Good morning Mr. Chairman and members of the committee. I am Jack Kinstlinger, chairman of the board of KCI Technologies, Inc., a transportation planning and design firm based in Hunt Valley, Maryland. I am here representing the American Road & Transportation Builders Association (ARTBA), which I am proud to serve as its Northeastern regional vice chairman. ARTBA, which has 5,000 members from both the public and private sectors, provides a consensus voice here in Washington for the $160 billion per year U.S. transportation construction industry.
We deeply appreciate this opportunity to share our thoughts with you on Clean Air Act (CAA) transportation conformity issues. I would like to say at the outset that ARTBA shares your interest in assuring that all Americans breath clean air. We are not here today to suggest that the Clean Air Act needs a radical overhaul. We would, however, like to suggest some badly needed "fine-tuning" of federal law that will not compromise public health from a clean air perspective, but will improve the efficiency of making environmentally-sound and needed transportation investments.
Our members design and build the transportation infrastructure-highways, transit systems, railways, waterways and airports-that give Americans choice in how they travel. And with proper investment and planning, an integrated transportation network can help reduce traffic congestion that contributes to air pollution. And it is fact that highway improvements can prevent injuries and save lives. We believe it is long past time that transportation investments be viewed at the federal level from a broader public health perspective.
Conformity requirements and regulations have an enormous impact on the ability of state and regional governments-and our members-to provide, in a timely manner, highway and mass transit capital improvements that are necessary to address public safety concerns, support economic growth and alleviate time and energy-wasting, pollution creating traffic congestion.
I have had extensive personal experience dealing with the transportation planning issues as the deputy secretary of planning for the Pennsylvania Department of Highways, executive director of the Colorado State Department of Highways Department, and as chairman of the Transportation Research Board's conferences on Statewide Transportation Planning and Moving Urban America.
The good news on the clean air front is that the conventional view-that there has not been much progress on air quality, that increased auto use is the culprit, and that controlling auto use is the solution-is wrong. U.S. Environmental Protection Agency (EPA) data clearly show that the nation's air is much cleaner today than it was in 1970 when the original Clean Air Act was adopted. And the transportation sector has been at the forefront of this success story.
Despite a 125 percent increase in motor vehicle travel in the U.S. since 1970, there has been a significant reduction in every transportation-related criteria emission. Lead emissions have been eliminated. Motor vehicle emissions of the precursors of ground-level ozone, volatile organic compounds (VOC) and carbon monoxide (CO), have been reduced 58 and 40 percent, respectively. Motor vehicle particulate matter (PM10) emissions are down 38 percent. And oxides of nitrogen (NoX) emissions have also been reduced.
Several charts attached illustrate the progress that has been made.
These improvements will get even better well in the future as ever cleaner vehicles replace older, dirtier ones. The proposed Tier 2 motor vehicle emissions standards and gasoline sulfur control requirements-both of which ARTBA supports-will also have major, positive impacts on air quality without reducing the mobility of the American public.
According to the U.S. Environmental Protection Agency (EPA), these two developments alone could reduce NoX emissions by nearly 800,000 tons per year by 2007 and 1.2 million tons by 2010. By 2020, EPA projects NoX reductions double that amount-despite increased auto usage.
The Clean Air Act provisions, which forced the new technology to be installed in individual automobiles, have worked well.
But the fact is, federal transportation conformity regulations have had very little to do with these dramatic improvements in air quality.
The Clean Air Act Amendments of 1990 reflected conventional wisdom-that reducing auto use is a primary solution to meeting federal air quality standards. The transportation conformity requirements were thus initiated to help force a shift in federal investment from highways toward mass transit infrastructure in and around urban/suburban areas.
The theory behind conformity is that a state or regional transportation plan or program can be readily modified to conform with air quality targets by simply adding projects believed to substantially reduce emissions-such as the addition or extension of transit services-or by deleting highway projects.
Nine years later, however, that theory has been proven false.
Research by the EPA, U.S. Department of Transportation (USDOT) and others over the past 10 years has conclusively demonstrated that infrastructure mix has a minimal impact on regional air pollutant emissions.
