.
       First, a “peak” value is synonymous with a “maximum”
value. “Peak” and “maximum” mean the same in this context.
       Second, both peak and average data can measure actual
situations that truly exist. For instance, you could describe your
car’s “freeway” baseline as its “peak” baseline. This baseline
measures peak performance: the best mileage your car can
deliver. This peak baseline measures actual mileage, but in a
different way than for instance the city mileage method. To put
this idea in different words, a maximum measure is fully as real
as an average measure, just as measuring in yards is fully as real
as measuring in meters. Averages are not inherently more
“actual” than peaks, and vice versa.
       Third, your analytical objective determines your choice of a
baseline method. There is no “true,” natural,” or “normal” way to
measure baselines because baselines did not exist in the pre-
human natural world. Humans invented these concepts and
humans determine which of the various baselines — peak or
average — will better accomplish the specific objective at hand.
       Fourth, focusing on peaks rather than averages can be a
superior way to think in many situations.




                                19
       Some examples show why people often want to know the
peak or maximum value — or the worst-case scenario, if you
want to put it another way — rather than some average value.
       Hikers hoping to wade across a river want to know its
maximum depth is 10 feet. They are less interested to know its
average depth is two feet.
       Planners worry about the 100-year flood — the maximum
— more than the average flood.
       When designing high-rises, bridges, or nuclear power
plants, engineers are more interested in the peak earthquake
magnitude than the average.
       If you are deciding how large a storm drain to install, you
want to know the maximum likely rainfall, not the average.
       So the peak value, not the average, is sometimes the most
important information to get.
                                  3
       The agency used a “98th percentile” or “near-peak” baseline
in this case. Its approach was to collect factual information on
the refinery’s worst air pollution emissions during a two-year
interval before the project. The approach then excluded the top
two percent of these data to rid the analysis of extreme and
unrepresentative outliers. The agency used the remaining 98
percent of the worst-day data as its pre-project baseline, which
explains the “98th percentile” or “near-peak” labels. The agency’s
analysis culminated by comparing these actual pre-project near-
peak emissions with projected peak emissions after the project.
       The agency focused on measuring peak pollution days
because it sought to measure and control the biggest health
danger. Smog peaks create the most danger to the most
vulnerable populations, such as people with respiratory illnesses




                               20
like asthma. Smog alerts are alerts about the peak smog days,
which have many causes that include weather, peaking emissions
from polluters like cars and industrial sites like power plants and
oil refineries, and so forth.
        Smog alerts are the days of the greatest health concern.
More people suffer more health problems from smog alert days —
from peaks — than from days of average pollution levels. Data
are not necessary to grasp this commonsense notion.
       It thus was rational for air pollution regulators to care most
about the worst effects of air pollution, which occur when
emissions hit their highest levels and the weather makes the
perfect storm. Southern Californians are all too familiar with
smog alerts: the air pollution peaks. Regulators quantitatively
monitor our air quality every hour and rate it on a scale of six:
hazardous; very unhealthy; unhealthy; unhealthy for sensitive
groups; moderate; and good. (See, e.g., South Coast Air Quality
Management Dist., Current Hourly Air Quality Index Map
<https://www.arcgis.com/apps/webappviewer/index.html?id=dd4a
15deed8647edacb14f140ca83d05> [as of March 24, 2020],
archived at < https://perma.cc/U66U-E2RB>.)
       Reducing smog alerts is the same logical goal as reducing
peak or near-peak levels of air pollution. That was what the
agency was trying to do — obviously. It was not sinister or wrong
to focus on reducing smog alerts and protecting public health.
                                   4
       The agency’s 98th percentile analysis determined the
project would have the beneficial effect of reducing air pollution.
We recount this analysis from the Report in some detail.
       Recall the Report proposed the Heater’s thermal operating
limits would be increased from its pre-project permit description




                                 21
of 252 million Btus per hour to 302.4 million Btus per hour. This
change would allow Tesoro to operate the Heater to generate
more heat.
      This heat increase could theoretically allow the refinery
either to increase the throughput of the Coker by 6,000 barrels of
crude oil per day, or allow the Coker to process a slightly heavier
crude blend — but not both. This does not mean the refinery as a
whole could process heavier crude or more crude — just the
Coker.
      The change to the Heater’s thermal operating limits is just
one of many combustion sources this overall project would
modify. Table 4.2-7 of the Report lists 11 combustion sources,
only one of which is associated with the Heater. Recall the
project would shut down the Wilmington Fluid Catalytic
Cracking Unit — a major source of emissions. That unit alone is
composed of six associated combustion sources.
      Before the project, all combustion sources slated to be
modified released a total of 1310.4 million Btus per hour. The
Wilmington Cracking Unit alone accounted for 687 million Btus
per hour of that total. Compare that increase against the
potential firing rate of the Heater, which is merely 50.4 million
Btus per hour. The firing rate of another process unit at
Wilmington, its Hydrocracking Unit, will be increased from 71.1
million Btus per hour to 96.1 to absorb part of the duties
previously performed by the Fluid Catalytic Cracking Unit.
      So this project would reduce air pollution, according to the
environmental impact report. Table 4.2-7 in the Report shows
the pre-project total emissions rate of applicable emissions
sources of 1,310.4 million Btus per hour will be reduced to 831.5,




