Testimony of Roy Kienitz
Executive Director, Surface Transportation Policy Project
Before the Subcommittee on Transportation and Infrastructure
U.S. Senate Committee on Environment and Public Works
April 29, 1999

Good morning Mr. Chairman, I am Roy Kienitz, Executive Director of the Surface Transportation Policy Project. We are a coalition of over 200 national, state and local public interest groups. Our members include organizations concerned with the environment, scenic and historic preservation, and better public transportation, as well as business and professional organizations. Thank you for having me back again to testify.

I would like to begin by reminding the Subcommittee of the positive engagement of the environmental community that I represent in the process that led to the streamlining provisions of TEA-21. We worked actively with Senators Wyden, Graham, Chafee and others to suggest refinements to the language as the process moved along and I am glad to say that we were comfortable with the language in the final bill.

We have every hope of proceeding in this spirit in the regulatory process as well. We believe that the federal project review process can be sped up for most projects even while environmental protections are strengthened -- a result I believe all of us here today are striving for.

Before I comment on the specifics of USDOT's work on this subject so far, I would~like to frame the problem.

We think of the projects that navigate the federal approval process as falling into two natural categories: first, those on which a consensus has been reached locally, and second, those where strong disagreement still exists in the area where the project will be located. We believe that federal process reforms can be most effective in addressing the treatment of projects in the first category. There is no good reason for federal approvals to take years if there are no major disagreements over the project being proposed. These delays are the most needless of all, and are the easiest ones to attack.

The second category, however, is a little tougher. Indeed, many of the anecdotes about projects that spend years in the system are those where profound local disagreements over the wisdom of the project have not been resolved, where compromise has been neither sought nor reached. In these cases, local governments, state or federal environmental agencies, and citizens have little choice but to use the full force of the law to oppose projects with major environmental or community consequences.

Efforts to "reform" the review process to deal with these delays are not likely to be as fruitful. The difficulties these projects encounter are matters of substance, not process, and procedural tinkering won't resolve them.

Contrary to common perception, in these situations our environmental laws rarely prevent a project from being built. Instead, they require further studies, design modifications, or other changes to the project. All of these thingscause delay. From an environmental point of view, sometimes the right answer might be a simple "No," but our current system is not set up to provide this answer. It has two available responses: "Yes" or "Not Yet." In this way, delay has become a surrogate for denial.

I say this not because we believe that "No" is the right answer in most cases, but to help the Subcommittee understand the origins of some of the absurd-sounding delays that controversial projects run into. In the struggle between the proponents and opponents of a controversial project, the best an opponent can hope for is to delay things until the proponents change their minds or tire of the fight. It is the only option they have, and so they use it.

We believe that USDOT's primary goals in its streamlining process should be to speed the delivery of the more that 90 percent of projects which are not controversial, and to use its influence to make the consensus approach to project development the dominant one.

Getting to specifics, we have five principle recommendations for USDOT.

First, USDOT should retain the functional elements of the Major Investment Study as part of its new project approval process. The best way to do this would be for the MIS to be integrated with the initial scoping phase of the NEPA process. In this way, the broad range of alternatives identified in a region wide plan could be considered without adding time to the process in a way that brings all the relevant players to the table.

The Major Investment Study, which was created by ISTEA in 1991, has been valuable because it regularizes the process of arriving at a preferred alternative for a major investment -- often the single most important decision in the project development process. In this role, the MIS has helped to rectify one of the essential contradictions of the National Environmental Policy Act (NEPA) -- its requirement that alternatives be considered only after an agency has decided what it wants. Although many agencies make a good faith effort to keep an open mind during NEPA review, human nature makes it difficult for people to disregard the biases formed during the work done so far. The MIS process brings the functional advantages of NEPA review-- broad consideration of alternative solutions, consistent analytical methodologies and an open process -- to the early stages of project development where they belong.

Second, USDOT should assure that states and MPOs cooperate as equal partners in the development of funding estimates for metropolitan areas. Such a process could help prevent many of the huge in-state funding inequities we have seen during the past 6 years as reported in Mayor Ken Barr's testimony here two weeks ago. On this point we concur with the recommendations of the U.S. Conference of Mayors, the National Association of Counties and the Association of Metropolitan Planning Organizations.

Third, USDOT should assure that states follow a robust process for gaining input on spending decisions from local elected officials in rural areas. ISTEA and TEA-21 have given new authority to local officials in our larger metro areas to have input into transportation spending decisions. However, local elected officials in rural and small metropolitan areas have enjoyed no such benefit. This should be rectified.

Fourth, USDOT should provide specific guidelines for determining the equity effects of transportation investments, and for the involvement of underserved and minority communities in the development of plans and projects. This is an area of increasing litigation, and USDOT would be well served to tell states and MPOs how to assure funding equity is being achieved under the requirements of the Civil Rights Act and the Executive Order on Environmental Justice.

Finally, USDOT should assure that any changes to regulations enforcing the National Environmental Policy Act respect the basic elements of that law: a preference at the federal level for environmentally beneficial projects, and the right of citizens to know the environmental effects of projects that propose to use federal funds.

In summation, we believe that the streamlining process can be undertaken in a way that delivers both efficiency and environmental benefits, and we hope USDOT sees this opportunity as well.

Thank you.