...given at CalAPA 2015

1. INNOVATION BY
SB743
LegislativeIntent
vs.
CEQAPractice
October 2015, California APA Conference – Oakland, CA

2. INNOVATION BY
SB743 Legislative Intent vs. CEQA Practice
Moderator:
Ronald T. Milam, Fehr & Peers
Presenters:
Darrell Steinberg, Greenberg Traurig
Chris Calfee, OPR
Chris Ganson, OPR
Gary Jakobs, Ascent
October 2015, California APA Conference – Oakland, CA

3. INNOVATION BY
SB 743 LEGISLATIVE INTENTChange
(1) Ensure that the environmental impacts of traffic,
such as noise, air pollution, and safety concerns,
continue to be properly addressed and mitigated
through the California Environmental Quality Act.
(2) More appropriately balance the needs of congestion
management with statewide goals related to infill
development, promotion of public health through active
transportation, and reduction of greenhouse gas
emissions.

4. INNOVATION BY
CEQA PRACTICEChange
“All CEQA changes pass through three stages.
First, they are ridiculed. Second, they are
legally opposed. Third, they are accepted
after being validated by the courts.”
- Ronald T. Milam

5. INNOVATION BY
REGULATIONSChange
SB 375
AB 32
SB 97
SB 226
SB 743
AB 2245
AB 417
AB 1358

6. INNOVATION BY
THRESHOLDSChange
Development or
Infrastructure
Project VMT
 Governor’s
Executive Orders
 SB 375 Targets
 SB 350
 Caltrans
Strategic
Management
Plan target

7. INNOVATION BY
ANALYSISChange
Mobility
Accessibility

8. INNOVATION BY
MITIGATIONChange

9. INNOVATION BY
SB743 Legislative Intent vs. CEQA Practice
Moderator:
Ronald T. Milam, Fehr & Peers
Presenters:
Darrell Steinberg, Greenberg Traurig
Chris Calfee, OPR
Chris Ganson, OPR
Gary Jakobs, Ascent

10. INNOVATION BY
SB743 Legislative Intent vs. CEQA Practice
Moderator:
Ronald T. Milam, Fehr & Peers
Presenters:
Darrell Steinberg, Greenberg Traurig
Chris Calfee, OPR
Chris Ganson, OPR
Gary Jakobs, Ascent

11. Shifting Gears in Transportation Analysis
CEQA Guidelines Implementing SB 743
October 2015 11

12. BACKGROUND: LEVEL OF SERVICE
October 2015 12

13. Analysis of infill
development using LOS
October 2015 13

14. Analysis of infill
development using LOS
Relatively little vehicle
travel loaded onto the
network
October 2015 14

15. Analysis of infill
development using LOS
Relatively little vehicle
travel loaded onto the
network
…but numerous LOS
impacts
October 2015 15

16. Analysis of greenfield
development using LOS
October 2015 16

17. Analysis of greenfield
development using LOS
Typically three to four
times the vehicle travel
loaded onto the
network relative to infill
development
October 2015 17

18. Analysis of greenfield
development using LOS
Typically three to four
times the vehicle travel
loaded onto the
network relative to infill
development
…but relatively few
LOS impacts
Traffic generated by the
project is disperse enough by
the time it reaches congested
areas that it doesn’t trigger
LOS thresholds, even though it
contributes broadly to regional
congestion. 18October 2015

19. 1. Punishes last-in, inhibits infill,
pushes development outward
2. “Solves” local congestion,
exacerbates regional congestion
3. Inhibits transit
4. Inhibits active transport
5. Measures mobility, not access;
shows failure when we succeed
6. Measures mobility poorly; fails to
optimize network even for autos
7. Forces more road construction
than we can afford to maintain
8. Hard to calculate and inaccurate
October 2015 19
Problems with LOS as a Measure of Transportation Impact

20. 1. Punishes last-in, inhibits infill,
pushes development outward
2. “Solves” local congestion,
exacerbates regional congestion
3. Inhibits transit
4. Inhibits active transport
5. Measures mobility, not access;
shows failure when we succeed
6. Measures mobility poorly; fails to
optimize network even for autos
7. Forces more road construction
than we can afford to maintain
8. Hard to calculate and inaccurate
October 2015 20
Problems with LOS as a Measure of Transportation Impact

21. 1. Punishes last-in, inhibits infill,
pushes development outward
2. “Solves” localized congestion,
exacerbates regional congestion
3. Inhibits transit
4. Inhibits active transport
5. Measures mobility, not access;
shows failure when we succeed
6. Measures mobility poorly; fails to
optimize network even for autos
7. Forces more road construction
than we can afford to maintain
8. Hard to calculate and inaccurate
October 2015 21
1 person
40 people
1 person2 people
Problems with LOS as a Measure of Transportation Impact

22. 1. Punishes last-in, inhibits infill,
pushes development outward
2. “Solves” local congestion,
exacerbates regional congestion
3. Inhibits transit
4. Inhibits active transport
5. Measures mobility, not access;
shows failure when we succeed
6. Measures mobility poorly; fails to
optimize network even for autos
7. Forces more road construction
than we can afford to maintain
8. Hard to calculate and inaccurate
October 2015 22
Problems with LOS as a Measure of Transportation Impact

23. 1. Punishes last-in, inhibits infill,
pushes development outward
2. “Solves” local congestion,
exacerbates regional congestion
3. Inhibits transit
4. Inhibits active transport
5. Measures mobility, not access;
shows failure when we succeed
6. Measures mobility poorly; fails to
optimize network even for autos
7. Forces more road construction
than we can afford to maintain
8. Hard to calculate and inaccurate
October 2015 23
Problems with LOS as a Measure of Transportation Impact

24. 1. Punishes last-in, inhibits infill,
pushes development outward
2. “Solves” local congestion,
exacerbates regional congestion
3. Inhibits transit
4. Inhibits active transport
5. Measures mobility, not access;
shows failure when we succeed
6. Measures mobility poorly; fails to
optimize network even for autos
7. Forces more road construction
than we can afford to maintain
8. Hard to calculate and inaccurate
October 2015 24
Braess’s Paradox
Problems with LOS as a Measure of Transportation Impact

25. 1. Punishes last-in, inhibits infill,
pushes development outward
2. “Solves” local congestion,
exacerbates regional congestion
3. Inhibits transit
4. Inhibits active transport
5. Measures mobility, not access;
shows failure when we succeed
6. Measures mobility poorly; fails to
optimize network even for autos
7. Forces more road construction
than we can afford to maintain
8. Hard to calculate and inaccurate
October 2015 25
Problems with LOS as a Measure of Transportation Impact

26. 1. Punishes last-in, inhibits infill,
pushes development outward
2. “Solves” local congestion,
exacerbates regional congestion
3. Inhibits transit
4. Inhibits active transport
5. Measures mobility, not access;
shows failure when we succeed
6. Measures mobility poorly; fails to
optimize network even for autos
7. Forces more road construction
than we can afford to maintain
8. Hard to calculate and inaccurate

27. October 2015 27
Opportunities/benefits in shift from LOS to VMT
1. Remove a key barrier to infill, TOD
2. Streamline transit and active transportation projects
3. VMT is easier to model
4. VMT is already in use
5. Reduction in infrastructure capital and maintenance costs
6. Attack regional congestion more effectively
7. Health benefits (active transport & transit trips)
8. GHG reduction

28. Impacts of High VMT Development
Environment
• Emissions
• GHG
• Regional pollutants
• Energy use
• Transportation energy
• Building energy
• Water
• Water use
• Runoff – flooding
• Runoff – pollution
• Consumption of open space
• Sensitive habitat
• Agricultural land
Health
• Collisions
• Physical activity
• Emissions
• GHGs
• Regional pollutants
• Mental health
Cost
• Increased costs to state and
local government
• Roads
• Other infrastructure
• Schools
• Services
• Increased private
transportation cost
• Increased building costs
(due to parking costs)
• Reduced productivity per
acre due to parking
• Housing supply/demand
mismatch  future blight
October 2015 28

29. Senate Bill 743
• Align with State Policy
• Replace LOS with new
criteria in the CEQA
Guidelines
• Auto delay ≠ env. Impact
• Air quality, noise and
safety
• Police power
• Draft by Summer 2014
October 2015 29

30. VMT in Case Law
• NEPA
– Conservation Law Found.
v. FHA (2007) 630 F.
Supp. 2d 183
• CEQA
– Cal. Clean Energy Comm.
v. Woodland (2014) 225
Cal.App.4th 173
– Cleveland Nat’l Forest
Fntd. v. SANDAG (2014) _
Cal.App.4th _
October 2015 30