                                22
representing a net decrease of over 36 percent from the pre-
project setting.
       The agency was deliberately and self-consciously
conservative in its analysis of the Heater’s heat increase. The
agency and the Report assumed that, before the project, the
Heater never operated above 252 million Btus per hour when, in
fact, it had indeed operated above that limit in the past. In sum,
the agency bent over backwards in favor of environmental
protection.
       It is important to appreciate what the Heater’s modified
federal air pollution permit actually says. Before the project,
there were no enforced limits on the Heater’s firing rate. After
the project, the Heater will be subject to enforceable emissions
limits. And those limits will assume the Heater will fire at the
lower 252 million Btus per hour rate. This means that,
regardless of the projected increase in throughput or weight of
the crude blend in the Coker, there can be no increase in
emissions from the Heater.
                                  5
       We state the standard of review.
       The standard of review is deferential. We defer to the
agency’s baseline decision if substantial evidence supports it.
The Act imposes no uniform and inflexible rule for determining
how the agency is to define the baseline an agency must use.
Instead, the law leaves the choice of the exact baseline method to
the agency’s sound discretion. (Smart, supra, 57 Cal.4th at pp.
452–453.)
       This deferential approach aligns with the rule that an
agency’s decision to use one particular method and to reject
another is amenable to substantial evidence review. (Sierra Club




                               23
v. County of Fresno (2018) 6 Cal.5th 502, 514 (Sierra Club).)
                                   6
       Substantial evidence supports the agency’s baseline choice.
The agency selected the 98th percentile baseline to follow the
practice of the federal EPA, which uses the 98th percentile
baseline approach to regulate air pollution at the national level.
(See U.S. EPA, National Ambient Air Quality Standards Table
<https://www.epa.gov/criteria-air-pollutants/naaqs-table> [as of
March 24, 2020], archived at <https://perma.cc/HC2Z-MTUV>.)
The agency also selected this baseline because petroleum demand
fluctuates on a daily basis.
       Communities agrees federal regulators indeed do use the
98th percentile baseline. But Communities would dismiss this
fact with four erroneous arguments. We take up these four
arguments in turn.
                                   a
       First, Communities makes the incorrect argument the
federal regulatory purpose differs from the California state
regulatory purpose. This is mistaken because the federal and
state goals are identical: to protect public health and welfare.
       We carefully recite Communities’ argument here to
pinpoint its error.
       In the first sentence in the first paragraph of page 28 of its
opening brief, Communities recites that Congress required the
EPA to promulgate air quality standards to protect the public
health and welfare. Communities tells us that, “[g]iven that
purpose, EPA’s air quality standards are based on measurements
of pollutants during peak pollution days, when people will be
exposed to the highest levels of pollution such as the 98th
percentile.” So far, so good.




                                 24
       But in the next paragraph on that page the argument goes
awry. There Communities claims the California Environmental
Quality Act has a purpose different than protecting public health
and welfare: “In contrast to the protective purpose of the federal
air quality standards, the [California Environmental Quality Act]
baseline is meant to establish pre-project conditions to compare
with post-project operations.” (Italics added.)
       This argument by Communities is incorrect. The statutory
point of comparing pre-project and post-project conditions is to
provide a yardstick to those outside the administrative process to
measure a project’s environmental impact. A key reason we do
that is to protect public health and welfare. Protecting public
health and welfare is an overarching goal of California’s Act.
(E.g., Sierra Club, supra, 6 Cal.5th at pp. 519–520 [faulting an
environmental impact statement for a merely cursory discussion
of pollution’s health effects; citing authorities requiring
environmental reviews to discuss health problems from
pollution].)
       Communities’ claim that federal and state pollution
regulations have clashing goals is surprising, unsupported, and
wrong. The same goes for its suggestion that the Act is
unconcerned with public health and welfare.
       This attempted attack on the federal precedent for the 98th
percentile baseline founders. Federal and state pollution
regulators share the common goals of protecting public health
and welfare.
                                    b
       Second, Communities incorrectly claims the 98th percentile
standard “ignores existing environmental conditions.” Yet
Communities concedes the 98th percentile standard measured




