California’s most influential and notorious environmental law, CEQA, has taken on more new forms than the Terminator. Originally written in 1970 to disclose local environmental impacts of government projects, the California Environmental Quality Act has morphed into a powerful tool requiring deep analysis and mitigation of a long list of environmental impacts of public and private projects – from mighty freeway intersections and entertainment palaces to lowly service station upgrades and student dorms.

The law also sets a very low bar to litigation. Almost anybody with any issue concerning a proposed project can file a lawsuit that, regardless of its merits, can threaten costly delays.

The addition of greenhouse gas emissions as an environmental impact requiring local mitigation measures (even though carbon emissions only manifest on a global scale) has added further consequence to CEQA, since energy use (the basic unit of GHG emissions) is inherent in every new project or improvement.

Now behold the latest reinvention of CEQA: whereby planners and regulators will require analysis and mitigation not of an environmental effect of a new project, but instead of a measurement of a social activity related to the project.

The irony of this strange outcome is that it all started with an attempt to reform CEQA, not to make it worse.

In 2013, then-Senate leader Darrell Steinberg successfully carried legislation to smooth the regulatory path for construction of an arena in downtown Sacramento to house the Sacramento Kings basketball team. But more than just a district bill, SB 743 purported to update and reform CEQA by eliminating an obsolete measure of environmental impacts of traffic, called “Levels of Service,” (which considers only traffic congestion) and replace it with a different tool, but initially only within “transit priority areas,” which are urban infill zones near transit hubs.

The measurement tool proposed to be enshrined in CEQA is a famous bugaboo of planners, “vehicle miles traveled.” According to a proposal by the Office of Planning and Research, all new projects in California will have to analyze and mitigate for the new miles driven by users of the project, whether they are visitors to a hotel or residents of a housing development.

But isn’t more traffic an environmental impact? Yes and no. An additional car on the road isn’t itself an environmental impact, but its emissions (NOx, ozone, greenhouse gases) are. On the other hand, these very emissions are already analyzed and mitigated by other specific requirements in CEQA.

But isn’t traffic congestion an environmental impact? This is where it gets tricky.

Back in the good old days, traffic congestion was considered a bad thing. In fact, way back in 1990 the Legislature and Governor placed on the ballot a measure to increase road funding, called the “The Traffic Congestion Relief And Spending Limitation Act Of 1990.” Even though it raised taxes, voters approved it.

Fast-forward to today, and traffic congestion is apparently not such a bad thing. Making a virtue of necessity? Hardly. It’s now the latest in pretzel logic to advance land use policy.

According to OPR,

Reducing roadway capacity (i.e. a “road diet”) will generally reduce VMT and therefore is presumed to cause a less than significant impact on transportation.

Building new roadways, adding roadway capacity in congested areas, or adding roadway capacity to areas where congestion is expected in the future, typically induces additional vehicle travel.

So now traffic congestion itself is not necessarily a bad effect that should be mitigated. And there’s some truth to that: if the goal is to incentivize more infill development, the natural outcome of more local congestion should be acceptable.

But the flip side of this approach is to create an enormous new expense for development outside already-urbanized areas of the state by requiring substantial offsets to mitigate for vehicle miles created by the new project. And this is after already mitigating for the tailpipe and carbon emissions of the driving.

The trouble is that in this brave new world of “sustainable development,” we simply don’t know how to mitigate for vehicle miles traveled. Is it by further reducing GHG or tailpipe emissions – that are already mitigated elsewhere? It certainly doesn’t seem to be by increasing road capacity to alleviate congestion. Without better guidance or safe harbors, this will be another case where policy prescriptions will be decided by the courts ad hoc, rather than by the Legislature.

The use of VMT as a planning tool is in its infancy, but even so may be a done deal. Pasadena is already using measurement of vehicle miles traveled as a planning tool; San Francisco and Oakland are not far behind.

As with any major regulatory change with unforeseen and expensive consequences (and especially in the world of CEQA), regulators should impose new rules gradually, recognize legislative priorities, and provide time to learn from their implementation.

Translating to the case of these new CEQA guidelines, OPR should limit use of VMT analysis to urban infill zones, and learn from this and from other cities whether and how to make this a generally applicable rule for all development.