Chairman Chafee,Senator Baucus, members of the Committee on Environment and Public Works, I am Jacob Snow, General Manager of the Regional Transportation Commission of Clark County, Nevada. I am here today to provide testimony regarding RTC's experience and interpretation of regional transportation planning conformity and programming, and the impact that recent litigation has had on these functions. I formally request that my full written testimony be entered into the record.
II. BACKGROUND
The RTC is a regional governmental entity which performs the following three functions: Directs the expenditure of funds generated from a County Option Motor Vehicle Fuel Tax for regional street and highway construction
-- Serves as the Metropolitan Planning Organization (MPO) and facilitates the Federally mandated transportation planning process for the Las Vegas Urbanized Area
-- Provides public mass transportation within Clark County, Nevada.
The RTC was established in 1965 under state statute to expend funds from a county-option motor vehicle fuel tax for regional street and highway improvements (NRS 373.030). RTC membership is set by state statute and is governed by elected representatives from the County of Clark, and Cities of Las Vegas, Henderson, North Las Vegas, Boulder City and Mesquite. The Director of the Nevada Department of Transportation sits as an ex-officio member.
In 1981, the RTC was designated by the Governor as the Metropolitan Planning Organization (MPO) as defined by Federal law, for the Las Vegas Urbanized Area. In 1983, state legislation enabled the RTC to own and operate a public mass transit system to the exclusion of all others (NRS 373.117).
As the MPO, the RTC directs the federally mandated cooperative, coordinated and continuous transportation planning process for the Las Vegas Urbanized Area. All federal and state transportation projects must be identified and coordinated through the Regional Transportation Plan (RTP) and the Transportation Improvement Plan (TIP) maintained by the RTC. Functioning as the MPO, the RTC provides the opportunity for citizen and private sector participation in the transportation planning process.
Provision of mass transportation by the RTC emphasizes transit's role as a service to the citizens of Clark County. In addition to the most obvious of its many functions - that of providing a base of essential mobility for all citizens of our rapidly growing community for employment, shopping and personal enrichment - transit is an essential element in RTC's strategy to reduce traffic congestion and improve regional air quality.
The Las Vegas metropolitan area has experienced unprecedented growth in the past 10 years. Since the early 1990's, the region has led the nation in metropolitan area growth. In fact, between 1990 and 1998 the valley's population grew from 706,000 to over 1.3 million, representing an 80 percent increase in residents. During that same period, the number of residents employed in the valley increased by 57 percent, growing from 353,000 to over 557,000.
Air Quality and Transportation Planning As mandated by the Clean Air Act Amendments of 1990 (CAAA), states must develop a State Implementation Plan (SIP) addressing each pollutant for which the State fails to meet the National Ambient Air Quality Standards (NAAQS). In the case of the Las Vegas valley, SIPs are required for both Carbon Monoxide (CO) and Particulate Matter less that ten microns (PM10). The SIP indicates how the region intends to meet the schedules prescribed in the CAAA. Important to transportation conformity, emission inventories are established during the SIP development for stationary, area and mobile source emissions.
In consultation with the RTC, the Health District and interested local jurisdictions, Clark County assigns emission reduction targets for each source category. For the mobile source category, the emission reduction target is further refined into a regulatory limit on emissions, referred to as a "budget." The targets typically rely on programs that focus on specific aspects of emissions, including fuel technologies that yield fewer harmful pollutants, implementation of more rigorous programs to ensure auto emission performance (Inspection and Maintenance - I&M; Programs), transportation control measures (TCMs) that promote changes in travel behavior and result in less single occupant vehicle (SOV) travel and programs that target congestion improvements. Collectively, the TCMs become part of the Transportation Improvement Program's (TIP) implementation priorities.
As part of the RTC's role in conformity, the agency must ensure that all sources of pollution are considered via a regional emission analysis. This analysis includes consideration of emissions resulting from: estimated travel occurring within the entire network in the nonattainment area; the recognition within the travel model of all proposed regionally significant projects (travel lanes, interchanges, transit); and the consideration of the effects of any emission control programs. The emission analysis output is expressed in Vehicle Miles Traveled (VMT) by roadway type, which is used in the EPA's air quality model to estimate the daily quantity emitted into the valley's air by each pollutant.
