California Modernizes Transportation Impacts Analysis Under Ceqa: Senate Bill 743 (steinberg, 2013)

• Publication year: 2014
• Author: By Christopher H. Calfee*

California Modernizes Transportation Impacts Analysis under CEQA: Senate Bill 743 (Steinberg, 2013)

By Christopher H. Calfee*

INTRODUCTION

Californians drive approximately 332 billion miles each year, and at no small cost. Air quality suffers. Motor vehicles are a major source of pollution from volatile organic compounds, nitrogen oxide and carbon monoxide. Driving accounts for 36 percent of all greenhouse gases in the state.¹ Though technological advances have led to more efficient vehicles, our ever increasing levels of driving are eroding efficiency-related air quality improvements.² Our roadway networks are also taking a pounding. While new development may pay the capital cost of installing roadway improvements, neither the state nor local governments are able to fully fund operations and maintenance.³ Though walking, bicycling and transit use are known to provide health, fiscal, environmental and other benefits, the car remains king. Why?

One explanation is the way we plan our communities for new development. Traffic studies used in environmental review under the California Environmental Quality Act, or CEQA, generally examine one thing: the impact of new projects on traffic flows. By only looking at what happens to cars, agencies have required building bigger roads and intersections as "mitigation" for traffic impacts. The focus on congestion tells only part of the story, however.

Impacts to pedestrians, bicyclists and transit, for example, have not typically been considered under CEQA. Indeed, projects to improve conditions for pedestrians, bicyclists and transit, however, have been discouraged because of their impacts on automobile congestion.⁴ Ironically, even some "congestion relief" projects (i.e., bigger roadways) may only improve traffic flow in the short term. In the long term, they attract more and more drivers, leading not only to increased air pollution and greenhouse gas emissions, but also to a return to congested conditions.⁵ Under current practice, these impacts are not considered in a typical project-level environmental review.

The myopic focus of traffic studies on cars has not completely escaped notice, however. For many years, local governments, transportation planners, developers, environmental advocates and others have encouraged the Governor's Office of Planning and Research ("OPR") to revise the CEQA Guidelines to reframe the analysis of transportation impacts away from congestion and roadway capacity. In 2009, the Natural Resources Agency revised the Appendix G environmental checklist to focus more on multimodal, "complete streets" concepts.⁶ Just last year, the Legislature passed, and Governor Brown signed into law, Senate Bill 743 (Steinberg, 2013), which requires OPR to develop a new way to study transportation impacts under CEQA.⁷ Once the new transportation guidelines are adopted, automobile delay will no longer be considered to be an environmental impact under CEQA. This summer, OPR released a preliminary discussion draft of those changes to the CEQA Guidelines.

The purpose of this article is to provide readers with context for the proposed changes, as well as an explanation of what may lie ahead. Specifically, this article begins with background on existing law and practice in transportation planning, congestion management and transportation impact analysis under CEQA. Next, this article explores some of the drawbacks associated with our current system. Finally, this article describes both the requirements of Senate Bill 743 and the contents of the recently-released preliminary discussion draft of the updates to CEQA Guidelines addressing transportation impacts analysis. Finally, some potential implications of the proposed changes for future CEQA practice are discussed.

WHAT IS "LEVEL OF SERVICE"?

Before discussing the proposed changes, this section describes the methodology used in current practice. Most traffic studies today measure congestion using a "level of service" metric. Level of service, commonly known as LOS, measures vehicle delay at intersections and on roadway segments, and is expressed with a letter grade ranging from A to F.⁸ LOS A represents free flowing traffic, while LOS F represents congested conditions. LOS standards are often found in local general plans and congestion management plans. Many jurisdictions currently use "level of service" standards, volume to capacity ratios, and similar measures of automobile delay, not only to plan the size of their roadway networks, but also to assess potential traffic impacts during a project's environmental review. Level of service standards, in fact, appear in several legal contexts including congestion management, planning and environmental review.

