Misleading Attacks On California’s New Transportation Analysis Under CEQA

Big Law Firm Holland & Knight Misrepresents New State Guidelines

Last year, the California legislature passed badly needed reform to change how agencies evaluate a project’s transportation impacts under the California Environmental Quality Act (CEQA).  The Governor’s Office of Planning and Research (OPR) was tasked with coming up with new guidelines for how this analysis should be done going forward.  As I blogged about, the new proposed transportation metric, vehicle miles traveled (VMT), will inherently benefit infill projects and punish sprawl projects, because infill by its nature decreases VMT.

But you would never know that if you just read the misleading diatribe against the new guidelines by the influential large law firm Holland & Knight.  Right off the bat, Holland & Knight attorneys get it wrong on both the legislation and the guidelines:

OPR proposes to dramatically expand CEQA by mandating evaluation and mitigation of “vehicle miles traveled” (VMT) as a new CEQA impact and single out certain infill projects as the first category of projects that must comply with this new VMT regime before it becomes mandatory for all projects in 2016.

In fact, the opposite is true.  The guidelines essentially exempt any project within a half-mile of transit — or in areas that are below the regional average VMT levels — from any transportation analysis under CEQA.  And lest you think that’s a small area, keep in mind that almost the entirety of urban Los Angeles is within a half-mile of a high quality transit stop, due to the extensive bus network.

A little less of this, please
A little less of this, please

What OPR is actually doing is eliminating the existing “level of service” (LOS) transportation analysis (which basically means auto delay) from CEQA in infill areas first and statewide by 2016.  OPR is then replacing it with a VMT study requirement only in areas with high average VMT.  Projects in low average VMT or transit areas  either won’t need to do any transportation study whatsoever or won’t need to mitigate at all.  That hardly equals an “expansion” of CEQA.  Furthermore, the 2013 CEQA legislation specifically required OPR to come up with a replacement for LOS and called out VMT as the most likely substitute.

Holland & Knight attorneys then attempt to scare infill developers and their advocates by claiming that the new metric will lead to additional litigation.  First of all, as mentioned, most infill projects won’t even need a transportation analysis under CEQA anymore, eliminating expensive and contentious traffic studies.  Second, these traffic studies already trigger litigation all the time under the existing LOS transportation analysis, so it’s not like these guidelines are ruining the wonderful world for infill under the status quo.  And finally, and most importantly, the OPR guidelines make lead agency decisions as bulletproof as possible on how to analyze transportation impacts under the new metric.  How?  By giving lead agencies discretion to pick the VMT model of their choice and to use their professional judgment in applying it to projects.  LOS analysis certainly doesn’t have that kind of legal protection, as traffic studies are challenged all the time based on their methodology and assumptions.

But Holland & Knight attorneys protest that lead agencies lack affordable and easy-to-use VMT models, leading to more uncertainty:

[I]t must be acknowledged that we have few, if any, models that purport to be able to accurately characterize VMT at a project-specific level for infill projects. The absence of such models will lead to increased study costs (at a minimum) and litigation/enforcement uncertainty as “NIMBY” opponents will have a new tool to use in CEQA lawsuits aimed at stopping or delaying a project.

The reality is that agencies around the state are using off-the-shelf VMT models all the time, most notably for local climate action plans and for regional plans under SB 375.  This is not a new field, and dozens of models exist for lead agencies to use their discretion to use.

Finally, Holland & Knight attorneys complain that the measures required to mitigate high VMT levels “go beyond CEQA’s statutory scope and delve into socioeconomic and land use policy planning issues that the legislature has repeatedly declined to include in CEQA.”  I disagree.  OPR’s suggested mitigation measures are sensible and targeted to reducing VMT, such as by improving access to transit, providing transit passes and bike-sharing, and reducing or unbundling parking.  Ultimately, how else could a project with high VMT mitigate this impact?  The goal here, after all, is to reduce driving and to use CEQA as a tool to encourage that reduction where feasible.

It’s unfortunate that Holland & Knight attorneys are attempting to spread this misinformation to their clients and beyond.  The state needs to leave behind the old framework of prioritizing autos over transit, bicycling, and walking.  At the same time, CEQA should require sprawl project developers to account for their impacts on regional traffic and air pollution.  VMT is the most sensible metric to accomplish these goals, and OPR’s guidelines are well thought out, with opportunity for continued refinement from stakeholder input.  Yes, it will involve a new framework and some getting used to.  Yes, LOS will still exist in some local plans and agency analyses.  But this is the beginning of a long overdue transition, and Holland & Knight should cease with the misinformation and let the state move forward.

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Reader Comments

7 Replies to “Misleading Attacks On California’s New Transportation Analysis Under CEQA”

  1. Ethan,

    I read your piece on the client brief by Jennifer Hernandez and her colleagues from H&K (full disclosure: I worked for Hernandez for a year after law school). Without delving into the complexities of the policy arguments, I’m curious what you know about one factual assertion that Hernandez et al. make: In their client brief, they assert that existing evidence regarding actual (as opposed to simulated) infill projects suggests that they do not in fact reduce VMT because they tend to be occupied by relatively affluent people who drive more because they are affluent.

