California Changes the Test of Significance for Traffic Impacts Under CEQA

Taking its queue from the legislature (see Senate Bill 743 [Steinberg 2013]), the California Governor’s Office of Planning and Research (“OPR”) published, on August 6, 2014, a preliminary discussion draft of revisions to OPR’s California Environmental Quality Act (“CEQA”) Guidelines, which serve as regulations implementing CEQA, Cal. Pub. Res. Code § 21000, et seq.,  “Updating Transportation Impacts Analysis in the CEQA Guidelines” (“Update”).  The Update revises existing CEQA Guidelines § 15064.3 to comport with Cal. Pub. Res. Code § 21099(b)(1) which establishes new criteria for determining the environmental significance of surface traffic impacts such as traffic delay and increased emissions resulting from a proposed project.  The purpose of both the amended statute and the Update is to shift the focus of the CEQA analysis of significance from “driver delay” to “reduction of greenhouse gas emissions, creation of multi-modal  networks and promotion of mixed land uses.”  Update, page 3.  

 
The change is effected through a change in the metric for determining environmental significance Level of Service (“LOS”), which measures delay at intersections, to vehicle miles traveled (“VMT”), which is a measure of the number of automobile trips resulting from the project.  The stated rationale underlying the change is that the use of LOS encourages mitigation aimed at reducing delays by increasing traffic flow, including expanded roadways, construction of more lanes and other automobile traffic facilitation measures; which theoretically leads to “induced demand,” i.e., more capacity at intersections allowing additional cars to use them; and, ultimately, to more air quality and greenhouse gas impacts from those additional cars.  As the story goes, a standard of environmental significance based on VMT will encourage the use of mitigation measures such as increased bicycle paths, accommodations for pedestrians, and other measures that will reduce automobile ridership in the long term.  The problem is that the theory underlying the Update is made up more of holes than of cheese. 
 

First, the current draft of the Update rejects the LOS metric categorically, based on the bare conclusion that “a project’s effect on automobile delay does not constitute a significant environmental impact.”  Update, § 15064.3(a).  However, the adoption of the VMT metric, which supposedly captures the emissions impacts caused by a number of cars rather than the time of idling at intersections, is based on a distinction without a difference.  This is because numerous studies have established that a larger number of cars operating at optimal speed will emit fewer air contaminants than a smaller number of cars idling for long periods at congested intersections.  

 
Second, the Update reaches the further unexplained conclusion that “development projects that locate within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor may be considered to have a less than significant transportation impact.”  § 15064.3(b)(1).  Such generalizations cannot withstand rational scrutiny even with respect to relatively small, private residential and commercial projects, without taking into account their size and use.  They are, therefore, clearly inapplicable to large, public use projects such as improvements at Los Angeles International Airport, the raison d'être of which is to facilitate passenger access and growth.  Both of those goals rely principally on automobile access for which a single rail line one-half mile away cannot substitute.  The notion that increases in traffic impact of such  large scale public works projects are environmentally insignificant because of a fortuitous location in relative proximity to a mass transit line amounts to  mere opinion, unsupported by any evidence, let alone substantial evidence.  
 
Finally, revised § 15064.3(c) decrees that “previously adopted measures to mitigate congestion impacts may continue to be enforced, or modified, at the discretion of the lead agency.”  The discussion at Update page 11 goes even further by stating “in fact, within the bounds of other laws, including adopted general plans, lead agencies have discretion to apply or modify previously adopted mitigation measures.  [Quoting Napa Citizens for Honest Government v. Napa County Board of Sup., (2001) 91 Cal.App.4th 342, 358 (because “mistakes can be made and must be rectified, and . . . the vision of a region’s citizens or its governing body may evolve over time. . . There are times when mitigation measures, once adopted, can be deleted.)]  
 
Apparently the authors of the Update did not read far enough in Napa Citizens.  That court specifically held that post hoc abrogation of a mitigation measure requires a legitimate reason and support by substantial evidence.  Id. at 359.  Moreover, that evidence is only provided in the context of a modified land use plan and accompanying revised EIR setting forth the reason for the deletion of the prior mitigation measure and justification for the substitute measures.  Id.   The Update, on the other hand, purports to give carte blanche to elimination of a previously enacted mitigation measure without any additional environmental review on the sole ground that “. . . section 21099 of the Public Resources Code states that automobile delay is not a significant impact under CEQA.”  Update, page 11.  The Napa Citizens court, however, would disagree.  Because CEQA requires that mitigation measures not only be stated but enforced; and because the public has the right to depend on that enforcement; any deletion of a previously enacted mitigation measure without the requisite subsequent analysis and formal action replacing it would be “invalid and cannot be enforced.”  Napa Citizens, supra, 91 Cal.App.4th at 359.  
 
In short, while OPR’s goals may be admirable, its methods leave something to be desired.  At a minimum, OPR should recognize that facilitation of traffic flows represented in the LOS metric and reduction in the number of motor vehicles on streets and highways represented by the VMT metric may be identical with respect to the desired result of reducing emissions, and that there are more ways to reach those goals (e.g., re-striping, peak-period parking restrictions, improved traffic signal synchronization, all of which facilitate bus travel which is more available than fixed rail transit) than are, apparently, “dreamt of in [its] philosophy,” or set forth in its Update.  
 
