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.