This spring, the Department of Transportation published notices of proposed rulemaking: for metropolitan and statewide transportation planning rules and for rules implementing the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and related procedures for transportation decisionmaking, protection of public parks, wildlife and waterfowl refuges, and historic sites. My testimony will focus specifically on the proposed NEPA regulations, how they relate to the environmental streamlining provisions of the Transportation Equity Act for the 21st Century (TEA-21), P.L. 105-178 (1998), and some concerns that I understand have been raised about the proposed regulations. Having said that, I note that at, as I understand it, the request of the American Association of State Highway and Transportation Officials (AASHTO), among others, the comment period was extended to September 23, 2000, so we do not yet have the benefit of full public input.
CEQ worked closely with staff of this Committee in crafting the environmental streamlining provisions of TEA-21, and the Administration supported the provisions. In spirit and in many places the language of the provisions mirror CEQ's interpretation of the procedural provisions of NEPA. As the CEQ regulations themselves state, "Federal agencies shall to the fullest extent possible . . . implement procedures to make the NEPA process more useful to decisionmakers and the public; to reduce paperwork and the accumulation of extraneous background data; and to emphasize real environmental issues and alternatives." 40 C.F.R. 15002(b). The environmental streamlining provisions capture the direction in the CEQ regulations for close interagency coordination among the various levels of affected government, the desirability of concurrent reviews, and the need for an efficient dispute resolution process.
Following passage of TEA-21, CEQ worked with FHWA and FTA in reviewing their draft regulations prior to publication for review and comment. From my perspective, the Department of Transportation and the other federal agencies involved in the environmental streamlining effort - the Department of Agriculture, the Department of the Army, the Department of Commerce, the Department of Interior, the Environmental Protection Agency and the Advisory Council on Historic Preservation - have engaged with vigor and sincerity in attempting to translate the mandates of Section 1309 into workable regulations that will achieve the goals of TEA-21. Many of these efforts are not directly reflected in the proposed regulation because they involve the kind of administrative, programmatic or implementation activities that are not typically the subject of regulation but are key to successful management. For example, the Department of Transportation has engaged the U.S. Institute for Environmental Dispute Resolution to develop a specific model for an efficient dispute resolution process and to engage stakeholders in a series of executive summits on environmental streamlining. There are other actions underway, and I believe Administrator Wykle will speak to some of those.
Let me turn now to the proposed NEPA regulations themselves. Generally speaking, we believe they are going in the right direction. They can and will be improved. However, we concluded this spring that the time was ripe to publish them for comment so that further changes would be informed by the reactions of the interested public, state, tribal and local agencies, and we encouraged the Department to do so. I understand that one of the concerns that has been raised is the fear that some provisions of the proposed regulations would turn NEPA from a procedural statute into a substantive law. CEQ believes this fear is misguided. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), the U.S. Supreme Court stated that:
"NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. It is to insure a fully informed and well considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decision-making unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute." Id. At 558. Literally hundreds, if not thousands, of NEPA decisions cite this statement in the context of decision in a case challenging an agency's compliance with NEPA. It is by now black letter law that federal courts only enforce the procedural provisions of NEPA. The issue, of course, is whether these proposed regulations will change that black letter case law. I believe they would not do so. I also believe that they are consistent with both NEPA and the CEQ implementing regulations. The NEPA process was not intended to be a paperwork production process as a goal unto itself. The Congressionally-mandated purposes of this statute - often referred to as America's environmental magna carte are to declare a national policy which will encourage productive and enjoyable harmony between man and his environment, to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man, and to enrich the understanding of the ecological systems and natural resources important to the Nation. 42 USC 54321. The law goes on to eloquently articulate national policy intended to achieve a balance between human beings and nature and fulfill the responsibilities of each generation as trustee of the environment for succeeding generations. 42 USC 4331. The NEPA process was intended to be a mechanism to ensure that federal agencies would incorporate those goals into their policies and regulations and everyday decisionmaking. The CEQ NEPA regulations sum up the relationship between the substance and process of NEPA by stating that:
"Ultimately, of course, it is not better documents, but better decisions that count. NEPA's purpose is not to generate paperwork-even excellent paperwork-but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." 40 CFR 1500.1. CEQ's regulations explicitly state that the purpose of the NEPA process to is achieve the substantive requirements of section 101. CEQ's authority to interpret NEPA in general and in the context of the regulations binding on all federal agencies has been upheld several times by the U.S. Supreme Court. Andrus v. Sierra Club, 442 U.S. 347 (1979), Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989), Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989), and numerous lower court cases have reflected these holdings. No court has interpreted these provisions of CEQ's regulations as subjecting federal agencies to judicial scrutiny for failure to achieve NEPA's substantive goals. On the other hand, the fact that NEPA's goals are not reviewed by federal courts does not make them meaningless. When Congress wrote NEPA, it clearly intended for agencies to strive toward fulfillment of those goals. Indeed, to go through the NEPA process without the underlying policy rationale would be a hollow reflection of this august body's deliberations. Nor would it seem to be a wise use of the taxpayer's funds. Merely going through the process for the sake of process or a defensible administrative record leads to the very kind of conflict, delay and litigation decried by this Committee. However, taken seriously in the course of decisionmaking, the policy goals of NEPA can help to avoid those kinds of conflicts.