31. Preliminary Discussion Draft
• VMT is primary metric
– Land Use
– Transportation
• Safety
• Methodology
• Mitigation Measures
• Applicability
• Appendices and
Explanatory Materials
October 2015 31

32. Outreach
• Targeted outreach with affected stakeholders
• Multiple Statewide and Regional Conferences
• Publications
• Coffee talk
October 2015 32

33. Themes in the Comments?
• Nearly four month comment period
• Comment period closed November 21, 2014
• Approximately 200 comments
– Local governments
– Transportation agencies
– Air Districts
– Business interests
– Environmental organizations
– Individuals
– And many others!
October 2015 33

34. Support
• “Transformative step” because:
– Enhance ability to promote TDM
– Improve air quality
– Better integrate with regional planning
– Promote better development patterns
– Easier for infill!
October 2015 34

35. Concerns
• Thresholds
– Too blunt, not tied to environmental objectives
• Safety
– Requires more nuance
• Mitigation measures
– Viewed as mandates
• Timing
– Need more time
October 2015 35

36. Comment:
- Technical advice is better given in a Technical Advisory
Guidelines update:
• Technical advice moved from Guidelines into a Technical
Advisory
Staff Level Recommendation – For Discussion Purposes Only
October 2015 36
Updated Draft: Technical Advice in Technical Advisory
Staff Level Recommendation – For Discussion Purposes Only

37. Comments:
- Needs flexibility for outlying cities
- Average = BAU, and that’s not good enough for State goals,
e.g. GHG reduction
Updated recommendation:
• Residential: 15 percent below regional or city VMT/cap
October 2015 37
Updated Draft: Residential Threshold Recommendation
Staff Level Recommendation – For Discussion Purposes Only

38. Comment:
- Average = BAU, and that’s not good enough for State goals,
e.g. GHG reduction
Updated recommendation:
• 15 percent below regional VMT/cap
October 2015 38
Updated Draft: Office Threshold Recommendation
Staff Level Recommendation – For Discussion Purposes Only

39. Comment:
- Most travel to a new retail land use is not from new trips, but
rather from trips redirected from other retail
Updated recommendation:
• Assess retail with “Net VMT” approach
• Local-serving retail presumed less than significant
• Retail which increases VMT compared to previous shopping
patterns may be considered significant
October 2015 39
Updated Draft: Retail Threshold Recommendation
Staff Level Recommendation – For Discussion Purposes Only

40. Comment:
- Analysis may be burdensome for small projects
Updated recommendation:
• Clarification of project types which might induce
measurable/substantial VMT (and which wouldn’t)
• VMT threshold rather than project type threshold, connection
to 2030 GHG reduction goals
• Simple analysis method
October 2015 40
Updated Draft: Transportation Threshold Recommendation
Staff Level Recommendation – For Discussion Purposes Only

41. • Screening VMT maps
for residential and
office projects
• Presumption of Less
Than Significant near
transit
• More stringent
thresholds at lead
agency discretion
October 2015 41
Updated Draft: Maintained from previous draft
Staff Level Recommendation – For Discussion Purposes Only

42. Comment: Rural is different
• Update: Recommendation that rural projects choose
thresholds on a case-by-case basis
Comment: Might trigger EIR for very small projects
• Update: Small projects screening threshold
Comment: Concerns about impacts to transit
• Update: Addition of riders not an impact; blocking stations or
routes may be an impact
October 2015 42
Updated Draft: Additional Updates
Staff Level Recommendation – For Discussion Purposes Only

43. October 2015 43
Caltrans and SB 743
Source: California Statewide Travel Demand Model
California Statewide
Travel Demand Model
is up and running
- Assistance with trip
lengths for sketch
models
- Assistance with
setting thresholds
- Assistance
generating VMT
screening maps

44. October 2015 44
Caltrans and SB 743
Source: California
Statewide Travel
Demand Model
California Statewide
Travel Demand Model
is up and running
- Assistance with trip
lengths for sketch
models
- Assistance with
setting thresholds
- Assistance
generating VMT
screening maps

45. Transportation Analysis Guidelines and Transportation Impact
Study Guidelines (TAG-TISG)
• Caltrans has kicked off a collaborative effort to develop
– New approaches to characterize land use project impact
on the state highway system
– New methods for analyzing the effects of transportation
projects
• Broad stakeholder involvement in TAG-TISG development,
including MPOs, local jurisdictions, outside experts, and public
October 2015 45
Caltrans and SB 743

