It’s taken a long time, but California finally is ready to make a significant change to speed environmental review for new transit and infill projects. The Governor’s Office of Planning & Research (OPR) announced on Monday that a compromise has been reached to implement SB 743 (Steinberg, 2013), a law that made major amendments to the California Environmental Quality Act (CEQA), the state’s law governing environmental review of new projects.
Back in 2013, the legislature passed SB 743 to change how infill projects undergo environmental review. Under the traditional regime, project proponents had to measure transportation impacts by how much the project slowed car traffic in the immediate area. The perverse result was mitigation measures to privilege automobile traffic, like street widening or stoplights for rail transit in urban environments or new roadways over bike lanes in sprawl areas.
But the true transportation impacts are on overall regional driving miles. An urban infill project may create more traffic locally but can greatly reduce regional traffic overall by locating people within walking or biking distance of jobs and services. Meanwhile, a sprawl project may have no immediate traffic impacts, but it typically dumps a huge amount of cars on regional highways, leading to more traffic and air pollution. As a result, the switch from the “level of service” (auto delay) metric to “vehicle miles traveled (VMT)” made the most sense. Most infill projects are exempted entirely under this metric, while sprawl projects would have to mitigate their impacts on regional traffic.
But OPR’s implementing guidelines with this change were held up by highway interests and their government allies, who don’t want the law to apply to highways. You can probably see why: highways are designed to do one thing only — induce more driving. And that would score poorly under this change to CEQA.
State leaders finally reached a compromise this month: the new guidelines could apply statewide to all projects (something only suggested by the statute), but new highway projects can still use the old “level of service” metric, at the discretion of the lead agency (see the PDF of the guidelines for more details at p. 77).
It’s an unfortunate but probably necessary concession to powerful highway interests. Even though freeways have consistently failed to live up to their promise of fast travel at all times, and instead brought more traffic, sprawl and air pollution to the state, many California leaders are still wedded to this infrastructure investment.
My hope is that the compromise won’t actually mean that much new highway expansion in the state. First, California isn’t planning to build a lot of new highways, outside of the ill-advised “high desert corridor” project in northern Los Angeles County. Second, even for new highway projects, CEQA’s required air quality review may necessitate an analysis of (and mitigation for) increased driving miles.
Either way, smart growth advocates can at least celebrate the good news that CEQA will finally be in harmony with the state’s other climate goals on infill development, transit, and other active transportation modes.
The guidelines though still need to be finalized by the state’s Natural Resources Agency, which will take additional months. I’ll stay tuned in case anything changes with the proposal during this time.
Traffic studies are a great way to kill an infill project. Under the California Environmental Quality Act (CEQA), they’re required for most big projects. And when you’re building in an already-developed area, you’re likely going to make traffic worse in the immediate surroundings. So most infill projects flunk that test, while they ironically decrease traffic region-wide.
That’s why I’ve been a strong supporter of the effort to implement SB 743 by the Governor’s Office of Planning and Research (OPR), which recently released new draft implementing guidelines. Essentially, SB 743 required OPR to transition California away from the traffic study metric of “level of service” (or auto delay) and toward a “vehicles miles traveled” (VMT) approach.
Under VMT, most infill projects generate so few driving miles per capita that they’d be exempt from further study. Sprawl projects would meanwhile come under greater scrutiny for loading up our highways with long-distance commuters, even if they don’t delay much traffic in the immediate vicinity.
While sprawl builders and their allies have protested the change, we now see growing opposition in infill areas from local opponents of density. San Francisco has been ahead of the state in making this switch, and Zelda Smith of the 48 Hills blog is up in arms:
Regional congestion is an abstraction that has never been and never will be experienced by anyone. Local congestion is something that everyone has experienced, and that everyone will experience more intensely as a result of SB 743. The staff report to the Planning Commission concedes as much, averring that “it is often not feasible in developed urban areas like San Francisco to improve LOS.” So we just make local traffic congestion worse by disregarding the local traffic impacts of infill development?
I’m actually sympathetic to this argument to some degree. Local congestion is a problem for the people who live there, and even if most new residents of an infill project walk or take transit, the project will create a local burden.
But that doesn’t mean we need to toss out the VMT metric and keep the dysfunctional status quo. Rather, local governments are still free to mitigate local traffic impacts through their codes, rather than relying on CEQA. And a great way to mitigate the traffic impacts of a local infill project would be to increase bike and pedestrian infrastructure and require transit passes for new residents, rather than downscaling the project or widening local road lanes.
If you oppose density just because you don’t want change, those mitigations won’t satisfy you. But if you’re genuinely concerned about increased traffic in your neighborhood, it would be a better solution than forcing change through CEQA and litigation threats.