Clean Air Through Transportation: Challenges in Meeting National Air Quality Standards, a joint report from the EPA and USDOT, issued in August 1993, articulates this point using "real world" experience from California:
"For both San Diego and Los Angeles, the most capital-intensive investments resulted in the smallest percentage decreases in emissions. For example, a 20-mile extension of San Diego's light rail line is expected to reduce HC and CO emissions (from mobile sources) by less than 0.4 percent and 0.6 percent, respectively. Similarly, construction of an extensive rail transit system in southern California is expected to reduce HC emissions by about 1 percent and CO emissions by 3 percent, even in conjunction with area-wide adoption of measures to increase its use.
"Another study by the Metropolitan Transportation Commission, San Francisco's MPO, showed that an $11 billion investment in transportation initiatives will yield a 0.9 percent and 0.8 percent reduction in CO and HC emissions, respectively. San Francisco's investments were primarily composed of new transit lines, HOV lanes and local arterial improvements. The analysis showed little difference between large mass transit projects and large highway projects. [Emphasis added]
"The low projected emission reduction is unsurprising. San Francisco and many other nonattainment areas have massive transportation infrastructures already in place. Further investment, even $11 billion worth, only marginally changes the existing infrastructure and consequently has a marginal impact on emissions as well." [Emphasis added]
These vanishingly small air quality impacts, we believe, are dwarfed by the adverse public health and safety consequences of delaying or preventing needed improvements to our transportation system.
I'd bet that most members of the public, the media and the Congress with an interest in clean air or transportation conformity assume that when a community fails their conformity determination, it is because emissions are rising and air quality is worsening. If that were true, it would certainly be hard to argue that the transportation sector shouldn't be required to do something more to improve air quality.
But that's not what is happening at all with conformity when a community fails its conformity determination.
Section 176 (1)(A) and (b) of the Clean Air Act defines conformity simply as a match between the mobile source emissions budget in a State Implementation Plan (SIP) and what the mobile sector is producing-or projected to produce.
All SIPs show continued reductions in mobile source emissions, at least through 2010. Conformity failure simply means that mobile sector emissions are not projected to decline quite as fast as the state SIP says they should. These projections, of course, are based on models whose uncertainties could overwhelm any projected emissions difference. The other problem is that states make a political decision and set the mobile source emissions budget too tight. Why? To lessen the emissions reduction burden on stationary sources, which, by the way, have not reduced their overall emissions since 1970 to the same extent the mobile sector has.
Conformity needs to be redefined. Federal law should not be forcing a trade-off between transportation improvements and non-transportation energy use and business activity.
The law should also acknowledge that the computer modeling used to determine short- and long-range (20 year) mobile source emission projections used in SIPs is an inexact science.
The conformity "black box" emission projections are an exercise in fantasy. Federal conformity requirements are forcing state and local governments to go through long and costly modeling exercises that are based on nothing more than guesses.
No one knows with any degree of certainty what national, state and local economies will be 12 to 20 years from now. We can guess, but we don't know. We can guess, but we don't know, what a state or region's demographics will look like in 2020.
These are the types of inputs, however, that go into the computer modeling that determines transportation conformity within a SIP.
Compounding the problem, the models don't account for new, cleaner automotive and motor fuel technologies that we know are on the horizon and are going to have a major impact on future mobile source emissions.
These problems could be meaningfully addressed, if federal law was fine-tuned to give state and local governments a five to 10 percent "margin of error" allowance on their mobile source emissions projections used in SIPs. This would acknowledge-without compromising public health from an air quality perspective-the inherent "guesses" in conformity modeling.
With this change, we would not be talking about transportation conformance failures. There would be very few. Needed highway and transit improvement projects would not be needlessly delayed or stopped. And air quality improvements in the transportation sector would still continue at the same rate they would have otherwise. It would be a "win-win" situation.
Unfortunately, the "Catch 22" nature of the current CAA transportation conformity rules is being manipulated by a small minority who are philosophically opposed to highway improvements to delay or stop them. Their usual vehicle is the court system.
They challenge common-sense rules designed to recognize that government bureaucracies can't always move fast enough to meet rigid deadlines-particularly when those opposed to progress use all available opportunities to slow the administrative process down.
The tragedy is that delaying environmentally sound highway improvements hurts and kills people.
According to U.S. Department of Transportation research, poor road conditions or obsolete road and bridge alignments are a factor in 12,000 highway-related deaths each year. That's four times the number of Americans killed in accidental fires and a third more than die annually of asthma and bronchitis combined.
