Testimony to

Committee onSenate Environment and Public Works Committee

U.S. Senate

“Project Delivery and Environmental Stewardship”

September 19, 2002

By

Charles Hales

Transit Planning Principal,

HDR

Portland, Oregon

Mr. Chairman, , members of the Committee on Environment and Public Works. My name is Charles Hales. I am the Transit Planning Principal with the engineering firm of HDR in Portland, Oregon. HDR is a member of the American Council of Engineering Companies, and supports their efforts to improve project delivery. I am pleased to testify today as a former elected official and as a principal of HDR. In both of those capacities, I have worked collaboratively with a broad coalition of environmental and smart growth organizations. Some of them have endorsed my testimony here today and have supplied supporting materials for the points I will make here; those include: The Surface Transportation Policy Project, Environmental Defense, The Sierra Club, The National Coalition to Defend NEPA, Defenders of Wildlife and the Natural Resources Defense Council.

tThank you for this opportunity to advise you on your work on federal policy affecting transportation project delivery. In both my public service as Portland’s Transportation Commissioner and in my role now in the private sector, building public works - particularly transportation projects -– has been and is the focus of my work.

I am pleased to testify today on my own behalf, on behalf of HDR, and on behalf of the Surface Transportation Policy Project, and Environmental Defense and the Sierra Club..

Twelve years ago, I was working in the development and construction industry. In 1991, I made the decision to and run and was elected to the for office asof Portland City Commissioner. I did so because I believed that Portland was about to experience a major wave of growth and change, and I wanted to help steer our course through the perils and opportunities that growth brings. As it turned out, I was correct in that prediction; Portland boomed in the ‘90’s, and I was involved in the construction of over $2 billion worth of infrastructure. I’m happy to report that we have grown well. Money Magazine and others share my opinion when they call us America’s Most Livable City.

My experience might prove instructive as you consider issues involved with the reauthorization of the Transportation Equity Act for the 21^st Century (TEA-21), and ideas for “streamlining” the planning process required under this law or the National Environmental Policy Act (NEPA). What weI have found is a this set of principles , borne outthat have been validated in project after project:

(1) Public works projects are “place-makers.” This is true whether the project is a highway, a, a transit line, a, a park, a community center, or a police station. To pretend otherwise is…well, to pretend. When we build a freeway interchange or light rail line, we exert a massive influence on the character and destiny of the land around the project. AAmericans have created a lot of unlovely places have been created and and wasted a lot of infrastructure money wasted by ignoring this principle. Suburban sprawl results fromis the compartmentalized, rather than the integrated, approach to land use and development planning on one handin one realm, whileand the provision of public works on the otherhappens in another. In an era when infrastructure dollars are limited (actually, is there ever a time when this isn’t true?) and quality of life is the most important driver of local economic development, designing projects whichto support the “place” is the only prudent investment strategy for public funds. The alternative strategy, and one, which is far too common, is , rather than building public works projectsprojects, and letting the “place” spontaneously develop around them., is the only prudent investment strategy for public funds. Sprawl, congestion and other unintended consequences are the predictable result.

(2) Given the first principle I just described, Lland use planning must lead project engineering. The “purpose and need” stage of NEPA is applied common sense. Before we build a project, we need to ask what our goals are and how a proposed “improvement” will advance those goals. We need to honestly consider all the alternatives. We need to examine the consequences and side-effectsside effects of the proposed improvement. If we don’t we will not leverage the benefit of the infrastructure investment as we should, and we will likely create problems whichproblems that will be worse and more expensive to solve than the one whichone that we just “solved.” The classic example of this phenomenon is the much-repeated fallacy of the past fifty years: expanding highways to alleviate traffic congestion. We don’t need to be subtle about this issue anymore: building highway capacity without integrating transportation planning and project design with regional and local land use planning is counterproductive.

Lewis Mumford warned us more than fifty years ago when he said thatsaid, “Americans will soon have every facility for moving around the city, and no reason whatsoever to go there.” Transportation investments which serve a well-thought-out land use plan pay dividends; those which take an engineering-only approach cause terrible side-effects or at least, don’t perform very well or very long. My company summarizes the integrated approach in three words: community, mobility and environment. It is sound public policy to respect all three.

(3) In addressing these basic questions, we need to bBring all stakeholders and points of view to the table. As I mentioned, I’ve built a lot of infrastructure and now, as a principal with HDR, I look forward to being involved with building a lot more. For those projects to succeed, their concept and design must be informed by all who have a stake in themall who have a stake in them must inform their concept and design. The “good old days”, in which a Robert Moses Moses in New York or in my state, a Glenn Jackson could locate and authorize a project by fiat, are gone. The public, with good cause, won’t stand for it. Similarly, federal, state, regional and local agencies have their responsibilities under law, and they are bound to carry them out.

An open, inclusive process of considering all the issues involved in a major infrastructure investment is legally, pragmatically, and, and politically required.

The good news I have to report, Mr. Chairman, is that these principles are not simply lofty ideals., butThey are standard practice in my community. That this is true, and that, and as a result Portland is widely considered to be one of America’s most livable cities, is not a coincidence.

My community’s experience shows that the best way to “streamline NEPA” is to go through the planning process right the first ,time and only once. We have made a sustained commitment to comprehensive land use and transportation planning. We work collaboratively to integrate the requirements and address the concerns of federal and state regulatory agencies in our plans and projects. We then ask those agencies to sign off early on purpose and need. We base our project priorities on the plans. We are thrifty in our expenditure of public monies. We build transportation projects on time and on budget. And our transit projects in particular outperform their projections.

Our experience beliesallays some concernmyths about environmental review:

(1) The most frequently-cited myth is It is not my experience that environmental groups and NIMBY’s (not-in-my-back yard neighborhood groups) will exploit environmental review and tie needed projects up for years. If there is any place in America where this should be true, it is Portland, Oregon. Our state is loaded with environmentalists (remember the book “Ecotopia”?), and our city is populated with neighborhood activists. To make matters worseIn fact, Portland actually goes so far as to provides funding and staff support for neighborhood associations and gives them a free land use appeal right for discretionary land use decisions. Some might expect this to be a recipe for paralysis.

Yet the contrary is true. In the ten years I served as a Portland City Commissioner and as Portland’s representative to the MPO for our region, we built dozens of major highway, transit, sewer, and water projects, and other major facilities. In almost no case…allow me to repeat that…in almost no case was a have projects been held up by appeals, litigation or multiple trips through the NEPA process or though state or local review. I’m proud of that track record; I believe that I made good decisions. I must admit, though, that I was not infallible. Some appeals are meritorious; they are part of the checks and balances system, and their scrutiny accomplishes a legitimate purpose of these laws: avoiding bad projects, or reshaping them to be good ones.

Similarly, in ten years of rapid growth and dramatic change in the built landscape of my city, only a handful of private development projects in Portland were blocked by citizencitizen blocked a handful of private development projects in Portland or neighborhood appeals.

Thisappeals. This paradox is explained by the fact that we have taken the coordination, public involvement and alternatives analysis goals of NEPA and TEA-21 to heart. We plan, we work for consensus, and we follow our plans. We are a case study that demonstrates that good administrative practice gets good treatment under the federal requirements. We demonstrate that even in a city with an EndangeredEndangered Species swimming through its downtown, federal and state agencies can reach agreement and construction of public works and private development can continue apace.

(2) EAnother myth is that environmental review does not need to hold up projects or add significantly to their costs. adds significant cost to projects, and that “cutting all that red tape” will save the taxpayers’ money. If my community’s citizens are “green,” they are also “tight.” Oregonians are frugal, and expect frugality in public expenditure. In my experience, this expectation is more likely to be met with a truly good faith effort to follow these planning and alternatives analysis requirements. To borrow a popular phrase, planning is expensive and time-consuming, but not compared to the alternative.

(3) These laws and regulations don’t foster internecine warfare among public agencies; done right, environmental review reduces interagency conflict. The Oregon DOT, like most state DOTs, is still primarily a road and highway organization. The ODOT staff has, however, incorporated this planning-based approach in their work. They, in return, expect counties and municipalities to work collaboratively with them; for example, we are transitioning some former state highways located in urban areas into locally-managed streets. These projects don’t require environmental review, but the cooperative working relationships forged in environmental review makes these other “win-win” agreements possible.

Environmental review requirements, well integrated and well administered, help assure that good projects are advanced with public support, avoiding adverse impacts and mitigating unavoidable impacts. This translates into public acceptance and smoother permitting. While there are opportunities for better administration of such reviews, changes in law are not generally needed to make this happen. Indeed, efforts to expedite project delivery are likely to fail and work against sound decision-making if they set arbitrary time limits, curtail public and judicial review, limit consideration of alternatives and determinations of project purpose and need, or allow use of project segmentation and analysis models insensitive to induced traffic and other indirect impacts. Such approaches are likely to spur increased conflict and reduced public support for transportation funding and programs.

It’s not possible to mandate cooperation, consensus and trust. Trying to push projects forward by the means I just listed will fail because in a complex environment like the design and permitting of a major public works project, cooperation, consensus and trust are necessities, not niceties. Likewise, it’s not possible to measure a transportation project’s success on transportation or engineering terms alone, so evaluation measures, if the Committee pursues them, should evaluate a project’s affect on a community’s goals and plans. Land use results – i.e. the places where Americans live their lives – are not a “secondary effect.”

When I was first contacted about testifying before your committee, I was reluctant to accept the invitation. I knew that the subject was streamlining the approval process for transportation projects, and that the committee would, necessarily, confer with experts on the specific language of federal law and the regulations, both current and draft, which have been promulgated to implement these laws. My reticence was based on my understanding that I am not one of those experts and, more powerfully, that I have spent ten years governing a growing city and building major infrastructure projects without having to think much about NEPA or the planning requirements of TEA-21.

That, ultimately, is my message and why I am here after all: if you take the commonsense planning, coordination and public involvement requirements of these federal policies seriously, they don’t get in your way. If you are committed to the spirit of these laws, the particulars are relatively unimportant. And as a local or state official, your time is much better spent in genuine consensus-building and integrated planning than in complaining about the regulations. or defending against citizen suits. Ou

r experience is that if citizens participate in the planning process and have a clear buy-in and responsibility for commitment, there are few suits. The plan is the community’s plan. I should also emphasize that one does not need to adopt Portland’s approach, or anyone else’s; a community is free to plan its own future, not imitate anyone else’s approach in order to get these beneficial results.

My message is not just the minimization of the negative. I’m not simply saying that if one plans, coordinates and communicates, the federal regulatory requirements are not so bad. It’s The results can be better than that:. aA community which first, engages in real, comprehensive, and sustained land use planning, and which secondly, makes infrastructure decisions subordinate to consistent with that plan, and thirdly conducts a genuine and genuinely open process of alternative analysis not only gets through the environmental review process with a minimum of difficulty; the people of this community own the results of the planning process and get to live in a better place.

That is the opportunity that environmental review offers to states and localities. I hope that this committee, in its work on the next transportation bill, encourages us all to get serious about taking it.

Thank you. I would be pleased to answer any questions.

Attachments:

· Attachment 1, "Expediting Project Delivery Without Sacrificing Environmental Protection," summarizes broadly supported principles for accomplishing improved project delivery and better environmental stewardship through better administration of the planning and project review process. These principles are fully consistent with the approach we have followed to achieve success in Portland.

· Attachment 2, "Questions and Answers About Environmental Streamlining," provides important background on the debate over streamlining vs. stewardship and transportation project delivery, including information about sources of project delay identified by AASHTO and FHWA studies.

· Attachment 3, "The Most Environmental Impact: Forests, Highways and Army Corps of Engineers," shows the share of agencies issuing Environmental Impact Studies (EISs) by year and the trends in number of EISs filed each year. These charts show that transportation still accounts for a large share of projects that are so environmentally significant as to trigger a full EIS, but that the number of EISs filed is actually declining slightly overall.

· Attachment 4, "Environmental Streamlining: Better Decisions from Integrated Transportation Plans/Reviews? Or Steam-rolling for Destructive New and Bigger Highways and Airports?," summarizes key talking points developed by Environmental Defense to explicate the current public policy issues in this area and offering ideas for what streamlining should and should not seek to accomplish if it is to protect the environment and expedite project delivery. These are principles that are highly consistent with our experience in Portland and I commend them to your attention.

· Attachment 5, "Comments by Environmental Defense on Proposed Metropolitan Planning and NEPA Streamlining Rules," provides important background on the statutory requirements for regional planning in TEA-21 and how these relate to NEPA requirements, Title VI of the Civil Rights Act, and other elements of the federal highway law that require consideration of the adverse effects of air pollution prior to the approval of plans and specifications for a highway, as well as measures to eliminate or minimize the adverse effects of air pollution. The approaches advocated in these comments are consistent with Portland's efforts to integrate transportation, growth management, and air quality efforts.

· Attachment 6, "Letter to Transportation Secretary Rodney Slater from Rep. John Lewis and four other members of Congress, December 2000", calls for U.S. DOT to adopt a national mobility goal to measure the performance of metropolitan transportation system and ensure equal access to employment opportunities and public facilities through regional transportation plans and timely progress towards this goal through transportation improvement programs. Adoption of this goal would be consistent with making our communities better places to live, with greater transportation choices, with a transportation system that delivers effective performance for all citizens, fostering a sense of place and a sense of region built on access to opportunities.

Attachment 1:

EXPEDITING PROJECT DELIVERY WITHOUT SACRIFICING ENVIRONMENTAL PROTECTION

In an effort to accelerate transportation project delivery, some have suggested short-changing the environmental review process by eliminating public participation and imposing deadlines on participating agencies. However, recent data tell us that well over half (62%) of delayed projects are stalled due to lack of funding, local support and project complexity – not environmental review. More expedient project delivery – and better projects -- can be realized through more sensible planning, early stakeholder involvement and simply taking advantage of existing programs. Better administration of current environmental laws by state and federal agencies and project sponsors is the key to success, not changes to law. Specifically, we propose the following:

q PLANNING -- Transportation planning which considers communities and protected resources such as public parks, wildlife habitat, historic sites and scenic areas will produce better projects that are less likely to incur opposition and delay. Integrate existing resource protection efforts into transportation planning to ensure future projects will avert impacts. Taking protected resources into account at the beginning, and planning accordingly will both protect resources and facilitate project approvals. Effective policy would support efforts to develop, harmonize, and coordinate state and local transportation, environmental, resource and land use planning.

q INVOLVEMENT – Involve the affected community early, substantively and continuously throughout the planning and project review process. Since so much delay is attributed to local controversy and lack of support, it makes sense to design projects with significant public participation in order to build support and improve acceptance. Promote more public involvement in transportation plans.

q COORDINATION – Mandate better coordination among participating agencies. Direct state DOTs to work collaboratively with state and federal resource agencies, municipalities and other interested parties to develop environmentally sound transportation projects and plans. States can ensure participation by employing TEA-21’s under-utilized §1309(e), which authorizes compensation for resource agencies’ increased transportation project review workload.

q CLASSIFICATION – Properly classify projects for environmental review. Too often, problems in project reviews arise because transportation agencies seek to waive appropriate environmental review for a complex project with multiple impacts by classifying it as a Categorical Exclusion or Environmental Assessment. This often causes later legal or regulatory delay as critics seek to challenge a flawed administrative process.

q ALTERNATIVES AND IMPACTS – Effectively consider a wide variety of alternatives, as well as secondary, induced and cumulative impacts in project planning, design and review. The best process engages stakeholders in identifying partial build alternatives, travel demand management strategies, alternative investments, and other approaches to avoid or mitigate negative impacts. Build consensus for action by addressing broader stakeholder concerns, rather than imposing narrowly focused objectives on the community. Many delays, especially for controversial projects, arise when agencies have failed to effectively consider impacts on specific populations or neighborhoods, or the effects of transportation infrastructure projects on land use, travel behavior and public health.

