I am Jim Currie, Deputy Director of the Montana Department of Transportation. I am pleased to appear here today and pleased that the transportation departments of seven other States -- Wyoming, Nevada, Idaho, North Dakota, South Dakota, Arizona, and Michigan -- have joined in the statement I am presenting. With me today is John DeVierno, who serves as counsel to our Department and four of the other State transportation departments that have joined in this statement.
We have been asked to address proposed rules issued by the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) that would revise the transportation planning process and the process for environmental review of proposed transportation projects.
Let me get right to the point. We strongly oppose these proposals and want help from the Congress to prevent them from becoming final rules.
Why? Because the proposed rules would add burdensome requirements and uncertainty to planning and environmental review for transportation projects. They would increase overhead and delay -- and delay usually means increased project costs. Frankly, these proposed rules could make it difficult for States to deliver their programs. We support a thorough planning and environmental review process, but today's process is already too long and complex. Adding requirements to it is contrary to sound policy -- and contrary to the course charted by Congress when it passed TEA-21.
For these and other reasons we hope the Congress will join us in working to prevent these proposals from becoming final rules.
Major Problem Areas and Overview
Let me turn now to an overview of our concerns, including four major problems with the proposed rules.
* New Alternatives Analysis Requirement. Most projects in metropolitan areas would be subject to new, excessive planning requirements, particularly preparation of alternatives analyses. Today only "major" projects are subjected to these analyses at the planning stage. This expansion of regulation is contrary to very clear language in the major investment study (MIS) provision of TEA-21.
* Process Complications Would Burden States and Diminish the Relative Importance of Elected Local Officials. The authority of States would be severely undercut as the proposed rules would confer new procedural or substantive powers upon various entities, including unnamed "planning process participants" States are committed to working closely with local officials and interested parties. But the proposed changes would upset the intergovernmental balance set by Congress in the law. These proposals could effectively confer, on a wide range of unelected officials or groups, the ability to veto or leverage project decisions that Congress vested in the States. These changes would overburden a process already replete with comment and consultation requirements. They would put many unelected officials on the same level as elected ones in the planning process. They would make it hard for States to address statewide concerns or major projects. Again, many of these proposed changes are directly contrary to statute.
* Vague New Data Development and Analysis Requirements Would Increase Costs and Uncertainty. The proposed rules would impose upon States and metropolitan planning organizations (MPOs) new, unfunded mandates to develop data and prepare analyses on the relationship of transportation spending to various socioeconomic classes of persons, or locations where such persons live. These proposed "environmental justice" requirements are not well defined. They use highly judgmental phrases like "reduction in benefits"and "interrelated social and economic impacts" of environmental impacts. Yet these proposals would require States and MPOs to develop data to address those issues. States could well be required to become mini Census agencies, and develop data beyond that which is available from the Census Bureau. Failure to comply, which seems to include not being able to satisfy USDOT officials with respect to transportation investment patterns, could result in disapproval of plans and programs and the cutoff of Federal highway or transit funds. Senators, States abhor discrimination and strongly support Federal and State anti-discrimination laws. We are aware of no record presented to Congress, in the development of TEA-21, indicating that States were not in compliance with anti-discrimination laws. Yet the proposed rules would impose undefined new burdens on States, and do so in a way that does not seem to provide States standard procedural protections against the cut off of funds.
* Confusing New Substantive Environmental "Goals" Seem More Likely to Increase Rather Than Decrease Disputes and Litigation. The proposed environmental rules would inject new substantive considerations into the NEPA process. One section would require USDOT to "manage" the NEPA process in order to "maximize attainment" of, among other goals, an "environmental ethic." Another stated "goal", "collaboration", is that "transportation decisions are made through a collaborative partnership involving Federal, State, local and tribal agencies, communities, interest groups, private businesses and interested individuals." Congress already delineated in the planning statutes that States must "consult" with certain entities and "cooperate" with others. And NEPA has long provided the public with the right to comment. Yet here the proposal seems to be to manage the NEPA process to make every person in the country a "partner" in making transportation "decisions." Needless to say, these kinds of vague rules could open a Pandora's Box of disputes and litigation, as parties challenge whether the NEPA process was "managed" to maximize such goals.
These problems are the heart of our objections to the rules. However, before addressing them more specifically, let us take a moment to put these objections in context.
Mr. Chairman, Federal law and regulations have established a process for transportation planning and for environmental review of proposed highway and transit projects that is not just thorough. It is also complicated, costly and slow. This is not something that happened since TEA-21 was enacted. It was the case when Congress was developing TEA-21.
Having considered the situation, Congress made clear, in the 1998 Conference Report accompanying TEA-21, that it had "concerns" with "the delays, unnecessary duplication of effort, and added costs often associated with the current process for reviewing and approving surface transportation projects." And Congress did more in TEA-21 than agree on report language that expressed concerns. Congress:
-- passed a provision directing the Executive Branch to streamline the process for environmental review of transportation projects;
-- protected the planning process from complication by prohibiting the application of NEPA to planning/programming approvals;
-- eliminated a separate planning step known as a "major investment study" (MIS);
-- reduced the number of planning factors States and MPOs must consider from roughly 20 down to 7, and precluded court challenges based on alleged lack of consideration of any planning factor; and
-- protected the planning process from complication by not enacting proposals to dilute State authority, such as proposals to newly require States to "cooperate with" (regulatory-speak for "agree with") certain entities in formulating portions of the State's transportation program.
As a result, we were pleased with the planning and environmental review provisions of TEA-21. Congress recognized the need for a thorough planning and environmental review process -- but also recognized the need to expedite that process. This is certainly the view of States. As the American Association of State Highway and Transportation Officials (AASHTO) explained in its recent resolution regarding these proposed rules:
"States agree that the planning and environmental review process for transportation projects should include ample public participation and careful review of impacts and issues, and further agree that present processes already go beyond this standard." Accordingly, AASHTO called for final rules that would "streamline" present processes.
The proposed FHWA/FTA rules, however, go in the opposite direction. Key elements of these proposals would complicate and delay current processes. Most troubling, in several instances, the rules would add major requirements that are contrary to statutory provisions.
In considering both the proposed rules and our suggestions, we also ask that Congress keep in mind that States are the primary subject of regulation under these proposed rules. States are public entities. They do not have a profit motive or other narrow focus. State DOTs are vitally concerned with the full range of public policy issues in transportation -- from providing efficient transportation to meet the mobility needs of people and business, to protecting the environment, to ensuring that all interested parties have the opportunity to comment on proposals. And we should not lose sight of the fact that States take steps that are not required by Federal law or rule. States have features in their individual planning processes, some required by State statute, that respond to particular circumstances. For these and other reasons, we believe that it represents sound Federal policy for Federal agencies to refrain from regulating States except where clearly directed to do so by Congress. The proposed rules do not follow that approach. The final rules should.
Before turning to specifics of the proposed rules, we'd also like to make clear that we see the issues raised by these proposed rules as readily distinct from the environmental streamlining issues that were the focus of the hearings held in April 1999 by the Transportation and Infrastructure Subcommittee of this Committee. At that time the focus was improvement of the environmental review process for transportation projects that require NEPA or other environmental approval by Federal agencies in addition to USDOT. That is an important area of concern. We feel much more needs to be done in that area, in terms of deadlines and other issues, even though we do see some reports of improved communication between agencies.
Today, however, the focus is on USDOT's own rules pertaining to planning and environmental review. Whether or not other agencies have a role with respect to a particular project, USDOT rules are always very important to the ability of States and others to move projects from concept to reality. That is why we are so concerned about these proposed rules, independent of the also important need to improve the coordination of the environmental review process when more than one agency is involved.
Major Problems with Proposed Regulations
Let us turn now to a more specific explanation of our concerns.
Major Investment Study Reform Has Been Recast Into an Increase in Regulation
After passage of ISTEA in 1991, FHWA and FTA administratively developed a non-statutory requirement known as the "major investment study" (MIS). This requirement, 23 CFR Sec. 450.318, is an extra layer of planning for major projects in metropolitan areas.
The requirement has been unpopular and for good reason. States and MPOs have long done planning and have long conducted alternatives analysis at the project level as part of the NEPA process. The MIS was essentially an extra layer of alternatives analysis, undertaken at the planning stage, that did not eliminate the need to do alternatives analysis at the project level, as required by NEPA.
Appropriately, Congress, in Section 1308 of TEA-21, directed USDOT to eliminate this extra layer of review and integrate MIS requirements into the planning or NEPA process "as appropriate."
Mr. Chairman, integrating MIS into the regular processes to the extent "appropriate" raises a very serious concern. If it is not done properly, the result could be that all metropolitan area projects, not just major ones, become subject to MIS type review, on top of other reviews.
Congress, however, anticipated this problem and further directed, in Section 1308, that after integration of any retained MIS requirements into planning or other rules, "the applicability of such regulations shall be no broader than the scope of [the former MIS regulation]." In short, Congress made clear that, to the extent USDOT found it "appropriate" to continue MIS-type requirements as part of the regular planning regulations, the MIS aspects of the planning regulations could not apply beyond so-called "major" projects.
The proposed rule, however, completely misses this requirement. Proposed 23 CFR Sec. 1410.318 would amend the planning rules to require preparation of an "initial statement of purpose and need" and an "evaluation" of "alternatives" for "investments," not just major investments. This is a very major regulatory increase for all non-major projects, contrary to an explicit statutory directive.
This portion of the proposed planning rule is particularly disappointing to us because, after the passage of TEA-21, but before the rules were proposed, we wrote to FHWA on future rules and one of our points was that Congress had precluded expansion of the reach of MIS requirements.
Integration of NEPA and Planning Can Be a Problem, Not a Solution
Let us add that our opposition to this regulatory expansion is not diminished because the proposed planning rules have couched it in the superficially appealing language of an effort to "coordinate and streamline the planning and NEPA processes."
It is our experience that discussion of the "coordination" or "integration" of NEPA and planning focuses too much on labels and not enough on what that means in practice. Simply put, when someone says he or she is for "coordinating" or "integrating" NEPA review and planning, we don't agree or disagree. Instead, we ask what it really means. We have seen two very different approaches to integrating planning and NEPA: one that advances streamlining, and one that sets it far back.
The positive approach to integration of planning and NEPA is to allow a State or MPO to take relevant work done in the planning process and use it in the NEPA process, so that the work is done only once, not twice.
A very different way of integrating planning and NEPA is taken in the proposed rules. The proposal would require increased work at the planning level (development of a purpose and need statement and alternatives analysis), but would not guarantee any reduction in work at the NEPA level. In essence, a significant amount of work likely would have to be done twice, not once.
This is a u-turn from the direction set by Congress, and we would oppose it even if it were not directly contrary to Section 1308 of TEA-21.
To actually advance streamlining in the planning rules, those rules should not require any new analysis by the States or MPOs at the planning level. Nor should the MIS-type analysis continue to be required for major projects. What USDOT needs to do is provide States and MPOs incentives to perform further analysis at the planning level voluntarily.
How? Simply by providing real assurance that any relevant work done at the planning stage will receive credit in the form of streamlined or expedited processing at the project/NEPA stage.
And if, in practice, USDOT does not give States or MPOs meaningful credit at the NEPA stage for planning work, States and MPOs would at least be free to fashion a response. As long as any additional planning work is voluntary, streamlining will not be undercut because States and MPOs would still be free to choose not to do that work at the planning stage and move more quickly to the NEPA stage. Work would still be done thoroughly - but just once.
Complicating and Slowing Down the Planning Process by Reducing the Authority of States
Public participation is a hallmark of the transportation planning process. Literally everyone is invited to comment on plans and projects. States and MPOs make major efforts to be sure citizens and groups are aware of their chance to comment.
Beyond the opportunity to comment, Congress has specified that States cooperate or consult with certain entities with respect to certain transportation issues. "Consultation" and "cooperation" are not defined by statute, but they were defined by regulation in the early 1990s, shortly after the enactment of ISTEA.
As currently defined, a "consultation" requirement imposed on a State with respect to an entity, such as an elected local official representing a unit of general purpose local government, means that the State must "confer" with that entity and "consider" its views.
Under the Federal rules "cooperation" is a much stronger requirement than "consultation." It requires parties to "work together to achieve a common goal or objective." It can be a very time consuming process. In practice, it has been hard to distinguish "cooperation" from a requirement that a State reach agreement with the "cooperating" party.
These were the established meanings of these terms when Congress developed and drafted TEA-21.
The degree to which consultation or cooperation rights are bestowed is a critical issue in the planning process. If a State has to consult with or reach agreement with an ever-larger number of groups, on a greater number of issues, the planning process inevitably is overburdened. It is also balkanized. As individual groups or entities leverage their consultation or cooperation authority to insist on solutions (usually money) for their own areas, the ability of a State to address statewide priorities or invest in major projects is seriously diminished.
In developing TEA-21, one area that Congress considered closely was the relationship between States and officials in non-metropolitan areas. Congress decided that, in non-metropolitan areas, with respect to certain projects, States should "consult" with "local elected officials representing units of general purpose local government" and also with "affected local officials with responsibility for transportation." Congress did not adopt proposals to require States to "cooperate" with such officials.
FHWA and FTA have proposed a major change from the legislation. The proposed rules would also require States to consult with officials, whether elected or appointed, "with jurisdiction/responsibility over community development activities that impact transportation" and "elected officials for special transportation and planning agencies, such as economic development districts and land use planning agencies." The precise limits of the types of officials that would newly receive consultation status are not clear, but it is definitely a large group. Many, many cities and counties have economic and land use officials.
The proposed rules also would effectively change the meaning of consultation by requiring that the State and the non-metropolitan officials being consulted with must "cooperate" in developing the form of the consultation and provide documentation to USDOT that they have agreed on the form of consultation.
So, under the proposal, every single consultation would become a two-step process, one of consultation, preceded by another of "cooperating" on the form of consultation. And the proposed rules would also newly require that both parties document to USDOT their agreement on the process. So, "consultation" parties would be provided the power to withhold agreement, and documentation of agreement on the consultation process to USDOT. So, the two parts of the process are hardly unrelated and not purely procedural. Parties will inevitably leverage the "cooperating" status on the form of consultation to obtain funding, project priority, or other favorable action from the State.
Let us be absolutely clear. We think it is good practice to consult with and listen to local officials. We consult with local officials throughout our States beyond the extent required by Federal law. We certainly consider all comments and funding requests that we receive from local officials, even if they are not designated as consultation parties. States also work with local officials in important ways not addressed by the rules. In Montana and many other States, for example, we have statutory guarantees that local units of government receive certain portions of Federal and State highway funds. So, we support working closely with local governments and other interested parties.
But we do object to regulatory changes that could make the overall process unworkable. When a very large number of entities are given "cooperating" power in the process, power that can be used as leverage for more funding, it is hard to see how States can make effective decisions on statewide issues. We're aware of no State DOT that has enough funding to come close to meeting the project funding requests it receives from every area of the State. Yet every area would seem to be empowered to withhold documentation of agreement on the form of consultation. It is not clear that, under this system, States would be empowered to provide areas less than they demand. In particular, States would be at risk of losing the ability to address large and costly projects if planning becomes nothing more than several hundred negotiations -- if we can even complete that many negotiations.
Fortunately, there is a straightforward response to these problems. Congress should order the agency to follow the law. In TEA-21, Congress required each State to submit to USDOT "the details of the consultative process developed by the State for non-metropolitan areas." The Congress further provided that USDOT "shall not review or approve such process." See 23 USC 135(f)(1)(B)(ii). In short, Congress made clear that States develop the consultative process, not USDOT. The proposed rules are not in accord with this provision.
The listing of land use officials as required consultation entities is particularly contrary to Congressional action. Before TEA-21, States and MPOs were required by statute to consider land use issues in planning.3 The new list of seven planning factors does not reference land use. And that omission was deliberate. Many State DOTs had advised Congress that, in their States, they did not have authority over land use issues. So, Congress deleted that requirement, allowing States to decide whether they will consider that issue in transportation planning. Now, the agency proposes a regulation that requires consultation with land use agencies and provides those authorities a de facto veto over the form of consultation. Thus, the proposed rules would essentially write in a requirement that the Congress struck.
Mr. Chairman, the proposed rules contain other changes that would be contrary to law or sound policy by reducing the authority of States and complicating the planning process.
Perhaps most startling, at a number of points the proposed rules would confer authority to make procedural decisions upon an undefined group of "planning process participants" rather than maintaining State authority.
Under these proposals, Federal land management agencies and Indian tribes also would be given "cooperation" status as to the form by which a State "consults" with them. So, with respect to these entities the proposed rules present the same issues of substantive leverage on States that was discussed earlier with respect to various local officials.
Another section in the proposed planning rules would require the development of State transportation plans to be "coordinated" with "related planning activities" being undertaken outside of metropolitan areas. "Coordination" is another term defined by regulation and it means that the coordinating agencies adjust their plans "to achieve general consistency." So, States would be required to adjust transportation plans for consistency with an undefined set of "related" planning activities. This is not in accord with the planning statute, which specifies that States are to "consider" such coordination. See 23 USC Sec. 135(d). The proposed rules would turn a consideration into a requirement.
We will not try to list here all the aspects of the proposals that would restrict States or dilute their authority. We wanted to identify a number of them, however, so that the Committee could appreciate our concern that proposed rules would undercut the authority of States in a significant and pervasive way. We feel strongly that such changes would not advance our nation's transportation system. They would, instead, delay and complicate, perhaps greatly, the ability of States to deliver - and citizens to benefit from -- transportation projects and programs.
The Proposed Rules Would Impose Unfunded Mandates Upon States to Implement an Executive Order on Environmental Justice and Would Do So in Ways That Exceed Statutory Authority and May Deny States Basic Procedural Protections
In a variety of ways, the proposed rules would transpose into regulatory requirements concepts contained in a 1994 Executive Order on "Environmental Justice," (Executive Order 12898).
The proposed rules would require States and MPOs to collect and analyze data comparing the distribution of transportation funds to various socioeconomic classes of persons, or places where they live. Failure to comply with these environmental justice (EJ) initiatives, which appears to include not being able to satisfy USDOT staff with respect to how States or MPOs invest transportation funds, can mean disapproval of the transportation investment program. This means the cutoff of Federal funds.
We have both general and specific objections to these proposed requirements.
As an across-the-board matter, we disagree with the apparent implication that State transportation departments are not adequately enforcing or implementing the Civil Rights Act of 1964 or other anti-discrimination statutes. States abhor discrimination and are committed to full compliance with anti-discrimination laws. If a claim of discrimination should arise, it can be dealt with under existing rules. No case has been made for major change in the present rules in this area.
More specifically, several aspects of the EJ proposals are particularly objectionable and suggest to us that the proposal may not be workable.
The data collection requirements are open ended and undefined. In response to questions, we have been told informally that the proposed rules would certainly require States and MPOs to collect and review existing data, such as Census data, but could also require them to go further and develop new data. So, there is a real prospect of grant recipients being forced to act as mini-Census agencies and develop demographic data that do not currently exist. We're not sure that there are any limits as to how much we could be asked to do in this regard.
States and MPOs also would be required to develop data and perform analyses regarding "low income" populations as well as other classes of individuals. Aside from the fact that this term is not defined in the proposed rules, "low income" people are not a protected class under the Civil Rights laws, making the proposed data and analysis requirements even more problematic.
Another troubling feature of the proposal is the requirement for assessment of "any denial or reduction in benefits."4 If a State makes a significant transportation investment that might be said to have benefited a particular group, as well as the population as a whole, then, the year after that investment, there usually is a reduction in the level of investment made in that area. Is that a "reduction in benefits"? Analysis of these types of issues is conceptually very difficult and highly judgmental. Consider some possibilities:
-- Will States feel coerced into not making large investments in certain areas so that they don’t have to explain "reductions"?
-- Transportation investments have long life spans and the planning and project delivery process is lengthy already. When does further investment have to occur (or not occur) to satisfy these proposals?
-- Will investments be considered "benefits”? We certainly believe that all the investments we make have been carefully considered and confer benefits. But there are some who perceive burdens and adverse impacts from projects. What are the ground rules here? Will different USDOT officials charged with oversight of different States see the same project type as a benefit in one case and as adverse in another? The proposed rules create such possibilities.
We doubt we have identified all the questions raised by these data and analysis requirements, but have identified enough to be concerned about the burden and uncertainty they would cause. We are also concerned that such uncertainty could lead to litigation and other program disrupting disputes.
Beyond problems with substantive EJ requirements that would be imposed, there are serious procedural concerns.
The EJ Executive Order included Section 6-609, a provision typical of Executive Orders. It specified that the order was intended for the internal management of the Executive Branch and was not intended to "create any right to judicial review."
However, the proposed rules are not an internal matter for the Executive Branch. They are expressly intended to regulate States and MPOs. Thus, we were troubled by provisions such as proposed 23 CFR 1410.206(a)(6)(vi), which states that no aspects of the paragraphs in the proposed rule requiring States to develop and analyze data "are intended to nor shall they create any right to judicial review of any action taken [to comply with Executive Branch Orders]."
The Civil Rights Act of 1964 has long provided for judicial review of any rules implementing that act. 42 USC Sec. 2000d-2. And the law also clearly extends the right of judicial review to any USDOT decision to deny Federal funds to a State for noncompliance with the act. 42 USC Secs. 2000d-1, 2000d-2.
Moreover, the law has long provided that, in the case of any agency action "terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section” a State is entitled to an on-the-record hearing. Further, even when such a hearing finds a violation, no cut off of funds may take effect until 30 days after the Department files a written report with the Congress. See 42 USC Sec. 2000d-1.
Mr. Chairman, the point behind these legal citations is that we are concerned that these proposed rules seem to leave open the prospect of USDOT staff cutting off a State's funding without providing a hearing. There is no indication in the proposals that acknowledges the procedural rights of States in this area. Of course, if pressed, USDOT would certainly say that it would not violate the law. Nevertheless, the provisions proclaiming no intent to provide judicial review and the absence of any express affirmation of States' procedural rights make us concerned that USDOT may try to implement EJ requirements without providing States with standard procedural rights that Congress established long ago.
Revision of Environmental Rules Creates Litigation Risk
We are also very concerned about the uncertainty and litigation risk that we see in proposed changes to the rules implementing NEPA.
The courts have long held that NEPA is a procedural statute. It ensures consideration of environmental impacts before decisions are made -- but does not require any particular substantive result.
The proposed rules, however, set forth "goals” for the NEPA process that are substantive in nature, such as "maximizing attainment" of an "environmental ethic," "environmental justice," "transportation problem-solving," "financial stewardship," and "collaborative decision making." See proposed 23 CFR Sec. 1420.107.
We are very concerned that promulgating these "goals" as final rules could lead to confusion, revised administrative process, litigation, and other disputes as parties struggle over what the goals mean, how to apply them, and the extent of their rights to have them applied. How many projects would be ensnared in the net of such changes, and for how long?
We have similar concerns with the directive that the final decision at the end of the NEPA process "shall be made in the best overall public interest." See proposed 23 CFR Sec. 1420.109. And also of concern are repetitive references to environmental "enhancements" that appear to push expenditures on enhancement features in a project in the direction of being a requirement rather than a State option.
Further concerns
While we have tried today to highlight major concerns with the proposals, we have others. Many, many wording changes have been made in these proposed rules. So that the Committee can more readily appreciate the scope of these changes, we have provided Committee staff with lengthy comparative text documents that enable the reader to see, without embellishment, the wording changes that would be made in the proposed rules.
This, we think, is an important tool, for it allows a reader to go behind our statements that the proposals would result in significant, adverse change and look at the changes directly. We are confident that anyone who undertakes that exercise will see that the extent of proposed changes is very significant.
We also want to be clear that we believe that these rules would impose significant costs, even if hard to estimate precisely. The additional process, data, and analysis requirements in these proposals are major. They cannot be absorbed for free. Yet, as I'm sure Congress knows, the mood in State capitols does not favor increased administrative budgets to enable civil servants to comply with Federal directives. We are being asked to do more with the same, or less. Simply, these are costly rules, and we will either have to give up other activities, or redirect project funds to overhead in order to comply. And we see an impact on projects. When projects are delayed, costs usually go up, sometimes a lot. So, we expect that, under these rules, we won't be able to do as much with the increased funding that Congress worked so hard to provide in TEA-21. Some of the funding may well have to be redirected to process compliance.
Let me say again that we necessarily can't be specific about how to price the cost of compliance with these proposals. But we will say that we are frustrated to even have to think about it. To achieve streamlining, the proposed rules should have provided positive answers to important questions, not more burdens and questions. Moreover, if questions were to be raised, they should have been questions about the extent to which the proposals would expedite and simplify the process.
Before concluding, we also note that, despite its many changes, the proposed rules (with one minor exception) would not provide for any transition or delay before they take effect. We raise this point with mixed feelings, because we want to be clear that we oppose these rules, period. Providing a transition period before they take effect will not address our basic concerns. However, even if all our major objections are properly addressed in the final rules, the scope of changes at issue here is such that a transition should be provided.
Conclusion
We support a thorough planning and environmental review process, but we oppose processes that are unduly complicated and costly, and that would delay the delivery of sorely needed transportation improvements. That is why we oppose these proposed planning and environmental review rules.
Later this month, before the comment period closes, AASHTO and individual States will file hundreds of pages of comments with FHWA and FTA regarding these proposed rules. Senators, if every suggestion made by the States in their comments is accepted by USDOT, we would still have a very thorough Federal process for planning and environmental review of transportation projects, but a more streamlined one. That is what we should be trying to achieve.
We hope that FHWA and FTA, upon review of our comments, AASHTO's comments and others, will make major changes and issue a substantially revised notice of proposed rulemaking that will accommodate our concerns and that we can review before it becomes final.
However, we have made our views clear to USDOT before, and the proposed rules still turned out as they did. Thus, we are far from certain that USDOT will change its views. Accordingly, we respectfully request the assistance of Congress in preventing the promulgation of these counterproductive proposals as final rules.
Thank you again for the opportunity to appear today. We’d be pleased to respond to any questions the Committee may have.