                               25
the air pollution that actually existed on the 15 worst days in the
730-day review period. Those 15 days were quite actual — all too
actual for people with respiratory diseases like asthma who are
at much greater risk when Los Angeles air pollution hits
dangerous peaks. This is why EPA has focused on 98th
percentile emissions for emissions like particulate matter since
1997. (See U.S. EPA, Region 1: New England, “What are the Air
Quality Standards for PM?”
<https://www3.epa.gov/region1/airquality/pm-aq-standards.html>
[as of March 24, 2020], archived at <https://perma.cc/N2E6-
EMYW> [“The 24-hour standard was set at 65 μg/m3 based on the
3-year average of the annual 98th percentile concentrations.”]
[Italics added].)
       Reducing peak pollution means less human suffering:
fewer airway constrictions, less gasping for air, fewer hospital
trips. There is nothing hypothetical or illusory about that.
       Comparing pre- and post-project (near) worst days is a
sensible and time-tested way to inform the public about potential
health consequences because those are the days that matter most
to human health. (See U.S. EPA, “Rules and Regulations that
Impact Children’s Health” <https://www.epa.gov/children/rules-
and-regulations-impact-childrens-health> [as of March 24, 2020],
archived at <https://perma.cc/QCV9-5BSW> [as recently as April
6, 2018, EPA reaffirmed it would continue to use the 98th
percentile to regulate nitrogen dioxide air emissions to protect
children’s health].)
       In short, Communities’ argument that the near peak
criterion was an inaccurate description of existing pre-project
conditions as a matter of law is mistaken.
                                  c




                                26
       Third, Communities argues that whether the EPA uses a
percentile approach is immaterial to what the agency should
have done under California law.
       This is inaccurate. The practice of the federal EPA is
tremendously material because the EPA is a free and helpful
resource on air pollution. It made good sense for California
regulators to piggyback on a federal effort with similar goals, a
bigger budget, a cadre of scientists, and nationwide experience.
Once the federal government develops air pollution science and
information, that information is free for the taking. California
does not have to buy a license to use it. And Californian
taxpayers, of course, help support the federal EPA. So this
federal effort has created a valuable resource available at no
marginal cost that has been highly material to California air
regulators, and to many others as well.
       The availability of free informed help is rarely immaterial.
You can ignore it if you want to, but it is not clear why you would
want to. The law does not require ignorance.
       California remains at liberty, of course, to go its own way
on air pollution control. California often does, and does so
proudly and with a sense of leadership. But that is different than
saying California regulators, as a mandatory matter, must ignore
everything the federal agency has ever done. That position would
be illogical.
       We already have seen the federal EPA has similar goals in
regulating air pollution as does California. A central goal for the
state and the nation is protecting public health and welfare.
       The federal agency has more resources than does the state
agency. This point is plain but we supply some points of
reference to lend a sense of magnitude.




                                27
       The EPA’s national budget exceeds California’s
environmental protection budget by billions of dollars. (Compare
U.S. EPA, FY 2021 Budget
<https://www.epa.gov/planandbudget/cj> [as of March 24, 2020],
archived at < https://perma.cc/728B-A4J3> [“The proposed FY
2021 budget for the EPA provides $6.658 billion to support the
Agency’s FY 2018 – FY 2022 Strategic Plan and mission of
protecting human health and the environment.”] with
California’s 2020-21 Governor’s Budget
<http://www.ebudget.ca.gov/budget/2020-21/#/Home> [as of
March 24, 2020], archived at < https://perma.cc/BW3T-5SYE>
[$3.944 million for environmental protection].) And the budget
for the South Coast Air Quality Management District is, of
course, but a tiny fraction of the money available to the federal
EPA. (See South Coast Air Quality Management District, 2018
Annual Report, p. 17 <https://www.aqmd.gov/docs/default-
source/annual-reports/2018-annual-report.pdf?sfvrsn=9> [as of
March 24, 2020], archived at <https://perma.cc/67W4-DM2J> [FY
2018-2019 budget was $162.6 million, which is less than 3% of
the EPA’s proposed $6.658 billion FY 2021 budget].)
       Because the EPA’s parallel and substantial efforts are of
legitimate interest to California pollution regulators, we turn to
what the EPA has to offer Californians with curiosity about the
topic.
       The EPA explains air pollution basics to the public. The
EPA’s extensive website offers a primer.
       The website explains the federal Clean Air Act requires the
EPA to set regulatory standards for six of the most significant air
pollutants, including particulate matter and nitrogen dioxide.
“These pollutants are found all over the U.S. They can harm




                                28
your health . . . .” (U.S. EPA, Criteria Air Pollutants
<https://www.epa.gov/criteria-air-pollutants#self> [as of March
24, 2020], archived at <https://perma.cc/KYK8-VRE6>.)
       The EPA’s sizable budget and decades of experience have
allowed it to collect and to summarize the vast scientific research
backing up its work on air pollution. The federal agency makes
this storehouse of information available online. (See, e.g., U.S.
EPA, Nitrogen Dioxide (NO2) Primary Air Quality Standards
<https://www.epa.gov/naaqs/nitrogen-dioxide-no2-primary-air-
quality-standards> [as of March 24, 2020], archived at
<https://perma.cc/W7PE-WCYB> [listing and linking to planning
documents, integrated science assessments, policy assessments,
and other resources pertaining, for instance, to nitrogen dioxide
pollution].)
       The EPA explains the dangers of air pollutants, including
particulates and nitrogen dioxide. Breathing air with a high
concentration of nitrogen dioxide, for instance, can irritate
airways in the human respiratory system. Exposure over a short
period can aggravate respiratory diseases, particularly asthma,
leading to respiratory symptoms like coughing, wheezing, or
difficulty breathing. It can also lead to hospital admissions and
visits to the emergency room. (U.S. EPA, Basic Information
about NO2: Effects of NO2 <https://www.epa.gov/no2-
pollution/basic-information-about-no2#Effects> [as of March 24,
2020], archived at <https://perma.cc/YZ9F-KN5L>.)
       The EPA website explains the agency “has developed
ambient air quality trends for nitrogen dioxide (NO2). Under the
Clean Air Act, EPA sets and reviews national air quality
standards for NO2. Air quality monitors measure concentrations
of NO2 throughout the country. EPA, state, tribal and local