Attachment 2:

QUESTIONS & ANSWERS ABOUT ENVIRONMENTAL STREAMLINING

Steam-rolling or Improving Transportation Project Delivery?

What is Environmental Streamlining?

During the legislative battle to reauthorize the Intermodal Surface Transportation Efficiency Act (ISTEA) in 1997 and 1998, the highway building industry and interests strongly pressed Congress to include language that would “streamline” the environmental review procedures as they are applied to transportation construction projects. Many projects, they contend, are needlessly delayed by strict environmental regulations, increasing costs and denying American drivers the efficient transportation system they deserve. “Over the years, the well-intentioned NEPA process has become enmeshed in a web of duplicative bureaucratic reviews.” (Cooperative Environmentalism, American Highway Users Alliance, http://www.highways.org/roadblock/co_op_enviro.html)

In 1998, Congress rejected the streamlining proposals put forward by the highway lobby that would have seriously undermined many of the nation’s key environmental accountability laws, such as the 1969 National Environmental Protection Act (NEPA). The Transportation Equity Act for the 21^st Century (TEA-21) instead affirmed recent best administrative practices by encouraging a more coordinated transportation project environmental review process. US DOT has since helped foster adoption of better practices across the nation through guidance and training. Proposed final rules based on TEA-21 planning and project review language have been shelved recently after several years of development. However, some in the road lobby have continued to press for a rollback of environmental laws through rulemaking and legislation. With TEA-21 up for reauthorization in 2003, these issues will be the subject of several congressional hearings.

Why do we need a transportation project review and planning process?

Transportation planning and project review requirements were put in place by our elected officials in response to the serious damage done to countless individuals and communities by the road and transportation construction industry. Highways create profound permanent changes to our communities and regions, imposing significant impacts on surrounding areas, including economic, social, cultural, as well as environmental.

Before NEPA, road builders across America bulldozed homes, neighborhoods, farms, and businesses in cities, suburbs, and rural areas without recourse for citizens and local leaders to shape decisions. Thanks to NEPA and ISTEA/TEA-21 reforms, residents now have a right to know about the effects of transportation project decisions before they are final and opportunities to help shape consideration of alternatives to proposed transportation projects and plans. These laws work with other environmental statutes, like the Clean Air Act and Endangered Species Act, to help protect public health, community well being, and the natural environment from potentially profound negative impacts of transportation investments. The time it takes to review projects under NEPA is often well spent in producing better projects and decisions. Without NEPA, countless places we now cherish as economic, cultural, and environmental assets, such as old town New Orleans or Washington, DC’s Rock Creek Park would have been paved as freeways.

What Does TEA-21 Say About This?

TEA-21, the successor to ISTEA, contained §1309, which mandates that the DOT Secretary will “develop and implement a coordinated environmental review process for highway construction and mass transit projects...” The elements of streamlining include:

Ø Agency identification and participation: At the earliest possible time, the DOT shall identify and notify all state and federal agencies with jurisdiction or review/permitting responsibilities for the project.

Ø Concurrent reviews: Presently, projects are reviewed by many different agencies in sequence. Each agency must wait for the one before it to review the project. Section 1309 suggests these reviews take place simultaneously where practicable.

Ø Cooperatively determined time periods: All agencies involved in the review will agree to delivery dates, after considering respective resources and other commitments.

Ø Assistance to affected Federal agencies: State DOTs may provide funds to the reviewing and permitting agencies to assist them in meeting the cooperatively determined time periods.

Ø Dispute resolution: In the event that a review cannot be completed within the cooperatively determined time period, the DOT will provide notice and enter into additional consultation before closing the matter.

Why do road projects take so long to deliver?

Transportation projects that receive Federal support must follow environmental review procedures prescribed in the National Environmental Policy Act (NEPA), which also acts as an umbrella process for guiding compliance with key elements of other Federal environmental laws, such as the Endangered Species Act, Clean Water Act, and the National Historic Preservation Act. NEPA establishes three classes of environmental review actions for transportation projects, based on the magnitude of their anticipated environmental impacts:

I. Environmental Impact Statement (EIS) - For major projects with significant impacts

II. Environmental Assessment (EA) - For projects where impacts are not clearly established

III. Categorical Exclusion (CE) - For minor projects with little or no significant impacts

Non-Environmental Factors. Despite the rhetoric, the vast majority of transportation projects are not subject to environmental review and very few are actually delayed. According to a 2000 study by the association of state transportation agencies (AASHTO), 91% of all environmental documents produced by state DOTs are Categorical Exclusions (CE). Less than 2% are EISs. Contrary to the horror stories generated by highway advocates, processing times for environmental review average between 8 months and 3.5 years, depending on the level of complexity associated with the analysis. (Environmental Streamlining: A Report on the Delays Associated with the Categorical Exclusion & Environmental Assessment Processes, by TransTech Management, Inc., October 2000).

Recent studies by the Federal Highway Administration and AASHTO including a survey of 33 responding state DOTs, show that delay in project delivery are most often due to lack of funding or low priority project (33% of delay), local controversy (16%), and complex project/no reason given (13%). Projects that raise complex environmental issues - specifically, wetlands, historic structures and places and parkland impacts – do take longer to review, but these issues arise in only a small share of projects. FHWA found that in projects in which an EIS is required (those with significant impacts to the environment or human health), the NEPA process accounted for 28% of the total time required for the entire project development process. The NEPA process time is not necessarily additive and is often coincident with other activities and phases completed by the state DOT or project sponsor.

Lack of Funding TEA-21 significantly increased funding for new roads and highways. It did not, however, increase funding to the agencies charged with reviewing and permitting all of these new projects. Projects that require review may be delayed because they are sent to already overburdened resource agencies which are not funded, staffed or equipped to meet the additional demand. Some increase in the timeliness and effectiveness of project reviews could be achieved by addressing this discrepancy.

Complexity of Review. According to a 2001 FHWA study, the median time for a NEPA process to be completed is 3.0 years (median) or 3.6 years (mean). The NEPA process starts from the Notice of Intent, through interagency meetings, public scoping process, study and modeling of alternatives, preparation of a draft EIS or EA, public hearings, and finalization of environmental document and record of decision, including the usual consultation process with affected local elected officials. Even in the 1970s, when environmental projects and their documents presented fewer complex issues, mean time for the NEPA process was 2.2 years. For complex projects, a three years is often the minimum time necessary to complete an effective NEPA process. Arbitrary deadlines that short-circuit such project reviews would sacrifice effective involvement of affected communities and development of strategies to mitigate or avoid adverse impacts.

According to the FHWA review, the length of time for the NEPA process to occur depends on whether certain issues are involved—if a wetlands (section 404 of the Clean Water Act) permit is involved, the time increases from 2.4 years to 4.3 years. If the right-of-way involves public parkland (section 4f of the DOT Act), the mean time increases from 2.8 years to 4.7 years. More complex projects take more time and cannot be legislated with one-size-fits-all deadlines.

Regional Difference. Regional differences are also striking. Region 10 had a minimum and median NEPA time of 1 year, with 6 of 11 projects finishing their NEPA process in 1 year. Region 1 also had a minimum NEPA process time of 1 year, but a maximum of 9 years and thus a median of 4.5 years. In fact, every region except one had a minimum NEPA process time of 1 year (FHWA 2000). This indicates that natural resource agencies can and do process NEPA documentation in a short period for appropriate, non-complex projects now.

Unrealistic Expectations. In a review of projects catalogued by 33 state DOTs designated as categorically excluded from NEPA (CE) or requiring only an Environmental Assessment (EA), AASHTO reports (Transtech Management, 2000) that state DOTs processed, on average, 294 CEs and 21 EAs annually. Delays were reported according to whether the project was delayed “more than 15 days” and “more than 30 days.” Several state DOTs may have had very unrealistic expectations about the length of time in which natural resources agencies would process NEPA documents. These expectations ranged from a minimum of one week for a CE to an average of 8 months, and two weeks for an EA to an average of 14 months.

Miscategorization of Projects. The AASHTO survey showed that delay reported by state DOTs was, not surprisingly, related to the complexity of the project. State DOTs reported that Section 4f (DOT Act), Section 106 (National Historic Preservation Act) and Section 404 (Clean Water Act) accounted for most of the delay (53-66%), with Endangered Species (35%) and Community Impacts (16%) falling much farther behind. Unlike the FHWA study, however, the AASHTO survey did not correlate delay, and the length of delay, with confounding variable like 404, 4f and 106 issues.

Based on the high number of CEs and EAs that involved 404, 106 or 4f issues reported in the AASHTO survey, it is likely that state DOTs reporting delays in this survey had processed some complex projects with significant impacts using lower-level environmental documentation than required. This can result in natural resource agencies needing to request more information to document impacts and to analyze mitigation measures, which delays sign-off in the review process. Perhaps the state DOTs in the AASHTO study should have processed the CEs as EAs, and processed the EAs as EISs, given the prominence of these confounding 404, 4f and 106 issues. The DOTs’ expected response times from environmental resource agencies would have been more realistic, tending more toward the average length of time, causing fewer delays to be reported. There is anecdotal information that in some states, no-impact enhancement and bikeway projects may have been subject to excessive reviews relative to their scope, delaying them and increasing their cost.

What Do Environmental Groups Say About Environmental Streamlining?

There is no question that America’s transportation infrastructure is imperative to our mobility, productivity and success. However, we cannot deny that it has also had significant impacts on our environment. Four million miles of roadways cover no less than 1% of our total land area, approximately the size of the state of South Carolina. Unfortunately, not all of those roads were planned wisely, leaving a destructive – and permanent – footprint on our landscapes and wildlife habitat. New or expanded freeways can become a powerful force for sprawl, traffic, and pollution growth. These in turn lead to increased incidence of childhood asthma, cancer, and premature death of those with respiratory disease. Major road projects have often harmed the vitality of older communities, reduced access to jobs and public facilities for people without cars, and exacerbated environmental injustice. For all these reasons it is imperative that transportation decisions be made only after careful consideration of not only the immediate need and purpose, but also the long-term and cumulative effects and strategies to mitigate these. As well, transportation decisions cannot be made in a vacuum, but only after consultation with all stakeholders and interested parties.

However, there are opportunities to improve the quality and reduce the length of transportation project reviews without compromising the environment, community, and cultural resource protection. Much of the delay in project delivery of which transportation agencies complain can be avoided if these agencies identify and meaningfully address conflicts at the beginning of the planning process, rather than being forced to address them later after litigation or extended interagency conflict.

The environmental community strongly objects to any measure that would weaken our nation’s environmental protections – regulations that receive widespread public support and that are largely responsible for the quality of life we enjoy today.

What are the keys to success in improving transportation project delivery?

1. Involve stakeholders early, substantively, and continually in planning and project review. Accomplishing this will require greater funding for resource agencies and public involvement in the process. For example, the U.S. Fish and Wildlife Service has received no additional funding to do environmental reviews since TEA-21 was passed, even though its workload of projects to review has risen by more than 70 percent. State DOTs have the authority to fund resource agencies to be involved in the project design and review process and some, like Pennsylvania, do so. Far too many projects are delayed because they are planned and designed before regulatory agencies and affected stakeholders are ever consulted. If they are involved from the beginning, they can steer transportation agencies clear of problems early.

2. Consider and mitigate or avoid secondary, induced, and cumulative impacts. Many delays, especially for controversial projects, arise when agencies have failed to consider effectively the disparate impact of benefits and burdens on different subgroups or neighborhoods or the effects of transportation on land use, travel behavior, and public health. The federal transportation planning requirements established in ISTEA and TEA-21 encourage regional and state transportation plans that consider needs and requirements of other sectors. Many regions and states are making progress in integrating transportation, land use, air quality, water quality, habitat conservation, and community economic development planning. Such integration allows identification of more cost-effective projects that satisfy more constituencies with fewer adverse impacts. But many agencies still resist adoption of best practice analysis methods, segment projects into small sections to avoid considering cumulative impacts, and seek to avoid accountability for project and plan impacts.

3. Effectively consider alternatives in planning and project reviews. An effective process engages stakeholders in identifying partial build alternatives, travel demand management strategies, alternative investments, and other approaches to avoid or mitigate negative impacts and builds consensus for action by addressing broader stakeholder concerns, rather than simply boosting mobility. NEPA Project Purpose and Need definition is a critical step in accomplishing this. If the Purpose and Need is too narrowly defined, the review process may face delay or failure because the wrong project gets designed and it does not address critical community problems.

4. Properly classify projects for environmental review. Too often, problems in project reviews arise because transportation agencies seek to waive appropriate environmental review for a complex project with multiple impacts by classifying it as a Categorical Exclusion, causing later legal or regulatory delay as critics seek to challenge a flawed administrative process. On other occasions, transportation agencies may subject small and very low impacts enhancement projects, such as a bikeway, to cumbersome environmental review that causes extensive delay and increased cost without significant gains in the quality of the project.

Are changes needed in law to achieve better transportation project delivery?

Improving transportation project delivery by the above principles requires better administration of the planning and project review process under existing statues. Changes in law could be helpful, but only if they foster more timely and widespread adoption of these principles by transportation agencies.

Efforts to weaken NEPA and other project review requirements with artificial deadlines and restrictions on involvement of resource agencies and the public in the definition of purpose and need and identification of alternatives are destined to disable effective reviews, leading to more conflict and litigation over contentious projects. Efforts to weaken NEPA undercut US DOT efforts to encourage transportation and resource agencies to support best practices in transportation project review that can improve project delivery. Congress should support and strengthen the initiatives by some state transportation agencies to foster stronger environmental stewardship and more broadly integrated planning and project development.

Attachment 3:

The Most Environmental Impact:
Forests, Highways, and Army Core of Engineers

The Number of EISs Filed is Decreasing

Attachment 4:

Environmental Streamlining:

Better Decisions from Integrated Transportation Plans/Reviews?

Or Steam-rolling for Destructive New and Bigger Highways and Airports?

June 2002 Environmental Defense

History of Environmental Streamlining Efforts

· Council on Environmental Quality (CEQ) study on NEPA’s effectiveness (1997)

· TEA-21 (federal transportation law, 1997-1998) streamlining provisions

· FHWA, ACOE, USEPA regional memoranda of understanding

· FHWA-FTA rulemaking 1999-2000

“Environmental Streamlining” encompasses diverse efforts to:

· distract attention from growing administrative failure in transportation project delivery process

· expedite project delivery by limiting or changing environmental laws & review process

· foster environmental stewardship at state DOTs

· coordinate planning and project reviews by transportation and resource agencies to

· better consider alternatives, secondary, cumulative, indirect impacts, with early effective involvement of stakeholders

Why do we need transportation project reviews?