    What is the state of the evidence about how VMT is impacted by infill development? The models certainly suggest that infill reduces VMT, but anyone whose ever interacted with a traffic model knows to be suspicious of these (see your colleage Donald Shoup’s classic, “Roughly right or precisely wrong” for a great synopsis) I would love an update on the actual evidence regarding VMT and infill from someone in the know.


    1. Hi Michael — Holland & Knight’s claim is actually not as specific as you suggest. They only state that affluent infill produces higher VMT, but they don’t say compared to what:

      “[A]ccording to the Association of Bay Area Governments (ABAG), Bay Area market rate infill projects have higher VMT. The region’s experience so far (even early in this land use transformative process) is that infill housing has produced relatively costly units, occupied by relatively more affluent people and affluence rather than location has led to higher VMT levels.”

      I know of no study that shows that market-rate infill produces higher VMT than equivalent housing in the suburbs, or that market-rate infill actually sets the region back on VMT. The best study I’ve seen on this comes from TransForm/Center for Neighborhood Technology, which finds that low-income/affordable housing near transit results in the biggest VMT reductions. According to that study, low-income TOD dwellers drive between 25-50% less than their suburban counterparts, while higher-income TOD dwellers drove twice as many miles as these minimal-driving low-income residents. You can read the press release here: http://www.transformca.org/sites/default/files/printable_executive_summary.pdf

      Many California regions have now undergone VMT analyses under SB 375, and they all came up with plans that to varying degrees promote more infill. None have taken a counter-infill approach out of fear that market-rate infill drives up regional per capita VMT. I would certainly agree that affordable infill is better from a VMT perspective than market-rate infill, but all infill is better than sprawl in this respect. OPR recognizes that reality in these guidelines.


      1. Ethan,

        Thanks for the response. The study itself, available here:


        The study provides some really interesting information.

        I also wonder where HK is getting their numbers – I’ll reach out and ask them.

        One thing that could connect the data in the Transform study to the claims HK makes is gentrification of urban cores. If older housing units occupied by, for example, low or middle income renters are being replaced by higher density but higher income owner/occupiers, then one could see from the study how VMT might increase do to a combination of infill and gentrification. Maybe that’s what is in fact going on in the Bay Area – it sure feels like it when you visit the Mission District or South of Market neighborhoods in San Francisco.

        Thanks again for pointing me to the study.

        Warm regards,

        1. Hi Michael,
          Please let me know what you find out. Re: your theory about high-income infill replacing low-income units, I wouldn’t assume a zero-sum situation. First, the CEQA guidelines in theory should promote a greater overall supply of infill, which should reduce prices and accommodate more people in infill areas, leading to lower VMT overall. Second, high-income infill would theoretically be an alternative to high-income suburban/exurban development, which I assume would have the highest VMT of any category. So the high-income infill could still have a significant impact on reducing regional VMT.


          1. Ethan,

            I totally agree that the real question is the equilibrium state within a particular regional planning area, not just the change in a particular local jurisdiction. But I disagree with your suggestion that there is a set distribution of people who will opt to live in a particular area. I think in the Bay Area what we are seeing is a loss of low income infill and suburban development in favor of high income in both areas.

            If you take the numbers in the Transform study seriously, and combine that with what is happening in the entire regional planning area of the Bay Area – massive appreciation in housing values and rents – you should get rising VMT no matter what you do. Case-Shiller says the Bay Area market is up 40% since the bottom and is above it’s 2006 peak. Rents here are sky high. So if in the entire Bay Area, you are, at the margin, displacing people who can no longer afford to live here and replacing them with folks that can afford the current cost of housing, even if you build lots of new infill housing, VMT per capita will increase substantially.

            Fun conversation – thanks for taking the time.


  2. VMT does not measure localized impacts like LOS does.
    What are the prospects for getting a replacement for LOS that measures impacts from traffic congestion near projects?
    Both for construction and post-construction (“operation”) phases of projects?
    Which other sections of EIRs might pick up the slack left by the loss of LOS?
    CEQA is supposed to be a law that provides information, right?

    1. Hi David,
      The new guidelines still allow safety and air quality impacts to be evaluated, both of which relate in part to LOS-type analysis. For this reason, critics like at Holland & Knight believe they will provide a backdoor way to keep LOS in CEQA. I don’t think that will be the case though. Traffic studies are complicated and expensive, and I don’t think you need that level of precision to analyze air quality and safety impacts.


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About Ethan

Ethan Elkind is the Director of the Climate Change and Business Program, with a joint appointment at UC Berkeley School of Law and UCLA School of Law. In this capacity, h…

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