46. Use Ad-hoc, LOS-triggered mitigation (highly problematic)
Use LOS to plan roadway capacity; use number of units or
square footage to estimate project impact (not ideal)
Use LOS to plan roadway capacity; use VMT to estimate
project impact (okay)
Use accessibility metric to plan network; use VMT to
estimate project impact (ideal)
October 2015 46
Planning for Automobile CapacityBadGood

47. INNOVATION BY
SB743 Legislative Intent vs. CEQA Practice
Moderator:
Ronald T. Milam, Fehr & Peers
Presenters:
Darrell Steinberg, Greenberg Traurig
Chris Calfee, OPR
Chris Ganson, OPR
Gary Jakobs, Ascent

48. VMT and CEQA
T H E V I E W S O F A G R I Z Z L E D V E T E R A N
G A R Y D . J A K O B S , A I C P
A S C E N T E N V I R O N M E N T A L

49. SB 743 was about so many things…
 Became law: 2013
 Aesthetics and Parking Impact Exemptions in Transit
Priority Areas
 New CEQA Guidelines “…for the implementation of CEQA
establishing criteria for determining the significance of
transportation impacts of projects within transit priority
areas”…and apparently non-transit priority areas—or—
VMT is the new LOS
 CEQA efficiencies to build a new Kings basketball arena

50. Race to be the first…
C E Q A G U I D E L I N E S K I N G S A R E N A

51. CEQA as a Changing Organism
 45 years old…may soon be ‘historic’
 Many changes since 1970: The Courts
 Friends of Mammoth-1972 (CEQA applies to public discretionary actions)
 Key Court Decisions Interpreting CEQA
• Whole of an Action
• Segmentation
• Cumulative and Drop in a Bucket
• Range of Reasonable Alternatives (Reasonable Range?)
• Baseline…Baseline…Baseline
• Mitigation and Deferral
• Fair Argument and Negative Declarations
• Greenhouse Gases and…Energy…”BAU”…Executive Orders…
• Subsequent Environmental Review

52. CEQA as a Changing Organism
 Many changes since 1970: Legislature
 New statutes nearly every year
• Statutory Exemptions
• Project-Specific Modifications
• Addition of Master EIRs
• Many Tweaks
• Greenhouse Gases: Develop Guidelines
• Infill Guidelines
• Transportation Impact Guidelines
 New Guidelines “Every Two Years”
• Last major change: 1998
• New Guidelines on the Horizon?

53. Transportation and VMT
 Legislation 
 Courts 
 Guidelines: In Process 
The Question:
Guidelines, Technical Advisory, Courts?
What is the best way to address new transportation
analysis approach?

54. CEQA Context
 CEQA: changes to the physical environment
 Gary’s premise: roads are infrastructure and CEQA
should focus on impacts from new infrastructure
(physical environmental changes) and other physical
transportation issues
 VMT: relationship to physical environment that is
 Not air quality
 Not noise
 Not greenhouse gases
 ???

55. CEQA Concerns
 Determining and substantiating significance threshold
 Enforceable/substantiate mitigation to below thresholds
 Fair argument: the next Big Litigation issue?
 Would threshold be a “hard line”
(average…per capita…per land use VMT)?
 How do we avoid double counting…
do 10 trips per DU overlap with 8 trips per 1,000 SF in an
office and 6 trips per 1,000 SF in retail?
 Do some projects “redirect” VMT…how proven? Will this
be another GHG conundrum?

56. Other CEQA Considerations
 Surrogate for good planning?
 Should some projects be exempt?
 Consistent with SCS
 Infrastructure construction
 Expansion of existing public facilities
 Open space-public access
 Small projects (how defined?)
 Urban bias?
 Should VMT analysis requirements be limited to Transit
Priority areas?

57. Conclusion: Optimist or Pessimist
“You have to learn the rules of the game. And then you
have to play better than anyone else.”
-- Albert Einstein, as applied to transportation
by Chris Ganson, OPR.
“The road to hell is paved with good intentions.”
-- Samuel Johnson, and the CEQA project manager
responding to VMT substantiation comments from an
opponent’s attorney at 3AM.

58. INNOVATION BY
SB743 Legislative Intent vs. CEQA Practice
Moderator:
Ronald T. Milam, Fehr & Peers
Presenters:
Darrell Steinberg, Greenberg Traurig
Chris Calfee, OPR
Chris Ganson, OPR
Gary Jakobs, Ascent
Q&A