This legislation will/should be of interest to local agencies and developers because it makes several important changes to State law governing transportation planning, planning for residential development, and environmental review of proposed development projects. Specifically, SB 375:

• Authorizes the California Air Resources Board (CARB) to establish regional GHG emissions reduction targets, on a regional basis, for most areas of the State;
• Establishes a nonbinding regional land use planning process integrated into the regional transportation planning process;
• Grants limited relief from the environmental review requirements of the California Environmental Quality Act (CEQA) for certain projects that facilitate reductions in vehicle traffic and GHG emissions;
• Amends the update process for general plan housing elements and alters the schedule for those updates to coincide with regional transportation plan updates.

Background

In 2006, California enacted a commitment to reduce the state’s GHG emissions to 1990 levels by 2020, and to make further reductions after that date. The GHG reduction mandate, known as AB 32, delegated to the CARB the task of developing and implementing the regulations to ensure that the State achieves the AB 32 goals. CARB only recently adopted a scoping plan for the development of comprehensive AB 32 regulations. (See http://www.arb.ca.gov/cc/scopingplan/document/scopingplandocument.htm.) However, the preliminary work of CARB and its AB 32 advisory committees recognized the important contribution of the transportation sector to GHG production within the State. CARB estimates that transportation alone accounts for roughly 38%-40% of the State’s total GHG output. Cars and light trucks alone are responsible for 30% of the State’s GHG production. Reducing transportation-related GHG emissions is therefore a crucial part of the AB 32 mandate.

CARB intends to achieve some reductions in transportation-related GHG emissions by requiring improvements in vehicle technology and by reformulating fuels. However, the agency also identified the trend toward increasing vehicle miles traveled (VMT) per capita and fuel demand as a potential obstacle to AB 32 compliance. Land use decisions by local jurisdictions are directly related to increasing VMT. Population dispersion, rigid separation of housing, employment, and commercial areas, and inefficient road networks serving population centers are all effects of land use that contribute to increases in distances traveled by residents, employees, and consumers. CARB recognizes that addressing land use patterns, particularly in urban areas, is an important factor in reversing the increasing trend in per capita VMT.

SB 375

Although AB 32 gave CARB broad authority to regulate GHG emissions, regulation of land use and urban planning decisions remains largely beyond the control of any State agency. In 2008, State Senator Darrell Steinberg (D-Sacramento) authored SB 375, legislation that gives CARB at least a procedural role in land use planning at the regional level. In addition, SB 375 creates certain incentives to encourage projects consistent with regional plans to reduce GHG emissions associated with land use and transportation. While SB 375 stops short of usurping the authority of cities and counties to regulate local land use, it institutes a nonbinding regional land use planning process that will be reviewed by CARB for consistency with agency-established regional GHG reduction targets.

SB 375 has four main statutory elements. First, it requires CARB to establish regional GHG reduction targets for each area of the State under the jurisdiction of a Metropolitan Planning Organization (MPO) or a Regional Transportation Planning Agency (RTPA) by September 30, 2010. (For a map of areas governed by MPOs and RTPAs, see http://www.dot.ca.gov/hq/tpp/offices/orip/index_files/p4.pdf.) These targets are to be set in consultation with the MPO/RTPA, the relevant air district, and a regional advisory committee composed of other stakeholders. Further, the targets are to take into account projected reductions in GHG achieved through improved vehicle efficiency and the introduction of fuels with lower carbon content.

Second, SB 375 establishes a “Sustainable Communities Strategy” (SCS) planning process whereby the MPO/RTPA must devise a plan for developing the region’s land use footprint in a manner that will allow the region to meet CARB’s GHG reduction target. The SCS becomes, in effect, the land use element of the Regional Transportation Plan (RTP), the planning document that guides expenditure of State and federal dollars on transportation projects. Although the land use component of the SCS is nonbinding, since local jurisdictions retain their full authority to regulate land use, the SCS process expressly ties local land use decisions to CARB’s GHG reduction mandate and to funding of transportation improvement projects.

