STATEMENT FOR THE RECORD
AMERICAN ASSOCIATION OF STATE HIGHWAY TRANSPORTATION
OFFICIALS (AASHTO)
The American Association of State Highway and Transportation
Officials (AASHTO), is a non-profit trade association representing the collective
interests of all fifty-state departments of transportation, the District of
Columbia, and Puerto Rico. The issue of environmental stewardship and
streamlining are of critical importance to the membership of AASHTO, and we
thank the chairman and committee for holding today’s hearing.
The purpose of our statement today is to outline specific statutory
recommendations for advancing stewardship efforts and for streamlining the
process. The current decision-making process for delivering transportation
projects has become increasingly complex leading to inherent inefficiencies and
redundancies. Targeted statutory reforms designed to provide structure and to
streamline the process are necessary if we are to improve the pace of
transportation project delivery.
BACKGROUND:
In the next 25 years, the U.S. population is predicted to grow by
60 million, with most of that growth in metropolitan areas. Our gross domestic
product is projected to reach 29 trillion dollars (approximately 1.5 times
today’s levels in real terms); and, if current trends persist, the number of
annual vehicle-miles traveled is predicted to grow even more rapidly than the
population or the economy, swelling from 2.75
trillion annual vehicle miles traveled in 2000 to over 4 trillion
annual vehicle miles in 2025. Americans will expect policymakers and
transportation professionals to provide transportation facilities and services
to accommodate this growth efficiently, at low cost, and in a socially and
environmentally responsible manner. As transportation officials, we must find
ways to deliver a transportation system that simultaneously promotes economic
growth, eases congestion, and enhances the natural and built environment. In
order to meet this challenge, we must deliver transportation projects faster
and better in the years to come. This will require a two-pronged
approach: first, transportation agencies will need to make a renewed commitment
to environmental protection and enhancement; and second, Congress will need to
assist by enacting legislative changes to streamline the environmental review
process.
ENVIRONMENTAL STEWARDSHIP:
Environmental stewardship begins not with new laws and regulations
but with a commitment by transportation agencies themselves to make
environmental protection and environmental enhancement an integral part of
their mission. State DOTs have taken this responsibility seriously and as a
result the majority of them are demonstrating strong leadership in this area.
In October 2001, AASHTO commenced a Stewardship Demonstration Projects
Initiative, whereby state DOTs were invited to voluntarily register examples of
stewardship projects in their state. These projects are tracked on a quarterly
basis with the goal of sharing information on best practices and lessons learned
between states. As of today, 23 states have registered a total of 39 projects.
AASHTO has classified the stewardship projects submitted into four
categories and/or levels of stewardship:
LEVELS OF
STEWARDSHIP
Level 1: proiect by project stewardship
initiatives. Examples include individual enhancements such as planting
extra trees, adding stormwater treatments and/or retrofits, extending sidewalks
and trails, etc.
Level 2: programmatic stewardship
efforts addressing multiple projects. Examples include the establishment of
context sensitive design programs, the development of best management
practices, the formation of partnerships with resource agencies and other
pertinent partners and stakeholders, etc.
Level 3: organizational and
cultural changes within an agency. For example, the State of New York
adopted an environmental stewardship ethic whereby all employees are encouraged
to look for opportunities on a daily basis to enhance the Department’s environmental
performance.
Level 4: institutionalization of
environmental stewardship. Examples include the development of an
environmental management system or similar system to track environmental
quality assurance/control procedures.
If one is to look at the four stewardship levels, one might predict
that the majority of state transportation agencies are still operating in level
one (i.e., implementing stewardship on a project by project basis). However,
AASHTO recently reviewed the 39 projects that were submitted to its
demonstration program and concluded that almost three-quarters (3/4) of the projects being proposed
were in levels 2, 3, and 4 (please see attachment A). Irrespective of how these
projects are working, or even if they are only in their infancy, the fact that
state DOTs are even considering these types of projects is significant
and should be recognized. State DOTs are committed to preserving, protecting,
and enhancing the environment. It is not business as usual at state DOTs. For
example, under state leadership, the federal-aid highway program is creating
2.5 acres of wetlands for every acre that is taken for road construction;
highways can now be counted as one of the biggest recyclers in America, through
re-milling pavements, use of fly ash in concrete, and the use of crumb rubber
as a component of road surfaces; and if a historic preservation project is to
be undertaken in this country, chances are considerable that it will be wholly
or partly financed via transportation dollars —
the transportation sector has become the largest financial contributor
of historic preservation projects.
