Will State Climate Policy Usurp Local Land Use Control?

Real Estate and Land Use

Whether in CEQA or Efforts to Halt Climate Change, Will the State Wrest Control of Land Use Decisions Away From Locals?

Introduction

The consequences of climate change are broadcast regularly: wildfires, sea-level rise, drought and others. But one lesser-noticed casualty is garnering attention and concern: local land use control. In forums including statewide revisions of standards for environmental review of projects by local agencies and legislative mandates to reduce greenhouse gases, there is an indisputable trend toward state-level policies influencing, and potentially dictating, local land use outcomes. Calls for urban growth boundaries, prohibitions on greenfield development and local metrics for emissions reductions on a per-capita basis over 85 percent below the historic baseline, backed by the force of state law, pose significant potential conflicts with traditional notions of land use control, historically the province of local cities and counties.

As the Governor’s Office of Planning and Research (OPR) concludes yet another round of public comment on proposed amendments to the California Environmental Quality Act’s (CEQA) implementing Guidelines, many landowners and members of the regulated community have far greater concerns about the California Air Resources Board’s (CARB) ever-expanding call for land use restrictions in its greenhouse-gas-reduction regime.

CEQA Guidelines, SB 743 and VMT

One of the primary topics at issue in the CEQA Guidelines’ proposed revisions has to do with traffic impacts. Adopted in 2013, SB 743 directed OPR to consider replacing level of service (LOS) traffic analysis with an alternative including, potentially, vehicle miles traveled (VMT). And that is what OPR is proposing. By eliminating (though it is not really eliminated) LOS, the Guidelines would take the position that ever-increasing traffic congestion and gridlock, in and of themselves, no longer present potentially significant impacts on the environment. Instead, the number of miles you commute and travel—regardless of whether you drive a plug-in electric vehicle, hybrid or diesel truck—does.

But the CEQA Guidelines are not the only arena where VMT reduction mandates are seeking to significantly alter land use entitlement and growth patterns in California.

CARB and Land Use

Introduction

At issue is the latest iteration of CARB’s blueprint for reducing emissions across all sectors of the California economy, the Scoping Plan,1 which is required under AB 32, the 2006 law that formally set mandates for California’s emissions reductions quantity and timing. Under AB 32, California committed to reduce its overall emissions to 1990 levels by the year 2020. CARB recently reported that the state will hit that threshold early. However, the legislature in 2016 increased the mandate to 40 percent below 1990 levels by the year 2030. It is that much more restrictive mandate that the latest Scoping Plan must accomplish.

For the first time, the Scoping Plan states categorically that California will not be able to accomplish its latest reduction mandate without significant alteration of land use patterns in the state. While energy production and fuel composition tend to be the primary sectors that are the targets of emissions reductions, the Scoping Plan now asserts that, even assuming continued transition to renewable energy sources and ever-increasing electrification of the vehicle fleet, VMT must be drastically reduced. Unfortunately, data gathered throughout the state indicates that the trend is that VMT is increasing, not decreasing. And modeling shows that recent phenomena such as Uber/Lyft and AI self-driving vehicles exacerbate increasing VMT.

Below are just three of many examples of guidance and proposed approaches in the overall Scoping Plan regimen addressing VMT and emissions reductions through land use policy.

Vibrant Communities and VMT

Appendix C of the Scoping Plan2 includes two “guidance” papers:

  • “Vibrant Communities and Landscapes”
  • “Potential State-level Strategies to Advance Sustainable, Equitable Communities and Reduce Vehicle Miles of Travel (VMT)”

These two documents stress CARB’s view that VMT reduction is required if California is to meet its emission reduction mandate. But while these documents highlight proscriptive and monetary measures that could bring down VMT and tout related “co-benefits” of such reductions, it remains unclear why VMT by non-emitting electric vehicles or low-emission hybrids does not impact alternative means of calculating appropriate levels of VMT. One can see the clear consequence of VMT on planning and growth policy, which may be wholly appropriate in a given context. But if the issue is simply emissions, the vehicle and its related emissions volume, if any, would seem to be a relevant consideration. And yet VMT is addressed as a uniform metric regardless of vehicle type.

Additionally, while direct promotion of “urban growth boundaries” from earlier drafts of the VMT paper has been largely stripped out (though it remains in at least one other appendix), the papers clearly advocate for prohibitions on greenfield development.

Natural and Working Landscapes

Climate science has long noted a capacity of open space, agricultural areas, forests and other “natural” areas to sequester and hold carbon emissions. More recently, however, CARB has not only focused on the consequences of the conversion of such natural areas—or their destruction through such events as wildfires—resulting in the loss of a potential sequestering resource, but has also evaluated such conversion or destruction as an active carbon-emitting event.

