I would like to start by commending Chairman Voinovich, Senator Baucus and the other members of the Transportation and Infrastructure Subcommittee for convening this hearing to discuss one of TEA-21's key policy innovations-Section 1309, which is aimed at streamlining the environmental review process for transportation improvement projects.
It is a pleasure to have the opportunity to testify before the subcommittee again. I appeared before this panel during the development of the National Highway System Designation Act (NHS). The purpose of that hearing was to discuss a transportation conformity issue. At that time, EPA was proposing to extend transportation conformity restrictions to communities that met federal air quality standards. ARTBA challenged in court the agency's statutory authority to promulgate such a rule. This subcommittee, led by Senators Warner and Baucus, included a provision in the NHS act that codified the court settlement ARTBA reached with EPA.
Project Streamlining, TEA-21 Section 1309
The ARTBA co-chaired and initiated Transportation Construction Coalition was pleased to have played a role in the development of Section 1309. Through this provision, Congress recognized the unconscionable delays that occur in moving many transportation improvement projects through the approval process. The ultimate goal of Section 1309 is to move transportation projects through the various environmental review processes as quickly as possible, while complying with federal environmental standards.
We strongly support this common sense approach to improving federal oversight responsibilities and ensuring the efficient use of tax dollars. Senators Graham, Smith and Wyden deserve great credit for initiating this provision in the Senate's initial ISTEA II reauthorization proposal.
Prior to the enactment of TEA-21, it almost seemed one needed a global positioning system to keep track of where a transportation improvement project was in the review process. The multiple processes with an approval role for transportation projects are the National Environmental Policy Act (NEPA), state NEPA equivalents, clean water permits, clean air conformity and endangered species implementation. Often times these procedures mask disparate agendas or, at minimum, an institutional lack of interagency coordination and the result is a string of seemingly endless delays. While TEA-21 maintains these processes, it does attempt to minimize delays and inject a holistic, unified approach to the approval of transportation projects.
Section 1309 seeks to establish a coordinated environmental review process for transportation construction projects. This provision requires diverse federal agencies to put aside their claims of exclusive jurisdiction to create a coordinated process-as envisioned under NEPA. We are pleased this process requires the reviews to be conducted concurrently and calls for the establishment of specific time frames before the reviews begin. We also believe the designation of the Secretary of Transportation as the lead official in the coordination of these efforts is critical to the success of accelerating the delivery of transportation projects.
TEA-21 Implementation General Recommendations
ARTBA has recommended three general principles the U.S. Department of Transportation (U.S. DOT) should follow throughout the implementation of TEA-21, and believes these recommendations are particularly relevant to the environmental streamlining provisions in Section 1309:
Through Congress, the American people want the improved mobility and access promised by TEA-21, not endless processes. The development of highway and transit projects has become mired in excessive regulation that is cumbersome, costly and time-consuming. TEA-21 is an opportunity to go in a positive, new direction, with USDOT's primary role as providing broad overall guidance and extensive technical support to state and local transportation agencies. New or continuing regulations should be promulgated only when the law explicitly requires them. In all other cases, non-binding guidance should be the rule.
Where regulations are required, USDOT should emphasize permissive rather than detailed mandatory language, with as much flexibility as possible to allow state and local governments to find solutions that effectively address the broad range of local situations.
In addition to these guiding principles for the implementation of TEA-21, ARTBA has recommendations for the implementation of Section 1309. As members of the industry which will be dealing with the new streamlined approval process on a daily, first-hand basis, we believe these recommendations will help ensure the intent of Congress is carried out and that Section 1309's objectives are realized.
Section 1309 Implementation Timeline
As previous witnesses have indicated, it is difficult to comment in detail on the implementation of Section 1309 because very little has been released publicly about the Administration's progress or plans on this important endeavor. The Administration did release an options paper earlier this year and requested comments on it, but as senators at an earlier hearing stated, it was a cumbersome document that did not provide any detail on current Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) policy development.
TEA-21 was enacted June 9, 1998. We are told FHWA and the natural resource agencies held their first interagency meeting on the implementation of the streamlining provisions on April 7 of this year. FHWA Administrator Wykle indicated April 15 he expected a notice of proposed rulemaking would be completed within 120 days. Mr. Chairman, those of us who have been involved in this process from its nascent stages are concerned about the pace of these proceedings.
