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USF panel: VMT advocates debate CEQA critic Hernandez

Martha Bridegam on
Nov 10, 2014
VMT

There could have been more fireworks at the USF debate, but it was fierce enough. Sponsored by the USF Law School's Environmental Law Society with support from local bar groups, the debate featured a speaker who is distinctly not a convert to the Office of Planning and Research (OPR) view of CEQA transportation impact metrics: Holland & Knight's Jennifer Hernandez.

Back in August, Hernandez was the lead author of her firm's polemical criticism against OPR's discussion draft on guidelines to substitute vehicle miles traveled (VMT) analysis for the existing Level of Service (LOS) analysis. The article, titled, "OPR Proposes to Increase CEQA's Costs, Complexity and Litigation Risks with SB 743 Implementation," especially warned against litigation potential in a group of very specific suggested VMT mitigation approaches that were proposed to be added to Appendix F of the guidelines. (See http://www.cp-dr.com/articles/node-3560 and our recent OPR coverage at http://www.cp-dr.com/articles/node-3623.)

On the USF panel with Hernandez were NRDC's Eaken and UCLA Prof. Ethan Elkind, both of whom had published indignant responses to the Holland & Knight article. Elkind's called the article a "misleading diatribe". Eaken's blog post titled, "Setting the record straight on the Governor's CEQA reform proposal" didn't say directly what it was answering but did announce "an effort to clarify misconceptions and stop the ill-intended rumors" before launching into a string of arguments, including "Fact: Suggestions of Mitigation Measures are Just Suggestions..."

Appearing as a fourth panelist was San Francisco's lead transportation planner, Michael Schwartz. Prof. Adam Hofmann moderated the panel.

Schwartz and Eaken, making the general case for the LOS to VMT transition, used arguments, phrases, and even a slide or two that were familiar from the OPR presentation -- Eaken however unbending a little for a largely student audience, saying LOS to VMT "has been a dream of mine ever since planning school," but that a colleague had told her, "You have very weird dreams." In arguing the case for VMT, Schwartz said the Van Ness BRT project would have gone much faster under a VMT standard.

Elkind suggested the LOS to VMT transition, by highlighting the greater travel demands of "greenfield" projects, could change "sprawl culture" in California. While he suggested CEQA was "not particularly environmental," he said the new rule would help the "E" in CEQA to "make a little bit more sense." Where others have talked about risks of new litigation against projects, Elkind said he knew some "lawyers who go after infill projects" who found the new rules worrying.

Hernandez came in on a different note entirely, working to introduce a student audience to a generally critical view of CEQA litigation as a tool for exclusive, self-serving and sometimes racist obstruction of projects. Using a confidential tone and frequent invitations to shared skepticism, she identified herself with environmentalist and politically liberal principles, but moved on to relate her firm's research on CEQA outcomes in general -- she said 43% of CEQA lawsuits are successful.

She said, "This is a broken statutory scheme. It is used mostly against the projects that [public policy would] really want to promote: renewable energy, infill, transit. The last thing I want to do is introduce any new uncertainty into CEQA."

Instead of applying VMT analysis she suggested projects should be approved more easily without "re-asking the question" about each project's appropriateness, allowing it to be litigated "by the neighbor, by the union, by the competitor, by the bounty-hunting lawyer."

She said NRDC and others had decided "LOS is really stupid," and "I couldn't agree more." But her objection was to the addition of VMT standards. Observing that LOS rules still apply to many aspects of CEQA analysis, she said, "This does not get rid of LOS. It adds VMT."

She asked, "Why would you give another tool to a CEQA litigant?"

And yet the differences weren't complete. Eaken said her longer-term hope was to bring California program requirements with sustainability goals -- and as part of that, the opportunity to enact the LOS to VMT transition came up in part due to "Jennifer's work" demonstrating problems with CEQA.

Elkind, protesting, "I'm not a CEQA ideologue," still said without the law there had been deference on development issues to government and private industry. "It's a lot harder to barrel a freeway through a neighborhood."

Hernandez, protesting in turn that she was "far from rabidly anti-CEQA," said the 43% lawsuit success rate suggested problems with the law -- compared with which NEPA challenges failed 80% of the time.

But Elkind managed to agree with Hernandez on the ineffectuality of Regional Housing Needs Assessment affordable housing targets, and she agreed with Eaken in deploring an injunction that held up San Francisco's bicycle plan in part for LOS reasons. They only drew opposite conclusions about what should happen instead.

Hernandez criticized a part of the OPR guidelines draft that shifts from the LOS-driven view of road-widening as a mitigation, to the VMT-based notion that road widening can itself be an impact if it invites extra traffic. She said, "OPR knew there is no established methodology for doing the induced growth thing they proposed." Similarly, she said in any given region it wouldn't be clear which VMT model to use -- so "let's litigate." Hernandez said "We created a monster with GHG by not having clear guidelines" in the 2008 enactment of SB 375, and she suggested the VMT rule drafters hadn't learned that lesson.

Elkind countered that VMT analysis is "a fairly off-the-shelf technology" and a lot of California is actually in areas covered by the VMT analysis exemption for projects within half a mile of transit, where new construction would be presumed to have no significant impact under the VMT rules.

It was Hofmann who, as moderator, offered to play "the true right-winger" by taking a position in defense of the LOS standard. He asked, what if people didn't like living in dense environments?

Eaken countered that with the general move toward denser housing, the Urban Land Institute found California's real estate market had enough "single-family product" -- freestanding houses -- to last until 2050.

Elkind's own account of the debate is at http://www.ethanelkind.com/a-debate-on-sb-743/.