By Avneet Sidhu & Stephanie Smith
Senate Bill 743 (SB 743) changed how jurisdictions analyze transportation impacts from privately- and publicly-initiated projects under the California Environmental Quality Act (CEQA). For any project with a CEQA document that has not been released for public review by July 1, 2020, the CEQA analysis can no longer use road congestion or the amount of time a driver is delayed on the road – commonly measured by level of service (LOS) – when analyzing transportation impacts. Instead, SB 743 identifies Vehicle Miles Traveled (VMT) as the standard to evaluate a project's environmental impacts. VMT measures the amount and distance people drive to destinations.
In 2018, the Governor's Office of Planning and Research (OPR) prepared a technical advisory with technical recommendations for assessing VMT, thresholds of significance, and mitigation measures. Since then, a number of local jurisdictions have released, or are in the process of releasing, traffic guidelines for the transition from LOS to VMT.
Two years in and we are still coming across a couple of legal and practical scenarios that are falling through the cracks. For example, what should be done with projects that are entitled to rely on existing certified environmental documents, but where these documents used an LOS analysis and concluded “less than significant traffic impacts” with the use of mitigation measures (see Public Resource Code (PRC) § 21094 and CEQA Guidelines § 15183.) CEQA mandates that projects that are consistent with the density analyzed in a general plan EIR shall not require additional environmental review except under certain circumstances. This raises the question: Can a project rely on that prior environmental document even if the mitigation measures are in place to mitigate an LOS impact and not a VMT impact?
One of the requirements to rely on a previous EIR is for the lead agency to make a finding that the mitigation measures in the prior EIR apply to the project’s specific effects, are feasible, and will be undertaken. The problem, of course, is that any mitigation measure identified in the prior document was based on mitigation of LOS and not VMT impacts. As a result, some lead agencies are taking the position that previously relied-on mitigation measures are not feasible or enforceable.
Although each project is as unique as each lead agency’s approach and courts have not yet had a chance to weigh in on CEQA issues in the specific context of SB 743, an agency may use its discretion to determine that a VMT analysis is not required for later-prepared documents when prior environmental review was done, provided the agency’s determination is supported by substantial evidence and guided by the circumstances of the project. OPR has provided guidance on when projects can rely on a prior environmental document that analyzed traffic impacts under LOS rather than VMT finding that “an agency may use its discretion to determine that a VMT analysis is not required for later-prepared documents…. The agency should focus the inquiry on whether there are substantial changes in the project or circumstances that would require major revisions of the document, or if new information, which was not known and could not have been known at the time of becomes available.”
From a starting point, VMT impacts should generally not be considered “new information.” Depending on the date of the prior environmental document, it is likely that VMT and VMT related impacts were known at the time the document was certified. Senate Bill 743 was codified in PRC § 21099 in 2013 as the culmination of at least a decade of research and legislative attempts based thereon to reduce California’s GHG emissions. In 2016, the California Air Resources Board determined that it would not be possible to achieve the State’s 2030 and post-2030 emission goals without reducing VMT growth.
While courts have not yet had a chance to weigh in on CEQA issues in the specific context of SB 743 and project’s reliance on prior environmental documents that use a LOS analysis, we can look at the courts’ approach to addressing newly enacted laws in the past. For example, in A Local & Regional Monitor (ALARM) v. City of Los Angeles (1993) 12 CA 4th 1773, 1802, one of the challenges to the EIR was that it failed to comply with section 21092.4 of the PRC, which did not exist when the challenged EIR was certified. The section requires lead agencies to consult with local traffic agencies and analyze regional freeway impacts prior to EIR certification. The court held that its subsequent enactment did not retroactively invalidate previous EIR traffic analyses and a letter drafted in response to the application of the section did not contain new information or reach a new conclusion as it “merely quantified a conclusion implicit in the original EIR Traffic Study” (Id. at 1802.)
Likewise, in CREED v. San Diego (2011) 196 Cal.App.4th 515, 531, the court upheld the agency’s determination that impacts relating to global warming caused by greenhouse gas emissions are not new information because that information had been available at the time that EIR was certified in 1994. We believe that there may be an argument to be made that similar to ALARM and CREED, that a project’s potential increase in VMT will likely not be “new” information as agencies were aware of VMT, but simply chose not to study and disclose these impacts in past environmental documents.
However, even if one can get past the hurdle of showing no new information, there are other things to look out for when relying on a general plan EIR; such as if there are any environmental effects that are peculiar to the project, effects that are not analyzed in the prior environmental document, or new cumulative impacts that were not discussed. See CEQA Guidelines § 15183(b).
Beyond relying on prior environmental documents, a project may be able to satisfy the VMT analysis under SB 743 and CEQA without having to prepare a full EIR. For example, if the agency has adopted a threshold of significance for VMT, one tool is to demonstrate that the project falls below that level and therefore there is nothing to mitigate. Another tool is to review uniformly applied development policies or standards that when adopted by the agency, the agency made a finding that when applied to future projects, the policies or standards would substantially mitigate the impact. Lastly, recent state legislation, local ordinances and CEQA itself, offer a number of opportunities for streamlined review if the project meets specified criteria for affordable housing, in-fill, or transit-oriented development.
This is for informational purposes. This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information herein without seeking the advice of an attorney. No attorney-client relationship has been created. Additional facts or future developments may affect any laws, subjects, or information shared. Seek the advice of an attorney before acting or relying upon any information in this or any update from Grid Legal LLP.
Please contact Stephanie Smith at Stephanie@GridLegal.com or Avneet Sidhu at Avneet@GridLegal.com with questions, or by phone at 619-363-1471. Avneet and Stephanie are partners at the law firm Grid Legal, LLP where they specialize in working with you on your real property transactions, land use and development projects and environmental review under the California Environmental Quality Act (“CEQA”).
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