· Before NEPA, road builders bulldozed homes, farms, businesses, natural areas with little notice, information, or recourse for public or local officials

· Right-to-Know: Information, Alternatives, and Mitigation

· National Environmental Policy Act of 1969

Ø consider alternatives to proposed actions

Ø consider and mitigate secondary, induced, cumulative impacts on environment and communities

Federal Highway Law USC 23 Section 109

· eliminate or minimize adverse health and community impacts of projects as condition of approval

· public involvement and systematic interdisciplinary approach as essential parts of development process

Core Laws Assuring Information & Accountability

· Sec. 4(f) and 106: historic resource impact review

· Clean Water Act: Sect.404 Army Corps permits

· Clean Air Act: conformity of transportation plan with adopted public health air pollution plans

· Civil Rights Act Title VI: consider and mitigate disparate distribution of benefits and burdens

· Endangered Species Act: protect habitats

· Americans With Disabilities Act: protect access

· TEA-21: planning framework and funding

TEA-21: Promoting Coordinated Environmental Review Process

· Road lobby effort to weaken NEPA in TEA-21

· TEA-21 called for coordinated environmental review process to be established by DOT with:

Ø Agency identification and participation

Ø Concurrent review where appropriate and feasible

Ø Cooperatively determined time periods considering resources and other commitments

Ø Potential state funding for Federal resource agencies

Ø Dispute resolution and consultation

What TEA-21 Environmental Streamlining did NOT do

· Amend NEPA or other federal environmental laws or limit judicial review under these laws

· Change purpose and need determinations or limit challenges to project justifications

· Mandate concurrent review when it isn’t feasible or foreclose reconsideration of items not fully addressed during concurrent reviews

· Change the substance of required federal oversight

TEA-21: Integrate MIS into NEPA and Transportation Planning

· ISTEA required Major Investment Study for investments with significant effect on capacity, traffic flow, congestion, mode share

· TEA-21 eliminated stand-alone MIS but ISTEA MIS requirements were to be integrated into planning and NEPA requirements

· Proposed new planning and project review regulations to accomplish this are stalled

Major Investment Studies Must Consider

· Direct/indirect costs of reasonable alternatives

· Social, economic, environmental effects

· Energy consumption and safety

· Operating Efficiencies and Financing

· Land use and economic development

Do environmental reviews cause unnecessary delays?

· State DOT environmental documents review:

Ø 91% are Categorical Exclusions (CE): no review

Ø 7% are Environmental Assessments (EA): small study

Ø less than 2% are Environmental Impacts Statements (EIS): major projects with significant impacts - these take on average 3-3.6 years (28% of project time)

Ø Of projects with full EIS:

Ø 3.0-3.6 years for NEPA review: 28% of project time

Ø complex projects add length to reviews: wetlands, parkland/historic impacts, endangered species

Key Sources of Delay in Transportation Project Delivery

· Lack of funding/low project priority

· No consensus about project purpose and need

· Complex issues raised by major projects

· Inadequate support for resource agencies doing reviews to be engaged early and effectively

· Inadequate consideration of alternatives

· Inadequate consideration of impacts, mitigation

· Misclassification: CE when EA/EIS needed or EA when CE or programmatic review appropriate

Integrating Transportation Planning and Project Review

· Disjointed planning and project reviews often miss alternatives that could mitigate or eliminate adverse impacts

The Latest Threats

· Airport Streamlining Approval Process Act of 2002 H.R. 4481;

· Bob Stump Nat’l Defense Author. Act for FY2003 H.R. 4546;

· Pipeline Infrastructure Protection to Enhance Security and Safety Act H.R. 3609

· EXP*DITE– Expediting Project Delivery to Improve Transportation and the Env’t Act

Salient Features of Environmental Streamlining

· Mandatory inclusion in “coordinated review process”– or else defer to its decisions

· 30-45 days review periods for all environmental agencies on major projects

· Woodshed approach to conflict resolution

· Concurrent processing of permits and NEPA process-- not logical, sequential review

· Public input not mentioned at all

· Limited judicial review of decisions

Impacts of Streamlining

· Tips balance between federal government and state and local prerogatives

· Reduces local and regional power to review projects, choose alternatives acceptable to communities and environment

· Harms environment and human health

· One size fits all approach to projects

Why is This Happening Now?

· Highway project delivery pipeline has slowed down, airport runway projects face opposition

· Amount of federal money for highways doubled since ISTEA, but fewer projects being built

· Contractors, pork-barrel politicians, others dissatisfied

· State DOTs and others are looking to scapegoat environmental reviews for their own administrative failures and opportunity to weaken environmental accountability

Example of Possible Effect of Airport Streamlining

· Pennsylvania has 136 public-use airports

· Hearings on State Airport System Plan now

· Airport bill would place in federal bureaucrats’ hands (FAA) all power to determine purpose and need of airport capacity expansion projects and the determination of reasonable alternatives

· Pennsylvania airport master plan and EA process– out the window?

Streamlining Should Not

· Mess with NEPA and other existing core community/environmental protection laws

· Short-circuit laws with artificial time limits

· Force concurrent decisions on detailed permits while in broad planning stage

· Delegate authority for federal reviews except for small, no-impact projects

· OK projects without adequate mitigation

Streamlining Should

· Integrate MIS into planning/NEPA reviews

· Use products of planning in project reviews if

Ø best-practices used for analysis of induced demand, secondary and cumulative impacts

Ø resource agencies, public effectively engaged

Ø significant mitigation is achieved with demand management, transportation pricing, investment in alternatives that enhance travel choices, equity, environmental performance

How to Streamline for Better, Quicker Results, Consensus

· Involve stakeholders early, effectively, continually

· Consider, mitigate secondary, induced, cumulative impacts

· Partial build/TDM alternatives, address broad purpose/need

· Properly classify projects

· Partnerships for community environmental stewardship

Environmental Stewardship Agenda for TEA-3?

· Integrated Planning and Program Review funding program for transportation, land use, air and water quality, habitat protection, GHG reduction: data collection, analysis tools, plan harmonization, public involvement, partnerships

· Requirement that state/regions consider alternative transportation and land use scenario in long range plans that optimizes progress towards integrated federal/state/local goals

Conclusions

· Streamlining through best practices will get better projects built with less conflict and delay

· Streamlining will spur conflict, resistance, delays if it seeks to curb accountability, informed public involvement, or weaken right-to-know laws and requirements for mitigation

Attachment 5:

COMMENTS BY ENVIRONMENTAL DEFENSE ON PROPOSED METROPOLITAN PLANNING AND NEPA STREAMLINING RULES

Environmental Defense submits the following comments on the proposed revised metropolitan planning and NEPA-streamlining rules. These comments are submitted on behalf of the 400,000 members, staff, officers and board of Environmental Defense, a not-for-profit organization incorporated in the State of New York, but with members in every state of the Union.

I. COMMENTS ON DOT METROPOLITAN PLANNING RULEMAKING:

ENVIRONMENTAL DEFENSE SUPPORTS EFFORTS TO STREAMLINE CURRENT REGULATORY STRUCTURES BY INTEGRATING METROPOLITAN PLANNING, NEPA REVIEWS OF PROJECTS, AND ASSESSMENT OF TITLE VI COMPLIANCE

Transportation system planning and development has broad and often destructive impacts on natural resources and adverse impacts on environmental values important to the American people. The principle objectives of the environmental community are the development of transportation planning programs and the adoption of transportation alternatives that will help

· reduce or eliminate the loss of wild lands, critical habitat for endangered or threatened species, and farmland to development;

· preserve critical wildlife habitat;

· reduce air pollution in nonattainment areas;

· prevent unacceptable health risk from exposure to toxic air contaminants emitted by highway vehicles; and

· reduce combustion of fossil fuels that contribute to global warming.

In the transportation context, these environmental objectives are largely consistent with the objectives of other communities of interest, including the interests of low income, racial, ethnic and disabled minorities who seek to enhance access to employment, housing, educational facilities, churches and public facilities and to avoid disparate adverse health and economic burdens, and interests committed to preserving cultural resources and valuable features of the built environment. This consistency among objectives is shared because the strategies that serve each of these interests include the expansion of transit and transit-oriented development and the reduction of SOV use (VMT) and highway-dependent development. Taken together, these interests represent the views of a broad segment of the American public. Their objectives provide appropriate criteria for the evaluation of DOT’s proposed metropolitan transportation planning regulations and the effort to integrate and streamline those requirements with the previously separate requirements under NEPA and 23 USC §109(a) and (h) that govern individual project reviews.

Proper implementation of TEA-21, the Clean Air Act, Clean Water Act, the Endangered Species Act, NEPA, Title VI of the Civil Rights Act and the Americans With Disabilities Act can serve these mutually shared objectives. The proposed revisions to DOT’s metropolitan planning and NEPA rules provide a context for allowing environmental, mobility, economic development, energy and equity objectives to be adequately considered and most effectively achieved through the selection of choices that optimize all of these equally valid objectives. The revision of these regulations provides an opportunity to require that alternatives to traditional highway investment and highway-dependent development be given full and comprehensive analysis, and that the pros and cons of the two divergent paths with regard to each of these multiple objectives be fully explored in the transportation planning arena.

Commenters therefore support DOT’s efforts to create a decision-making structure that eliminates the overlap, gaps and repetition between the systems level decisions made by MPOs and the project level decisions made by implementing agencies, while at the same time ensuring that all the major interests are heard in the planning process, and that the product of an integrated planning/NEPA process ensures consideration of alternatives that can maximize the overall benefits to the American people from transportation investments. We believe that this effort at streamlining will improve the planning and implementation of projects by highlighting that mix of investments that will optimize the multiple interests outlined above. We therefore urge DOT to clarify the mechanisms for integrated decision-making, and to highlight the ways in which an integrated planning/NEPA process should evaluate the environmental, mobility, economic development, energy and equity objectives established under various federal laws and policies.

Many elements of these four major objectives have been adopted by law to provide national guidance for the metropolitan planning process and the review by federal agencies of proposed projects and programs that receive federal funds. These laws include TEA-21, the Clean Air Act, NEPA, the Clean Water Act, the review of adverse impacts on environmental, social and economic values under 23 USC §109, the Endangered Species Act, and the equitable impacts of programs on low income, racial, ethnic and disabled communities under the Civil Rights Act and the Americans With Disabilities Act. DOT has not previously attempted to integrate these various objectives into one decision-making process. The current proposal attempts to achieve that result.

Those who oppose this effort to develop an integrated decision-making process obviously have a stake in being able to isolate, and thereby ignore, one or more of these valid objectives of the transportation planning process. The process for deciding how the nation’s transportation investments are to be made is too important to allow a process to continue that leaves major objectives and major community interests out of the process. The vast sums at stake and the health, mobility, economic and other needs of so many communities that can be adversely affected by these decisions demand that the process be open, comprehensive and take all legitimate interests into account.

Environmental Defense believes that the proposed rules begin to lay out a comprehensive, integrated planning/NEPA process, but falls short in a number of respects. We also identify ways in which we believe the proposal should be improved to achieve the Department’s objectives, or must be improved to meet the applicable requirements of federal law.

A. TEA-21 REQUIREMENTS FOR REGIONAL PLANNING.

TEA-21 revised and re-enacted Title 23, U.S. Code, which governs the funding, construction and planning of highways and other major transportation facilities other than transit, and also made substantial changes to the Federal Transit Act in Title 49. In large metropolitan areas, federal law allows the expenditure of federal transportation funds only on transportation projects that are included in transportation plans and transportation improvement programs (“TIPs”) adopted by metropolitan planning organizations and incorporated into the state transportation improvement program. 23 USC §§134 and 135. The designated metropolitan planning organizations (“MPO”) for each city larger than 200,000 population is required to adopt a 20-year long range transportation plan and a three-year TIP identifying the transportation projects that will qualify for federal transportation funding in each metropolitan planning area.

1. REGIONAL TRANSPORTATION PLANS REQUIRED TO ACCOMPLISH THE STATUTORY OBJECTIVES FOR PLANNING.

In § 134(a)(2) Congress directed MPOs to develop long range transportation plans

that “accomplish” the “objective” enacted in paragraph (1):

(2) Development of plans and programs.--To accomplish the

objective stated in paragraph (1), metropolitan planning

organizations designated under subsection (b), in cooperation with

the State and public transit operators, shall develop transportation

plans and programs for urbanized areas of the State.

The “objectives stated in paragraph (1)” are:

(1) Findings.--It is in the national interest to encourage and

promote the safe and efficient management, operation, and

development of surface transportation systems that will serve the

mobility needs of people and freight and foster economic growth and

development within and through urbanized areas, while minimizing

transportation-related fuel consumption and air pollution.

These are not hortatory goals, but are described in the title of the subsection as the “general requirements” of the section. Under the terms of the Act, these requirements should be applied to guide the metropolitan planning process. Environmental Defense asks that the planning rules require MPOs to at least develop a transportation/land use scenario and investment strategy that would optimize each of these four objectives. In current practice, more often than not, these requirements are ignored by MPOs as factors to be taken seriously, and are usually not satisfied by the Plans and TIPs adopted by most MPOs. Most MPO Plans do not –

· provide for the development of a surface transportation system that will improve or even maintain mobility for all population groups;

· foster economic growth and development in the area to the extent feasible with transportation investments;

· minimize transportation-related fuel consumption; and

· minimize air pollution.

Quantitative evidence has recently become available indicating that regional plan scenarios other than highway-oriented plans adopted by most MPOs could much more closely approach these statutory objectives by investing substantially more in transit and transit-oriented development. Evidence from Portland, Denver and other western cities indicate that combined land use and transit investments can reduce VMT by as much as 17% compared to freeway-oriented sprawl development scenarios. These strategies also produce comparable reductions in fuel consumption and air pollution, in addition to enhanced mobility. They foster economic development by reducing the costs of travel and reducing the public and private costs of regional development.

Table 1: Comparison of Portland and Atlanta Reprinted from Nelson 2000[i]

The evidence from Portland OR of improved mobility, lower transportation costs and improved personal income, reduced fuel consumption and improved air quality presented by Nelson supports the conclusion that substantially different outcomes with regard to the four “objectives” defined by TEA-21 can be achieved with different planning approaches. The outcomes that will result from highway investment and highway-dependent development are much more likely to produce the results observed in Atlanta, which has been shown to exacerbate pollution, produce the highest VMT/person rates in the world, stimulate higher fuel consumption rates, and ultimately, impair mobility and slow economic growth. This evidence demonstrates that metropolitan plans that invest primarily in increased highway capacity and thereby promote sprawl do not optimize or satisfy the statutory objectives of metropolitan planning.

TEA-21 therefore provides a framework for requiring DOT rules that must require metropolitan areas to at first identify, and then adopt, investment and land use strategies that would better approximate the objectives in the Act. Commenters believe that if MPOs engage in an exploration of how these statutory objectives may be optimized, then plans will have crossed the initial hurdle of demonstrating that more beneficial alternatives are feasible and cost-effective. Then we can move beyond those threshold issues to stimulate a public debate and create even greater public awareness over the mobility, cost, fairness and environmental advantages of such plans compared to highway-dependent sprawl development.