AASHTO believes that there are opportunities for environmental
stewardship activities and approaches during every phase of the transportation
delivery project: planning, design, construction, operations/maintenance. It is
our goal to have state DOTs voluntarily incorporate stewardship activities into
each phase, as appropriate.
To assist state DOTs in this effort, AASHTO has developed, in
partnership with the Federal Highway Administration, the AASHTO Center for
Environmental Excellence. The mission of the Center is to augment the capacity
of state DOTs to deliver environmentally sound transportation projects by
encouraging environmental stewardship and promoting innovative approaches to
streamline the project delivery process in ways that can be easily replicated.
The following legislative recommendations are made by AASHTO as a
means to further advance state DOT stewardship activities:
AASHTO Center for Environmental Excellence. If state DOTs
are to continue to increase their capacity for delivering environmentally sound
transportation projects, by adopting and institutionalizing stewardship
activities, it is imperative that technical assistance be provided. AASHTO,
therefore, recommends that funding continue to be provided through FHWA to the
AASHTO Center for Environmental Excellence.
Recommendation: Funding for the AASHTO
Center for Environmental Excellence. Through FHWA, $2
million in annual funding should be provided for AASHTO’s Center for
Environmental Excellence to provide technical assistance, and support for
innovative state pilot projects and approaches.
Transportation
Enhancements (TE). Over
the last ten years though the transportation enhancement program, $4.9 billion
has been programmed for projects such as building bike paths and preserving
historic bridges. The transportation sector is the largest financial
contributor of historic preservation and archeological projects conducted in
the United States. AASHTO supports this valuable program and recommends that
the funding for the TE program remain stable. Should the overall size of the
surface transportation program increase, AASHTO recommends a commensurate
increase in funding for the TE program.
Recommendation: Funding for the TE Program.
The existing 10% set-aside for Transportation Enhancement funding in the
Surface Transportation Program should be preserved.
AASHTO also recommends that the administrative restrictions imposed
on how advanced payments for TE projects are made to states be removed.
Recommendation: Simplify TEs and
Trails through Advanced Payments: Improve the existing
advanced payment option for TE projects, by allowing states to receive advance payment
from FHWA for the entire amount of the TE program on an annual
basis, and by directing FHWA to revise its guidance as needed to
increase the flexibility of this payment option.
Recommendation: Establish Categorical
Exclusions for all TEs. A fixed deadline should be established
for FHWA to issue final regulations establishing that all TE projects qualify
for a categorical exclusion from NEPA review, as proposed by FHWA in its May
2000 rulemaking proposal.
Programmatic Approaches: Inter-agency programmatic approaches can be useful in providing
solutions to environmental challenges posed and faced by transportation
projects. Innovative agreements and approaches proposed by federal and state
agencies should be encouraged.
Recommendation: Funding for Programmatic
Approaches. Funds should be provided to states and federal agencies
such as the Environmental Protection Agency and the U.S. Fish and Wildlife
Service to demonstrate how programmatic approaches can improve protection of
wetlands, habitat, and other resources that may be affected by surface
transportation projects.
NEED FOR STREAMLINING:
As the stewardship ethic takes root in transportation agencies the
goal of providing better transportation projects is being realized.
However, in order to provide faster transportation projects, AASHTO has
concluded that Congressional help will be needed in certain targeted areas.