                                29
agencies use that data to ensure that NO2 in the air is at levels
that protect public health and the environment. Nationally,
average NO2 concentrations have decreased substantially over
the years.” (U.S. EPA, Nitrogen Dioxide Trends
<https://www.epa.gov/air-trends/nitrogen-dioxide-trends> [as of
March 24, 2020], archived at <https://perma.cc/GRK6-87JG>.)
       As science has progressed since 1971, the EPA’s standards
for air pollution, including nitrogen dioxide, have evolved. (E.g.,
U.S. EPA, Table of Historical Nitrogen Dioxide National Ambient
Air Quality Standards (NAAQS) <https://www.epa.gov/no2-
pollution/table-historical-nitrogen-dioxide-national-ambient-air-
quality-standards-naaqs> [as of March 24, 2020], archived at
<https://perma.cc/27DB-WWSP> [presenting evolution of national
nitrogen dioxide emissions from 1971 through the present].)
       The EPA uses the 98th percentile standard, in several
ways.
       First, the EPA uses the 98th percentile standard when
reporting nitrogen dioxide air quality. For example, the EPA
charts trends in nitrogen dioxide air quality, nationally and
regionally, over various time intervals, such as from 1980 to
2018. These tables report a single value: the “Annual 98th
Percentile” of daily one-hour average observations. (See, e.g.,
U.S. EPA, Nitrogen Dioxide Trends, supra.)
       The EPA also uses the 98th percentile standard when
regulating air pollution. In 2010, the EPA defined one nitrogen
dioxide standard as “The form of the 1-hour standard is the 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum NO2 concentrations.” (U.S. EPA, Table of
Historical Nitrogen Dioxide National Ambient Air Quality
Standards (NAAQS), supra, at fn. 4.)




                                30
       California’s Air Resources Board, which is separate from
respondent South Coast Air Quality Management District,
follows this federal regulatory convention of using the 98th
percentile standard. (California Air Resources Board, Ambient
Air Quality Standards (May 4, 2016) fn. 10
<https://ww2.arb.ca.gov/sites/default/files/2020-03/aaqs2_0.pdf>
[as of March 24, 2020], archived at <https://perma.cc/74LH-
CXYS> [“To attain the 1-hour national standard (for nitrogen
dioxide), the 3-year average of the annual 98th percentile of the 1-
hour daily maximum concentrations at each site must not exceed
100 ppb.”] [Italics added].)
       This federal reliance on the 98th percentile standard was
not “immaterial” to California regulators. It was rational for the
South Coast Air Quality Management District to tap this free,
substantial, and conventional resource.
                                  d
       Finally, during oral argument, Communities suggested the
“normal” baseline is to use an average statistic and not a peak or
near-peak analysis. The Supreme Court case law is to the
contrary. (ConocoPhillips, supra, 48 Cal.4th at pp. 327–328.)
The suggestion that “average” is “normal” also ignores the
diversity within the concept of “average” itself. There are three
different definitions of average: mean, median, and mode. Which
is “normal”? None is. “[T]he choice among the three measures
depends on the purpose for which the data are selected as well as
on the nature of the data gathered.” (Zuwaylif, General Applied
Statistics (1970) p. 19.)
                                  7
       We uphold the agency’s decision to use the near-peak
baseline. This baseline decision was for the agency in the first




                                31
instance. The federal use of the same 98th percentile baseline
method is substantial evidence validating the agency’s approach.
(See ConocoPhillips, supra, 48 Cal.4th at pp. 327–328.)
                                  B
       We turn to Communities’ second attack on the Report,
which was the agency did not obtain information about the pre-
project composition of the crude oil the refinery processes, but
instead merely found the crude oil input would remain within the
refinery’s “operating envelope.”
       This second argument fails because there was no need for
the Report to detail input crude oil composition. That
information was not material to assessing the project’s
environmental impact.
       The Report explained that processing heavier crude or
increasing throughput through the Coker can increase air
emissions by causing the refinery’s burners to consume more fuel.
       We quote the pertinent disclosure in full:
       “The application to revise the permit description of [the
Heater] was submitted in early 2014, independent of the
proposed project. As a result, this component of the proposed
project was not described in the [Notice of Plan / Intent to Study].
       “But upon further review, it was concluded that this
description change had the potential to create adverse
environmental impacts, because, for example, it could enable a
slight increase in crude oil throughput to the Refinery of up to
two percent (or up to 6,000 bbl/day). While the Refinery could opt
to process either a small increase in crude oil throughput or
slightly heavier crude oil blend, the processing of additional crude
oil would result in greater environmental impacts downstream of
the [Coker], as described in Section 4.1.2.1. Therefore, for