2. RELATIONSHIP BETWEEN PLANNING FACTORS AND PLANNING “OBJECTIVES” REQUIRED BY TEA-21.

The implementation of the planning objectives required by § 134(a) is not in

conflict with the statutory bar against judicial review of plans based on the planning factors in §134(f). TEA-21 prohibits judicial review of transportation plans and programs based on consideration of the seven planning factors in § 134(f), but the 1998 amendments do not bar enforcement of the planning factors by DOT through either its ad hoc review and approval of TIPs or through its planning regulations. In addition, while there is significant overlap between the planning factors in § 134(f) and the four planning “objectives” in § 134(a), the Act does not bar judicial enforcement of the statutory objectives which are required to be “accomplished” by an MPO plan. Nor does the bar against judicial review of an MPO’s failure to address each of the planning factors bar a suit against DOT for failing to adopt planning rules that track the “general requirements” of the Act. Thus, the planning rules provide an opportunity for DOT to flesh out how the four planning objectives of § 134(a) will be implemented through the transportation planning process.

ED asks that, at a minimum, DOT should revise the planning regulations to require that MPOs develop at least one investment/land use scenario that optimizes each of the four planning objectives for the applicable metropolitan area. To support this requirement, DOT should review regional plans from the largest 50 metropolitan areas to identify strategies and programs that are the most effective in improving mobility while supporting economic development and minimizing fuel consumption and air pollution. ED also believes that such plans are ultimately required by the Act.

3. TOOLS FOR ACHIEVING THE PLANNING OBJECTIVES OF TEA-21.

Environmental Defense believes that numerous strategies are available that

promote the optimal accomplishment of the four objectives defined by TEA-21. The most important and most effective of these, as demonstrated by Nelson, above, is a general commitment to serve mobility demand with expanded transit and other shared-ride services rather than increased highway capacity. But in addition to this broad policy direction, there are numerous specific strategies that support transit-oriented system development. Some of these strategies include land use options, and others are emissions control measures that help reduce motor vehicle emissions. Taken together, there is a large and highly effective array of options that support the adoption of regional plans designed to optimize the four planning objectives.

A candidate list of reasonably available strategies for adoption as part of regional plans in almost all cities might include:

1. Commuter Choice Programs: parking cash out, tax credit and other incentives for employer subsidies of transit fares, and tax incentives for employee purchase of transit and van benefits;

2. Discounted pre-paid transit fare instruments designed for effective Commuter Choice promotion (e.g. $65/month regional passes), reduced transit fares and fare free zones;

3. Accelerated bicycle and pedestrian improvements and bicycle/pedestrian access to transit;

4. Land use transportation control strategies: large scale in-fill redevelopment with TDM and encouraging accessory apartment development in transit oriented neighborhood and centers;

5. Replace diesel fleet vehicles with CNG or electric to reduce high-risk toxic emissions and improve the attractiveness of bus travel;

6. Transit priority treatment and improved traveler information services;

7. Value pricing and road and parking pricing incentives and information services;

8. Transit and paratransit service expansion (e.g., to achieve a targeted increase in person trips by transit and paratransit);

9. I/M for diesel vehicles and/or roadside pull over testing of diesels;

10. CARB diesel fuel;

11. I/M enhancements: e.g.: extend dynamometer test to constant 4 wheel drive vehicles; require replacement of dysfunctional catalysts; raise repair cost waiver limits; expand geographic scope; provide repair subsidies or tax credits to low income persons.

a. Selected Strategies Reasonably Available Everywhere --Commuter Choice.

Background. For the vast majority of working Americans, a free parking space at work has for decades been the sole commuter benefit offered by employers. If you drive alone to work you gain the benefit. If you take transit, carpool, walk, or bike, you lose the benefit and likely pay your own daily transit fare. With this kind of incentive, its no surprise that on any given day nine out of ten American commuters drive to work (Hu and Young, 1992) and nine out of ten of the cars driven to work have one occupant (Pisarski, 1996). Yet the 85 million "free" or subsidized employer parking spaces actually cost American business $36 billion per year (Association for Commuter Transportation, 1996). By spurring more driving, these subsidies exacerbate traffic congestion and air pollution.

1998 Federal Tax Code Change Makes Commuter Choice Reasonably Available Across America. New federal tax law changes make Commuter Choice incentive strategies universally available as potential Transportation Control Measures to meet Clean Air Act requirements in areas that fail to meet the National Ambient Air Quality Standards to protect public health. The 1998 Federal Transportation Equity Act for the 21^st Century (TEA-21) gives new incentives to reward employees and employers who help reduce traffic and pollution problems. The Commuter Choice provisions in TEA-21, Section 9010, modify the Internal Revenue Code and enable employers to offer employees options for qualified transportation fringe benefits. There are three principal Commuter Choice options: (1) Employees can purchase up to $65 dollars per month in transit benefits using pre-tax income (an amount that increases to $100 in 2002) which slashes the effective cost of transit. (2) Employers can offer tax-free subsidies for their employees' transit costs, with the same limits. And (3) employers can now offer cash in lieu of parking -- "cashing-out" old inflexible parking subsidies.

Emission Reduction Benefits. The most effective Commuter Choice option is the parking cash-out incentive, which helps reduce use of single passenger motor vehicles for those who have the alternative of carpooling, telework, bicycling, walking, or using public transportation. A study of California companies offering this new cash-out option found that one out of eight employees who formerly drove to work chose to leave their car at home so they could instead take a raise in pay (Donald Shoup, ‘Evaluating the Effects of Cashing Out Employer-Paid Parking,’ Transport Policy, Vol. 4, No. 4, Oct. 1997, pp. 201-216.). The share of commuters diverted from solo driving by a cash out option was highest in urban centers with good transit options and lower in suburban fringe areas where transit is not available or very limited and where even carpooling is harder to arrange.

The other Commuter Choice options are employer-paid transit benefits and employee purchase of transit or vanpool benefits using pre-tax dollars. Both of these reduce the cost of using public transportation or vanpools where these are available. EPA recently made estimates of the emissions benefits of the Transitchek program in New York, a transit subsidy program targeting commuters that takes advantage of this federal law change. EPA estimated reductions of about 85 Tons/Yr VOCs, 73 TPY NOx, and 615 TPY CO in 1999. In correspondence with staff of the Senate Environment and Public Works Committee in 1999, the EPA Office of Mobile Sources estimated that a national commuter choice program assuming a 5-10% employee participation rate would generate:

· A reduction in commute VMT of 1.6 to 3.2%

· Reductions in VMT of 10,000,000,000 to 20,000,000,000 miles

· Emission Reductions of...

· HC: 27,000-54,000 short tons

· CO: 240,000-480,000 short tons

· NOx: 16,800-33,600 short tons

· CO2 1,180,000- 2,360,000 metric tons

Effects on Employee/Employer Costs. The savings for employees offered by the federal tax law changes are significant and make a high level of employer and employee participation in the next several years realistic. For example, an employee earning $50,000 per year who spends $1000 annually on transit could realize a tax savings (at 42%) of $420 as a result of paying their transit cost using pre-tax dollars, exercising one of the new Commuter Choice options, while their employer would gain payroll tax savings (at 7.65%) of $76 per employee (Arthur Andersen). Even if the cost to set up and administer the program equals 2% of the transit benefit, the employer will still enjoy payroll savings of $56. Employers are likely to face new costs to offer transit passes or added cash income in lieu of parking, but these can also translate into substantial cost savings of several types. It is much cheaper for an employer to boost non-taxable employee benefits than to offer added taxable income to retain or attract workers, which is an increasing issue in a tight labor market. If the employer is able to expand employment without adding more parking spaces or to otherwise avoid the cost of building, leasing, or maintaining parking spaces for workers, capital cost savings can amount to $5,000 to $20,000 per avoided space and operating costs can amount to $750 to $3,000 or more per year per avoided space. Such savings are often significant enough to more than pay for a cash in lieu of parking or transit pass benefit.

State Commuter Choice Incentives. Several states and local governments have offered added transit tax credits, including Washington, New Jersey, and Georgia. Maryland in 1999 adopted the largest tax credit; a 50 percent state tax credit for employer-provided transit benefits that saves employers up to $30 a month per employee. Some governments, like Connecticut and Montgomery County, Maryland, sell discounted transit passes to employers, matching employer contributions dollar for dollar, to stretch federal and state tax benefits even farther. Several years ago California adopted a law requiring large employers who lease parking spaces to offer employees added cash income in lieu of parking, but implementation of the law was impeded until recently when conflicting federal tax laws which had worked against cash-out programs were changed.

Broad Support for Commuter Choice Incentives. Commuter Choice programs have been shown to unite the diverse interests of environmentalists, business, labor and transit and highway advocates. Most realize that Commuter Choice is good for business and for communities. Commuter Choice is a voluntary incentive that boosts travel options and supports more efficient use of the roads and transit we already have. It can provide quick relief to traffic-strained communities and will expand market opportunities for new forms of access to suburban jobs. Low- and moderate-income workers benefit particularly, since commuting costs represent a larger relative burden on them, and they tend to be more reliant on ridesharing and transit. The Alliance for Clean Air and Transportation, a new national group representing a diverse array of sectors, including the road builders, automobile industry, environmentalist and health groups, the American Association of State Highway and Transportation Officials, the National Association of Regional Councils, and the US DOT and EPA, in February 2000 adopted a consensus goal of making Commuter Choice benefit programs a standard part of the American worker benefit program over the next five years.

The Need to Go Beyond Marketing and Generalized Expressions of Support. However, Commuter Choice will have an effect on air pollution only if people know about it and use it, and if the opportunities for cost savings offered by aggressive implementation of these incentives are made evident and available to developers, building owners and tenants, and commuters. Marketing alone has been shown to be inadequate to win widespread adoption of Commuter Choice incentives. Mandates for employers to meet pre-established requirements to reduce employee commuting car trips have evoked resentment and resistance from some businesses. But there are many other strategies that can be taken by states, regional bodies, and local municipalities that can foster rapid and widespread adoption of Commuter Choice incentives so these might become available to the average commuter. Additional financial incentives and support by transportation agencies and other government bodies are essential to rapid adoption of Commuter Choice voluntary incentives and can be highly cost-effective in reducing congestion and pollution.

Commitments for Commuter Choice. The measures below are a reasonably available set of steps that municipal, regional, and state agencies can take to assure that potential VMT-reduction, transit ridership improvement, and air pollution reduction benefits from Commuter Choice will be realized in a timely manner. Non-attainment areas could also include the following reasonably available elements as part of their SIPs:

(1) Municipal and state agencies within the TMA and/or non-attainment area should adopt written commitments that they will provide public leadership by offering Commuter Choice options to their own workforce on a rapid implementation timetable, including management, administrative, and budget commitments to make this possible, and

(2) Municipal and state agencies within the TMA/non-attainment area should adopt written commitments that they will aggressively promote Commuter Choice options to employers and commuters in their region with marketing, technical and administrative assistance, new transit fare products, and new financial incentives for employers and employees that are adjusted annually in an effort to meet stated performance targets.

(3) The RTP and/or SIP should include targets and timetables for (a) providing different segments of the labor force with Commuter Choice options of various types and (b) achieving increased levels of use of various Commuter Choice incentives by various portions of the labor force. For example, an MPO plan and/or SIP could identify the following model targets, which could be used as the basis for estimating optimal planning objectives and/or SIP credits if accompanied by commitments to reasonably linked funding and policy commitments that could be anticipated to meet these targets:

Illustrative Target for Share of Employees or Employers Who Are Offered Opportunity to:
Public Sector Employees in Region	To Purchase Pre-Tax Transit/Van Benefits	Receive Employer-Paid Transit/Van Benefits	Receive Added Cash Income in Lieu of Parking at Work
1^st year	50%	50%	10%
2^nd year	100%	75%	25%
3^rd year	100%	100%	50%
4^th year	100%	100%	75%
5^th year	100%	100%	100%

Illustrative Target for Share of Employees or Employers Who Are Offered Opportunity to:
Private Sector Employees in Region	Purchase Pre-Tax Transit/Van Benefits	Receive Employer-Paid Transit/Van Benefits	Receive Added Cash Income in Lieu of Parking at Work
1^st year	25%	10%	5%
2^nd year	50%	25%	10%
3^rd year	75%	50%	20%
4^th year	85%	65%	40%
5^th year	90%	75%	60%

Illustrative Target Share of Employees Offered Opportunity for Benefit Who Use It:
	Purchase Pre-Tax Transit/Van Benefits	Receive Employer-Paid Transit/Van Benefits	Receive Added Cash Income in Lieu of Parking at Work
1^st year	20%	10%	10%
2^nd year	20%	15%	15%
3^rd year	20%	15%	15%
4^th year	20%	20%	20%
5^th year	20%	25%	25%

(1) Municipal, regional, and state agencies within MPO planning region and/or the non-attainment area should identify for priority funding in the next Transportation Improvement Program (TIP) and Regional Transportation Plan (RTP) Commuter Choice promotion initiatives and related incentives. This should include funding for:

(a) transit, rideshare, and alternative commute program marketing, paid advertising, and transportation management associations,

(b) development of new pre-paid discount transit fare instruments and seamless regional transit fare and service coordination designed to facilitate easy marketing (e.g., introducing a new unlimited use $65/month regional transit pass that can be purchased by or through employers),

(c) promotion of pre-paid employer-subsidized transit fare instruments to both employers and employees,

(d) transit fare buy-down programs that match employer contributions towards employee transit commute benefits with public sector subsidies (e.g., the Montgomery County, MD, Fair Share program) or tax credits (e.g., the Maryland or Washington State Tax Credits for employers who pay for transit benefits or who offer cash in lieu of parking payments)

(1) Municipalities should agree to incorporate incentives for adoption and use of Commuter Choice incentives by employees, employers, and developers through additional flexibility in the application of zoning parking requirements, in requiring that leases and property transactions separately identify the cost of parking spaces and offer options for reduced parking in exchange for covenants and agreements to incorporate cash in lieu of parking and employer paid transit benefits in building leases and other real estate transactions. Municipalities should agree to require Commuter Choice strategies to be considered in traffic planning, site plan and development review decisions, zoning and parking ordinance revisions, access-to-jobs programs and local tax policy.

b. Accelerate and Expand Investment in Pedestrian and Bicycle Improvements.

Background. Transportation agencies have begun to program more bicycle and pedestrian transportation improvements in recent years, making these reasonably available in all metropolitan areas. A large share of these projects offer transportation and related air quality benefits by giving travelers expanded travel choices for short and medium length trips within communities and for access to public transportation. Projects that restore or improve walking and biking connections between neighborhoods to schools, for example, may significantly reduce ‘serve passenger’ trips made by parents to drop or pick up their kids at school. Projects that overcome natural or man-made barriers to safe and comfortable bicycle and walk travel to shopping centers, park-and-ride lots, transit stations, employment centers, or recreational areas may significantly reduce motor vehicle use for access to these activities. Especially when combined with improved transit, expanded financial incentives for use of alternatives, land use and urban design strategies that reduce trip lengths and automobile dependence, and social marketing efforts, investments in pedestrian and bicycle facilities can have a major impact on the number of motor vehicle trips in an area, and typically somewhat lesser impacts on vehicle miles of travel.

Emission Reduction Benefits. The reduction of emissions stemming from improved pedestrian and bicycle is often disproportionately higher than the accompanying reduction in motor vehicle trips and vehicle miles of travel. This is because motor vehicle emissions per mile traveled are highest when engines are cold. Regional travel demand models are usually poorly suited to characterizing the nature, attributes, barriers and potential for non-motorized travel modes. The often inadequate and poor quality local data on walking and bicycling has frequently lead to gross misestimation of the potential for non-motorized modes to play a role in travel and even greater misestimates of their potential to reduce air pollution. When well integrated into a community and regional transportation demand management system, bicycle and pedestrian improvements usually have a potential to multiply the effectiveness of other strategies to reduce motor vehicle trips and emissions by enhancing access to public transportation, influencing travelers to choose closer destinations instead of more distant ones, and enhancing the livability and attractiveness of existing communities, supporting infill development, and boosting travel choice.

SIP Commitments for Pedestrian and Bicycle Improvement TCMs. Most regional transportation improvement programs (TIPs) and regional transportation plans (RTPs) include some pedestrian and bicycle improvements, usually composing a miniscule percentage of the 20 year plan budget. At this very small level of expenditures on bicycle and pedestrian improvements, there can be little hope of making very much of the region pedestrian and bicycle friendly or to have an appreciable effect on travel demand, mobility, fuel consumption and emissions from these projects. It is a reasonably available measure to accelerate the rate of project programming and funding commitments for bicycle and pedestrian projects, for example by building out the projected 20-year RTP bicycle and pedestrian program in a period of three to five years. If a region is today spending one percent of its RTP capital and operating budget on bicycle and pedestrian projects and programs, it can achieve this SIP objective by increasing spending on these projects to five or six percent of the total. Funds for this might be found by slipping slightly the timetable for buildout of some other projects in the TIP and RTP that can be expected to increase emissions and thereby delay timely attainment of healthful air quality.

A bicycle and pedestrian SIP commitment might also include funding of a program for community-based bicycle and pedestrian planning and improvements. In a very large share of communities there is significant unmet demand for the retrofit of sidewalks, for pedestrian traffic safety improvements, for enhanced connections of neighborhoods to schools, and for better pedestrian and bicycle access to public transportation. A SIP commitment to fund planning and public involvement to identify, design solutions, and address local needs such as these is a critical part of assuring effective additional efforts in this arena beyond the accelerated funding of TIP and RTP bicycle and pedestrian projects. Because of the difficulty of estimating emission reduction benefits related to many small scale projects, it is important for the SIP emission analysis to aggregate these into a performance-oriented package. In other words, the SIP should set realistic but ambitious mode share objectives and trip reduction objectives related to improving bicycle and pedestrian friendliness of particular areas, fund travel monitoring and planning to evaluate the effectiveness of the overall effort, and not waste time evaluating each individual component of the non-motorized travel investment and service enhancement effort. As the overall package is implemented, the investments, plans, and policies should be actively evaluated together and resources allocations and policies should be refined in response to experience.

c. Large and Small Scale Transit-Oriented In-fill Redevelopment with Demand Management

Background. There is a growing consensus among land development and real estate experts that some of the best emerging opportunities for market-responsive growth of new housing and employment are in infill redevelopment in existing communities, including urban and inner suburban areas that have been in decline in recent decades. (see for example, Roxanna Guilford, ‘Experts say inner cities will boom in 21^st century,’ Atlanta Business Chronicle, May 7, 1999) Steps are being taken by some regions to facilitate this shift in development focus. For example, Portland, Oregon, Newark, New Jersey, and Atlanta, Georgia are all taking steps in various phases of progress, towards renewal of brownfields and older neighborhoods.

Emission Reduction Benefits. There is substantial evidence that significant air quality benefits can be achieved by modifying land development patterns to limit urban sprawl and facilitate transit use. A recent EPA-funded report concludes that careful land use planning can reduce vehicle trip lengths and promote shifts to transit, bicycling and walking modes. EPA, Office of Mobile Sources, Background Information for Land Use SIP Policy, Final Report, Contract No. 68-C7-0051 (9/30/98)(available on EPA, OMS web site, and appended to our prior comments as Exhibit D). For example, the report cites studies showing that development at infill sites can result in vehicle NOx emissions that are 27% to 42% lower than at more dispersed locations. Id. at 5. The report identifies specific strategies to achieve such results, including planning that promotes transit-oriented development, density transfers, and design elements that encourage pedestrian, bike, transit and ridesharing activity (e.g., narrower streets, sidewalks, bike lanes, traffic calming devices). Id. at 10-11. The report further identifies a number of cities throughout the nation where such strategies have been adopted and included in air quality plans. Id. at 20-33. For example, the maintenance SIP for Portland, Oregon identifies several land use TCMs, including an urban growth boundary, requirements for transit-oriented development, and a regional parking policy. Id. at 24-25. The 1994 Sacramento, CA., ozone SIP contains land use-related TCMs, including a requirement that new developments include mitigation measures to achieve a 15% reduction in vehicle emissions. Id. at 22-23. The San Francisco clean air plan includes land use planning measures, and programs to promote pedestrian travel and traffic calming. Id. at 21-22. The EPA report also identifies a number of other land use TCMs that have been adopted in other cities, although not yet included in clean air plans. Id. at 26-30. All of the above-referenced strategies are within the arena of potential RACM that must be considered by the states. See 42 U.S.C. 7408(f)(1)(A)(xiv).

The Atlanta region recently won approval from EPA for a TCM which is composed of a projected 6 million square foot mixed use infill brownfield redevelopment on a 135-acre parcel, together with a regionally significant highway bridge across an interstate road that is needed for site access, and a comprehensive transportation demand management and transit service package for the site and nearby area. This project qualified as a TCM because it was possible to demonstrate that the package of measures, investments, and development would contribute to reduced regional vehicle miles of travel by locating more jobs and housing close to the regional center with appropriate services and incentives.

Commitments for Land Use Strategies. Other regions should be encouraged to develop pilot projects that build upon these models for land use strategies and/or TCMs with comprehensive travel demand management, transit services, and appropriate incentives.

To pick one example in the Washington, DC region, a land use strategy could be focused on the New York Ave/NOMA (North of Massachusetts Ave) corridor Metro-oriented redevelopment zone. The DC Government could identify and package a focused redevelopment zone, related transportation improvements, and supportive transportation demand management policies as a comprehensive land use strategy, building on the precedent set by the Atlantic Steel project in Atlanta, which recently qualified as a SIP TCM. In Atlanta, this 135-acre brownfield redevelopment site in Midtown Atlanta required major transportation investment in the form of a highway bridge across I-75/I-85 to connect it to a MARTA metro station an provide needed access for a 6 million square foot mixed use development. The Atlantic Steel project could only proceed if this transportation project was bundled with added transit investments and services, the in-fill redevelopment project and appropriate urban design guidelines, and supportive transportation demand management to assure that it would reduce total motor vehicle trips and travel in the region. US EPA helped the Atlanta region with technical modeling assistance that helped demonstrate the emission benefits. This innovative packaging of strategies allowed the transportation investments to move forward despite a transportation conformity lapse in metropolitan Atlanta which blocked other new highway funding approvals.

With the DC region facing tight motor vehicle emission budgets, a similar approach could be followed for the NY Ave/NOMA corridor redevelopment, where a new metro station and transit oriented redevelopment proposals are gathering momentum, but have not yet been accounted for in the regional transportation land use, transportation, and air quality planning process. Similar strategies that also qualify for emissions reduction credit as a SIP measure could be developed in other regions to assure priority access to funding for transportation investments needed to support in-fill development and to safeguard such investments should a region fall into a conformity lapse.

A smaller scale land use strategy would be geared to removing zoning, permitting, building, parking, and site design code barriers that now impede adaptive reuse of existing buildings for accessory apartments, neighborhood serving retail, and environmentally appropriate home-based business uses in residential areas. Many local jurisdictions now prohibit accessory apartments or make it difficult to provide affordable ‘granny flats’ in existing single-family homes in transit-oriented neighborhoods close to employment centers. One reasonably available land use strategy would facilitate such conversions with code changes, technical assistance and financing, for example to help empty nesters age in place while repopulating older neighborhoods back to their historic population levels. By helping more working families live close to jobs, this would cut vehicle miles of travel, congestion and pollution. The RTP and/or SIP could establish targets for creating new housing units in place in existing transit served neighborhoods, for example, for accessory units to provide for a 1% increase in the number of total housing units per year in zones that are within walking distance of designated ‘smart growth’ centers or within walking distance of transit operating at least once every 15 minutes.

d. Diesel Fleet (Bus, Vans, Municipal vehicles) Phase-out and Replacement.

Background. An air pollution control measure that has been implemented in an increasing number of areas around the nation is the phase-out of diesel buses and fleet vehicles on an accelerated schedule and replacing them with new buses and fleet vehicles powered by substantially cleaner fuels, such as natural gas or stored electric power. Although this strategy primarily serves the objective of minimizing air emissions, it can also enhance the attractiveness of busses as an alternative to driving and could reduce consumption of fuels that contribute most to greenhouse gas emissions and dependence on foreign energy sources.

Emission Reduction Benefits. Studies show that in-use emissions of NOx and VOCs by natural gas buses are about one-third those of diesel buses. Natural Resources Defense Council, Exhausted by Diesel, How America's Dependence on Diesel Engines Threatens Our Health, Ch. 6 at 1-2 (1998)(available at: www.nrdc.org/nrdc/nrdcpro/ebd/chap6.html). See also T.C. Coburn, B.K. Bailey, and K.J. Kelly, National Renewable Energy Laboratory, Results from Federal Emissions Tests on Alternative Fuel Vehicles and their Implications for the Environment and Public Health. A just released report by the National Association of State and Local Air Quality Officials looking at the health impact of particulates concludes that up to 125,000 Americans may contract cancer as a result truck, bus and other diesel engine emissions. Numerous businesses and bus systems around the nation are now using CNG vehicles, and thus it is clearly an established technology. NRDC Report at 3-10. For all these reasons, and given the substantial number of diesel fleet vehicles operating in most regions, a diesel conversion program is clearly a RACM that must be considered for inclusion in the SIP.

SIP Commitments for Diesel Bus Replacement. Although the issue cost of purchasing alternative fuel vehicles is higher than conventional diesel fuel buses, clean fuel buses are a wise investment in the long run. Diesel buses cost 30 to 50 thousand dollars more then standard diesel buses. Natural gas costs average 15 to 40% less than gasoline or diesel and the engines require less maintenance so you get a long term operating cost benefit. The greatest benefit it offers is the reduction of harmful smog to our health. Over its expected lifetime a CNG bus will save approximately 190 thousand gallons of diesel fuel, also decreasing dependency on petroleum. A city in California recently became the first public agency in U.S. to park a fleet of Diesel buses and switch overnight to a fleet of 100% natural gas, reporting few difficulties in making the transition due to extensive training of staff for the change.

A SIP for diesel bus replacement should identify the timetable for bus replacement, the age of buses being replaced, and adequate funding resources for the replacement.

B. NEPA AND THE METROPOLITAN PLANNING PROCESS.

The essential elements of NEPA are 1) identification of the purpose and need for a proposed project or program, 2) an assessment of a project’s or program’s significant impacts on the human environment, 3) consideration of alternatives when significant impacts are expected, 4) identification of mitigation measures to eliminate or minimize significant impacts, and 5) a public process for review of need, impacts, alternatives and mitigation options. These are elements of decision-making under NEPA that we believe apply to the development of multiple transportation projects in a metropolitan area. They are currently not elements required to be considered in the metropolitan planning process. Instead, they are required to be considered as part of each project review under NEPA. This approach requires the implementing agencies with little responsibility for making regional, systems level decision, to evaluate the cumulative environmental and other impacts of multiple projects in a region. It also empowers the implementing agencies to second-guess, and then effectively veto, the regional choices made by an MPO by rejecting those regional choices as options to be considered in the EIS process under NEPA.

The current process therefore requires overlap and duplication by requiring implementing agencies to reconsider regional impacts and alternatives that may have been considered by the MPO, and also to undermine the authority to make regional systems decisions granted to MPOs by TEA-21. DOT’s proposed rules provide an opportunity to remedy these defects in the current program.

Currently, the NEPA process is typically applied, if not exclusively, to individual highway and transit projects. In almost all cases, the only impacts reviewed are at the corridor level. As a result, most of the impacts of the transportation system we are most concerned about, e.g., loss of wild lands and farmland to regional development, regional air pollution, energy consumption and greenhouse gas emissions, are ignored. The cumulative impact of multiple project decisions on mobility, access for the transit-dependent, public and private costs, and large scale environmental impacts are not addressed. The current NEPA process is not serving the major interests and objectives outlined above, nor is it supporting the development and consideration of alternative plans that can approach the statutory objectives of TEA-21.

The failure of the transportation planning process and the NEPA process to address these impacts is the legal Achilles’ heel of project development under current law. NEPA challenges to highway projects have begun to raise the lack of cumulative impact analysis as a basis for stopping projects. See, e.g., the 1997 decision of the 9^th Circuit court of appeals in which a highway EIS was remanded when the EIS failed to catalogue past projects and discuss the cumulative impacts of past, present, and expected future projects in the area. The Court held that the agency did not meet its burden to fully explain the cumulative impacts. Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d 1142 (9^th Cir. 1997). To address this requirement of NEPA, DOT must either advance the NEPA consideration of cumulative and regional impacts and alternatives into the MPO planning process, or consider those impacts separate from the planning process in which those decisions are made by MPOs.

The approach to integrating NEPA into the planning process that is described in the proposed rule makes an attempt to open the option of considering such impacts in the planning process, but is fraught with potential pitfalls. The proposal places almost exclusive emphasis on using the planning process to satisfy the need under NEPA to identify an individual project’s purpose and need. The proposal does not address any requirement that the NEPA process address cumulative regional impacts, or more importantly, address alternatives to the regional planning approach that provides the assumptions used to support findings of project-level purpose and need.

If the NEPA process is to meaningfully address regional and cumulative impacts, it should be integrated into the planning process. For NEPA to be integrated into the planning process, regional planning must then consider alternatives on a regional scale. NEPA, then, links back to the requirement for accomplishing the four planning objectives under TEA-21 above. When NEPA requires an assessment of alternatives, one of the issues always is what alternatives must be considered besides the proposed project and the no-build alternative. TEA-21 provides an answer: to the extent Congress defined the “objective” of the planning process, then it also defined the parameters of at least one planning scenario that must be considered, or in NEPA terms one of the alternatives to the projects proposed in the region, i.e., a fiscally constrained scenario that optimizes each of the four statutory planning objectives.

1. Incentives and Guidelines to Support MPO Completion of Regional NEPA Analyses.

We recognize that DOT may not require MPOs to take on responsibility for performing as part of the regional planning process a regional and cumulative impact analysis that meets the requirements of NEPA. However, we believe that DOT can provide clear regulatory guidelines and incentives to MPOs and implementing agencies that would encourage and facilitate the cooperative integration of NEPA into the planning process. These would include 1) developing a procedure in the planning rules that would clearly empower an MPO that chooses to undertake responsibility for regional NEPA analysis, and 2) an incentive by ensuring the availability of resources when an MPO undertakes the responsibility.