Adding to our concern, we were told earlier this year by an FHWA official that the process was moving slowly because some natural resource agencies did not believe Section 1309 applied to their role in the approval of transportation projects. This type of attitude not only slows down the development of the streamlining regulations, but also could undermine their effectiveness once implemented. Congress clearly intended the streamlining provisions to apply to all agencies involved in the review of transportation projects and communicated through Section 1309 that an uncoordinated, uncooperative process is no longer permissible. It is our hope this subcommittee will continue to be actively involved in the implementation of these important regulations and demonstrate its willingness to assist FHWA and FTA in clarifying the intent of Congress to any agency that is unclear about its obligations under Section 1309.
Lead Agency Role
It is critical for the U.S. Department of Transportation to have the lead role in the approval of transportation projects and, consequently, all stages of the coordinated environmental review process. The natural resource agencies do not have expertise in this area and cannot make informed decisions on the wide ranging issues related to approval of these projects.
Memorandum of Understanding
We believe that contact between executive branch agency heads, through a memorandum of understanding or a stronger mechanism, is essential to ensure the goals of section 1309 are realized. Without direction from the top calling for joint action, transportation planning and development have no better chance of surviving agency-centric disagreements in the future than they do today. Cabinet or agency heads must make this statement soon.
A related issue to the lead agency role and the development of a memorandum of understanding is the provision of Section 1309 that allows an exception for participating in the coordinated environmental review if it would result in a significant adverse impact on the environment. A conceivable example of this type of situation could be requiring a decision to be made on the basis of purportedly inadequate information. To ensure that even in these "exception" cases the concept of streamlining is adhered to, ARTBA believes an agency with such an opinion should be required to continue its involvement in the coordinated process. It would seem there is a benefit from unifying the system even if concurrent processing is not possible in all instances. Inclusion of all agencies in the process would improve time management and the level of information that reasonably needs to be made available to those seeking it.
Simplification, not Complication
The ultimate goal of Section 1309 should be to allow transportation decision-making to go forward-and quickly-not provide opportunities for dissenters to throw up roadblocks. To this end, FHWA should work to simplify the process and avoid adding new requirements or mandates.
Front-end Scoping
To address the excessive delays currently associated with the NEPA process, a multi-agency front-end scoping process should be developed that identifies issues to be explored and establishes specific timelines to complete the analyses. This process should set the stage for cooperation among agencies, distinguish the important issues from the inconsequential, and focus the analysis to produce answers that will be need in the decision-making stage. Sequential reviews of new issues should be minimized, if not eliminated. In addition, involved state and federal organizations should be required to identify issues of concern to their mission as early as possible.
Pilot Effort
The U.S. Department of Transportation, in its TEA-21 environmental and planning options paper, listed the potential of establishing a "pilot effort." We very much like the idea of testing a product before shipping it to the consumer. A useful pilot effort would be projects that test alternative approaches to gaining early inter-agency cooperation.
Assistance to Affected Federal Agencies
Congress accurately recognized that inter-agency cooperative action requires adequate staff resources. While the concept of funds transfer is controversial, it has been demonstrated to work in some cases. In the instances where it has been effective, the funds were used to support a specific individual(s) performing specific tasks on specific projects. It would be unwise, and, in our view, inconsistent with Section 1309, to contribute funds to the general operating budget of an agency, department, or office and hope that sufficient personnel would be available when needed to achieve the goal of expedited schedules.
We are concerned the FHWA/FTA "options paper" stated ". other statutory authorities exist for agency reimbursement and FHWA and FTA are exploring the full range of options for reimbursing agencies under any of the appropriate authorities." This interpretation could potentially lead to efforts by executive branch agencies to supplement their normal operating budgets.
Consequently, we recommend that a detailed reporting system to Congress be established to provide adequate oversight on the application of this particular provision. The goal of this system would be to ensure that any funds transferred are used only to assist agencies in meeting expedited time schedules, not to perform review functions that are part of an agency's general responsibilities.
Creating a Benchmarking System to Judge Progress
We share the hopes of the authors of this provision that it will generate significant improvements in the delivery of transportation projects. We suggest that a mechanism be established to measure or "benchmark" progress in the implementation of streamlining in the years ahead.
We propose that proven survey research methods be utilized to measure in a statistically valid way whether or not all parties with a role in the approval of transportation projects are participating in the streamlining process in a constructive manner. We believe that an objective third party with a proven track record in this type of survey research would be the most appropriate entity to conduct the benchmarking study.