Yesterday I had a chance to talk to Damien Newton at Streetsblog California for his podcast #DamienTalks about the changes underway to the California Environmental Quality Act (CEQA) on transportation analysis. Damien is particularly interested in the California Infill Builders Federation opposition to the change from auto-delay to vehicle miles traveled, so we discussed the politics around their legislation to halt the change:
Today #DamienTalks with Ethan Elkind, about the efforts to reform how the state measures transportation impacts of a proposed project. Currently, the state measures how a project impacts car travel time, but a change to state law will turn that rule on its head so that we’re encouraging projects that don’t produce more car trips instead of just mitigating the ones that do.
Not surprisingly, there is pushback. Surprisingly, it’s coming from a group that should gain from the change from “LOS” to “VMT.”
You can access the podcast here or via Damien’s site linked above.
The battle between the California Infill Builders Federation and the Council of Infill Builders may be ending. I’ve written about the unfortunate spat before, where the nominally pro-infill Federation was pushing a bill to first roll-back, then delay, important reforms to the California Environmental Quality Act and its analysis of transportation impacts for infill. The California Planning & Development Report has a great paywalled piece on the fight that I summarized.
But now the Federation seems to be taking a much more sensible approach. In amendments posted Monday, the group deleted language that would delay the implementation of the regulations. Instead, the bill would give the Governor’s Office of Planning and Research authority to give all residential and mixed-use projects in “transit priority areas” (within 1/2 mile of major transit) an outright pass on transportation analysis. Outlying sprawl projects would still have to undergo a vehicle miles traveled (VMT) analysis.
This change would give much more certainty to infill project developers, who would otherwise have to determine if they should apply VMT or not (most wouldn’t have to do any transportation analysis anyway under the proposed guidelines, but it’s always nice to have certainty). And the “pass” wouldn’t apply to bad projects near transit, such as parking garages and big box stores. Those uses might still need to do a VMT analysis. Meanwhile, the preservation of VMT in outlying areas is critical to transforming how we treat sprawl in California.
Overall, it’s a welcome change. Let’s hope the “Infill Wars” are over and we can get back to the business of sensible CEQA reforms.
Don Perata, California’s former state senate pro tem, has been representing the California Infill Builders Federation for a few years now. But you wouldn’t know it if you heard the arguments in his San Francisco Chronicle op-ed today deriding one of the most pro-infill reforms the state has proposed in years with the SB 743 guidelines.
Perata tries to make the point that the SB 743 guidelines will introduce more “uncertainty” and litigation for infill. But in fact SB 743 will have the exact opposite effect, making infill easier and sprawl more difficult.
Let’s go down the list of his arguments. From the third paragraph in:
The guidelines add many untested impacts under CEQA. The biggest would add a new transportation impact to CEQA: total vehicles miles traveled required for all projects, even those that comply with local transit-oriented development plans and regional greenhouse gas and vehicle use reduction plans such as the comprehensive Plan Bay Area, which have already completed the CEQA review process.
First, the SB 743 guidelines don’t add “many” new untested impacts to the CEQA process. They relate to transportation-related impacts only, as directed by the statutory language of SB 743. Perata is correct that VMT is the new metric proposed by OPR, but that metric replaces the old auto-delay traffic study (again, as directed by statute) and will likely only be used, per the proposed guidelines, for areas outside of a 1/2 mile distance to a major transit stop (including high-quality bus stops) and in areas with above average VMT levels. All projects near transit and in areas with below average VMT will be presumed to have no impact on transportation at all. That is a huge victory for infill projects, any way you cut it.
As another inaccuracy, Perata claims the proposed VMT analysis measures “total vehicle miles traveled” from a project. Instead, OPR requires that VMT “be measured per capita, per employee, per trip, per person-trip or other appropriate measure.” That makes a big difference in the results and once again benefits infill projects immensely.
The vehicle miles traveled element would measure a project’s traffic impacts in an entire region by calculating driving miles. These guidelines treat all auto trips the same, whether they are driven in a Prius or a Hummer. It does not take into account if a project is helping the state to meet its greenhouse-gas reduction mandates. The state received more than 100 letters critical of its proposal to expand CEQA and make it more litigation friendly.
VMT is directly correlated to greenhouse gas emissions, as Perata should well know. That’s the basis for implementing SB 375, which he mentions in the piece as a good measure of infill. Second, while it would be nice to differentiate among polluting miles by car type, the VMT metric is a major step forward in assessing and reducing overall traffic and pollution. Would Perata really want to inject another layer of analysis on VMT, particularly when VMT alone is already a great measure of pollution and traffic? VMT is already a huge win for infill, why complicate it?
The Office of Planning and Research is heading in the wrong direction. Its guidelines promote costly and duplicative environmental impact reports and cumbersome CEQA processes for projects that meet greenhouse gas reduction targets. By expanding CEQA into untested strategies, the office has created new opportunities for abusive lawsuits. This serves no purpose other than NIMBY-ism, costly litigation and cynical abuse of real concern for the environment. The Office of Planning and Research must not aid and abet these foes of economically sound infill development.
