As previously discussed in this blog, last year’s passage of SB 743 added a requirement in Public Resources Code § 21099(b) that the Governor’s Office of Planning and Research (OPR) develop new CEQA guidelines “for determining the significance of transportation impacts of projects within transit priority areas.” (See “CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions,” posted September 16, 2013; “OPR To Review Specific CEQA Guidelines Topics Proposed for 2014 Update, Solicits Public Input,” posted January 29, 2014.)  The impetus behind this change is to find an alternative to the familiar and currently prevalent  “level of service” (or “LOS”) standard for analyzing traffic impacts.

On December 30, 2013, OPR issued its “Preliminary Evaluation of Alternative Methods of Transportation Analysis” (“Analysis”), a document summarizing the alternatives to the LOS methodology that OPR is considering and calling for comments on the same.  (See the document at  Comments are due by tomorrow, February 14, 2014.

LOS measures traffic impacts by focusing on roadway congestion, i.e., the degree of delay vehicles experience at intersections and on roadway segments.  But it has been subject to a number of criticisms, not the least of which is that it fails to comport with current goals in land use and environmental law, such as reducing overall emissions and promoting infill development.  OPR’s Analysis also identifies further perceived problems with LOS, including:

  • It is difficult and expensive to calculate.
  • It is biased against “last in” development (i.e., a later project that moves the LOS across the threshold of significance bears all of the responsibility for mitigation, even though earlier projects contributed to the congestion).
  • The LOS scale of analysis is too small.
  • LOS mitigation is problematic because it tends to force growth outward and increases roadway vehicle capacity, which in turn may increase vehicle demand.
  • LOS penalizes other forms of transit due to perceived incompatibility with vehicular traffic.
  • LOS gives rise to a false sense of precision, since it is quantifiable yet based on estimates rather than hard data.
  • LOS focuses on motorist convenience rather than impacts on the environment.

Based on these asserted shortcomings and SB 743’s mandate, OPR has proposed the following alternatives to LOS.

  • Vehicle Miles Traveled (“VMT”).  VMT counts the number of miles traveled in vehicular trips generated by the project.  It thus allows for reductions based on transit-centered and infill development located close to employment and retail nodes.
  • Automobile Trips Generated (“ATG”).  ATG is similar to VMT except that it only counts the number of trips generated and not their length.  It is the easiest metric to calculate but obviously doesn’t capture all of the impacts of a project (emissions, etc.).
  • Multi-Modal Level of Service (“MMLOS”).  MMLOS operates like LOS in that it measures “user comfort” in traveling (congestion and delay being deleterious to that comfort), but it includes modes other than vehicular traffic (transit, walking, biking).
  • Fuel Use.  Fuel use quantifies traffic impacts by measuring the amount of fuel used in project-related travel.  It thus seeks to capture benefits from transit, biking, etc., while also being tied to emission standards.
  • Motor Vehicle Hours Traveled (“VHT”).  Similar to VMT and ATG, VHT seeks to quantify traffic impacts but does so using time as its unit of measurement.  This has the benefit of including trip length and duration, which would include congestion.  But whether VHT can be accurately calculated is still an open question.
  • Presumption of less-than-significant impact based on location.  This proposal would encourage “[d]evelopment in centrally-located areas and areas served by transit generally” by essentially exempting such projects from traffic-related environmental analysis.  This is obviously not a standalone approach and would still require use of some traffic metric for projects outside the preferred areas.

Each of the alternatives being considered  has its strengths and weaknesses, and it will be interesting to see how the governmental, environmental, legal, and developer constituencies, including their technical consultants, respond to OPR’s proposals in the forthcoming comments.  As noted above, the deadline for those comments is tomorrow, February 14, 2014, although the draft guideline is not due until July 1, 2014.  OPR clearly wants to get ahead of the alternative traffic methodology issue as it will undoubtedly attract considerable attention and controversy going forward.

The potential for controversy is amplified given the new guideline’s contemplated – and expansive – reach.  Note that while SB 743 speaks in terms of “establishing criteria for determining the significance of transportation impacts of projects within transit priority areas” (Pub. Res. Code, § 21099(b)(1)), it also allows for the implementation of an LOS alternative “for transportation outside transit priority areas.”  (Pub. Res. Code, § 21099(c)(1).)  OPR makes it clear in the Analysis that its new metric will be implemented broadly and not just in transit priority areas.  Thus, OPR’s ultimate decisions have the potential to entirely reshape the environmental consulting industry’s approach to measuring traffic impacts under CEQA on a statewide basis.

Questions?  Please contact Arthur F. Coon of Miller Starr Regalia.  Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law.  “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit