I join my colleagues from the other states and from AASHTO in urging you to order the USDOT. to halt this rule making and send it back to them for a fundamental revision. We at the state departments of transportation are grateful to Congress for ordering the federal agencies to streamline the decision-making process for transportation projects. As you all well know, the current process is one of excessive overlap, redundancy and delay. Decisions made at one stage of the process are not recognized at the next stage. Decisions made in the transportation planning process are not recognized at the environmental impact analysis stage and decisions made in the environmental impact analysis stage may not be recognized when the project reaches the water-quality permitting stage. As cumbersome and confusing as the current process is, it is preferable to the process outlined in the proposed rule making. Instead of streamlining, the new rules create yet new hurdles which will lead to delay, litigation and uncertainty.
As other speakers have said, the new rule making attempts streamlining. However, those attempts are more than offset by establishing broad - and very vague - new tests which must be met for transportation projects before those projects can be approved. These new tests far exceed anything currently in law. Ironically, when Congress ordered the USDOT to streamline its current regulations it instead created new regulations and new tests for transportation projects to meet. Instead of making the process more efficient, these rules make it more excessive.
Let me give you three examples. In TEA-2 1 Congress clearly told the USDOT to merge the Major Investment Study (MIS) into the transportation planning process and no longer require the MIS to be a redundant, stand-alone study. However, in the new rules, it appears that the MIS-type study will be required for all urban projects, not just major projects as the current rules require.
Secondly, these proposed regulations greatly expand the potential role for non-elected, unaccountable advocates to establish themselves as decision makers in the transportation process. This direction seriously erodes the ability of state, city, county and other local elected of finials who participate in the transportation planning process. Currently, the people who are accountable to the electorate play a large role in the transportation planning process. Local elected officials comprise the boards of metropolitan planning organizations. Local elected of finials develop city and county zoning plans and economic development strategies. These local aspirations, these local plans, these local decision makers all play a large role and help DOTs reach consensus on transportation decision making. I firmly believe that local elected officials are best able to help states reach agreement on which projects and which solutions best serve their area. Under these rules, state and local elected of finials can be reduced to just one-more participant - and not the primary decision makers - in the transportation process. I do not believe that democracy has failed the transportation process. Those elected by the people and those accountable to the people should be entrusted to lead the transportation planning process. Unaccountable bureaucrats and self-appointed advocates should not override the decisions of local elected officials.
Third, the regulations commingle explicit Congressional intent under Title VI with the ambiguous Executive Order for Environmental Justice and creates a new field of litigation for transportation projects that has never before existed. Under the title of Environmental Justice, the new rules seem to create new protected classes which have special standing in the transportation process. These classes are "minority populations" and "low-income populations." These two new classes are not the same as those specifically referred to in federal statute but are broader potential groups which will have to be identified on a case-by-case basis in the planning process. We do not have clear definitions on who these groups are and how they are identified. However, state DOTs will have to become census-like agencies who analyze these demographic groups and ensure not only do we not discriminate against them, but there are no unintended consequences of projects which could create "disproportionately high and adverse impacts" to them.
We applaud Title VI and all that it stands for. As Senator Voinovich knows, when he was Mayor of Cleveland and then Ohio's Governor, Ohio went to great lengths to create opportunity for all protected classes. However, these new rules provide endless fodder for lawsuits by any group which can infer that it has received "disproportionately high and adverse impacts" by either an action taken by a department of transportation or more importantly by an action not taken by a DOT. Any presumed "reduction in benefit" by a DOT could be actionable under this overly broad and vague Environmental Justice requirement. In effect, a decision not to fund a project could be actionable under this regulation.
Also, under these proposed regulations there are no due process provisions for a state, as there are under Title VI. In other words, the USDOT could withhold funding from a state for violation of these expanded provisions without any appeal or review process. These regulations also create a new concept - that is a reduction in benefit - not recognized in either the President's Executive Order nor under Title VI. Clearly, this goes beyond the intent of Congress.
Let me close by pointing out what I think the federal rule-writers have forgotten. State DOT's do not act in a vacuum. Every project Ohio funds is subject to approval by metropolitan planning organizations, by the city and county in which the project is located, by various state and federal environmental agencies and ultimately by the Ohio General Assembly and the Governor of Ohio who appropriates our budget. On a daily basis, the Ohio Department of Transportation is involved in consultation with the states local elected officials and the citizenry. These new rules are not needed. They are a solution in search of a problem. This is very unfortunate because Congress clearly identified the problem which does need solved - that is the excessive and overlapping regulations which often stymie the wishes of local citizens for transportation projects to be provided reliably and predictably. Instead of streamlining the federal process, these rules create new processes which will only further delay decisions and delay projects. I ask you to urge the USDOT to consider our concerns and to reject this proposed rule making.
Mr. Chairman, members of this committee, the federal process for approving transportation projects churns endlessly. No sooner do we adapt to a new federal rule, then it changes. Ohio just published our new policy for complying with the President's Executive Order on Environmental Justice. Now these new proposed rules change the federal environmental justice policy. We at the Ohio DOT are now wrestling with the U.S. Army Corps of Engineer's new nationwide permits for wetlands. Those, in turn, triggered new interpretations regarding the Section 401 water quality standards. And we are also awaiting new rules on something called total daily maximum load for storm water runoff, which will also affect our projects in new ways. We at the state departments of transportation must be sensitive and responsive to environmental concerns. I believe we are. However, these new regulations are yet another example of the endlessly changing and increasingly complicated federal rules which evolve each year. I applaud you for holding this hearing and listening to our concerns. I appreciate your efforts at streamlining. Streamlining is certainly needed. A good way to start is to reject these new proposed regulations.
Thank you again for this opportunity. At the appropriate time as the Chairman wishes, I will be happy to answer any questions.