                                32
purposes of analyzing the worst-case impacts, this document
assesses an increase in crude oil throughput capacity. The
increased heat release from the H-100 heater and/or increased
crude oil throughput is anticipated to occur once the modified
permit is issued. Including the permit revision as part of the
proposed project ensures that all possible impacts from the
modification of the Refinery are fully analyzed.”
       Communities’ complaint derives from this official response
to comments inquiring about whether the crude oil composition
would change:
       “Due to the fixed crude oil operating envelope that will
exist before and after the proposed project, baseline data
regarding the particular crude oils combined to meet that blend
with the required properties was not necessary to conduct the
impact analysis in the [Draft Environmental Impact Report].”
       As a result, “baseline crude oil data was not relied on or
provided to the [agency], and need not be provided.”
       Communities concludes the agency’s failure to obtain and
analyze such baseline crude composition data means “there is no
way for [the agency] to assess whether crude oil properties would
change significantly and therefore cause significant
environmental effects.” The agency’s reliance upon “the crude oil
operating envelope” was inadequate as a matter of law because it
did not explain why crude oil composition could not change after
the project.
       We hold reliance upon the “crude oil operating envelope”
was appropriate. We explain why.
       Only a specific range of crude blends can be processed by
the refinery. Acceptable crude oil blends must fall within
specified ranges of weight and sulfur content known as




                               33
“operating envelopes.” The Carson and Wilmington operations
each have their own operating envelopes. Individual process
units, such as the Coker, also have their own distinct operating
envelopes.
      A brief explanation of where the Coker sits within the oil
refinery process stream is now necessary.
      The refinery processes many types of crude from all over
the world, but it cannot automatically process any individual
tanker-load of crude oil. This is because the refinery must blend
incoming crude into an acceptable mixture of hydrocarbon weight
and sulfur content. For example, if incoming crude has too much
sulfur for the plant to tolerate, it must be blended with other
crude containing less sulfur. The refinery can tolerate a range of
weight plus sulfur content, and this range is the refinery’s
“operating envelope.” The refinery as it has existed in the past
and will exist after the project cannot process crude outside its
operating envelope.
      Petroleum refining is a chemical industrial process where
many specialized units cooperate to transform crude oil into
products like gasoline, diesel, and jet fuel. These “process units”
are assigned certain tasks. Each process unit chemically
transforms hydrocarbons in a specific way. Some units use heat,
pressure, and chemical catalysts to break large hydrocarbon
molecules down. This is called “cracking.” Other process units do
the reverse of cracking: they combine smaller hydrocarbon
molecules into larger ones. Still other units can rearrange the
chemical structure of the hydrocarbons by “reforming.” By
sending material through these units, and sometimes turning
that material around to run it through a previous unit, the




                                34
refinery can produce chemically pure petroleum products with
specific properties.
       The next step after blending the crude into a weight and
sulfur content range within the operating envelope is the
distillation process. That takes place in the Crude Units.
       The Crude Units are the “front end” of the refining process.
As the Crude Unit heats the crude, the lightest hydrocarbon
molecules boil off first, traveling to the top of the tank. These are
petroleum gases like butane and propane and they are the
lightest “fraction.” Heavier hydrocarbons take more energy to
become gaseous. So the next fraction, comprised of gasoline, boils
off second, but settles below the petroleum gas in the crude unit
tower because it is a liquid at higher temperatures than the
petroleum gas. The third fraction is “distillate” material,
including diesel and jet fuel, which settles below the gasoline
fraction. Finally, the fourth and heaviest fraction is residual oil.
       These four layers are called “fractions” because together
they constitute 100 percent of the material in the crude unit
tower.
       The process unit at the heart of this appeal, the Coker,
deals with the heaviest fraction that the Crude Unit was not able
to break into precursors for petroleum products the first time.
The Coker heats and breaks apart the heaviest fraction left over
from the distillation process (as well as internally recycled oil
that is also low quality) and then sends those layers
“downstream” into additional process units for further refining.
Cokers ideally recover all valuable hydrocarbon compounds left
in the residue of the crude unit, leaving behind a heavy substance
called coke.