Since the enactment of ISTEA and TEA-2l, AASHTO members have shared their
experiences and have identified, from a practitioner’s viewpoint, the areas in
the project delivery process that either are not working, or are not working as
efficiently as they could. With the reauthorization of TEA-21 at hand, AASHTO
believes that an opportunity exists to improve the process.
Over the years, AASHTO has conducted numerous studies, as has the
Federal Highway Administration, examining the issue of delays in the project
delivery process. Two of the most recent studies include an October 2000 study
on Delays Associated with the Categorical Exclusion and Environmental
Assessment Processes conducted by TransTech Management, Inc. on behalf of
AASHTO and a January 2001 study on Evaluating the Performance of Environmental
Streamlining: Development of a NEPA Baseline for Measuring Continuous
Performance conducted by The Louis Berger Group on behalf of FHWA. In the
Berger study, 100 EIS projects were selected for review. Key findings from this
study included the following:
• For projects in which an
EIS pursuant to NEPA was required, the time for project completion was
approximately 13 years (Berger, 2001).
• The length of time for
preparing an EIS pursuant to NEPA has increased from 2.2 years in the 1970s to 5
years in the 1990s. In 2001, the average time to complete an EIS takes over
5 years. (Berger, 2001).
• When a Section 404
Wetlands permit is requires, the EIS preparation time increased by 2 years
(Berger, 2001).
• When Section 4(f)
approval (regarding the protection of historic or park resources) was required,
the EIS preparation time increased by 2 years (Berger,
2001)
In the TransTech Management study, 40 states were surveyed on
categorical exclusion (CE) and environmental assessment (EA) projects. Key
findings from this study showed:
• A majority of state DOTs experience
some CE and EA process-related delays. The three environmental compliance
requirements that commonly contribute to delays in preparation of both EAs and
CEs were Section 4(t), Section 106, and Section 404.
• Delays approximately
triple environmental review processing times from about 8 months to just under
two years for CEs, and from under 1.5 years to 3.5 years for EAs.
AASHTO recognizes, however, that studies are only as good as the
methodology used, the questions asked, and the data provided. Therefore,
AASHTO, believes it is time to move the debate beyond competing studies and
facts over whether there are indeed ‘delays’ in the environmental review
process, towards a more thoughtful discussion on process improvement, i.e., how
to achieve a more effective and efficient decision-making process.
In a sense, the concept of “delay” has become simply a shorthand
term for a deeper problem — a decision-making process that has grown so
cumbersome, complex, and unwieldy that it no longer serves the practitioners
well. The complexity of the NEPA process increases gradually, year by year, as
a result of new laws, regulations, court decisions, technologies, and policy
decisions. Taken alone, each new addition to the process may be worthwhile. For
example, there has been increased emphasis in recent years on issues such as
environmental justice and secondary and cumulative impacts. But as these areas
receive increased attention, there has been no corresponding attention paid to
ensuring the process works well together, i.e., that inefficiencies and
redundancies are eliminated. Rather, the entire process tends to expand in
scope; the “menu” of issues to be addressed and tasks to be completed expands.
The result is greater and greater complexity yielding to greater and greater
inefficiencies.
ENVIRONMENTAL STREAMLINING:
The changes recommended by the AASHTO membership are not radical,
nor are they designed to alter the fundamental premise behind the National
Environmental Policy Act (NEPA); rather they are designed to eliminate
duplications and unintended inefficiencies in the system thereby strengthening
the overall NEPA decision-making process. Moreover, these are changes that can
only be accomplished legislatively.
Issue: Improving the Linkage between Planning
and NEPA:
In October 1993, FHWA issued revised regulations implementing the
planning provisions of ISTEA. These revised regulations included a new concept
— the major investment study or MIS, which was not specifically called for in
ISTEA.
The regulations required an MIS for any “major metropolitan
transportation investment” where “federal funds are potentially involved”. Two
options were specified for preparing an MIS in the regulations. Under Option 1,
the MIS was to be prepared as a stand-alone study prior to the NEPA process.
Under Option 2, the MIS was to be combined with the Environmental Impact Study
(EIS) into a single document.
The two options for the MIS raised significant concerns:
• Option 1 MIS (prepare MIS, then EIS): When
Option 1 was used, the “decisions” made in the MIS process were often discarded
when the NEPA process began. In effect it became necessary to start over again
in the NEPA process, which caused the MIS process to lose credibility among
agencies and the public.
• Option 2 MIS (prepare MIS and EIS
together): While the Option 2 MIS avoided the problems with Option 1, it also
provided less flexibility. The Option 2 MIS was, in fact, an expanded EIS; it
did not provide a vehicle for conducting a corridor-level planning study before
making a commitment to prepare a full EIS for a specific project.
In reaction to the experience with the MIS, Congress enacted
Section 1308 of TEA-21 which directed U.S. DOT to “eliminate the major investment
study. . . as a separate requirement and promulgate regulations to integrate
such requirement, as appropriate, as part of the analysis required under the
planning and NEPA process for highway and transit projects. Section 1308 also
provided that “the scope of the applicability of such regulations shall be no
broader than the scope of such section.”
In May 2000, FHWA and PTA issued a notice of proposed rulemaking
for new statewide and metropolitan planning regulations. AASHO strongly opposed
the MIS integration provisions contained in the PH WA’s proposed planning
regulations for many reasons, the least of which the proposed regulation
directly contradicted Section 1308 of TEA-21 in that the new requirement was
broader in its applicability than the original MIS regulation.
Today, the MIS regulation is largely unenforced, but remains in
effect. In lieu of new regulations, States and Metropolitan Planning
Organizations have begun to develop new and innovative ways to integrate
planning with NEPA.
In order not to lose the innovation occurring at the state and
local levels, and to eliminate regulations that today are largely ineffective,
AASHTO recommends eliminating the MIS requirements.
Recommendation: Eliminate MIS Requirement.
Congress should direct the U.S. DOT to eliminate the MIS requirement, effective
immediately and to recognize the innovations that have occurred at the state
and local levels.
Issue: Reforming the NEPA Process:
1. Agency Roles and Responsibilities
It is frequently said that “collaboration” among agencies is the
key to successful streamlining. And it is true that a collaborative effort —
rather than an adversarial or compartmentalized approach — contributes to
effective decisionmaking. However, it is equally important to remember that
effective collaboration requires a clear understanding of each party’s role and
responsibilities. Without clearly defined roles, collaboration breaks down.
As currently interpreted by the Council on Environmental Quality
(CEQ), the NEPA process allows for two distinct agency roles: as “lead agency”
and as “cooperating agency.” In the NEPA process for a highway project, the
FHWA and the State typically serves as joint lead agencies. One or more
environmental agencies sometimes serve as cooperating agencies, particularly if
they have direct permitting authority over the project — e.g., the Corps if a
Section 404 permit is needed. However, among the dozen or so environmental
agencies involved in the NEPA process, the majority usually have no specifically
designated role in the process. They are referred to, in common parlance, as
“the agencies.”
In TEA-21, Congress recognized the need to define more clearly the
roster of agency participants in the NEPA process. It stated that the USDOT
“shall, at the earliest possible time, identify all Federal agencies” that have
jurisdiction by law over a project or may be required by Federal law to conduct
a review or issue a permit or other approval.
The laws did not require State agencies to participate in the coordinate review
process, but recognized that “a State, by operation of State law, may require
that all States agencies” participate in the process if they meet the same
criteria as the Federal agencies.
Implementation of this requirement has been varied. In some States,
the agency participants are clearly identified through NEPA-404 merger
agreements. In others, the identification of agency participants is more
informal. More generally, there has been a reluctance to negotiate memoranda of
understanding (MOAs) as suggested in TEA-21, possibly out of concern that the
negotiation of an MOA would itself become a source of delay and a focal point
for inter-agency disputes.
In addition, the distinctions among agencies roles in the NEPA
process have become blurred over time. The result has been that “Lead” agencies
— especially FHWA — have grown reluctant to make decisions on key issues
(particularly purpose and need) without obtaining consensus from each of the
other agencies involved in the process. In some cases, written “concurrence” is
required. This approach, while laudable in its intent, had had the
counter-productive effect of giving each participant a “veto” over the
purpose-and-need statement. It is a recipe for paralysis in decision-making.
In these circumstances, it is critical for Congress to (1)
strengthen the requirement that all agency participants be clearly identified
at the outset of the NEPA process, and (2) clarify the respective roles of the
various agencies in the process. Specifically, we recommend the following
approach:
Recommendations: Designate the USDOT and State DOT
(or other project sponsor) as the lead agencies in the NEPA process for surface
transportation projects. This provision would confirm that transportation agencies
bear the responsibility for leading the NEPA process for transportation
projects.
Give the lead agencies responsibility for inviting other agencies
to participate in the NEPA process. The benefit of this approach is that it
separates the issue of who participates from the more complex issue of how
to manage the process — e.g., deadlines, documentation, etc.
Define in general terms the respective roles of the lead agencies
and the cooperating agencies. In essence, the lead agency would bear the responsibility
for making decisions about the management of the NEPA process — on issues of
schedule, type of documentation, level of detail, and so forth. The
participating agencies would have responsibility for commenting on issues
within their expertise, in accordance with the project schedule. The
participating agencies also would fully retain their authority under other laws
— e.g., the authority to grant or deny required permits.
Create a simpler, more effective method for resolving inter-agency
disputes. TEA-21 contains a seemingly effective dispute resolution mechanism:
it requires resolution of any dispute between federal agencies within 30 days
after the Secretary of USDOT finds that such a dispute exists. Through
guidance, the USDOT has created bureaucratic hurdles that must be overcome
before such a finding is made, and as a result the dispute resolution mechanism
has never been used. A more effective approach would place the decision about
whether to trigger dispute resolution in the hands of the party with the greatest
interest in moving a project forward — namely, the project sponsor.
2. Milestones and Time Frames
As defined in regulations, the NEPA process has relatively few
internal milestones. In the case of an environmental assessment (EA) or
categorical exclusion (CE), the regulations contain no internal milestones;
there is no requirement for any formal announcement when the process begins;
for any public comment periods; or for the release of draft documents. In the
case of an environmental impact statement (EIS), the regulations require more:
(1) a notice of intent to initiate the process, (2) a scoping stage, (3) a
draft environmental impact statement, followed by a comment period of at least
45 days, (4) a final environmental impact statement, followed by a waiting
period of at least 30 days, and (5) a record of decision. But even in
the case of an EIS, the regulations define no milestones for agency or public
comment in the crucial — and often lengthy — period between the notice of intent
and the issuance of the draft environmental impact statement.
One of the most important developments in recent years has been the
adoption of key milestones during the development of an EIS or EA. These
milestones typically include (1) development of the project purpose-and-need
and (2) the selection of alternatives for detailed study in the NEPA document.
There also may be other milestones, such as selection of a preferred
alternative. These milestones are frequently established in interagency
agreements, which are commonly known as “NEPA-404 merger” agreements or simply
as “streamlining agreements.”
The establishment of these milestones has greatly changed the
dynamics of the NEPA process, by providing earlier and more formal
opportunities for agency and public involvement in the process. These
milestones have important benefits: they produce a more open process with
increased agency and public involvement, while also helping to ensure that any
major disagreements are identified and resolved early in the process. However,
it must be recognized that these milestones also create additional procedural
hurdles that must be cleared in the early stages of the process, or risk
creating new opportunities for delay.
At each of these milestones, the lead agency has an important
decision to make — a decision that will greatly influence the subsequent course
of the NEPA process. It is reasonable and appropriate to expect — in the case
of an EIS, and for some EAs — that there will be both agency coordination and public
involvement at these critical points. It also is reasonable to expect that,
within a reasonable time frame, the lead agencies will make decisions on these
issues and move the process forward.
It is not necessary to designate, in statute, the specific
milestones that must be included as part of the NEPA process. However, in order
to ensure the proper functioning of these milestones, AASHTO recommends that
two key principles be clarified:
Recommendations: Establish “default deadlines” for
agency and public comments at any milestones that are embodied in an
inter-agency agreement or other procedures, with some allowance for alternative
deadlines to be established or extensions to be granted.
Clarify that responsibility for decision-making at these milestones
rests with the lead agency, and that the lead agency is not required to achieve
complete consensus before moving the process forward.
3. Purpose and Need
A critical step in the NEPA process is the definition of a project’s
purpose and need. According to the CEQ regulations, which state than an EIS
“shall briefly specify the underlying purpose and need” of the proposed action.
This same requirement has been adopted, over time, as an element of an
EA. The purpose-and-need is important for a simple reason: an alternative that
does not meet the purpose-and-need is not considered to be a “reasonable”
alternative and thus can be eliminated without detailed consideration in the
NEPA document.
Because the statement of purpose and need helps to determine which
alternatives are considered and which are dropped, the definition of purpose
and need has become a flash-point for conflict in the NEPA process.
The courts have made it clear that agencies have broad discretion
to define a project’s objectives in a purpose-and-need statement. In essence,
the rule is simply that an agency must define the objectives “reasonably.”
Courts have recognized, for example, that agencies can consider policy
direction given by Congress in legislation when defining a purpose and need.
Similarly, FHWA has recognized in its guidance that purpose-and-need statements
can be based on a wide range of factors, including legislation, land use plans,
and capacity needs.
Despite the guidance given by courts and FHWA’s own regulations,
there has developed a widespread perception that the NEPA process must start
with a “blank slate” — i.e., that the definition of purpose-and-need cannot be
based on policy decisions that were made outside the NEPA process by Federal,
State, or local policy makers. Moreover, it has become widely accepted that the
purpose and need statement must be neutral as among transportation modes —
i.e., that it is legally improper to define a project’s purpose as providing
new highway capacity or transit capacity. The result has been the adoption of
increasingly vague purpose and need statements, which refer obliquely to goals
such as “increasing transportation mobility.” Such vague statements of project
objectives are viewed as “safe,” in the sense that they cannot be criticized as
biased for or against a particular mode or alternative. But when purpose and
need is defined that broadly, the range of potentially reasonable alternatives
is virtually infinite.
AASHTO doe not recommend that Congress dictate a particular
set of objectives in statute. The lead agencies should have the flexibility to
define a project’s purpose and need as they see fit, depending on the
circumstances of each project. However, AASHTO does recommend that Congress enact
legislation providing clear guidance on how to define a project’s purpose and
need. In particular, the legislation should recognize the following principles:
Recommendation: The purpose-and-need statement in a
NEPA document can be based on policy decisions that are made outside the NEPA
process — e.g., in federal legislation, in State laws, in State and
metropolitan transportation plans, and in local land use plans. For example, it
is legitimate and appropriate for a transportation project to have the purpose
of supporting planned growth as reflected in local land use plans.
The purpose-and-need statement in a NEPA process for a surface
transportation project should, when possible, specify a particular mode or modes.
This principle would not eliminate the lead agencies’ obligation to justify its
purpose-and-need statement; it could not define a project’s purpose as adding
highway capacity simply for the sake of adding highway capacity. But it would
encourage the adoption of mode-specific purpose and need statements, when
the conditions exist to support such a decision.
4. Range of Alternatives
The analysis of alternatives has been called the “heart” of an
environmental impact statement. Indeed, the alternatives analysis is vital to
the effectiveness of an EIS, or any other NEPA document for that matter. But it
is a mistake to assume — as some critics of streamlining have done — that the
value of an alternatives analysis can be measured by its breadth. In fact, as
the U.S. Supreme Court has noted, an alternatives analysis that seeks to cover
every conceivable alternative ends up becoming “frivolous boilerplate.” When it
comes to alternatives analysis, more is not always better. The key challenge
for lead agencies is to determine the proper range of alternatives in each
case.