VMT is the exact opposite of “costly and duplicative.” That might describe the current traffic study process under CEQA, which these guidelines do away with. VMT is an off-the-shelf metric that is easy and cheap to use. Local governments use it all the time in putting together climate action plans. The state is moving aggressively to enshrine VMT as the metric of choice in many of our policy decisions, precisely because of its simplicity and correlation to traffic and pollution.
Ultimately, despite Perata’s complaint that this CEQA relief for infill will only boost NIMBYism, OPR and infill advocates’ purpose in tossing out the hated CEQA traffic study in favor of VMT is to make urban infill easier and cheaper to build. It’s a shame that Perata does not recognize the SB 743 process for what it is: a significant victory for infill development in California.
I’ll be joining LA’s KPCC Radio (89.3 FM) “AirTalk” program with Larry Mantle today at noon to discuss the SB 743 reforms to the California Environmental Quality Act (CEQA). The show comes on the heels of the recent LA Times editorial applauding the reforms, which help infill development by eliminating traffic delay in the immediate project area as an area of study under CEQA. The Times, however, calls for local governments to maintain some level of transportation analysis for projects within one-half mile of transit, given that some bad projects (like big parking lots) could sneak through under this reform.
UPDATE: Audio is now available via this link, along with listener comments on the topic.
The effect that the California Environmental Quality Act (CEQA) has on infill development has been well-debated. Many infill proponents argue that CEQA hurts infill and drives development out to the sprawl hinterlands where “cows don’t sue.” Others claim that CEQA improves infill development through better planning and public involvement, while protecting the public from bad projects.
USC’s Bedrosian Center and Lusk Center for Real Estate co-hosted a lunchtime panel on this subject two weeks ago. I was part of a panel with infill developer Mott Smith, Los Angeles deputy mayor Rick Cole, and Ann Sewill of the California Community Foundation. The Bedrosian Center just posted the video here:
You can also read an article write-up of the discussion here. Overall, the debate highlighted the challenges that CEQA poses for developers like Smith, while Rick Cole described the gridlock in Sacramento that prevents meaningful reforms from taking place. Sewill noted CEQA successes while acknowledging it gets “hijacked” by bad actors. For my part, I described the overall public purpose of CEQA and the need to keep the law in context with other barriers facing infill, as well as the current SB 743 reform process taking place.
The San Francisco Chronicle is running a joint op-ed today from the Council of Infill Builders and Greenbelt Alliance that supports Gov. Brown’s efforts on SB 743. As you may recall, the controversial implementation of this law will allow transit-friendly infill projects to escape the need for litigation-enabling traffic studies, while requiring sprawl projects to reduce their overall impact on regional traffic and driving miles.
The op-ed seems to be a response to a misguided outcry from state business leaders who claim to want more infill but see this reform as simply creating more “uncertainty” for infill projects. Their claims are basically meritless, and the real aim seems to be a larger campaign to unravel the California Environmental Quality Act (CEQA). After all, slowly fixing the seriously deficient parts of the law, like with this traffic analysis, undermines their case for wholesale change.
As the piece describes of the transportation impacts analysis:
This perverse result has to change, and the Brown administration is taking action. Following a 2013 state law, the Governor’s Office of Planning and Research has developed an alternative way to address traffic effects. Project developers must now look at how a project will affect the overall driving miles as measured throughout the metropolitan region. So downtown-oriented projects, where most people can walk, take transit or bike (modes of transport that are good for the environment and relieve traffic regionwide), would not trigger lengthy CEQA review on this particular issue. Outlying projects, however, must account for the regional traffic they generate and mitigate where feasible. Mitigation could include anything from free transit passes for residents to adding more jobs and retail opportunities on-site so residents don’t have to drive long distances to access them.
I hope Governor Brown follows the advice here and stays the course. CEQA was long overdue for this modernization. Final comments to OPR are due on Friday.
Streetsblog LA reports on two recent SB 743 discussion events, including the “debate” last week at USF Law with me and Jennifer Hernandez. The article notes that OPR is still seeking feedback on a few critical issues:
OPR has made several other suggestions in their proposed guidelines, and are seeking public input to help them refine the changes. Specifically, they are asking for help on the following questions:
- Under the proposed guidelines, any project built within a half mile of transit with frequent service (running at least every 15 minutes) would be deemed to have no significant impact on travel, and wouldn’t have to undergo a VMT review. Is this an appropriate rule? Are there other factors that should be considered?
- What amount of vehicle miles generated by a development should be considered significant, and thus require an environmental impact report (EIR)? Who should decide what those levels are?
- What kinds of strategies should be used to mitigate increases in vehicle miles generated by a project?
The issue of “thresholds” — i.e. where is the line that divides projects with a free pass on transportation impacts from those that should require study — will be particularly important. My guess is OPR is heading in the direction of letting locals determine their own thresholds, but we’ll see. In any event, comments to OPR can be sent via this site by November 21st.
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.