MPOs are not likely to accept the responsibility for regional analyses that would meet NEPA criteria if 1) they lack assurance that their work product will be used to guide the subsequent corridor-level review of individual projects, and 2) they are not provided the incremental staff and resources that allow such reviews to be performed. DOT’s rules can overcome these obstacles by establishing criteria and a procedure for MPOs to enter into MOAs with implementing agencies that commit the MPO to undertaking the analysis responsibility while committing the implementing agencies to use the results of the MPOs assessment of alternatives and choice of preferred alternative. The undertakings could be linked administratively by modifying the proposed rule that would prohibit the approval of individual projects until after the completion of NEPA review and conformity. That rule could also prohibit the approval of individual projects that are not consistent with the system approach developed by the MPO pursuant to its delegated NEPA responsibilities.

The rule could allow an MPO to opt into the NEPA process by adopting certain provisions into its regional transportation plan. Once those elements of its plan are adopted and incorporated into the statewide transportation plan, those provisions would govern both the MPO’s and the state DOT’s relative rolls with regard to addressing various aspects and scales of analysis under NEPA. Such a process, subject to some federal minimum criteria, would also allow each MPO and its State DOT to shape particular elements of the NEPA partnership to meet their respective needs.

At the same time, however, the federal rules also need to make clear that if an MPO opts into this NEPA responsibility, federal funds available to the State to perform NEPA reviews would need to be transferred to the MPO. This could be accomplished through the statutory authority that allows federal agencies to make funds available to state and local entities to promote the streamlining of project reviews.

II. NEPA RULE COMMENT – ENVIRONMENTAL DEFENSE SUPPORTS THE INTEGRATION OF SOCIAL AND EQUITY ISSUES REQUIRED BY 23 USC §109 AND THE CIVIL RIGHTS ACT INTO A SINGLE REVIEW PROCESS UNDER THE NEPA UMBRELLA.

Environmental Defense supports DOT’s view that all project impacts, including social, economic, equity and energy impacts of projects that are required to be evaluated under 23 USC § 109(h) and the Civil Rights Act, should be included in an integrated analysis that is exposed to public scrutiny through the NEPA review process. We understand that a comprehensive assessment of the environmental, social, economic, equity and energy impacts of projects would include all corridor-level impacts that adversely affect such important values as—

· human health;

· interests protected under Title VI of the Civil Rights Act;

· protection of open space and wildlife habitat, with special emphasis on preservation of critical habitat for endangered and threatened species;

· preventing global warming; and

· the four values identified as “objectives” of the transportation planning process: mobility, economic growth, minimizing air pollution and fuel consumption.

Although ED supports DOT’s comprehensive framework for addressing these issues and stakeholder interests, we are also concerned about a number of issues that are not adequately addressed by the proposed rule, including the failure to fully describe the relationship between project-level reviews and related regional analyses performed as part of the planning process, the cumulative impacts of multiple projects in a region on important environmental, social and economic values when those impacts are not fully addressed as part of the planning process, the failure to clarify the scope of alternatives that must be considered at the regional level either as part of the planning process or an assessment of cumulative impacts as part of project-level assessments, and the apparent abandonment of DOT’s current regulatory interpretation of 23 USC § 109(h) that requires the adverse effects of a project to be mitigated as a condition for approval.

These concerns are raised in the context of specific examples of adverse impacts that are reasonably anticipated to result from the approval of major highway capacity-expanding projects. We take this approach for three reasons: 1) we believe these issues are of major public concern and deserve the attention of the Department’s top decision-makers, 2) these issues are already being raised or will be raised in the near future with regard to specific planned or proposed highway projects, and 3) we believe the final rules should be written to specifically anticipate how the Department and implementing agencies will address these issues.

ISSUE I: CANCER AND OTHER ADVERSE HEALTH RISKS FROM TOXIC AIR POLLUTANTS AND FINE PARTICLES EMITTED BY HIGHWAY VEHICLES.

This first issue is presented in response to recent evidence showing that people living in communities located near heavily traveled highway facilities are being exposed to concentrations of toxic and hazardous air pollutants emitted by motor vehicles that cause an extremely high and unacceptable risk of cancer including childhood leukemia, and other respiratory and cardiovascular disease.

The most compelling evidence is presented in a research report released in March 2000 by the South Coast Air Quality Management District in California that demonstrate both measured and modeled regional exposures to toxic air pollutants across a large portion of the Los Angeles air basin. The study demonstrates that toxic pollutants emitted by motor vehicles measured at eight sites accounts for an unacceptably high cancer risk in the range of 1 in 1,000 exposed individuals to 1 in 700. See, Multiple Air Toxics Exposure Study-II (March 2000)[attached]. The study found that the total cancer risk in the L.A. Basin from toxic air pollutants measured at these 8 monitoring sites ranges from 1,100 in 1 million (or 1 in 900) to 1,700 in 1 million (or 1 in 670), and that 90% of the total cancer risk is attributable to toxic air pollutants emitted by mobile sources. Id. ES-3, ES-5. Most of the mobile source cancer risk is associated with exposure to the toxic pollutants benzene, 1,3 butadiene, formaldehyde and diesel particulate matter (“DPM”). The concentrations measured at these eight sites appears not to measure the actual high exposure site since the Compton monitoring site measured the highest concentrations of other mobile source-related toxic pollutants, but DPM was not measured at that site. If DPM concentrations at that site are proportionally higher compared to other sites in the study in the same ratio as benzene, 1,3 butadiene and formaldehyde, the actual peak cancer risk would likely exceed 1 in 500 exposed persons.

In addition, concentrations of toxic pollutants estimated by a regional air quality model show that neighborhood exposures near heavily traveled highways is significantly higher than exposures monitored at the regional monitoring stations, producing a cancer risk as high as 1 in 130 (5800 in 1 million) in some receptor areas. Id., Fig. 5-3a, p.5-11. These estimates may be conservative since the concentrations estimated by the model in receptor areas where monitoring stations measured actual concentrations showed that the model in almost all cases underpredicted the measured concentrations.

Significantly, the estimates of increased cancer risk predicted in MATES-ll is supported by recent epidemiology data. Evidence of the incidence of childhood leukemia in Denver during the late 1970s and early 80s, Pearson and colleagues (2000), shows an association between residential location within 750 feet of a major traffic corridor and an elevated incidence of childhood leukemia. These data suggest that exposure to higher than regional urban background concentrations of motor vehicle emissions is a significant risk factor for childhood leukemia.

In addition, other research provides evidence of increased incidence of other adverse health outcomes for residents of neighborhoods near heavily traveled highways. Brunekreef and colleagues (1997) show that adverse health outcomes including premature mortality and increased morbidity through increased respiratory and cardiovascular effects are associated with the increase in ambient fine particulate matter, e.g., particles less than 2.5 microns in diameter (“PM_2.5”) from roadway sources.

Taken together, this evidence requires that a comprehensive risk assessment be performed to determine the health risks for neighborhoods located near heavily traveled roadways that are proposed to be built or expanded in densely populated metropolitan areas, and that alternatives to the development of high cancer risk travel corridors be chosen as the preferred alternative or that mitigation be adopted to prevent the incremental health risk attributable to toxic air pollutants emitted from these projects.

A. Approximating Exposures Outside The L.A. Basin.

The MATES-II study demonstrates that the modeling tools are available to perform risk assessments to estimate cancer risk attributable to motor vehicle emissions on a regional scale, and traditional EPA-approved line models are available to assess the incremental risks for populations living in close proximity to highway sources of air toxic emissions.

It is reasonable to use the MATES-II results as a screening tool to identify the travel corridors outside the L.A. basin where unacceptably high cancer risks are likely. These results are relevant to estimating exposure to toxic air pollutants for populations outside of the L.A. Basin when population densities and vehicle trips are comparable to those observed in heavily traveled highway corridors in the L.A. Basin. Exposures to toxic air pollutants by residents living near heavily traveled highways outside of the L.A. Basin can be reasonably estimated by comparing with the concentrations measured and/or modeled near roadways with similar traffic levels in Los Angeles. MATES concentration maps indicate that the highway corridors associated with the highest modeled and measured concentrations of toxic air pollutants are the Harbor Freeway (I-110), Long Beach Freeway (I-710), and the Santa Ana Freeway (I-5) through Los Angeles and Anaheim. CalTrans data shows that these corridors carry annual average daily traffic (AADTs) of between 200,000 to 350,000 vehicles.

Residents located near heavily traveled highway corridors with comparable AADTs in other urbanized areas should experience exposures to mobile source toxic air pollutants at least as high as those reported in Los Angeles. Emissions from highways with comparable AADTs in the other 49 states would be expected to be higher than those observed in California because emissions of DPM and toxic VOC species are lower for both diesel and gasoline-fueled vehicles that are subject to California emissions standards and that burn fuels meeting California fuel standards. Therefore, it is reasonable to estimate that exposures to mobile source toxic pollutants for residents near highways with AADTs above 200,000/day will likely be higher than those reported in MATES-II, but for screening purposes can reasonably be assumed to experience exposures at least as high as those reported in L.A.

For residents located immediately adjacent to heavily traveled highways, cancer risks will be significantly greater than those reported for the 8 regional monitoring stations in MATES-II. The higher modeled peak concentrations are more likely to approximate exposures for nearby residents. Standard line models used to estimate concentrations of criteria pollutants emitted by motor vehicles on highways generally show that concentrations at the right-of-way are ten times higher than concentrations 300 meters away from the R-o-w. Thus exposures for families living closest to heavily traveled highways may be substantially greater than the concentrations measured at regional monitoring stations reported in MATES-II.

B. Significance Of Health Risks.

These high cancer risks for nearby residents, and even higher risks for those living adjacent to roadways, far exceed the risk levels adopted by EPA and Congress in setting national health standards, and are unacceptable to the residents of these neighborhoods. EPA has summarized the consensus cancer risk policy of federal agencies as requiring careful assessment of cancer risks in situations where the population risk is greater than 1 in 1 million.

Where the entire U.S. population is exposed to a chemical classified as a probable human carcinogen, the agency consensus appears to be that risks less than 1 in 1 million generally can be found acceptable without consideration of other factors while risks greater than that level require further analysis as to their acceptability.

56 Fed. Reg. 7757 (February 25, 1991). On the other hand, EPA and other federal agencies have generally acted to reduce cancer risks greater than 1 in 10,000. Id. Here, the cancer risk for those living near heavily traveled highways is at least 1 in 1,000 to 1 in 650.

Except for diesel particulate, these risk estimates are derived from well-established risk factors that have been the subject of intensive scrutiny for many years. Although the MATES-II cancer risks are derived from risk factors adopted by the California environmental agencies, those factors do not differ significantly from those reported by EPA. See Integrated Risk Information System (EPA, Cincinnati, OH)[http://www.epa.gov/iris]. In addition, these risk estimates are NOT for the maximally exposed individual living adjacent to heavily traveled highway corridors, but rather for regional populations. Nearby neighborhood exposures are substantially higher, and may be as much as an order of magnitude higher for the maximally exposed individuals.

With regard to diesel particulate, the cancer risks in MATES-II are estimated based on unit risk factors adopted by California, but not yet by EPA. “The current EPA position is that diesel exhaust is a likely human lung carcinogen and that this cancer hazard exists for occupational and environmental levels of exposure.” 65 FR 35,446 (June 2, 2000). This characterization of DPM as a carcinogen is supported by NIOSH, the International Agency for Research on Cancer, and WHO. Id. The National Toxicology Program at NEIHS on May 15, 2000, also listed diesel particulate as a “known human carcinogen.” Although a risk factor for DPM has not yet been adopted by a federal agency, more than enough data has been accumulated from numerous epidemiological studies to allow a risk factor to be adopted for risk assessment purposes.

It is also clear that this issue, or the need to assess health risks in heavily traveled corridors will not be resolved by regulatory action proposed by EPA. EPA’s current proposed diesel rule anticipates that “selected air toxics chosen for analysis are expected to decline by the same percentage amount as hydrocarbon exhaust emissions.” 65 FR 35,460. EPA estimates that heavy duty vehicles “account for about 3 percent of national VOC and 8 percent from mobile sources in 2007.” 65 FR 35,458. Total VOC reductions expected from the rule, as shown in Table II.D-3, are about 230,000 t/yr from a 2007 HDV inventory of approximately 430,000 t/yr. While a significant reduction in total HDV emissions, this 55% reduction of air toxic emissions from HDV will reduce total vehicle emissions of air toxics by only about 4.5% between now and 2020. This reduction in total highway vehicle emissions will not significantly reduce cancer risk in heavily traveled highway corridors.

In addition to cancer risks, the increased mortality and other adverse health effects attributable to fine particle exposures currently measured in these corridors raise additional questions about the public health price we are asking citizens to pay as a result of increased highway capacity. DOT has recently estimated the adverse health effects attributable to highway vehicle emissions, including increased premature deaths and other serious respiratory and cardiovascular diseases, to cost the American public in excess of $40 to $64 billion/year, depending on whether a premature death is valued at $2.7 million or $4.8 million. See Table 9, Addendum to the 1997 Federal Highway Cost Allocation Study Final Report, U.S. Department of Transportation, Federal Highway Administration (May 2000).

Table 9. Estimated Economic Costs of Motor Vehicle-Related Air Pollution in 2000 ^1
Pollutant	Impact	Costs of Rural Motor Vehicle Travel $1990 (millions)	Costs of Urban Motor Vehicle Travel $1990 (millions)	Costs of All Motor Vehicle Travel $1990 (millions)
Particulate Matter	Mortality^2	12,695	21,558	31,162
Particulate Matter	Non-fatal Illness	3,683	6,232	9,183
Sulfur dioxide, nitrogen dioxide, carbon monoxide	Non-fatal Illness	0	51	51
Ozone	Non-fatal Illness	28	16	47 ^3
Total		16,406	27,857	40,443 ^4
^1Costs for "criteria" pollutants only (does not include toxic pollutant costs). Excludes certain health-related costs and costs of reduced visibility, crop damage, and material damage not quantified by EPA. ^2Mortality costs based on DOT's $2.7 million estimated cost of a premature death. ^3 Does not include ozone mortality costs, which are highly uncertain. ^4 Comparable estimate using EPA's value of life is $64,681. Source: Abt Associates, 1998, pages 9-11.

As noted in the cost study, these costs do not include the health effects caused by air toxic emissions from highway vehicles discussed above. A disproportionately high portion of the adverse health effects associated with these costs, as well as the costs themselves, will be experienced by nearby communities and not the larger community as a whole. These risks become doubly troubling if the residents who are most affected are the least empowered among us, and the least able to move or take other actions to defend themselves from the adverse health risks of motor vehicle pollution.

Therefore, commenters believe that this evidence of --

· significant risk of adverse health effects from current exposures to regional concentrations of motor vehicle pollution;

· the large incremental risk for citizens living in close proximity to heavily traveled roadways, and

· the increased exposure and corresponding health risk that can be expected if increased capacity contributes to increased mobile source emissions in these corridors;

requires analysis and the adoption of non-polluting transportation alternatives and/or development of mitigation measures under NEPA, 23 U.S.C. § 109, and Title VI of the Civil Rights Act before any action may be taken to approve highway projects that cause or contribute to cancer risks in excess of acceptable risk levels, premature mortality from various cardio-pulmonary diseases, and the increased incidence and severity of the morbidity effects of exposures to emissions from motor vehicles.