                                 35
      We can now understand the agency’s response to
Communities’ complaint during the administrative review
process. The agency explained the complaint rested on a false
premise:
      “The claims that the crude oil blend would change do not
take into account the fact that the proposed project does not
include changes to the Refinery Crude Units or the units
immediately downstream of the Crude Units that would need to
be modified in order to process a significantly different crude oil
blend.”
      In other words, the Coker is sandwiched between the front
end Crude Unit and downstream process units.
      The agency’s briefing extensively explains why this means
crude oil composition cannot change. For instance, in order to
process lighter crude, the refinery would have to increase the
height of the crude unit towers to make room for the greater
proportion of recoverable short hydrocarbons. To process heavier
crude, the refinery would have to build larger coke drums for the
coking units since it would have to break apart a greater
proportion of long hydrocarbons. To process crudes with higher
sulfur content, it would be necessary to modify the sulfur plant.
And so on.
      Because the report disclosed the project would make no
such changes, more information about crude oil composition was
immaterial. Physical constraints boxed in the crude operating
envelope. The project would not change that.
      Communities nowhere contests these technical points.
Communities merely insists “it was incumbent on [the agency] to
analyze the information that would support the conclusion that
the changed blend would not matter.” We agree the agency had




                                36
to analyze whether crude oil composition would change. It did —
extensively.
       Communities erroneously relies upon Richmond. That case
does not aid Communities. Richmond held a report for a refinery
modification project inadequately explained whether the project
would allow the refinery to process a heavier blend of crude oil.
(Richmond, supra, 184 Cal.App.4th at p. 83.) The project’s stated
purpose was to “‘improve the Refinery’s ability to process a more
varied proportional mix of crude oil types than it currently
processes, including crude oil with higher sulfur content.’” (Id. at
p. 80.) Unlike here, the project also involved major modifications
to process equipment. (Id. at p. 77.) The report did not consider
impacts that could result from processing a heavier blend of
crude oil because, according to the report, “a change to a
substantially heavier crude slate . . . would not be a reasonably
foreseeable consequence of the Proposed Project.” (Id. at pp. 81–
82.)
       The major problem in the Richmond case was facial
inconsistency. The environmental impact report there kept
changing its story about the project’s effect on crude quality.
       On the one hand, the report explained the project “does not
include any process and equipment changes that would facilitate
the processing of heavy crudes.” (Richmond, supra, 184
Cal.App.4th. at p. 85.)
       On the other hand, the report stated:
       “‘The supply of crude oil to California refineries has
changed substantially during the last 10 years, with light to
intermediate crudes becoming less available . . . . It is within the
context of these changes in crude oil supply that the Renewal




                                37
Project is proposed.’” (Richmond, supra, 184 Cal.App.4th. at p.
83.)
       The court found the project description provided by the
report was inadequate because it was unclear and inconsistent as
to whether the project was designed to, or even would, allow the
processing of heavier crude oils. (Richmond, supra, 184
Cal.App.4th at pp. 80–89.) This meant that, if the project in fact
allowed the processing of heavier crudes, the project would have
environmental impacts the report did not identify. That was a
big problem.
       There is no problem here. The way in which Richmond is
distinguishable from this case is what makes the Report here
commendable: it is thorough and consistent.
       This Report gives a stable and logical explanation of why
the Coker will not in fact process a heavier slate of crude
following the project: the Coker is constrained by upstream and
downstream equipment that would require physical modification,
and that physical modification will not occur.
       A court has previously distinguished Richmond for this
exact reason. Rodeo, supra, 22 Cal.App.5th 214, also involved a
refinery modification project. The petitioners in Rodeo argued
the report failed to disclose an “alleged switch to heavier crude oil
feedstocks” and cited Richmond in support. (Id. at p. 220.)
       Rodeo distinguished Richmond because the report
unequivocally stated the project would not affect “‘the types
and/or quantities of crude oil feedstocks that can be processed at
the refinery.’” (Rodeo, supra, 22 Cal.App.5th at p. 222.)
       Communities asks us to second-guess the agency about how
this refinery works. But the report provides substantial evidence




                                 38
for its analysis. That suffices. Communities’ second critique is
unsuccessful.
                                  C
       Communities has forfeited its third argument, which
concerns the “6,000 barrels” sum.
       Recall from our factual summary above that the project’s
modifications to the Heater’s air permit could increase the
throughput of just one process unit—the Coker: more heat
implies the possibility of processing more oil.
       To put this same point in other words, we quote a portion of
the report called Master Response 6:
       “The 6,000 bbl/day additional feed to the [Coker] will not
result in any additional finished fuel production beyond the peak
baseline day because the additional feed will partially ‘make up’
lost production capacity associated with shutdown of the
Wilmington Operations [Fluid Catalytic Cracking Unit].”
       We now summarize the thrust of Communities’ 6,000-
barrels complaint.
       Communities claims that, without knowing exactly how the
agency calculated this 6,000-barrels figure, the Act’s
informational purpose is undermined because those who did not
engage in the administrative process could not understand and
critique this calculation.
       Communities forfeited its 6,000-barrels argument. The law
requires objectors to raise their exact issue before the agency, on
pain of forfeiture. Communities did not meet this requirement.
       The exact issue rule springs from the statute. Section
21177 bars litigants from raising factual or legal issues that were
not presented to the agency during the administrative process. (§
21177, subd. (a).) Section 21177 specifically requires “the alleged