As part of the RTP, the SCS must be consistent with the transportation network proposed by the RTP and must use “the most recent planning assumptions considering local general plans and other factors.” The SCS, like the RTP as a whole, must meet the federal requirement that it be based on a “realistic” growth development pattern. SB 375 thus requires transportation planning agencies to take a hard look at how their regions are likely to grow and determine whether such growth is consistent with CARB’s target for GHG reduction. In the event that CARB and the regional planning agency are not able to agree that a proposed SCS would permit the region to meet its GHG reduction target, however, there is no real enforcement mechanism that would force cities or counties to alter their land use plans or limit their abilities to approve projects. Instead, the MPO/RTPA would be required to develop an Alternative Planning Strategy (APS) indicating what land use pattern would allow the region to meet its GHG reduction target. Unlike the SCS, the APS is not part of the RTP. It is not required to be based on the “most recent planning assumptions,” nor is it required to comply with the federal rule mandating that RTPs be based on “realistic” growth patterns. Compliance with the APS, however, allows an individual project to take advantage of the CEQA streamlining incentives contained in SB 375 (see below).

Third, SB 375 includes certain measures that ease the environmental review burden for some projects that are consistent with the regional SCS or APS. Specifically, it permits a category of projects known as “Transit Priority Projects” to comply with CEQA through an abbreviated environmental review process known as a “sustainable communities environmental assessment” (SCEA). The SCEA is essentially a modified mitigated negative declaration that relies on analysis and mitigation measures contained in previous EIRs, like the EIR supporting the SCS. In addition to establishing abbreviated review for Transit Priority Projects, SB 375 relieves certain compliant projects of the requirement to discuss growth-inducing impacts in an EIR. It also allows the EIR for these projects to forego any discussion regarding specific or cumulative impacts from cars and light-duty truck trips generated by the project on global warming or the regional transportation network. In cases where a project will create traffic impacts in need of mitigation, SB 375 permits local jurisdictions to adopt by legislation standardized mitigation measures to address them. Finally, SB 375 creates a very narrow total exemption from CEQA mandated environmental review for projects that meet an extensive list of criteria. Because the CEQA exemption is so narrow, however, the major benefit of SB 375 for development projects is the less comprehensive relief measures addressing traffic-related impacts and growth-inducing impacts.

Finally, SB 375 makes changes to the mandatory process by which cities and counties update their housing element. Updating general plans to accommodate a jurisdiction’s “fair share” of regional housing has in the past been unconnected to the regional transportation planning process. For most jurisdictions, SB 375 extends the housing element update cycle from five years to eight years and synchronizes that eight-year process with the four-year RTP update cycle. In addition, SB 375 requires cities and counties to identify particular sites to be rezoned to meet their “fair share” of regional housing needs. The local land use jurisdictions must also actually rezone the identified parcels within three years of the adoption of the housing element update, and they must also establish a timetable for construction of these new units. Cities and counties are also required to file annual progress reports with the State Department of Housing and Community Development describing actions taken to implement the housing construction timetable. Under certain circumstances, failure of a city or county to rezone parcels to meet its housing need can trigger automatic approval of residential development projects proposed on those parcels.

Conclusion: Whither Local Control?

SB 375 expressly reserves local land use authority to local jurisdictions. Nevertheless, cities and counties might be forgiven if they see SB 375 as establishing the foundation for a regional land use regulatory regime with substantial State-level oversight. Whether SB 375 can effectively regionalize land use planning, or whether it can even encourage coordination among local land use jurisdictions, remains an open question. CARB’s power to impose regional GHG reduction targets is tempered by its duty to set those targets in consultation with local agencies. And given the composition of the boards of MPOs and RTPAs, the addition of a land use element to the RTP does not, by itself, take land use authority out of the hands of local officials. The effectiveness of SB 375 in changing local land use patterns depends largely on the political will of CARB, the regional transportation planning agencies, and the cities and counties who direct regional transportation policy. In the words of one legislative analyst who reviewed the bill, SB 375 is an exercise in “going on faith.” It provides the tools for State and local officials to cooperate on land use policy for purposes of furthering the State’s GHG reduction goals. Absent any binding commitment applicable directly to the cities and counties that ultimately approve the plans that authorize land use and development, however, the success of this latest experiment in regional government will depend largely on whether the elected and appointed officials who oversee air quality regulation, transportation planning, and land use policy choose to take seriously the statute’s regionalist objectives.

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