The basic rule for determining the range of alternatives in a NEPA
document is that the document must consider “all reasonable alternatives.”
This regulation provides the basis for lawsuits challenging an EIS for
failing to consider a particular alternative, and can also provide a basis for
a resource agency to delay or deny issuance of a permit. In these
circumstances, lead agencies have a strong incentive to widen the scope of
their alternatives analysis, often devoting substantial time and resources to
“alternatives” that have strong backing from potential litigants or permitting
agencies, even if those alternatives have little likelihood of being selected.
On the other hand, lead agencies also operate under guidance that
requires all reasonable alternatives to be studied to a “comparable” level of
detail. This guidance tends to encourage an “all or nothing” approach to
alternatives analysis: either an alternative is included and studied to the
same level as all the other alternatives, or it is not included at all. This
guidance actually discourages the development of a wide range of alternatives
in NEPA documents. It also discourages lead agencies from conducting
additional, more detailed analyses of their preferred alternative (once it is
identified), out of fear that they will then be criticized for not studying all
of the alternatives to the same level of detail.
Decisions about the scope and depth of the alternatives analysis
generally are made early in the NEPA process, following the definition of the
project’s purpose and need.
However, it is not uncommon for new alternatives — or new
variations on existing alternatives — to be developed or proposed much later in
the process. Of course, the very nature of the NEPA process requires an
openness to new alternatives as the process evolves. Still, the decision to put
new alternatives on the table late in the process can cause considerable
complications. In addition to revising the NEPA document itself, the lead
agencies often must conduct further consultation under other laws (Section 106,
Section 7, etc.) and revise the documentation required for those consultation
procedures. Despite these problems, lead agencies often end up devoting
substantial time and attention to late-identified alternatives, out of concern
about potential litigation and permitting.
As a result of these factors, alternatives analyses in NEPA
documents are becoming increasingly detached from decision-making. To provide
greater flexibility and usefulness in the analysis of alternatives, AASHTO
recommends the following:
Recommendation: Require analysis of a “reasonable
range of alternatives,” rather than “all reasonable alternatives.” This change
would eliminate the incentive to develop an encyclopedic, exhaustive set of
alternatives, and would encourage a more pragmatic approach to the analysis of
alternatives.
Require a “reasonable” analysis of each alternative, rather than
requiring that each alternative be studied in a “comparable” level of detail.
This change would eliminate the incentive to study all alternatives to the same
level of detail, and would encourage a more pragmatic approach to the analysis
of alternatives.
5. Section 4(f) Reform
In their regulations, FHWA and PTA have established a policy of
making transportation decisions in the “best overall public interest.” Yet, as
described above, the real “drivers” in the NEPA decisionmaking process are
frequently individual statutes that require protection of specific resources.
These resource-protection requirements serve important purposes, but can have
the unintended effect of distorting decisionmaking in the NEPA process.
In the context of TEA-21 reauthorization, it is not realistic to address
all of the environmental regulatory requirements applicable to transportation
projects. However, there is one particular requirement that can and should be
addressed during reauthorization: Section 4(1).
Section 4(1) is a federal law that applies only to the USDOT. This
laws prohibits the USDOT from approving any project that uses certain protected
resources — parks, recreation areas, refuges, and historic sites — unless the
USDOT finds that (1) there is no “prudent and feasible” alternative that avoids
such resources or causes less harm to them, and (2) the project includes “all
possible planning to minimize harm” to those resources.
The problems with Section 4(1) are well-documented in the attached
appendix, and will not be repeated in detail here. The core problem with
Section 4(1) is a lack of flexibility, balance, and common sense. For example,
Section 4(f) forces the USDOT to avoid historic resources on privately owned
land unless the cost of avoidance reaches “extraordinary magnitude.” This “extraordinary
magnitude requirement” applies in all cases, even when the impact is
minor. As a result, FHWA frequently finds itself in the position of protecting
a minor historic property at the expense of other, more sensitive environmental
resources or communities. These decisions undermine not only the credibility of
individual decision-makers or agencies, but of the NEPA process as a whole.