Since reclassification as a serious nonattainment area for CO, Clark County has been working cooperatively to prepare a revised CO SIP that will demonstrate attainment and establish a revised mobile source emission budget that the RTC can use to make future conformity determinations. The deadline for the submission for the serious area CO SIP was May 3, 1999. The CO SIP revision is expected to be submitted to EPA by Clark County by early October 1999.
On the best time line, the EPA may provide an adequacy finding on the budget emissions by December 31st, 1999. A positive adequacy finding would allow the RTC to use the budget for conformity determinations. This time line presents a very tight schedule with little or no margin for unforseen issues. Of concern to the RTC is the fact that the long-range plan lapses on January 12, 2000, which could preclude the RTC from advancing projects. Projects in the TIP have been programmed through the period ending June 30, 2000.
In 1997 Clark County submitted the serious area PM10 SIP. The SIP, however, did not demonstrate attainment of the NAAQS. Consequently, the SIP did not identify a budget for mobile source emissions that the RTC can use for plan conformity, partially because a complete inventory of emission sources had not been part of the plan. Instead, the plan focused on the fact that reentrant road dust on paved roads played a minor part of the total PM10 emissions. In the absence of a mobile source emission budget, the RTC must use the overall betterment test, referred to as the Build versus No Build Test.
The EPA has made it clear that until a new SIP is completed which demonstrates attainment, the only way the RTC can utilize the overall betterment test is if an inventory is completed of the paved road source emissions and that a strategy be identified to address emissions related to construction of transportation infrastructure.
The RTC intends to assist this effort and achieve completion by November 1999. Together with the CO SIP mobile source emission budget and a roadway inventory, expected to be submitted by October, the RTC will be working with these emission thresholds to demonstrate plan conformity for the 2000-2020 RTP.
III. CONSEQUENCES OF EDF v. EPA RULING TO RTC
As a result of EDF v. EPA, 167 F. 3d 641 (DC Cir. 1999), if the deadlines outlined above are not met, the RTC's RTP and TIP may lapse because no method exists to show conformity in the absence of an adequate or approved SIP. In looking at the consequences, the RTC considers the impacts of a lapsed RTP and TIP to be essentially the same as adopting a RTP-TIP with only projects that are exempt from air quality conformity. Only projects that improve system safety, support existing mass transit services (as opposed to service expansions), promote ridesharing/vanpooling and bicycle/pedestrian facilities can be included in an RTP-TIP that contains air quality exempt investments. And, while these initiatives are laudable and Clark County has made significant strides in all these areas, it would be very difficult to construct a 20-year RTP that defines over $12 billion in transportation investments dedicated just to projects exempt from conformity. Therefore, RTC's comments focus on the consequences of having a substantially reduced investment level in the region's transportation infrastructure and services.
As a recipient of Federal Transit funds, a lapsed RTP-TIP will mean a delay in the advancement of transit projects that expand services which have obvious clean air benefits. If an air quality exempt RTP and TIP are approved, the federal investment level in Clark County will have minimal impact on mobility, and in effect would be as detrimental to the regional economy as having no federal investment whatsoever. Indeed, it seems contrary to good public policy that transit projects become at risk in the period during which an RTP and TIP lapse because of a failure to make a sound conformity finding.
Second, as the County Gas Tax agency, the RTC's short-term street and highway program defined in the current TIP will continue under the provisions defined in the court ruling. This means that the RTC and member entities will continue to ensure that an upcoming $200 million bond issuance will proceed and the projects defined in the TIP and funded from non-federal sources will continue.
If the RTP-TIP lapses, the Nevada Department of Transportation (NDOT) may consider moving funds that were planned to be expended in Clark County to other regions of the State. The result of such an action is two-fold. First, it could mean loss of the ability to "flex" NHS and STP funds for transit projects because they are no longer available to the region. Indeed without an RTP-TIP, the RTC and its member entities will have diminished leverage with the NDOT to ensure that transportation investment levels will remain at anticipated levels. Second, projects already in the pipeline will lose committed funds and face significant delays. This could adversely impact the completion of highway projects that help improve air quality conditions.
A third impact is the disruption of the NEPA process. Several major projects including the expansion of U.S. 95 and the development of a fixed guideway initiative under the ETA Section 5309 program are currently moving towards a Record of Decision. Should SIPs not be submitted and the RTP-TIP lapse, no basis for project conformity will exist. Therefore, these projects could be significantly delayed.
