Is CEQA Tweak Sec. 21094.5 Good News for Alt Trans?

Sacramento is sold!There’s been a certain amount of hand-wringing over whether local governments in California need to subject bike facilities like bike lanes or ‘road diets’ to environmental review. New changes to CEQA under the Jobs and Economic Improvement Through Environmental Leadership Act would ‘streamline’ environmental review for infill projects that “promote walking, bicycling and other modes of active transportation.” Findings need to show how the project supports it, not merely that it does. Is this the leverage that we need to secure bike-friendly components to big projects?

San Francisco famously faced a years-long challenge under the California Environmental Quality Act (CEQA) over its proposed bike improvements. (It emerged victorious.) Closer to home, City of Los Angeles proceeds cautiously choosing to review first rather than feel the blowback later. These are skirmishes over bike lanes and road diets, and they are important because every battle won is a notch in the larger war.

But what about rolling out the big guns? A change to CEQA [overview] last fall raised awareness about the right balance between economic development and jobs on the one hand, and the need to abide by environmental review under California law. At the time, much attention was focused on the LA stadium concept (which got a waiver to grease its path to completion). Less attention was focused on a sweetener added to the bill, SB 226, that would put a thumb on the scale in favor of projects with inducements for reducing greenhouse-gas emissions.

Is SB 226 the Brobdingnagian lever that active transportation supporters need to be able to incentivize the incorporation of walk- and bike-friendly components (not merely amenities) right into the substance of the proposed project?

California Takes Another Step Forward for Reducing Vehicle Miles Traveled

The State of California has been a trailblazer where emissions reductions is concerned. We’ve long had those mileage standards. Then add AB 32 (2006) which turns back greenhouse gas emissions to 1990 levels by 2020; SB 375 (2008) which implements a “Sustainable Community Strategy” through MPOs like SCAG to integrate land use and transportation planning to achieve further reductions; and finally top it off with CARB’s new Advanced Clean Cars Program which mandates reduced greenhouse gases (-34%) and smog-forming emissions (-75%) and we have the stars aligned for energy efficient living. Over time.

Beverly Center
Let's hope that CEQA streamlining does not produce more of this!

But when in 2009 Governor Brown signed SB 226, which relaxed environmental review under CEQA for certain projects, it was called the proverbial camel’s nose that could upend the CEQA protections that communities value. Now, proposed Governors Guidelines for SB 226 titled, Streamlining Judicial Review, puts some meat on them legislation bones.

Now we see the details: the project must be located where a “sustainable communities strategy or alternative planning strategy” has been adopted by the local metropolitan planning organization (the nod to SB 375). The Air Resources Board must have signed-off on the MPO’s plan. And the project must represent a minimum $100 million investment (hence the ‘Jobs and Economic Improvement’ appellation).

But there’s more. From the proposed Performance Standards, which shoot for a greater than 25% reduction in vehicle miles traveled (VMT):

  • The project shall include elements that promote the use of transit (i.e., walking, bicycling and other forms of human powered transportation) such as pedestrian or bicycle access to transit stops, schools, parks, commercial areas and other local destinations;
  • Where a project is proposed within ½ mile of an existing or planned transit station, the project shall be consistent with the provisions of a plan for land uses surrounding the transit station, such as a station area plan, transit village plan, or general plan policies addressing station areas;
  • If a project would generate more than 75% of average per capita VMT for the region, the project’s VMT may be further reduced by implementing additional travel demand management measures (such as bicycle facilities…)

To policymakers eager to create jobs, say, or to hammer through that legacy-building downtown football stadium, it is very tempting indeed to sidestep the CEQA pipeline for pesky projects. This legislation gives them the workaround they need for the more significant projects – but perhaps also the leverage that advocates need to wheedle better alt-trans features into significant projects.

The ‘Infill’  Checklist

Those who support increased urban development and density may welcome SB 226. The legislation limits streamlining (hate that loaded term) to urban areas and only those sites deemed as ‘infill.’ Still, ‘infill’ is a fungible descriptor. Helpfully, lawmakers codified as “previously developed for urban use” or “immediately adjacent” to parcels developed for urban uses. ‘Greenfield’ parcels excluded.

The out: as much as 25% of the site perimeter need not border an existing urban use. (We would like to know the developer that benefits from that stipulation – perhaps the Downtown LA stadium?) In a pinch, land use attorneys will pull out the measuring wheel to document their client’s site as 75%-approved ‘infill.’