CARB and the Natural Resources Agency more broadly have an entire program devoted to the study and evaluation of so-called natural and working landscapes. Four agencies jointly released “California 2030 Natural and Working Lands Climate Change Implementation Plan Concept Paper”3 earlier this year. The Concept Paper identifies three goals for the state as to natural and working landscapes, the first of which is:

Protect land from conversion to more intensified uses by increasing conservation opportunities and pursuing local planning processes that avoid greenfield development. (Emphasis added.)

Ironically, a California court of appeal recently ruled in an unpublished decision that CEQA does not require a greater mitigation ratio than 1:1 for replacement of lost or converted farmland. As a climate impact, however, it is not at all clear that a similarly balanced ratio will govern under CARB’s new regime.

Local Climate Action Plans

In a recent decision, the California Supreme Court held that one potential tool for local and lead agencies, and the public at large, in evaluating greenhouse-gas-reduction strategy and quantifying the “significance” of any given project’s impact on climate change under CEQA is the adoption of local climate action plans (CAPs). With that heightened attention on and potential endorsement of CAPs, CARB—via the Scoping Plan—added its two cents.

Local CAPs, the Scoping Plan opines, should take a per-capita approach to quantifying local levels of emissions, utilizing a carbon equivalency (CO2e) measure. The Scoping Plan directs that in order to meet the state’s current reduction mandate for 2030 and its longer-term “goal” for 2050, per-capita emissions should be 6 metric tons CO2e (MTCO2e) per person by 2030 and 2 MTCO2e per person by 2050. Let’s put that in English and in context.

Again, the baseline year by which California measures emissions is 1990. Utilizing CARB’s estimate of the overall level of California emissions in 1990 and official population estimates, the per-capita emission of a single Californian in 1990 was 14.8 MTCO2e. A reduction to 6 MTCO2e by 2030 is a 60 percent reduction from 1990. And a reduction to 6 MTCO2e by 2050 is an 86.5 percent reduction. Can your carbon footprint shrink that much by then?

So What Do We Do?

A recent legislatively mandated meeting between CARB and the California Transportation Commission (CTC) is perhaps the most stark picture of the ongoing schizophrenia of the Sacramento power structure when it comes to the nuts and bolts of emissions reductions. While CARB has vast, seemingly unbridled authority on climate policy, the CTC continues to have significant influence over where and how transportation funds are spent in the state. At the June 27 meeting of the two agencies, CARB board members and CTC commissioners could not even agree on a shared objective.

As reported in StreetsBlog Cal,4 when a CARB staffer stated that California needed to reduce VMT by 25 percent from 2005 levels, a CTC commissioner and the CEO of the Orange County Business Council, Lucy Dunn, responded that discussions should be grounded in the “real world … when we talk about reducing VMT.” Dunn added, “We can’t build all of the housing we need as infill—we also have to do appropriate greenfield development.”

CARB would likely be quick to point out, and courts have so held, that the Scoping Plan itself is not a regulation per se. But it is the blueprint from which CARB, other state agencies such as OPR, and local governments will most certainly be crafting new regulations. And failure to incorporate the strict reduction mandates embodied in the Scoping Plan will likely subject new proposals to litigation challenges.

At all jurisdictional levels—state, regional and local—landowners, developers and all members of the regulated community must monitor not only the existing requirements for permits and approvals, but also be on the lookout for new longer-term and programmatic enactments such as General Plan amendments, Scoping Plan provisions, and local CAPs for how the implications of the state’s emissions reductions mandates manifest themselves in the context of local project consideration and entitlement.

The comment period on the latest round of proposed amendments to the CEQA Guidelines, including the VMT provisions, closed on Friday, July 20, 2018. Timing for the issuance of the final updates is unclear, but reportedly OPR would like to finalize their adoption by the end of the year. The current Guidelines update’s proposal has the shift from LOS to VMT effective on Jan. 1, 2020, with a provision for “immediate” earlier opt-in for lead agencies. As for the Scoping Plan and related regulatory efforts, the immediate timing is unclear, but authorities at virtually all jurisdictional levels could undertake regulatory efforts in response at any time.

1 https://www.arb.ca.gov/cc/scopingplan/scopingplan.htm
2 https://www.arb.ca.gov/cc/scopingplan/2030sp_appc_vmt_final.pdf
3 https://arb.ca.gov/cc/natandworkinglands/nwl-implementation-plan-concept-paper.pdf
4 https://cal.streetsblog.org/2018/06/29/californians-must-drive-less-says-arb-at-historic-first-joint-meeting-with-ctc/#comments