The Third District Court of Appeals recently weighed in on the interpretation of Public Resources Code section 21099(b)(2) (“Section 21099(b)(2)”) and newly enacted CEQA Guidelines section 15064.3, which govern the consideration of traffic impacts under CEQA. In Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609 (“Citizens”), the Court determined that although Guidelines section 15064.3 does not become effective until July 1, 2020, Section 21099(b)(2) already prevents lead agencies from relying on impacts to vehicle delay to determine that traffic impacts are significant.

The Petitioner challenged the environmental impact report (EIR) prepared for an amendment to the City of Sacramento’s General Plan, alleging, among other things, that the project would increase congestion on city streets and would therefore have a significant impact on the environment. The Court disagreed, finding that level of service (LOS)—a method of determining traffic impacts based on congestion and wait times at intersections—is no longer valid under CEQA.

The crux of this dispute lies in Senate Bill 743, codified at Section 21099, et seq., which was passed in 2013 and mandated a transition away from LOS as a way of measuring the significance of traffic impacts under CEQA. Section 21099(b)(2) provides that “[u]pon certification of the guidelines by the Secretary of the Natural Resources Agency pursuant to this section, automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion, shall not be considered a significant impact on the environment pursuant to this division, except in locations specifically identified in the guidelines, if any.” (emphasis added). SB 743 requires agencies to transition to a metric known as Vehicle Miles Traveled (VMT), which focuses on whether a proposed project will require people to drive more or less and is far more favorable to transit-oriented development. In December 2018, the Natural Resources Agency certified Guidelines section 15064.3, which establishes the use of VMT as the default method to analyze and determine the significance of traffic impacts under CEQA, and provides that “the provisions of this section shall apply prospectively as described in section 15007. A lead agency may elect to be governed by the provisions of this section immediately. Beginning on July 1, 2020, the provisions of this section shall apply statewide.”

Although the mandate to use VMT (rather than vehicle delay or LOS) ostensibly does not become effective until July 1, 2020, the Citizens court reasoned that the other provisions of this section—which were already “existing law” as of the time the case was decided—proscribed the use of LOS to find a traffic impact significant. The court made it clear, however, that this decision does not require lead agencies to use VMT before the effective date of July 1, 2020, stating that “because CEQA Guidelines section 15064.3 is prospective and does not presently require the City to use the criteria set forth therein, Citizens’ argument that the City failed to analyze the 2035 General Plan’s traffic impacts under the vehicle miles traveled criteria in the regulation fails as well.”