To restore flexibility, balance, and common sense to Section 4(1),
AASHTO recommends the following legislative changes:
Recommendation: Amend Section 4(1) to create an
exemption for projects that have “no significant impact” on Section 4(1) lands.
Allow value of resource, nature of impact, likelihood of preservation to be
considered when determining significance.
Amend Section 4(1) to allow a more balanced, flexible approach to
determining whether an alternative is “prudent.”
Amend Section 4(1) to allow Section 106 compliance to satisfy
Section 4(f) for historic properties, if Section 106 results in a finding or
agreement that is supported by the State Historic Preservation Officer (and by
the Advisory Council on Historic Preservation, if the Advisory Council has
elected to participate in the Section 106 process).
Establish in statute that highways on the National Highway System,
including all Interstate highways, shall not be treated as historic resources
for purposes of Section 106 or Section 4(1).
6. Delegation
Over the history of the Federal-aid highway program, the Federal-State
relationship has continually evolved. As a general pattern, responsibilities
have been delegated to the States for routine matters, while the Federal
government has retained responsibility for the overall management of the
program and for specific issues that implicate national concerns — e.g., design
standards on the Interstate System.
Against this backdrop, there have been increasing calls for
Congress to consider delegation of certain Federal environmental
responsibilities to the States as a means of expediting environmental reviews.
While it must be recognized that delegation alone does not change the legal
requirements that must be satisfied, it is also true that delegation can reduce
the organizational complexity described above — i.e., the number of different
individuals and agencies involved in making any single decision. Thus,
delegation is a simple and powerful tool for reducing unnecessary complexity
and thereby streamlining environmental reviews.
The following approach to delegation
is recommended:
Recommendation: Authorize delegation of categorical exclusions that
are specifically listed in FHWA’s regulations. On a day-to-day basis, State
DOTs would be responsible for determining whether a project qualified for a CE.
The USDOT would exercise a periodic oversight role, to ensure that the CEs are
being properly applied.
Consider broader delegation of USDOT
authority to State DOTs, which could include delegation of environmental
responsibilities for all environmental assessments (EAs) or even for all
environmental impact statements (EISs).
Consider broader delegation of
environmental regulatory and permitting authority from Federal environmental
agencies to their State counterparts.
7. Dispute
Resolution/Lawsuits
Under current law, there is no
statutorily defined time period that specifically applies to a lawsuit
challenging a decision by the FHWA or FTA. Instead, the timing of a lawsuit
against the FHWA or FTA is governed by two legal principles:
• There
is a general six-year statute of limitations for suits against the United
States. (28 USC § 2401(a)). This means that, in general, a lawsuit challenging
FHWA’s compliance with NEPA must be filed no later than six years after the
NEPA process ends (e.g., six years after the CE, FONSI, or ROD is issued).
• The
common law principle of laches may bar some lawsuits even before the
six-year time limitations period has ended. In essence, laches bars lawsuit
that are considered to be “too late.” For example, a lawsuit filed after
construction has begun generally would be barred by laches; however, there are
no absolutes in the interpretation of the laches doctrine.
Because the six-year limitations
period is so long, and the applicability of the laches doctrine is often
uncertain, the potential for
litigation continues to exist long after the NEPA process ends — in some cases
months or even years afterwards. As a result, it is difficult if not impossible
for the USDOT agency and the project applicant to achieve true closure on the
environmental process within a reasonable time after the process ends. The
lingering uncertainty discourages prompt implementation of project decisions,
and exposes project applicants to the risk of an injunction at the eleventh
hour, just before construction is about to begin.
To avoid these problems in the
context of airport projects, Congress has established a 60-day deadline for
lawsuits challenging decisions by the FAA. (49 USC §46110) In fact, the same legislation
also requires all lawsuits against the FAA to be filed directly in a U.S. Court
of Appeals, basically skipping the U.S. District Court — and thus expediting