Section 1420.107 of the proposed regulations addresses the "Goals of the NEPA process". It states that the DOT agencies will manage the NEPA process to maximize attainment of seven goals: environmental streamlining, environmental ethic, environmental justice, integrated decisionmaking, collaboration, transportation problem solving, and financial stewardship. This is precisely the kind of broad policy articulation that takes NEPA's even broader policy mandates and translates them into goals specific to the mandate of the DOT agencies. The language of the regulation is crafted to avoid the articulation of any regulatory standard, and is very much the type of language the courts have already indicated is unenforceable in the statute itself.
Section 1420.109, "The NEPA umbrella", is an environmental streamlining provision. It provides the agency and the public with the mandate to use the NEPA process as an organizational mechanism for compliance with federal responsibilities applicable to the decision for a proposed action. The CEQ regulations require agencies, to the fullest extent possible, to prepare draft environmental impact statements concurrently with and integrated with environmental impact analyses and related surveys and studies required by other environmental review laws and executive orders. Failure to do so is certainly one of the principal causes for administrative delays, and will certainly doom environmental streamlining efforts. The draft DOT regulation does not alter in any way the agencies' responsibilities regarding compliance with these laws; it does implement CEQ's mandate for concurrent review.
I also understand that there is concern regarding a statement in the proposed regulation that defines "practicable" as meaning a "common sense balancing of environmental values with safety, transportation needs, costs, and other relevant factors in decisionmaking". The proposed regulation specifically states that no additional findings or paperwork are required to demonstrate this balancing. I find it impossible to discern any judicially enforceable law to apply this language. Indeed, it reflects Congress' mandate to the federal agencies, "to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." 42 USC 4331 (a).
I know that Committee members have expressed frustration that DOT has not done more in the way of streamlining. However, I must note that DOT has incorporated into the proposed regulations some provisions that are unprecedented in that regard. For example, Section 1420.209 provides that an applicant may propose alternative procedures to the DOT agency for compliance with NEPA and related responsibilities. No other federal agency has ever proposed this invitation to regulatory creativity before in the context of NEPA procedures. DOT also has spent considerable time crafting and updating their categorical exclusions.
I would be remiss if I did not take note of the growing number of success stories that are emerging as the federal agencies begin implementing environmental streamlining measures. The "Best Practices in Environmental Partnering" cases spotlighted by AASHTO last year showcased excellent examples of transportation decisionmaking from state transportation agencies in Florida, Kentucky, Nevada, New York, Pennsylvania, South Carolina, Washington, and Wisconsin, As AASHTO President Tom Warne stated in the context of that national competition, these examples "demonstrate that collaboration, not polarization, breaks down barriers so that projects can be expedited while protecting the environment." I encourage AASHTO to continue this program and I urge the Committee to look at those case studies in detail. I believe you will find that they reflect an achievement of NEPA's goals and the objectives of DOT's proposed regulations.
I have no doubt that the DOT regulations can and will be improved with the benefit of the public's comments. CEQ will work with DOT as they move toward promulgation of final NEPA regulations. We will pay close attention to this Committee's concerns and views as we do so.