C. Legal Authority Requiring Assessment of Health Risks.

NEPA, section 109(h) of title 23, DOT’s current regulations implementing these statutory requirements in 23 CFR Part 771, and applicable judicial precedents require that an agency consider the adverse public health effects of air pollution associated with the construction of a highway. See Lathan v. Volpe, 350 F Supp 262 (WD WA 1972); Keith v. Volpe, 352 F Supp 1324, 1335 (CD CA 1972); see also 40 CFR § 1508.8; 40 CFR 1502.16. The proposed rules, however, are unclear about what stage of the process these effects will be addressed, how alternatives will be considered in the process, and whether mitigation will be required if alternatives are not selected.

1. NEPA.

It is well settled that an EIS must be performed for any federally funded activity that will or may have a significant impact on the human environment. Agencies and courts generally require an EIS when evidence “show[s] that the proposed project would materially degrade any aspect of environmental quality."[1] Courts do not need to find that the action will have significant effects – only that the action may cause significant effects.[2] Where there are substantial questions as to whether the project will create a significant impact, it is not reasonable for an agency not to do an EIS.[3]

It has long been recognized that air pollution associated with highways has a significant impact on the human environment. In the context of air pollution, a brief or conclusory discussion of impacts is insufficient to satisfy the mandates of NEPA. See I-291 Why? Ass'n v. Burns, 517 F.2d 1077, 1080 (2nd Cir. 1975). One court noted that an incomplete or limited evaluation of the air pollution created by a highway expansion is egregious because “automobile emission was responsible for approximately 50% of the air pollution throughout the country . . ..” See Keith v. Volpe, 352 F Supp 1324, 1334 (CD CA 1972). Therefore, where evidence shows that toxic and hazardous air pollutants emitted by mobile sources cause a significant risk to public health, a full EIS examining the extent to which each project will add to existing adverse health effects by allowing increased exposure to hazardous and toxic air pollutants emitted by mobile sources is required to reveal the true public health risks associated with the expansion of major highways.

2. 23 U.S.C. § 109(a) and (h).

In addition to NEPA, federal highway law, 23 USC §109(a), requires consideration of the adverse effects of air pollution prior to approval of the plans and specifications for a highway, and § 109(h) requires measures that “eliminate or minimize” the adverse effects of “air pollution”.

In a case challenging DOT’s approval of a highway project without assessing its impact on air pollution, the court in D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971), held that 23 U.S.C. § 109(a) required such an analysis:

We can find no basis in the statute's language or purpose for the conclusion that certain hazards are, as a matter of law, immaterial to the Secretary's evaluation of a project's safety. The District Court would surely agree that Congress did not intend to permit construction of a bridge in a situation, however rare, where air pollution would be a significant threat to safety. It does not follow, of course, that air pollution will be a significant hazard in all-or even any-highway projects. And the District Court apparently concluded that no extraordinary dangers are likely to arise from the Three Sisters Bridge. Still, the gathering and evaluation of evidence on potential pollution hazards is the responsibility of the Secretary of Transportation, and he undertook no study of the problem.

DOT’s approval of the highway bridge was remanded.

Federal highway law goes beyond NEPA by requiring that the decision to approve a highway be –

made in the best overall public interest taking into consideration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing such adverse effects and the following: (1) air, noise, and water pollution; (2) destruction or disruption of man-made and natural resources, aesthetic values, community cohesion and the availability of public facilities and services; (3) adverse employment effects, and tax and property value losses; (4) injurious displacement of people, businesses and farms; and (5) disruption of desirable community and regional growth. Such guidelines shall apply to all proposed projects with respect to which plans, specifications, and estimates are approved by the Secretary after the issuance of such guidelines.”

23 USC §109(h). At a minimum, this provision requires DOT to determine the costs of eliminating or minimizing the adverse health effects attributable to air pollution, and then requiring mitigation in the “best overall public interest.”

DOT’s 1987 regulations implementing this requirement and NEPA providing that

the analyses required by §109(a) and (h) are to be performed as part of the NEPA review

of the project. 23 CFR Part 771. The proposed NEPA rules continue to adopt this integrated approach. Thus because both §109(a) and (h) require an analysis of the adverse effects of air pollution and the costs of eliminating or minimizing such effects, an EIS is required.

Section 109(h) also requires DOT to “eliminate or minimize” the adverse effects attributable to a new or expanded highway. This provision is implemented through DOT regulations in 23 CFR §771.105, but has not been applied by FHWA with regard to the adverse health affects associated with toxic and hazardous air pollutants emitted from highway projects. The current DOT regulation adopts as --

the policy of the [Federal Highway] Administration that:

(b) Alternative courses of action be evaluated and decisions be made in the best overall public interest based upon a balanced consideration of the need for safe and efficient transportation; of the social, economic, and environmental impacts of the proposed transportation improvement; and of national, State, and local environmental protection goals.

(c) Public involvement and a systematic interdisciplinary approach be essential parts of the development process for proposed actions.

(d) Measures necessary to mitigate adverse impacts be incorporated into the action. Measures necessary to mitigate adverse impacts are eligible for Federal funding when the Administration determines that:

(1) The impacts for which the mitigation is proposed actually result from the Administration action; and

(2) The proposed mitigation represents a reasonable public expenditure after considering the impacts of the action and the benefits of the proposed mitigation measures. In making this determination, the Administration will consider, among other factors, the extent to which the proposed measures would assist in complying with a Federal statute, Executive Order, or Administration regulation or policy.

On its face, paragraph (d) requires that measures necessary to mitigate the adverse health effects of hazardous air pollutants be incorporated into the plans and specifications for the project. Subparagraphs (1) and (2) then establish criteria for determining whether the costs of mitigation are eligible for federal funding. But the rule does not appear to contemplate the approval of a project that would have significant adverse effects on human health without requiring that those effects be mitigated. This requires that the project either include measures to eliminate long-term human exposure to the levels of hazardous air contaminants that are associated with significant risks of adverse health effects, or that alternatives be developed that can prevent these adverse health effects.

3. Title VI Of The Civil Rights Act, And Related Guidance.

Causing adverse health effects such as increased incidence of cancer, increased premature death and other serious diseases to populations near heavily traveled highway corridors also takes on a discriminatory character when these impacts are imposed disparately on low income, ethnic or racial minorities.

a. Requirements of the Civil Rights Act.

Title VI and its regulations prohibit recipients of federal funds from engaging in intentional discrimination on the basis of race, color or national origin, as well as unjustified adverse disparate impact discrimination for which there are less discriminatory alternatives. Title VI provides that "[n]o person in the United States shall on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. DOT has promulgated regulations that bar disparate impact discrimination by recipients of federal funds to effectuate the provisions of Title VI. See 42 U.S.C. § 2000d-1, 49 C.F.R. § 21.5(b)(2). Accord, Memorandum from Attorney General Janet Reno to Heads of Departments and Agencies that Provide Federal Financial Assistance, Use of the Disparate Impact Standard in Administrative Regulations Under Title VI of the Civil Rights Act of 1964 (July 14, 1994).

The President's Order on Environmental Justice requires each federal agency, including FHWA, to make achieving environmental justice part of its mission. Exec. Order 12,898 (Feb. 11, 1994). DOT and FHWA have in turn promulgated orders to implement the President's Order. DOT Order on Environmental Justice (DOT Order 5610.2) (April 15, 1997); FHWA Actions To Address Environmental Justice in Minority Populations and Low Income Populations 6640.23 (Dec. 2, 1998). These orders affirm the principle of using the planning process to implement Title VI, related civil rights statutes,[4] and the federal environmental laws to avoid intentional and adverse disparate impact discrimination. DOT recently issued Guidance to MPOs confirming that these criteria are to be applied in reviewing transportation plans and TIPs.

While Title VI and [environmental justice] concerns have most often been raised during project development, it is important to recognize that the law applies equally to the processes and products of planning. The appropriate time for FTA and FHWA to ensure compliance with Title VI is during the planning certification reviews conducted from Transportation Management Areas (TMAs) and through the statewide planning finding rendered at approval of the Statewide Transportation Improvement Program (STIP)." See FHWA and Federal Transit Administration ("FTA"), Memorandum re: Implementing Title VI Requirements in Metropolitan and Statewide Planning (Oct. 7, 1999) at 2.

A valid disparate impact claim under Title VI has three main components. First, an action by an agency that receives federal funding has a disparate adverse impact based on race, ethnicity or national origin. The disparities may be demonstrated through statistical evidence, numerical disparities or anecdotal evidence. Second, any action that has such a disparate impact must be justified by business necessity. Third, even if the action would otherwise by justified by business necessity, the action may be prohibited if there are less discriminatory alternatives to accomplish the same end. A disparate impact claim does not require proof of intentional discrimination. See United States Department of Justice, Civil Rights Division, Title VI Legal Manual (Sept.1998) ("DOJ Title VI Legal Manual") at 53-59 and cases cited.

The federal environmental laws are an integral part of the transportation equity framework. The civil rights laws require equal justice for all under the environmental laws as well as the transportation laws. The environmental laws can also provide substantive standards for assessing intentional and disparate impact discrimination claims. See, e.g., Transportation Equity Act for the 21^st Century ("TEA-21") (codified in titles 23, 49 and scattered sections of title 42, U.S.C.); Clean Air Act, 42 U.S.C. § 7401 et seq. as amended; National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4234; and the environmental review requirements for highway projects in 23 U.S.C. §109(h). Thus, for example, an action that will add air pollution and have an adverse disparate health impact against low income, ethnic or communities of color would not be justified by business necessity and might in some cases also depart from substantive clean air standards in violation of both the Clean Air Act and Title VI. A number of less discriminatory alternatives might be readily available – such as compliance with Clean Air Act standards in cases where standards apply, or in cases where standards do not apply, taking actions that avoid the increased pollution such as providing mobility with non-polluting alternative modes, or protecting communities from the harmful exposures by creating protective buffer zones.

b. Applying the Civil Rights Act to Address Pollutant Exposures.

Disparate impacts of motor vehicle pollution on communities is a concern brought into focus by a growing body of evidence that neighborhoods located in close proximity to large numbers of motor vehicles are exposed to substantially higher concentrations of primary fine particles and hazardous air pollutants known to cause cancer and cause or exacerbate other serious adverse health effects including asthma, cardiovascular and lung disease. Included in this recent research is evidence that children living within 750 feet of a major roadway are 12 times more likely to contract leukemia than children living farther away. Unlike secondary pollutants such as ozone that are formed in the atmosphere and cause regionally dispersed exposures, primary pollutants are most concentrated at the source. Populations living near sources of motor vehicle emissions such as highways and interchanges are exposed to substantially greater concentrations of the vehicle pollutants that endanger public health. The motor vehicle pollutants of particular concern include fine particles smaller than 2.5 micrometers in size, and the carcinogens benzene, 1,3 butadiene, formaldehyde, and numerous components of diesel particulate matter.

The signatories to this request are concerned about the adverse health effects of exposure to these pollutants by all our residents; low income and middle class alike. Children are especially at risk from all of these effects, including a greater likelihood of suffering from childhood leukemia and other life-threatening diseases.

But this concern focuses most on the residents of neighborhoods adjacent to the major Interstate and other heavily traveled highway corridors where average daily vehicle trips are currently in the 150,000 range and projected to increase substantially after the proposed capacity expansion in the corridor, and corridors where future travel is expected to reach the 150,000 AADT range. Because residents living near such heavily traveled traffic corridors are at risk of experiencing substantially increased incidence of cancers, premature mortality, more frequent hospitalizations for respiratory and cardiovascular disease, more frequent asthma attacks requiring medical attention, greater use of medications and increased costs of medical care, prescriptions and loss of income from lost work time, they request that an EIS be prepared for each such project.

An appropriate consideration of alternatives under NEPA necessarily should include an evaluation of the extent to which reallocation to transit of the funds allocated to these highway projects could contribute significantly to reducing travel demand, VMT and diesel-fueled vehicles thereby reducing resulting emissions of toxic air pollutants. An analysis of the health and other benefits to be obtained from an optimal transit investment strategy would best be undertaken at the planning stage. But if such an analysis is not performed by MPOs, such analysis must be performed by the implementing agencies before any project EIS is approved.

To the extent that a regional analysis reveals disparate health impacts on low income, racial or ethnic minorities that are not consistent with the requirements of Title VI, then such analysis needs to be considered by DOT as a basis for not approving an MPO’s plan and TIP.

D. The Proposed Rule Does NOT Provide Assurance That This Issue Will be Effectively Addressed.

Most large metropolitan area long-range plans and TIPs may be expected to include a number of new or expanded highway projects where traffic levels are likely to cause or contribute to cancer risks in excess of 1 in 1,000 (perhaps all projects with 150,000 AADT or more where human populations reside within 300 meters of the R-o-W). In many of these corridors, the associated toxic or hazardous air pollutants emitted by mobile sources already are creating a cancer risk far above the levels that would trigger an assessment to consider the need for mitigation measures to protect public health. Proposed new capacity in both new and existing highway corridors, and expected increases in daily vehicle trips that would occur in and be promoted by such new capacity, will significantly increase the unacceptably high cancer risks to populations exposed to hazardous air pollutants in these corridors. These high cancer risks trigger an obligation under NEPA and § 109(h) of the federal highway code to assess the magnitude of these risks to regional populations, to residents living nearby and to families living immediately adjacent to these highway facilities, to identify mitigation measures, and to require the implementation of measures necessary to “eliminate or minimize” the adverse effects of air pollution attributable to the project.

These projects typically are not being analyzed for their contribution to emissions of hazardous air pollutants, either as part of the planning process, the NEPA process or as part of the scoping and design of the projects. Neither the plans, specifications and estimates nor a project agreement may be lawfully approved under 23 U.S.C. § 106(a) until the adverse effects on public health attributable to the emissions of hazardous air pollutants from mobile sources in these corridors are assessed, and alternatives necessary to prevent those adverse effects are selected as the preferred alternative or mitigation is required as part of the project approval.

The current planning and NEPA processes do not provide a context for evaluating the full scope of alternatives that could protect the public from these cancer risks. Project-level review of individual highway projects do not provide the appropriate scale for consideration of alternatives that would include land use, transit-oriented development and regional expansion of transit services as strategies for reducing overall travel demand or SOV use, or fleet conversions or fuel modifications that could significantly reduce regional emissions of diesel particulate and other hazardous air pollutants.

At the same time, the planning process as conducted by most MPOs, and certainly as required by DOT’s current planning regulations, do not require that health risks attributable to the emissions of toxic air pollutants from mobile sources be considered at all, nor do they consider regional alternatives that could reduce VMT and emissions of air toxics.

The proposed rules take a step in the right direction by allowing the agencies responsible for the planning process to evaluate impacts on a regional scale, and to consider regional alternatives, but this approach is not required. If a regional scale impact analysis is not voluntarily undertaken by regional planning agencies, there is no procedure identified in the proposed rule that provides for regional scale analysis of impacts, alternatives or mitigation measures such as buffer zones around major travel corridors. If such a regional scale analysis were undertaken by FHWA outside the planning process, there is also no mechanism to ensure that regional alternatives are implemented as part of the regional plan and TIP.

To remedy these deficiencies in current practice, we ask DOT to require that all projects above a threshold likely to contribute to exposures that would be associated with cancer risks greater than 1 in 1 million be subject to a risk assessment to characterize the local exposures and provide reliable information to local residents of their expected cancer risk. The risk assessment should be included in an EIS that considers the range of regional and corridor-level alternatives that could reduce travel demand or SOV use, and mitigation measures that would ensure effective separation of human populations from areas likely to be contaminated with unacceptable high concentrations of carcinogens and other threats to human health.

