In Citizens for Positive Growth & Preservation v. City of Sacramento, the Third District Court of Appeal rejected challenges to the traffic analysis in the City of Sacramento 2035 General Plan and EIR and signaled the end to considering traffic congestion as a significant impact under the California Environmental Quality Act (CEQA). What are the practical implications of this decision, and where do we go from here?
Senate Bill 743 Requirement
When Senate Bill 743 was signed into law in 2013, it included new CEQA language concerning the evaluation of transportation impacts. The addition of Public Resources Code (PRC) Section 21099 to CEQA required the Governor’s Office of Planning and Research (OPR) to develop new CEQA guidelines establishing criteria “for determining the significance of transportation impacts” that use vehicle miles traveled (VMT), or a similar metric, instead of measures of congestion or delay, such as level of service (LOS). The legislation includes the following language:
“Upon certification of the guidelines by the Secretary of the Natural Resources Agency pursuant to this section, automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment…” (PRC Section 21099[b], emphasis added)
OPR developed a new CEQA guideline, California Code of Regulations (CCR) Section 15064.3, “Determining the Significance of Transportation Impacts,” which implemented PRC Section 21099. It focuses on VMT and includes the statement that, except for roadway capacity projects, “a project’s effect on automobile delay shall not constitute a significant impact.”
CCR Section 15064.3(c) states:
“Applicability. The provisions of this section shall apply prospectively as described in section 15007. A lead agency may elect to be governed by the provisions of this section immediately. Beginning on July 1, 2020, the provisions of this section shall apply statewide.” (emphasis added)
By referring to CCR Section 15007, July 1, 2020, is set as the date by which the new guidelines must be followed. This requirement, like all new CEQA requirements, applies to CEQA documents that were not yet circulated for public review before the July 1 date.
Following certification of the updated guidelines on December 28, 2018, an apparent gap between PRC Section 21099 and CCR Section 15064.3 was created. Whereas PRC Section 21099 directs that automobile delay and congestion “shall not” be considered a significant impact on the environment upon certification of the guidelines, the guidelines themselves do not require consideration of VMT until July 1, 2020, a full 18 months following certification. Although lead agencies can elect to use VMT sooner, they are not required to do so. This led to the question: what does CEQA require in this 18-month interim period?
This question may have been answered by the courts in a case published on December 18, 2019.
The Third District Court of Appeal ruled in favor of the City of Sacramento’s approval and adoption the City of Sacramento 2035 General Plan and certification of the Environmental Impact Report (EIR) for the City of Sacramento 2035 General Plan Update. The decision in the Citizens for Positive Growth & Preservation v. City of Sacramento (2019) ___ Cal.App.5th ___ is notable for its ruling on the applicability of State CEQA Guidelines Section 15064.3 as it relates to projects for which draft EIRs are published before July 1, 2020 (i.e., the VMT impact analysis opt-in date).
Lower Court Decision
The City of Sacramento approved and adopted the 2035 General Plan and certified the associated EIR in March 2015. In April 2015, a group called Citizens for Positive Growth & Preservation (Citizens) filed a lawsuit challenging the validity of the 2035 General Plan and the adequacy of the EIR. Among other topics, the Citizens argued that the transportation impact analysis in the EIR failed to comply with CEQA. The trial court denied the petition, ruling in favor of the City and upholding both actions (i.e., 2035 General Plan and EIR). Subsequently, the Citizens appealed the lower court decision.
Appeal of Lower Court Decision
On appeal, the Citizens argued that the 2035 General Plan EIR’s transportation and circulation analysis was deficient because the City used the 2035 General Plan’s new LOS thresholds of significance, which include LOS E and LOS F (i.e., LOS commonly considered to be unacceptable in most jurisdictions) for certain areas of the city. Therefore, the Citizens’ challenge of the traffic analysis relied on the premise that the City failed to properly analyze the impacts of the 2035 General Plan on traffic congestion and that the LOS associated with implementation of the 2035 General Plan should constitute a significant impact under CEQA.
The City argued that PRC Section 21099(b)(2) renders the Citizens’ traffic impacts argument moot because the Secretary of the Natural Resources Agency certified CEQA Guidelines Section 15064.3 in December 2018. The Citizens in turn argued that the regulation applies prospectively, and because the EIR was certified before the Secretary of the Natural Resources Agency certified CEQA Guidelines Section 15064.3, LOS would still be considered a valid impact analysis metric for the purposes of CEQA. Additionally, the Citizens contended that if automobile delay could no longer constitute a significant impact under CEQA pursuant to PRC Section 21099(b)(2), then the EIR should be deemed deficient because a VMT analysis pursuant to CEQA Guidelines Section 15064.3 was not included. The Third District Court ruled in favor of the City and made the following determinations:
- Following legal precedent, the appellate court applies the law in place at the time of judgment. The updated CEQA Guidelines were certified by the Secretary of the Natural Resources Agency on December 28, 2018; thus, in accordance with PRC Section 21099(b)(2), the 2035 General Plan’s impacts on LOS (i.e., automobile delay) cannot constitute a significant environmental impact, and the Citizens’ LOS argument is moot.
- Additionally, the appellate court found that because the provisions of CCR Section 15064.3 apply statewide beginning on July 1, 2020, the City was not required to apply the criteria detailed in Section 15064.3 in determining the significance of transportation impacts before that time. Therefore, the Citizens’ argument that the City failed to analyze the 2035 General Plan’s transportation impacts based on the criteria detailed in Section 15064.3 also fails.
The ruling issued by the Third District Court affirms that upon certification of the guidelines by the Secretary of the Natural Resources Agency (i.e., on December 28, 2018), automobile delay no longer constitutes a significant impact on the environment under CEQA and that it is optional for a lead agency to analyze transportation impacts using VMT until July 1, 2020, after which it becomes mandatory. Although this case technically applies only to the jurisdiction of the Third District, which is most of inland northern California, published appellate decisions are citable as precedent so they can influence cases statewide.
This ruling appears to have the following practical implications for CEQA practitioners:
- CEQA documents can no longer base a significance determination on an automobile delay–based analysis, such as LOS. These documents are not precluded from including a LOS analysis for disclosure purposes, such as General Plan Circulation Element or Congestion Management Plan consistency, but the analysis cannot be used as a basis for determining a significant environmental impact.
- All EIRs and negative declarations circulated for public review after July 1, 2020, are required to consider VMT when determining whether a project may cause a significant impact.
- Between now and July 1, 2020, lead agencies can elect to consider whether the project’s VMT would be significant under CEQA.
The ruling also seems to raise the following question: Before July 1, 2020, can lead agencies omit both LOS and VMT from the transportation impact analysis of an EIR? The answer appears to be yes, but this permissive window is open temporarily and will close July 1. Additionally, for EIRs currently in process for which LOS was chosen as the primary metric by which to assess transportation impacts, this ruling suggests that the transportation impact analysis cannot use LOS (or any other metric of delay) as a significance criterion.