SB 226 checklist torn
Proactive transportation measures baked into the checklist.

The Governor’s Guidelines organizes the process through an Infill Environmental Checklist. Coming in for special mention in the checklist are a few provisions likely to warm the hearts of cyclists. Sure, there is small-bore stuff like mandated parking for bicycles at schools, which is a step forward because the California school facilities guidance basically forgets about parking bikes.

But there is also relatively major stuff like first-ever transportation efficiency performance metrics. Governor’s Guidelines require the lead agency to attest that the project will achieve “at least 10% greater transportation efficiency than comparable projects” while holding back “net additional greenhouse gas emissions” (direct and indirect) from construction, operation, or transportation to zero. There is also the assurance that the project won’t conflict with

“adopted policies, plans, or programs regarding public transit, bicycle, or pedestrian facilities or otherwise decrease the performance or safety of such facilities.”

That’s something that active transportation advocates might be able to hang their hat on when it comes to leverage. But the overall significant step forward here is that these provisions raise the bar for energy efficiency and they explicitly bring in active transportation concerns into the development mix.

What’s Not to Like?

The problem facing communities is that their zealously-guarded rights under CEQA get short shrift if the Governor decides to grant a waiver. That’s likely to have a chilling effect: what community group would prepare the ground for a suit about impacts under CEQA when there’s a built-in escape hatch provided by SB 226? Don’t forget, the legislation was signed into law last September at the height of partisan discord in Sacramento and the nadir of record city coffer deficits – never a good harbinger for sound policy.

CEQA flowchart simplified
Wouldn't it be nice to sidestep some of these?

CEQA is many things to many people. To the community, CEQA is an essential tool against environment-compromising development – the very kind that has already engendered a backlash in Southern California. We live cheek-by-jowl in more urbanized areas, and often the environmental review process is where communities find enough of a breather to organize, investigate, and often win changes in big projects.

This legislation will change the calculus for the largest projects by accelerating review and eliminating some comment periods and most crucially, taking away the tool of the courts. (A Draft Environmental Impact Report must still be prepared for the project.)

If CEQA is an all-purpose brake for well-advantaged communities, the ones that usually threaten to stomp that pedal, CEQA protections also function in less-empowered communities to check development that too often targets only them. Think big-box retailer with 24-hour deliveries and truck routes that pass by the local school. The good folks in Sunland Tujunga won a big battle on a proposed Home Depot renovation by using the environmental review process to argue that city’s determination of it as “not a project” was disingenuous. But that battle was won because the political pressure on local electeds was intense; there was no Sacramento waiver available.

But under SB226 and the proposed Governor’s Guidelines, the public has only one 30-day window from completed application to comment on the draft EIR. The Governor gives a determination within 60 days. Whew! Relaxing CEQA to this degree not only reduces the uncertainty, it shoulders-off some of that risk on to the local community because there’s less opportunity to really dig into the project particulars to challenge it.

To developers, time is money and uncertainty is risk; preparing a draft environmental impact report for a project to commence 18 months later with a completion date a year or two after that feels like aiming for a moving target: by the time project comes to market, it’s hard to say what that market will look like. Eliminating judicial review not only reduces that uncertainty, it obviously accelerates time-to-profit.

Can you say, ‘lobbyist’?

The Jobs and Economic Improvement Through Environmental Leadership Act is long on jobs but short on environmental leadership. Indeed one aspect of SB226 is open to skepticism: the Section 21094.5 waiver rests solely with the Governor. In effect that  displaces the ultimate CEQA review from the local legislative body that would adopt the EIR (and would be accountable to the local stakeholders) to Sacramento.

Now in theory, the Governor is politically accountable, as the ballot box is the ultimate political check available to voters. But you need only do the math when you pit the voices of those however many thousands directly affected by a waived project against the quarter-million eligible voters statewide. And one-quarter of them can’t even be bothered to register.

But we’re talking about big ($100m+) projects here. And only big projects. That presents a significant lobbying opportunity for applicants, and a boon to governors. It remains to be seen how ‘environmental leadership’ as titled in this Act will manifest in the face of pressure to waive projects supported by the politically-powerful. For active transportation advocates, perhaps the best we can hope for is a teaspoon of sugar to make that CEQA end-run more palatable.

Submit comments to the Governor’s Office of Planning and Research on the Governor’s Guidelines and checklist before February 24, 2012. Reference ‘CEQA Guidelines Update.’