ISSUE 2: EFFECTS OF INDUCED DEMAND.

Looming large over all assessments of the adverse effects of vehicle use and the evaluation of alternative transportation investments is the failure to account for the widely recognized phenomenon known as “induced demand.” The failure to account for this effect of the construction of new highway capacity results in the serious underestimation of VMT in a corridor, and consequently the failure to accurately estimate motor vehicle emissions for conformity purposes or for performing a risk assessment to predict the adverse health effects of mobile source air toxics, the overestimation of the mobility benefits of new capacity, the failure to account for the land use effects of temporarily improved travel times in a corridor, and the under-valuation of the benefits of non-highway transportation alternatives.

Environmental Defense submits a report by Norman Marshall, a respected expert in this field, summarizing the latest research quantifying the magnitude of this effect in the U.S. This evidence demonstrates that the effect is large, is relatively consistent wherever it has been measured, and can significantly undermine the reliability and usefulness of travel demand and VMT forecasts for virtually all purposes if it is not taken into account.

Based upon his experience reviewing the transportation planning tools applied in four of the nation’s largest cities, Mr. Marshall also documents that induced demand is generally not being addressed in a comprehensive way by MPOs in the planning process. He concludes that this failure casts into doubt the acceptability of VMT projections used for conformity determinations, the travel demand assumptions used to justify the need for individual projects, and the meaningful comparison of alternative projects and services.

Based on this evidence, Environmental Defense asks DOT to require that induced demand be expressly addressed in the regional planning process, in making conformity determinations under the Clean Air Act, and in all corridor-level EISs and EAs under NEPA. Tools for reliably assessing the effect of this phenomenon are rapidly emerging, and will quickly evolve into the planner stock-in-trade if planners are required to account for this effect. The failure to provide national guidelines that provide consistent uniform practices will merely invite frequent legal challenges to regional plans, conformity determinations and EISs on the ground that these analyses are fundamentally flawed by the failure to adequately address this statistically proven effect of new capacity.

III. OTHER CIVIL RIGHTS ACT AND AMERICANS WITH DISABILITY ACT CONCERNS.

Environmental Defense supports DOT’s effort to require consideration of the disparate effects of transportation investments on low income, racial, ethnic and disabled communities. We believe the Department is taking a major step forward in requiring meaningful consideration of the kinds of adverse disparate impacts on communities of color that are prohibited by the Civil Rights Act, and the discriminatory effects on the disabled that are prohibited by the Americans With Disabilities Act . However, we are concerned that the proposal goes no further than elevating the visibility of these issues without requiring remedial measures designed to undo the disparate effects of decades of investment in highways that disadvantage by diminishing mobility and access for populations that do not own or operate personal motor vehicles. Although legally DOT’s duty to remedy these adverse effects on mobility and access may be limited to populations protected under the Civil Rights Act or the Americans with Disability Act, the policy issues implicated by these concerns extend to all populations that do not drive, including the elderly, the disabled, unlicensed teenagers and those who cannot afford personal motor vehicles. In most cities, these underserved or dis-served populations are 30% of the community. Their mobility needs are real, are legitimate, and must be met too.

To move beyond the mere expression of concern for these populations, Environmental Defense asks that DOT adopt a national mobility goal for all populations in the community, and planning requirements that govern data collection and analysis and the development of strategies to meet the national mobility goal within a reasonable period of time.

The national mobility goal should be aimed at the development of regional transportation systems that serve SOV-owners and those who are dependent on other modes more or less equally with regard to essential mobility criteria. The essential criteria for measuring the performance of regional transportation systems should include, at a minimum--

· the comparative costs of travel and travel time for those who drive and those who are transit-dependent;

· equal access to places where existing and new jobs, affordable housing, educational services and public facilities are located;

· the social and economic impacts on communities that result from effective access to employment opportunity, housing located within a reasonable commute of jobs and educational facilities and community facilities in various portions of the metropolitan area.

Quantitative performance measures to assess the performance of regional transportation systems should be developed through the planning process, and MPOs should be required to adopt strategies that are designed to move the region toward the national goal. The continued award of grants subject to the requirements of Title VI of the Civil Rights Act and the ADA should be conditioned on the adoption and expeditious implementation of strategies designed to achieve the national mobility goal.

IV. CONCLUSIONS.

Based on the data, legal analyses and policy considerations discussed above, Environmental Defense makes the following requests and recommendations--

1. Environmental Defense generally supports streamlining proposals designed to ensure that the gaps between the current planning process and the NEPA/§109 review of projects are eliminated by establishing procedures that allow for adequate consideration of the regional and cumulative impacts of transportation investments as part of the regional planning process. We also request that more specific procedures be adopted in the rule to allow MPOs to accept responsibility for performing a regional impacts analysis adequate to meet the requirements of NEPA, and to provide assurances that implementing agencies will accept and rely upon adequate NEPA analyses performed by MPOs.

2. Environmental Defense also supports DOT’s efforts to streamline the current fragmented review of the environmental, social, economic, equity and energy impacts of transportation decisions by integrating all these criteria required to be addressed by applicable federal laws into the regional planning and NEPA review process.

3. Environmental Defense is concerned, however, that these reviews may not be performed adequately, or may not be adequately documented and explained so that they may be exposed to full and careful public scrutiny and debate. To ensure that the planning/NEPA/§ 109 processes openly address the needs and concerns of all interests with a stake in the environmental, social, economic, equity and energy impacts of transportation decisions, Environmental Defense asks that the recommendations adopted by DOT as part of its review of the adequacy of the public involvement program implemented by the Atlanta Regional Council be adopted as requirements of the metropolitan planning rules. See Assessment of Environmental Justice and Public Involvement in the Atlanta Metropolitan Area (Draft Report), U.S. Department of Transportation (April 17, 2000).

4. Environmental Defense objects to provisions of the proposed rules that weaken current regulatory requirements that govern the review of projects and the consideration of alternatives. Specifically, we oppose the removal of language in current 23 CFR § 771.105(d) implementing § 109(h) that requires the mitigation of adverse effects of highway projects. We believe the text of the current rule is required by law and should be retained in the new rules. DOT has offered no rational basis for the modification and weakening of these requirements. The proposed rule change is therefore arbitrary and capricious.

5. The proposed rules should be revised to make clear that no plans, specifications and estimates, nor any project agreement required by 23 U.S.C. § 106(a) may lawfully be approved for highway projects that expand capacity in heavily traveled corridors or that will become a heavily traveled corridor until an EIS has been completed that fully evaluates the full range of adverse environmental, social and economic effects of the proposed projects, evaluates both regional and corridor scale alternatives to the proposal, and identifies appropriate mitigation to “eliminate or minimize” these adverse effects as required by 23 USC § 109(h), and that includes necessary mitigation in the plans and specifications for each project.

6. We oppose DOT’s failure to retain language in the current MIS rule, 23 CFR § 450.318(c), that defines the scope of alternatives to be considered as part of a corridor-level review for major capacity enhancing projects The proposed rules should be revised to make clear that the scope of any analysis of alternatives to proposed projects performed to satisfy NEPA will consider a range of corridor-level alternatives at least as broad as those required to be considered in the current MIS rule, 23 CFR 450.318(c). We believe the current rule has served well to guide project reviews, has become familiar to agencies and local governments involved in the review process, and is a good outline of the scope of corridor-level review of alternatives required by NEPA. The requirement in TEA-21 to integrate the MIS process into the NEPA process does not provide a justifiable basis for deleting the language from the MIS rule, but rather argues for carrying it forward into the streamlined NEPA process.

7. Environmental Defense requests that DOT modify the final rule to establish guidelines for the appropriate consideration of the four objectives in 23 USC § 134(a) that are required to be accomplished by metropolitan plans. Such guidelines should require that MPOs identify a fiscally constrained planning scenario for the region that will optimize the four objectives. Such guidelines should identify the types of projects, programs, facilities, services, pricing and tax incentives and land use strategies that will most likely be expected to optimize these four objectives. At a minimum, MPOs should be required to consider all such measures and provide a rational basis for not adopting them as part of a regional transportation plan.

8. The failure to account for the effects of induced demand seriously undermines the reliability, accuracy, credibility and validity of VMT estimates used to develop regional transportation plans, evaluate alternatives to proposed plans and projects, and to estimate regional emissions from motor vehicles. DOT must address this serious deficiency that undermines the acceptability of regional transportation plans, NEPA reviews of alternatives and conformity determinations under the Clean Air Act wherever induced demand is not fully accounted for. Environmental Defense requests that DOT issue guidelines that require agencies to use state-of-the-art modeling tools to account for this effect whenever regional transportation plans, EIS/EA reviews or conformity determinations are being performed as part of the regional planning, conformity or NEPA process.

9. Environmental Defense requests that DOT support its proposed requirements to consider the disparate impacts of transportation investment policies on low income, racial and ethnic communities by requiring that a) performance criteria be identified by the regional planning agencies, b) that the impacts of past practices and any proposed new or revised regional plan be routinely quantified with respect to such performance criteria as part of the regional planning process, and c) that regional planning agencies adopt target improvements in the performance criteria as part of developing the regional plan.

10. Environmental Defense requests that DOT adopt a national goal to guide the regional planning process to achieve the elimination of disparate impacts of each regional transportation system as required by Title VI of the Civil Rights Act. The goal should be defined as the development of a regional transportation system that ensures equal access to all existing and new places of employment, housing, worship and public facilities by populations that do not own or operate personal vehicles, without imposing disparate cost and travel time burdens on such populations. The rule should require that regional transportation plans adopt strategies to implement the national goal with all deliberate speed.

Environmental Defense appreciates this opportunity to comment on the proposed regulations, and would welcome any further opportunities to explore the issues raised by these comments with the Department.

Respectfully submitted,

Robert E. Yuhnke

Counsel for Environmental Defense

Michael Replogle

Director, National Transportation Program

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[1] See Sierra Club v. Babbitt, 69 F. Supp. 2d 1202 (E.D. Cal.1999); Davis v Coleman, 521 F2d 661, 673 (9^th Cir. 1975). Citing Environmental Defense Fund v. Armstrong, 487 F.2d 814, 817 n. 5 (9^th Cir. 1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5^th Cir. 1973).

[2] See Davis v Coleman, 521 F2d 661, 673 (9^th Cir. 1975).

[3] See Sierra Club v. Babbitt, 69 F. Supp. 2d 1202, 1214 (E.D. Cal.1999); Davis v Coleman, 521 F2d 661 (9^th Cir. 1975). The court said it was obvious that the construction of a large intersection on a major highway would have significant impacts on the quality of the human environment, despite the states conclusory assertions to the contrary.

[4] See, e.g., 49 U.S.C. section 5332(b).

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[i] Nelson, Arthur C. Effects of Urban Containment on Housing Prices and Landowner Behavior. In Land Lines, Cambridge, MA: Newsletter of the Lincoln Institute of Land Policy, May 2000 Volume 12 , Number 3, www.lincolninst.edu.

Attachment 6:

December 4, 2000

Transportation Secretary Rodney Slater

U.S. Department of Transportation

400 7^th St SW

Washington, DC

Dear Secretary Slater:

One of the consequences of urban development during the past half century has been the erection of barriers to mobility that have imposed inequitable burdens on many African-Americans, Latinos and other racial, ethnic, disabled and age minorities in the U.S. These Americans often do not share in America’s economic progress in part because they are denied access to the majority of new jobs, affordable housing, educational and entrepreneurial opportunities located in new suburbs where access is restricted to those who drive cars. Woefully inadequate or non-existent transit services outside the urban core deny equal access to all who live in America’s cities and depend on public transportation for their mobility. To ensure equitable transportation services for the elderly, the young, disabled and those who cannot afford to drive, these barriers to equal access must be overcome.

Federal transportation laws require metropolitan areas, acting through regional planning agencies, to develop regional transportation plans that guide the future expansion of urban transportation systems. Congress has directed that metropolitan areas adopt 20-year plans that “encourage and promote the safe and efficient management, operation, and development of surface transportation systems that will serve the mobility needs of people….” 23 U.S.C. §134(a)(1) and (2). Once adopted, these plans govern the expenditure of federal and State transportation funds in metropolitan areas.

All federally funded programs, including the transportation programs developed through regional transportation plans, are subject to the requirements of Title VI of the Civil Rights Act. Title VI and its regulations prohibit recipients of federal funds from engaging in intentional discrimination on the basis of race, color or national origin, as well as unjustified adverse disparate impact discrimination for which there are less discriminatory alternatives. Title VI provides that "[n]o person in the United States shall on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d.

The federally funded transportation systems developed in most American cities during the last half century deny the benefits of regional mobility and equal access to the 30%, or more, of Americans who cannot or do not drive personal vehicles. The new transportation planning rules, that you recently proposed to implement the Transportation Equity Act for the 21^st Century, seek to begin the process of reversing the inequities of past transportation investment practices. Among other improvements in the metropolitan planning process that would be required by the proposed rules, DOT would require planning agencies to assess the disparate impacts of the current transportation system and develop plans that begin to remedy those impacts.

We applaud you for launching this initiative to remedy the adverse social and equity effects of transportation systems in many metropolitan areas that rely almost exclusively on highway development with no comparable expansion of the transportation services needed by those who do not drive. However, we are concerned that the proposed rules contain no clear standard against which regional mobility for all people is to be judged. Without clear direction in the federal rule, we are not sure that your initiative will achieve significant results.

We propose the adoption of a national mobility goal to measure the performance of metropolitan transportation systems. The goal can provide a benchmark for evaluating whether metropolitan areas with clearly inadequate transportation systems are investing in the strategies needed to remedy the inequities of past practices.

This national mobility goal could foster development of regional transportation systems that serves the whole population by ensuring that those who are dependent on means of travel other than driving a car are served equally with regard to essential mobility criteria. These criteria for measuring performance of transportation systems should include, at a minimum, evaluation of whether the systems are designed to --

· ensure equal access to employment opportunity, affordable housing, educational and community facilities, health services, and places of worship in various portions of the metropolitan area through the Regional Transportation Plan;

· ensure early substantial progress towards this equal access mobility goal through the Transportation Improvement Program; and

· ensure that those who are transit-dependent or rely on shared-ride services do not face increased travel cost, travel time, safety hazards, or degradation of travel conditions compared to those who drive personal vehicles.

We ask that language be added to the proposed rule to define the mobility goal as “the development of a regional transportation system that ensures equal access to all places of employment, housing, worship and public facilities, including access for populations that do not own or operate motor vehicles, without imposing disparate cost and travel time burdens on such populations.“ The rule should require that “regional transportation plans and Transportation Improvement Programs adopt strategies to implement the national mobility goal with all deliberate speed.”

We seek your support for the adoption of this goal as part of the metropolitan planning rules soon to be issued by the Department of Transportation. The adoption of a national mobility goal can lay the foundation for the development of future transportation systems that will break down the mobility barriers to equal access in American cities. Issuing regulations that effectively promote equal access could be an important legacy of this Administration to those who need a hand up, not a hand out.

Sincerely,

Rep. John Lewis

Rep. Edolphus Towns

Rep. Carolyn Kilpatrick

Rep. Elijah Cummings

Rep. Cynthia McKinney