Regulations are important; they represent the rules of engagement for how the federal government proposes to implement legislative requirements and define how we get our work done.
The proposed regulations cover four elements: planning, environment, intelligent transportation (ITS), and environmental justice. Today, I would like to highlight the impacts those new regulations will have on Georgia's transportation program. Since their release by the United States Department of Transportation, we have worked closely with the American Association of State Highway and Transportation Officials (AASHTO) in examining the proposed regulations. My comments on possible shortcomings and potential pitfalls reflect the concerns of the Georgia Department of Transportation and to a large extent those of other AASHTO member states.
The regulations take liberty with TEA-21. It is astonishing that the drafters of these rules would change definition of terms, changes not reflected in the statutory language of TEA-21.
We take a great deal of pride in the extent of coordination we have with locally elected officials. As part of the statewide transportation planning process, ISTEA required consultation, cooperation and coordination with locally elected officials. We meet annually with representatives from all 159 Counties and more than 540 cities in the State of Georgia to review projects, consult on needs and address concerns.
TEA-21 did not change this requirement BUT, the regulations do propose to change the participants. The new regulations require that we consult, cooperate and coordinate with locally elected officials, just as before. This is not cause for concern. What is troubling is that the regulations have expanded the requirements to embrace local land use planning agencies, non-elected special transportation agencies, economic development agencies and many more. This means that FTA/FHWA can take the 'self' out of 'self certification' by withholding approval of a State Transportation Improvement Program (STIP) based on their review of a state's process.
Congress wrote into TEA-21 the condition that USDOT "shall not review or approve" the State's consultation processes with non-metropolitan local officials. The proposed regulations propose the exact opposite by requiring review during annual planning certification assessments.
If these regulations are adopted, the consultation process must be "documented and cooperatively developed" in consultation with non-metropolitan officials, (again language not included in legislation) all of them, transit authorities, regional development centers, economic development authorities, and more. Obviously the drafter of the regulations never worked outside the beltway nor do they understand the time, energy, money and effort that is part of any good consultation process. Georgia has a documented process in place with elected officials that works. The new regulations will do nothing more than needlessly aggrandize the process.
Another Concern - Section 1308 of TEA-21 called for the elimination of major investment studies. The legislation said that the analysis should be part of the transportation planning and project development processes, as appropriate.
The proposed regulations miss the opportunity to streamline the process they extend the MIS-type study requirements to all projects in MPO areas, regardless of size or cost. This means that all projects could require an MIS type study similar to the Northern Arc project in Metropolitan Atlanta, which required three years and several million dollars to complete. This will increase the cost and time of implementation of capital projects. Another concern is that the proposed regulations require that states "shall consider other factors and issues in the planning process." ISTEA required consideration of 23 planning factors. TEA-21 streamlined the process by reducing the 23 into 7 factors. Instead of streamlining the process, the proposed regulations open the door to any issues any participants may suggest. As I mentioned earlier, the regulations give "planning process participants" discretion to introduce additional planning factors, although they do not have fiscal involvement or program accountability.
Taken altogether, the change in definition of local officials; the requirement for MIS-type studies and the role given to the "planning process partners" all add up to increased time and resources required for planning approval of needed projects. And the question for all of us as stewards of the public trust is does it add value? I will answer that for Georgia, NO it does not.
Project development from idea to letting is currently five to six years, if the project is not controversial. Add two or more years for construction and you have seven to eight years from idea to fruition. If the proposed regulations are approved, additional delay will result.
Next I would like to address Environmental Justice; I want to begin by saying that Georgia supports concern for and protection of the human environment. In fact, we have for years felt that the Federal resource agencies have ignored impacts to human beings quality of life in favor of marginally valuable natural and historic resources. We support a balanced approach that weighs all of the issues equally rather than taking a "thou shalt not" approach to certain sacred icons of singly focused resource agencies.
As a preface to discussing the Environmental Justice regulations, let me review what we do for Title VI. As you know, DOTs currently comply with Title VI, the Americans with Disabilities Act and other anti-discrimination laws adopted by Congress as well as with state laws that complement and further define equal opportunity and equal treatment. Those requirements are well understood and have been tested over time there is guidance in regulations and in case law that we follow. In addition, measures for compliance have been defined for Title VI and ADA compliance. FHWA's annual review follows a structured process documenting compliance in employment, transportation projects, purchasing, contracting, and more.
The Environmental Justice regulations state a broad goal, but lack clarity of objectives and lack definition of what are measures of compliance. Environmental justice is based on Executive Order 12898, which, because it is an order from the President to his Department Heads, applies to federal agencies. Executive orders are not established in statute and therefore not subject to judicial review. The absence of judicial review may be fine for the President when he deals with his Departments, but it doesn't work for states that have to prove compliance.
The goal of the Executive Order is to address "human environmental effects." The EJ regulation adds new protected groups "low income" and "traditionally under-served". These are not part of the Title VI or any other legislatively protected group. Complying with the EJ requirements will be a condition of federal approval of the STIP. FHWA and FTA will ask us to document that we have met Environmental Justice goals - but what those goals are is not clear. The lack of regulatory definition of what are environmental effects, burdens and benefits and how to measure compliance will very likely be challenged in practice and in the courts. When is a burden or benefit disproportionate? When measured at the state, county, municipality or project level? Does that mean if a single project places some burden on a protected community because it runs through that community that it is automatically disproportionate? What are burdens and benefits? How are they defined? Again, this lack of definition can be cause for delay as we wrestle with ill defined terms, and more importantly, legal fodder for any opponent of any project who can take issue with what these terms mean.
The proposed Intelligent Transportation System regulations are hazy about many points and will cause potentially costly interpretation during enforcement. The proposed regulations require the use of a "system engineering process" and an "interoperability test." They also require that "ITS projects funded from the highway trust fund conform to the National ITS Architecture, applicable or provisional standards, and protocols." The problem - "System Engineering Processes," "interoperability test," "Conformity" and "provisional standards" are not defined or existing nor has anyone been assigned to define them.
The proposed regulations lack a clear definition of what is an ITS "project." Are all ITS investments considered "projects" for purposes of planning, programming and conformity determination? For instance, will every traffic signal project be subject to the proposed regulation even if it is simply replacement or maintenance of existing equipment? Again, the regulations lack definition.
AASHTO has drafted a resolution which requests that work be suspended on the proposed regulations and that USDOT comprehensively revise the regulations. AASHTO also requests that any final rules streamline, not complicate or delay the transportation process. Georgia supports the AASHTO resolution.
In summary, the proposed regulations have many shortcomings: they will cause more delay, expend more resources, and create more opportunities to challenge the transportation process. The proposed regulations will not serve the transportation program in Georgia nor does it serve the Congressional intent of TEA-21. Please consider suspending this work. Please inject reason into this process. Please exercise Congressional authority and order USDOT to work with the states to develop regulations that will achieve the national purpose and provide transportation mobility.