Section 1309 faces not only procedural obstacles due to the multiple federal/state agency jurisdictions over separate elements of the federal-aid highway program, but it also requires a change of attitude among the affected agencies. Coordinated environmental reviews require a cooperative process that is above competing or contradicting agendas. This type of evolution is best measured through attitudinal survey research techniques that include unbiased questions asked of a subset of the involved group.
This suggestion is not intended to assign a characterization of success or failure to Section 1309. It recognizes, however, that long run indicators that may evolve as a result of the various memoranda of agreement and pilot processes now under discussion will take years to develop. In addition, if the length of time necessary to develop an interagency memorandum of understanding for the coordinated environmental review process is any indicator of the regulatory process ahead, this type of mechanism may allow an ongoing evaluation for the short term. A benchmarking system would not only aid members of this subcommittee in fulfilling your oversight responsibilities and establish a baseline reference for future progress; it may also inject an element of accountability among the various federal agencies involved in this process.
We believe this type of process should be initiated within the next six months to develop an appropriate baseline. To be consistent with the intent of Section 1309, we believe the U.S. Department of Transportation should have the primary responsibility for the coordination of the "benchmarking" study and bear its minor cost. While this proposal is not expressly called for in Section 1309 and needs to be further developed, ARTBA pledges to work with this subcommittee and all stakeholders to refine this mechanism.
Environmental Justice
Environmental justice-or equity-was first officially recognized by the federal government through a 1994 executive order issued by President Clinton. The order instructed select agencies and departments to review asserted "disproportionately high and adverse human health or environmental effects" that particular "programs, policies, and activities" have on minority and low-income populations in the United States. The concept has no basis in any existing law or regulation. In fact, the judicial system has given the concept a cold shoulder at best and Congress, through the appropriations process, has explicitly prohibited certain agencies from pursuing "environmental justice" enforcement.
The stated purpose of environmental streamlining is to make the permitting process shorter and easier. The Administration's efforts to include "environmental justice" review in the NEPA process could seriously threaten the effectiveness of Section 1309. The objectives of accelerating transportation project delivery cannot be attained if the process can be side-tracked by anyone who has even the slightest disagreement with a project. "Environmental justice" is a highly amorphous term that has not been clearly defined by Congress, the courts, or even the government agencies that are attempting to enforce it. It is clearly an undue burden on the public to be subjected to enforcement actions that have no established parameters.
ARTBA strongly opposes the inclusion of "environmental justice" in the NEPA streamlining process-an option proposed for consideration in the FHWA/FTA paper on implementation of TEA-21's environmental and planning provisions.
Transportation Conformity Reform
Mr. Chairman, any discussion about how to speed up transportation project delivery must include a tremendously important issue not addressed by Section 1309 of TEA-21-federal law and regulations implementing transportation conformity with the Clean Air Act.
In just recent weeks, we have seen vivid examples of how opponents of highway improvements are using transportation conformity to delay or stop much-needed projects. Of course, I am speaking of the Wilson Bridge Project here in the Nation's Capital that has now been threatened with serious delay by a court order. And the March 2 federal court of appeals decision in Environmental Defense Fund v. Environmental Protection Agency (EDF v. EPA) that struck down a longstanding and reasonable EPA rule that allowed transportation projects that had already received NEPA approval to be grandfathered into subsequent state transportation and air quality plans required by the federal government.
We are struck by an observation that Judge Sporkin made in issuing his ruling on the Woodrow Wilson Bridge earlier this month. He wrote: "These [environmental] statutes have as their purpose the protection of various aspects of the public interest. Despite their intended purpose, they often cause regulatory gridlock that results in necessary projects being interminably delayed. While a return to the simpler days of the past might better satisfy the concerns of the public interest statutes involved here, progress must nonetheless occur." The judge suggested that Congress might explore "direct intervention" to "bypass the regulatory gridlock that have developed."
Transportation conformity with the Clean Air Act is the major impediment to getting needed transportation projects off the ground and into the construction phase. Congress needs to simplify how the air quality aspects of transportation projects are evaluated and to remove the complex procedural hurdles that can result in repeated delays and disruption.
Transportation projects are different from other projects subject to regulation under the Clean Air Act. Transportation projects typically advance important public health and safety objectives, such as congestion mitigation and redesign of unsafe roadways. Delaying projects does not further these important objectives. Moreover, from an air quality standpoint, mobile source emission control requirements have become more stringent over time, and will continue to result in additional emission reductions per vehicle mile traveled in the future. This will result in continued air quality improvements from the transportation sector, over and above the other important public heath and safety objectives.
