California’s Governor’s Office of Planning and Research (OPR) has been getting slammed for trying to implement sensible reform to benefit infill development. As I described back in August, the law firm of Holland & Knight issued a wrong-headed attack on OPR’s proposed new guidelines for the California Environmental Quality Act (CEQA). And a statewide business coalition also weighed in, parroting the Holland & Knight attacks. All because OPR, complying with a directive from SB 743 (Steinberg, 2013), is essentially exempting infill projects from transportation review under CEQA, while introducing a simpler vehicle miles traveled (VMT) analysis for sprawl projects.
So it was a nice opportunity for me to debate one of the Holland & Knight attorneys, Jennifer Hernandez, on this subject on Tuesday night at University of San Francisco School of Law. I participated in a four-person panel, with Michael Schwartz (lead transportation planner in San Francisco), Amanda Eaken (NRDC), and Jennifer and me, plus Adam Hofmann moderating.
We took turns making our case. Michael covered how the dysfunctional, status quo “level of service” standard of review works, as well as its negative effect on specific projects San Francisco, like the long-delayed bus rapid transit line down Van Ness. Amanda then made the pitch for VMT but expressed concern about OPR’s proposal to give a “pass” on transportation analysis to any project that merely meets the regional average or better for VMT — she believes the bar should be higher. She also didn’t want to see a blanket “pass” for all projects within one-half mile of transit, given that there are certainly some bad projects near transit, like parking lots, that should have to account for their traffic impacts. Finally, she didn’t like OPR’s inclusion of language in the proposed guidelines related to safety, which she fears could be a back-door way to encourage more automobile-oriented mitigation measures from project developers.
I then gave my pitch for VMT as well, but I tried to put the SB 743 reform in context. The change to VMT certainly won’t solve the challenges that CEQA can pose for infill projects, but it will remove a big arrow from the litigation quiver of project opponents. More importantly, the reform could have a huge impact on sprawl projects. The mitigation measures for high VMT for these outlying projects could be potentially transformational. These measures could include requiring more mixed uses in the developments (like adding retail and office to residential sprawl), shuttles and new transit lines, more affordable housing, and transit passes and the like. In short, it will change the character of sprawl in California and also make it more expensive and legally difficult to get these projects built in the first place.
But for some reason, no one seems to be talking about this potential effect on sprawl, perhaps given all the hullabaloo about how infill projects will supposedly be hurt by the new VMT analysis. It’s even more bizarre given that under this proposal, essentially all infill projects would be exempt from any transportation analysis at all. And if they do have to do an analysis, it will be under the far simpler and cheaper VMT metric.
Jennifer Hernandez went last. She began her presentation by describing CEQA’s negative impact on all sorts of projects, but especially infill. She debuted a new study that her firm conducted on CEQA litigation, which apparently shows how so much of it is directed at infill and infill-related projects. As a result, she argued that California needs wholesale CEQA reform, and not just this incremental reform. In her perfect world, CEQA would set broad environmental standards and then provide deference to agency decision-making to meet those standards.
She didn’t engage much with the details of the SB 743 guidelines, only arguing that they essentially introduce more “uncertainty” into the process and that OPR should use its discretion (which I don’t believe it has under the law) to simply remove transportation analysis entirely or possibly set a broader standard on transportation impacts that would be easier for agencies to meet. In one of her few specific criticisms of the guidelines, she questioned how planners can run a VMT analysis on projects like schools, hospitals and churches, as an example of the “uncertainty” created by this new metric (in fact, the models cover these uses).
In the Q&A, I applauded the Holland & Knight study for bringing facts and data into the otherwise anecdotally driven debate. But it’s important to keep in mind that the study only looks at the universe of CEQA litigation without a broader context for how rampant or not CEQA litigation is in the state. It’s one thing to say 55% [not the exact number in the study] of CEQA litigation targets infill, but what percentage of infill projects across the state are subject to CEQA litigation at all? Perhaps it’s relatively puny. But it would be nice to know to put these numbers in context.
The study also doesn’t capture the non-litigation effects of CEQA, such as the defensive decision-making at the project and planning level to avoid litigation. It also doesn’t capture the pre-litigation settlements and the administrative processes that don’t give rise to litigation. And of course it doesn’t capture the benefits of mitigation measures and the role CEQA plays in stopping bad outlying projects. Of course, these impacts are really hard to document, but we should keep in mind that we’re missing that picture when all we focus on is the litigation.
I also questioned the Holland & Knight “doom and gloom” view of how hard it supposedly will be to run a VMT analysis. The VMT models exist and are currently in use, and they are much easier and cheaper to use than traffic studies. And under the current guidelines, no projects would even need to bother with a VMT study at all in essentially all of the existing urban areas of California. Jennifer did not respond to these points.
Overall, it’s easy to make broad claims about the danger of injecting more “uncertainty” into CEQA and expressing fear of a new metric. But when you actually grapple with the details of what OPR is proposing, it’s hard to see what the fuss is about, at least if you’re pro-infill. Of course, if you’re pro-sprawl (or at least anti-infill), then you should be worried about these guidelines.
OPR is almost certainly going to change the guidelines significantly, so in many respects we’re debating a moving target. But their basic approach is legally and practically sound and seeks to achieve the exact outcomes California needs on the ground. I tried to make that point on Tuesday night. In the meantime, we’ll have to stay tuned to see how OPR revises their proposal.