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A. Congestion Management Law

The California Government Code contains a chapter governing congestion management, adopted as part of the Transportation Blueprint for the Twenty-First Century in 1989. (Cal. Gov. Code §§ 65088 et seq.) It compels the creation of a congestion management agency within certain urbanized counties. (Id. at § 65089(a).) The congestion management agency must develop a congestion management program that governs the regional transportation network. It must include all state highways and major arterials. Significantly, it requires that the congestion management program maintain a designated level of service, no worse than level of service "E", on all designated roadways. Level of service must be calculated using the Highway Capacity Manual or similar methodology. (Id. at subd. (b).)

The statute provides that compliance with the congestion management program may be monitored through the CEQA process. (Ibid.) If level of service standards are not being met, with some exceptions, the city or county must prepare a deficiency plan. (Id. at § 65089.4.) The deficiency plan can include either roadway improvements needed to maintain the designated level of service or actions to measurably improve multimodal performance. A city or county's failure to maintain levels of service on designated roadways puts sales tax money at risk. (Id. at § 65089.5.)

Notably, in 2002, the Legislature recognized the need to balance "level of service standards for traffic with the need to build infill housing and mixed use commercial developments within walking distance of mass transit facilities, downtowns, and town centers and to provide greater flexibility to local governments to balance these sometimes competing needs." (Id. at § 65088.4.) To that end, it allowed cities and counties to designate "infill opportunity zones" within which level of service standards would not apply. The ability to opt-out of level of service requirements was limited, however. Such zones had to be designated no later than December 31, 2009.

B. Local Planning Laws

While congestion management programs address county-wide transportation networks, on the local level, every city and county in California must also adopt and maintain a general plan, which must include a circulation element. Circulation elements address the "general location and extent of existing and proposed major thoroughfares [and] transportation routes ... all correlated with the land use element of the plan." (Cal. Gov. Code § 65302(b).) In other words, the circulation element must provide a plan for a transportation network that will support the residential, commercial and other uses provided for in the land use elements and elsewhere in the general plan. An OPR survey of local governments indicates that most general plans in California contain level of service standards.⁹ Many local governments have also adopted transportation impact fees, at least some of which are tied to level of service determinations. Improvements to the transportation network can also be required in connection with a conditional use permit.

C. CEQA

While congestion management programs address regional planning, and general plans govern local planning, CEQA requirements apply to individual projects. CEQA requires public agencies to consider whether proposed projects may cause significant adverse environmental impacts, and if so, to mitigate those impacts. (Pub. Resources Code § 21002.) Traffic has long been a consideration in CEQA. (See, e.g., Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal. 3d 779, 794 (school district's reorganization could potentially affect the environment by altering traffic patterns).) In 1990, the Legislature linked implementation of congestion management plans, including level of service requirements, with CEQA. (Gov. Code, § 65089(b)(4).) Congestion has been an explicit part of CEQA analysis since at least the late 1990's, when the sample environmental checklist in the CEQA Guidelines asked whether a project would exceed level of service standards. (See former CEQA Guidelines, App. G. § XV; see also, Sacramento Old City Assn. v. City Council (1991) 229 Cal. App. 3d 1011, 1033 (addressing claims of an EIR's inadequacy related to level of service analysis).)

The Natural Resources Agency updated the sample checklist in 2009 to recognize a broader range of "measures of effectiveness." This change was intended to begin the move away from level of service and capacity as the primary bases for analyzing transportation impacts.¹⁰ Given the state of the law at that time, however, the Natural Resources Agency could not remove level of service standards altogether.

PROBLEMS WITH THE STATUS QUO

Given that level of service is baked into so many of our planning and environmental laws, what would motivate a shift in a different direction? Particularly in the context of CEQA, congestion and capacity analysis has been criticized for working against modern state goals, such as emissions reduction, development of multimodal transportation networks, infill development...