As a result, a program that serves as a barrier to needed transportation projects does not serve the public interest. The real issue, therefore, is how to keep both the federally assisted highway program and the clean air program running, without having one impose unreasonable procedural barriers and delays on the other. Given the special characteristics of transportation projects, we believe the best approach would be to use the transportation conformity process as an evaluation tool to provide information to state air quality decision makers, but not to impose on transportation plans and projects a never-ending decisional process that will inevitably disrupt and delay project planning and implementation. Under this approach, state air quality agencies would have detailed information on transportation planning to take into account in their air quality planning process, but transportation projects would be able to proceed once the required evaluation was completed and submitted to the state.
As the recent EDF v. EPA decision and the growing number of lawsuits against highway improvement projects demonstrate, the situation requires a legislative fix to make clear that changing clean air requirements do not require all highway planning and projected development to come to a standstill. To make matters worse, the grandfathering decision is just the latest development in a string of assaults on the congressionally directed federal highway program over transportation conformity issues. Separate lawsuits have also been used to stop transportation improvement projects in Florida, Idaho, Missouri, West Virginia, Georgia, Wisconsin, and the Woodrow Wilson Bridge project, just to name a few.
Congress has clearly recognized the inconsistency between how the Clean Air Act is being interpreted by some, and manipulated by others, to undermine the objectives of TEA-21 and other previous surface transportation reauthorization bills. Earlier this year, Senator Bond introduced legislation, S. 495, to reform the Clean Air Act provision that allows a state's federal highway funds to be withheld if that state is not in attainment with federal air quality standards. Chairman Voinovich and Senator Inhofe have both suggested that a legislative remedy to the "grandfathering" decision may be required. Representative Jim Moran and others have said a surgical legislative solution to the Woodrow Wilson Bridge's most recent setback may also be necessary.
We certainly agree with all these proposals and statements, but would respectfully suggest that these separate, but related, symptoms are indicative of a much larger disease. The transportation conformity provisions of the Clean Air Act must be reformed or we can expect to see more and more necessary highway improvement projects across the nation held up or stopped.
Mr. Chairman, it is not a coincidence that members of Congress are seeing transportation projects in their states or districts delayed due to conformity issues. In fact, we are heading for a direct collision between the record number of projects authorized or funded in TEA-21 reaching the approval phase at the same time EPA's new air quality requirements for particulate matter and ozone are implemented. Under EPA's own estimate of the new standards' impact, which I believe this committee has considered conservative in the past, the number of nonattainment counties will more than triple.
The combined effect of TEA-21's increased transportation investment, the new air quality standards, current conformity provisions and the EDF v. EPA decision could have a devastating impact on my industry's ability to make needed transportation projects a reality. In summary, Mr. Chairman, the biggest impediment to accelerating project delivery is not addressed in Section 1309 of TEA-21 and can only be overcome by reforming the Clean Air Act's transportation conformity program.
The federal transportation conformity regulations were based on what has proven to be a false assumption-that forcing a shift of federal dollars from highway capacity improvements to alternative transportation projects will result in a significant improvement in air quality. The assumption failed to recognize or anticipate the dramatic reduction in overall automotive emissions that has occurred over the past decade-and will continue well into the next century-despite increased auto usage sparked by population and economic growth, lifestyle choices and employment demographics.
Safety Concerns
Mr. Chairman, before I end my prepared remarks, I would like to add one brief thought. As a result of TEA-21, one of the seven newly consolidated transportation planning factors is safety. We commend the Congress for designating safety as a preeminent consideration in the development of our nation's infrastructure and for the Clinton Administration's commitment to safety as its top transportation priority.
It is our hope this subcommittee will work to ensure that as the development of these new planning regulations goes forward, the Administration's safety efforts are focused on roadway infrastructure safety as well as the behavioral or social initiatives that receive so much media attention. Mr. Chairman, roadway design, maintenance, safety appurtenances and construction workzone safety are every bit the public health threat as impaired driving or the lack of seat belt usage. In fact, roadway conditions are factor in over 12,000 annual U.S. roadway fatalities and over 700 people are killed each year in highway construction work zones. We believe these important safety issues deserve recognition in the new transportation planning regulations.
This concludes my written statement. I would like to once again thank the subcommittee for allowing me to be here today and I would be happy to answer any of your questions.