                                39
grounds for noncompliance” be “presented . . . during the public
comment period provided by this division or before the close of
the public hearing on the project.” (§ 21177, subd. (a).)
       The rationale for this rule is fairness and efficiency. The
agency is entitled to learn the contentions of interested parties
before litigation is instituted so it can gain the opportunity to act
and to render litigation unnecessary. (Sierra Club v. City of
Orange (2008) 163 Cal.App.4th 523, 535.) To advance these
purposes, an objector must present the “‘exact issue’” to the
administrative agency. (Mani Brothers Real Estate Group v. City
of Los Angeles (2007) 153 Cal.App.4th 1385, 1394.)
       The agency correctly observes that, among the 1,716 pages
of comments submitted by Communities and another firm,
Adams Broadwell, there is no claim equivalent to this current
one: that the Report was inadequate because it did not detail the
calculation behind the 6,000-barrels number.
       Communities points to one comment in the record that
purportedly raises the issue: comment G1-78.208. We quote this
comment:
       “The [draft report] also reports a pre-Project capacity of
363,000 bbl/day and indicates the Project would increase the
throughput by 6,000 bbl/day by eliminating feed heater duty at
the Wilmington Crude Unit and Coker, which would increase the
crude capacity to 369,000 bbl/day.
       “However, this is inconsistent with information reported by
Tesoro to the U.S. Securities and Exchange Corporation (SEC) in
its most recent Form 10-K, where Tesoro reported that the crude
oil capacity of its Los Angeles Refinery is 380,000 bbl/day and its
2015 throughput was 369,000 bbl/day. Similarly, Tesoro’s
website reports the refining capacity as 380,000 bbl/day.”




                                 40
       Nowhere in this comment does Communities complain the
Report should have disclosed how the agency calculated the
6,000-barrels figure.
       Communities’ reply brief does not squarely respond to the
respondents’ forfeiture argument. Rather, the reply emphasizes
the following quote from this comment: “the [draft report] does
not contain any of the information required to evaluate
throughput claims.” The reply then appears to concede the
argument by stating: “But Dr. Fox broadly asked for ‘information
required to evaluate throughput claims’ and specifically asked for
‘baseline throughputs’ and ‘modified processing unit
throughputs.’” (Italics added.) Communities makes another
concession in the next sentence: “Those requests encompass
[Communities’] point in this appeal that the starting point for
calculating the 6,000 barrels per day increase was undefined.”
(Italics added.)
       Making “broad” requests that “encompass” an issue raised
on appeal is not raising the “exact issue” during the
administrative process.
       The point of Communities’ comment G1-78.208 appears to
be to draw attention to a discrepancy between the Report’s pre-
Project capacity figure of 363,000 barrels per day and its Form
10-K in which Tesoro reported a capacity of 380,000 barrels per
day.
       Communities never asked the agency to reveal its
calculation of the 6,000-barrels figure. The issue is forfeited on
appeal.
                                  D
       Communities’ fourth complaint is that the Report did not
disclose two numbers: (1) the existing volume of crude oil the




                               41
refinery processes as a whole, and (2) the refinery’s unused
capacity. This complaint is invalid because these two numbers
are not material to the Report’s goal of evaluating the project’s
air pollution impact.
       We review an agency’s decision about including information
under an abuse of discretion standard. (Rodeo, supra, 22
Cal.App.5th at p. 231.)
       We examine these two arguments — throughput and
unused capacity — in that order.
                                   1
       Communities presents its throughput argument as follows.
It claims the agency should have disclosed the total volume of
crude moving through the refinery to “permit a cross-check” on
the Report’s calculations. Communities acknowledges the Report
does state any throughput increase beyond 6,000 barrels per day
is impossible due to physical constraints, but claims the Report
contains too little data to “verify” that conclusion. Communities
also expresses concern the Report does not provide enough
information to assure it that the actual post-project increase in
capacity will not exceed 6,000 barrels per day.
       This argument fails because the Report adequately
explains why the project will not increase the refinery’s overall
throughput. As the Report phrases it, at oil refineries “the
limitation on how much crude oil can be processed lies within the
refining equipment itself.” We have reviewed this point above.
As further illustrations, pump and piping capacity limitations
constrain the Carson operation’s crude rate. To increase the
crude oil processing rate would require bigger pipes and stronger
pumps. The Project does not involve and would not make these
changes.