How many more die needlessly because congested road conditions impede emergency vehicles? Those are public health issues that should not be ignored.
The March 2, 1999, federal court decision in Environmental Defense Fund vs. EPA (EDF vs. EPA) is a case in point. And, as we have already seen in Atlanta, Georgia, federal agency application of this ruling will cause unnecessary delays-perhaps even permanently stop-environmentally-sound highway and transit projects from moving forward.
In Atlanta, 44 of 61 highway projects that had met every environmental test and had received final approval are now in limbo because the area has a lapsed SIP. The only reason these projects are on hold-or in doubt-is because two federal judges inferred an intent on the part of Congress that was contrary to a common sense EPA rule.
The March 2 decision struck down an EPA rule that allowed highway projects that had already passed every environmental test to proceed even if, at some point in the future, there was a lapse in SIP approval, or a determination of conformity failure.
EPA had it right in 1995, when it proposed the so-called "grandfathering" rule. The agency's rationale is articulated in its arguments to the court in EDF vs. EPA asking the court to affirm its rule:
"EPA's rule reflects its rational judgment that Congress intended a more reasoned approach to transportation planning during periods in which there is no applicable SIP, that Congress intended that there be an attempt to balance the general pollution-reduction requirements of the Act with the needs of state and local planning organizations for certainty and finality in their transportation planning processes. 42 U.S.C. @ 7506(c)(2). [EDF v. EPA, Case No. 97-1637, Respondents' Brief, June 10, 1998, page 30.]
"EPA explained that it `has always believed that there should only be one point in the transportation planning process at which a project-level conformity determination is necessary. This maintains stability and efficiency in the transportation planning process.'" [Emphasis added. EDF v. EPA, Case No. 97-1637, Respondents' Brief, June 10, 1998, page 36.]
We hope the agency still strongly believes that it is in the public interest to maintain stability and efficiency in transportation programs and that these programs not be placed in "double jeopardy" due to administrative delays.
We are very disappointed that the Administration did not appeal the March 2 decision in defense of its rule.
The USDOT and EPA told us they feared a loss of an appeal could have "worsened" the situation for highway approvals in areas with a lapsed SIP. We disagreed with that assessment from both legal and practical standpoints.
We are now dealing with the consequences of that decision. The guidance the EPA and U.S. DOT issued May 14 and June 18 to their field offices for compliance with the March 2 decision, in our opinion, provides a recipe for delay-particularly for new highway projects.
The guidance essentially says that EPA is going to tighten up its SIP administrative review and approval process and make decisions in a more timely manner. History suggests otherwise.
Since 1997, the agency has completed 34 SIP adequacy reviews, approving nearly two-thirds.
EPA tells us that they currently have 21 SIP submissions pending for adequacy review. Under the guidance sent out May 14, EPA said that it would complete reviews on these SIPs within 90 days of submission. The public comment period for the 21 pending submissions will be completed this month.
We are extremely skeptical that they can meet that deadline, given the expanded workload.
EPA, of course, does not control all of the factors that can result in a SIP lapse. Local planners must make timely submissions in order for EPA to act. The guidance is silent on this subject. One wonders how EPA and USDOT plan to speed up the local process.
The guidance also does nothing to address the problem of delays inevitably brought by lawsuits filed by project opponents.
The "bottom line" is that the March 2 decision in EDF vs. EPA, made a bad situation even worse. We urge the Congress to make a "surgical" change to the Clean Air Act that makes clear that EPA's "grandfathering" approach, indeed, reflected the desire of Congress to balance environmental protection with the need to make timely and final decisions on environmentally-sound, needed transportation improvement projects.
We support a legislative remedy like S. 1053, which has been introduced by Sen. Bond. This approach would simply take the conformity process back to where it was on March 1, 1999, before the ruling in EDF vs. EPA.
Such an action will have no negative impact on public health. To the contrary, we believe it will prevent some injuries and save lives by ensuring that needed highway safety improvements are not unnecessarily delayed by administrative inefficiencies.
That completes our comments. Again, thank you, Mr. Chairman and members of the Committee, for asking us to participate in this hearing. I would be happy to try to answer any questions you might have.