Finally, the outcome of a lapsed RTP-TIP could mean economic dislocations resulting from the failure to spend federal investments in the region. Failure to make both highway and transit investments that contribute substantially to the local economy could result in job losses and a decline in tax revenues which support transportation. Thus, the region's financial condition and fiscal capacity to support transportation infrastructure and services could be eroded. Clearly, this is undesirable and counterproductive to the all-important goal of improving air quality.
IV. CONCLUSION
Our primary premise is that the regulations promulgated by the Environmental Protection Agency under Section 176(c) of the 1990 Clean Air Act Amendments (the transportation conformity rules) fundamentally undermine Congress' intent to ensure that federal funds are spent on projects that will contribute to eliminating or reducing the severity of any violation of the NAAQS. Furthermore, the transportation conformity regulations, and the recent decision in EDF v. EPA, work against MPO's efforts to achieve expeditious attainment of such standards, by disallowing transit projects that ultimately expand service and have a beneficial effect on regional air quality.
Allow us to illustrate. With the current transportation conformity rule, if any MPO were to come up with a Regional Transportation Plan and Transportation Improvement Program that did not conform with the State Implementation Plan, then any federally funded or federally approved project would not be allowed to proceed. The environmental community would be pleased in this sense because they would perceive that implementation of such a nonconforming plan would not be conducive to health and welfare. Also, the environmentalists would feel as if they were able to control and limit growth. However, such a stringent rule is a double edged sword in that many federally funded projects, if allowed to proceed, would result in an overall decrease in hazardous air pollutants. An example of such a category of projects is the funding of transit related infrastructure.
For example, suppose the new TIP for Clark County, NV had such a strong increase in vehicular miles traveled (VMT) due to extensive growth that the average daily emissions from the new program would exceed the SIP emission budget. Such a plan would not conform. This would mean that any new roadway projects in the TIP could not be built. Ironically, it would also mean that federal funds earmarked to buy new buses for the transit system in Clark County, to decrease roadway congestion and reduce hazardous air pollutants, could not be spent. Such an approach is unnecessary and counterproductive to environmental goals.
Fortunately, under the current Clean Air Act, to make a change allowing for federal funding and federal approvals of projects that will benefit air quality to go forward does not require changing the law, it only requires changing the regulations that attempt to implement the intent of the law. Since section 7506(c)(1)(b) United States code states that any federal project that will contribute to eliminating or reducing the severity and number of violations of the NAAQS is a conforming project, then, ostensibly, projects such as enhanced bus service for high occupancy vehicle only lanes and new and expanded fixed guideway systems that can demonstrably show a reduction in hazardous air pollutants in association with their implementation should be allowed to proceed forward and be federally approved and funded.
Furthermore, the rule does not meet with Congress' intent because all transportation conformity issues are not created equally. For example, if a major metropolitan airport needed to expand by adding a new air carrier runway, a new passenger terminal, and a new parking garage, an air quality conformity analysis would be required. However, because airport improvements fall under a different conformity regulation, called general conformity, a different set of rules apply.
Under these different regulations, even if the new runway, passenger terminal and parking garage were unaccounted for in a non-attainment area's SIP, these projects would still be allowed to go forward, as long as the state's emission budget was not exceeded. Even if the state's emission budget was exceeded, the airport projects would still be able to go forward as long as the airport agreed in writing to provide appropriate mitigation.
Section 7506(c)(2)(D) of United States Code thus shows that Congress wanted no transportation projects to proceed without assurance that they would not undermine attainment or maintenance of current air quality standards. Well, quite frankly, as complex air quality modeling demonstrates time and time again, transit related transportation projects have a positive net effect on emissions budgets, yet under the current rules and regulations, these projects that benefit air quality cannot go forward.
The overall solution to these problems is demonstrated in the win-win scenario that is reflected in the general conformity approach. The project can go forward and meet the needs of the community from a transportation standpoint, but only if they can provide enough mitigation to meet the standards of the law that the project not contribute to any delay of reaching attainment. Clearly, these mutually beneficial goals can and should be pursued. This environmentally and developmentally balanced approach will avoid the timely and costly confrontation associated with the Atlanta case and other future unintended consequences.