Comments are due before October 10, 2014 at 5:00 p.m. and should be sent to Christopher Calfee, Senior Counsel, Governor’s Office of Planning and Research, 1400 10th Street, Sacramento, California 95814.
 

CEQ's Steps to Modernize and Reinvigorate NEPA Includes Reporting on Climate Change Effects of Federal Actions

The Council on Environmental Quality, on February 18, 2010, proposed three substantive steps to “modernize and reinvigorate” the National Environmental Policy Act (NEPA). According to Nancy Sutley, the Chair of the White House-based CEQ, these measures “will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation.”

These three steps include when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; and clarifying use of categorical exclusions. The CEQ is requesting public comment on all three of the draft guidances.

The Effects of Climate Change and Greenhouse Gas Emissions Must be Considered in the NEPA Process

Perhaps the most critical element to this modernization of the NEPA process is the CEQ’s draft guidance on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. According to the CEQ:

 

The draft guidance explains how Federal agencies should analyze the environmental impacts of greenhouse gas emissions and climate change when they describe the environmental impacts of a proposed action under NEPA.  It provides practical tools for agency reporting, including a presumptive threshold of 25,000 metric tons of carbon dioxide equivalent emissions from the proposed action to trigger a quantitative analysis, and instructs agencies how to assess the effects of climate change on the proposed action and their design.  The draft guidance does not apply to land and resource management actions and does not propose to regulate greenhouse gases. 

While some courts have already held that climate change and greenhouse gas emissions must be considered in the NEPA process. See, “Greenhouse Gases Should Be Considered in All EISs and EAs;” see also, Center for Biological Diversity v. NHTSA, 508 F.3d 522 (9th Cir. 2008), Friends of the Earth, Inc. v. Mosbacher, 488 F.Supp.2d 889 (N.D. Cal. 2007); Border Power Plant Working Group v. Department of Energy, 260 F.Supp.2d 997 (S.D. Cal. 2003); and Mid-States Coalition for Progress v. Surface Transportation Board, 345 F.3d 520 (8th Cir. 2003). To these courts, these findings indicate that emission of greenhouse gases substantially contribute to climate change, and climate change is expected to result in widespread adverse environmental effects. Therefore, it should be mentioned in the EIS.

What the draft guidance does explain, however, that is not present in the case law are the “practical tools for agency reporting.” That is, it sets a de minimis level of 25,000 metric tons of CO2e before the proposed action would trigger quantitative analysis, which may eliminate many federal projects from the guidance.

The public comment period for this draft Guidance is 90 days. Comments may be submitted electronically from the CEQ’s website: http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/submit?topic=Consideration%20of%20Greenhouse%20Gases. In addition, at the end of the draft Guidance, the CEQ asks several questions that it would like to have addressed by the public:

1. How should NEPA documents regarding long-range energy and resource management programs assess GHG emissions and climate change impacts?

2. What should be included in specific NEPA guidance for projects applicable to the federal land management agencies?

3. What should be included in specific NEPA guidance for land management planning applicable to the federal land management agencies?

4. Should CEQ recommend any particular protocols for assessing land management practices and their effect on carbon release and sequestration?

5. How should uncertainties associated with climate change projections and species and ecosystem responses be addressed in protocols for assessing land management practices?

6. How should NEPA analyses be tailored to address the beneficial effects on GHG emissions of Federal land and resource management actions?

7. Should CEQ provide guidance to agencies on determining whether GHG emissions are “significant” for NEPA purposes. At what level should GHG emissions be considered to have significant cumulative effects. In this context, commenters may wish to consider the Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497, 524 (2007).

Draft Guidance on the Appropriateness of “Findings of No Significant Impact” Tightens Monitoring and Reporting Restrictions

When Finding of No Significant Impact (FONSI) is issued for a Federal action, the need for a detailed Environmental Impact Statement is obviated. Many Federal agencies attempt to mitigate the environmental impact of their actions as part of the NEPA process so that they can reach a FONSI and not be required to draft an EIS. However, in many cases, the follow-up on mitigation activities promised is lacking. Thus, the draft guidance seeks to clarify that although the environmental impacts of a proposed action may be mitigated to the point when the agency make a FONSI determination, the agency must make the mitigation requirements public and perform the necessary monitoring and reporting.

Revised Draft Guidance Clarifying Use of Categorical Exclusions

Many Federal actions do not have significant effects on the environment.  When these actions fall into broad categories of activities, agencies may apply a “categorical exclusion” from further NEPA review.  The CEQ originally released a draft guidance to clarify and promote the use of categorical exclusions on September 17, 2006. 71 Fed.Reg. 54816 (Sept. 17, 2006). This action would revise that draft guidance and clarify the rules for categorical exclusions and ensures that there is a concise public record when agencies apply them.  While CEQ previously has sought public comments on this matter, this guidance provides additional clarifications, so it will seek additional public comment for 45 days.