                               42
       The project’s modifications to the Heater’s air permit,
however, could increase the throughput of just one process unit
— the Coker. The project will have no effect on overall refinery
throughput because the project will not physically modify
upstream or downstream process units, as we have already
reviewed.
       The assumed 6,000-barrels-per-day increase through the
Coker will be offset by a 10,000-barrels-per-day decrease of
vacuum gas oil that the refinery previously used as feedstock for
the Wilmington Cracking Unit. This is why the Report concluded
that the project will decrease overall refinery throughput.
       The Report’s presentation thus demonstrates the first
number that Communities seeks — total pre-project throughput
— is immaterial to its environmental assessment.
       No law requires a report to include unnecessary data.
Further cross-checks or verifications are not needed if, as is true
here, substantial evidence supports the agency’s analysis.
                                  2
       Now we tackle Communities’ argument about unused
capacity, which is but a variant of Communities’ preceding
argument.
       Communities faults the Report for failing to describe what
Communities calls the refinery’s “unused capacity.”
Communities develops this concept by noting the Report gives
peak and average production figures for coker units within the
refinery. Communities subtracts the average from the peak,
notes the sum is positive, and concludes this demonstration
proves the refinery had “unused capacity” in the past.
Communities faults the Report for failing to state the total value
of this unused capacity. But there was no need for the Report to




                                43
include these data when substantial evidence already supported
the Report’s analysis, as was the case here.
                          DISPOSITION
      The judgment is affirmed. Costs are awarded to Tesoro
and South Coast Air Quality Management District.




                                        WILEY, J.
I concur:




            BIGELOW, P. J.




                              44
STRATTON, J., Dissenting in part.

       I do not agree that substantial evidence supports the
agency’s use of the 98 percentile “near peak” data as the baseline
to measure the environmental impact of changes to Heater
H-100’s Title V air permit. The majority holds that federal use of
a 98 percentile baseline is substantial evidence that validates the
agency’s use of the 98 percentile here. Federal custom and
practice appears to be the only substantial evidence found by the
majority to support the use of the 98 percentile near-peak
emission data here.
       Applicable factual underpinnings in the record and
applicable California caselaw belie the correctness of using the
98 percentile as the baseline. First, section 15125, subdivision (a)
of the CEQA Guidelines provides: “An EIR must include a
description of the physical environmental conditions in the
vicinity of the project. 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).) As our Supreme Court has
pointed out, a “long line of Court of Appeal decisions holds, in
similar terms, that the impacts of a proposed project are
ordinarily to be compared to the actual environmental conditions
existing at the time of CEQA analysis, rather than to allowable
conditions defined by a plan or regulatory framework.”
(Communities for a Better Environment v. South Coast Air
Quality Management Dist. (2010) 48 Cal.4th 310, 321
(Communities).) In Communities, the agency used the maximum
operational levels of the subject boilers as a baseline. The agency
did so, even though it “acknowledged that in ordinary operation




                                 1
any given boiler ran at the maximum allowed capacity only when
one or more of the other boilers was shut down for maintenance;
operation of the boilers simultaneously at their collective
maximum was not the norm.” (Id. at p. 322.) This was error.
Although running all the boilers at the maximum allowed
capacity could occur even if the proposed project did not
commence, running all the boilers at maximum capacity did not
reflect “ ‘established levels of a particular use.’ ” Instead, the
incorrect baseline reflected “ ‘merely hypothetical conditions
allowable’ ” under the permits. (Ibid.)
       Similarly, in Neighbors for Smart Rail v. Exposition Metro
Line Construction Authority (2013) 57 Cal.4th 439 (Neighbors),
our Supreme Court reaffirmed that 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. 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.” (Id. at p. 447.) In Neighbors, the
agency’s baseline consisted solely of conditions projected to exist
absent the project at a date in the distant future, instead of an
analysis of the project’s significant impacts on measured
conditions existing at the time the environmental analysis was
performed. Our Court held that existing conditions is the normal
baseline under CEQA, but factual circumstances can justify an
agency departing from that norm when necessary to prevent
misinforming or misleading the public and decision makers.
(Id. at p. 448.) The Court reiterated its holding in Communities
that an agency’s discretionary decision on “ ‘exactly how the
existing physical conditions without the project can most




                                 2
realistically be measured’ ” is reviewed for substantial evidence
supporting the measurement method. (Id. at p. 449.) It pointed
out that agencies do not enjoy discretion under CEQA and CEQA
guidelines to omit all analysis of the project’s impacts on existing
conditions. However, projected future conditions may be used as
the sole baseline for impacts analysis if their use in place of
measured existing conditions is justified by unusual aspect of the
project or the surrounding conditions. (Id. at p. 451.)
       Here, the record reflects (and the majority finds) no
unusual aspects of the project or surrounding conditions to justify
ignoring existing environmental conditions. The evidence is
undisputed that the 98 percentile “near-peak” emissions occurred
on only 15 out of the 730 days in the review period. By using
pollution measured only on the 15 worst days, the agency has not
set a realistic baseline of existing conditions so that the public
and decision makers can project the most accurate picture
practically possible of the project’s likely impacts. Instead, by
using the 15 worst days as the baseline, the project’s potential
future negative environmental impact is, at worst, diluted and
reduced, and is, at best, inaccurate.
       I would find this use of the 98 percentile “near-peak” data
violates California law. The agency should have analyzed
environmental conditions representing the entire period, or
explained in the EIR why this was not possible, realistic, or
informative. Whether the EPA uses a percentile approach is
immaterial to what the agency should have done under California
law.



                                           STRATTON, J.




                                 3
