On May 25, 2000, the U.S. Department of Transportation issued two related notices of proposed rulemaking to revise both its NEPA and related procedures for transportation decision making, and also its statewide and metropolitan transportation planning procedures. (65 Fed. Reg. 33959 and 65 Fed. Reg. 33922, respectively). These proposed rules were drafted in response to the recent passage of the Transportation Equity Act for the 21st Century ("TEA-21), P.L. 105-178 (1998), to update the existing environmental review procedures that were last amended in 1987.
With the comment period on the draft regulations still open, it is premature to discuss in any detail the Department of Transportation's revisions to its NEPA rules. At the Department of Justice we do not ordinarily comment publically before regulations become final because we often must defend final regulations under court challenge.
Today, my statement will focus on (1) NEPA's continued importance in federal agency decision making more than thirty years after it was enacted; (2) why the NEPA process is well suited and so important for assessing transportation projects and including the public in such assessment; and (3) the concern I understand has been raised about incorporating environmental justice guidance into the new NEPA regulations.
As detailed below, a strong NEPA process is extremely important for reviewing major proposed federal transportation projects. NEPA has two central components: (1) careful consideration by the decisionmaker of the environmental consequences of a proposed major federal action that may significantly affect the quality of the human environment by the decisionmaker, and (2) meaningful public participation during the project review process. Properly done, a successful NEPA process better informs the decisionmaker and gives the public an effective channel to express concerns and influence what is before the Department. These are both important requirements, and compliance can help to streamline project review and reduce litigation and litigation risk.
NEPA was enacted in 1969 as part of a response to increasing public concern over the worsening state of the environment. NEPA's legislative history notes that by 1969, Congress had already passed "a procession of landmark conservation measures on behalf of recreation and wilderness, national recreational planning, . . . air and water pollution control, noise abatement, preservation of endangered wildlife . . . and other related areas." And in fact, long before the environmental crises of the 1960s, many States had passed various measures addressing the management, protection and regulation of water and other natural resources, such as forests and wildlife. But NEPA was different from many of these resource-specific statutes.
What made NEPA different from other environmental statutes enacted to protect specific resources, such as clean air and clean water, was the growing sense that the nation needed an overarching national policy on the environment. As NEPA's legislative history further describes, Congress was establishing "a national policy to guide Federal activities which are involved with or related to the management of the environment or which have an impact on the quality of the environment." NEPA thus became a legal expression of something that scientists had already known for a long time to arrive at the "overall goal of a quality life in a quality environment for all Americans," we cannot look at or, for that matter, protect one aspect of the environment in isolation from other environmental factors. NEPA arose not so much out of the aftermath of disaster as out of a growing sense that we needed a national environmental policy that would take a longer and broader view of where we were going, and this statement of policy formed the nucleus of the Act.
The early focus of NEPA was Section 102(2)(C), the section that requires federal agencies proposing major federal actions significantly affecting the quality of the human environment to undertake environmental reviews. That process, through court decisions and regulations issued by the President's Council on Environmental Quality (CEQ), has evolved over the past 30 years into a well-defined set of procedures. The 1978 CEQ regulations reflected the early experience with the NEPA process and issues that were addressed by the courts. The regulations continue to serve as a guide for agencies and are a model upon which agencies develop their own agency-specific regulations. Since their first publication, the CEQ regulations have been modified to keep them up to date. They have withstood legal challenge and are accorded deference by the courts. Since 1978, virtually all federal agencies have adopted their own regulations based on the CEQ model.
One indication that NEPA continues to have vitality today can be seen by examining how thoroughly agencies have embraced NEPA's requirements. It has not always been this way. In the beginning, agencies were hesitant, and even resistant, to complying with NEPA. NEPA was essentially thrust upon a reluctant bureaucracy committed to missions that traditionally regarded environmental values (if regarded at all) as subordinate to the specific statutory goals of the agency. Over time, however, it is has become clear that NEPA, in effect, has been grafted into all federal agency goals. This transition took some time, but has generally been successful.
The federal government has made great strides since the early 1970s in promoting and improving NEPA compliance. While agencies sometimes find themselves behind the curve and subject to a court injunction for non-compliance, most agencies have made great progress. Agencies have come to know that if they comply with NEPA effectively, courts will scrutinize their decisions less closely, and the proposed action will likely proceed more quickly. Our experience with implementing the statute includes three decades of defending federal agencies' NEPA decisions when they are challenged in court. Thorough environmental reviews are an effective way to reduce litigation and litigation risk. An ounce of prevention is worth a pound of cure.
NEPA compliance is critical for transportation projects because of the widespread impacts transportation decisions can have on the physical environment and on communities. These projects affect many people on a daily basis. Through the NEPA process, effectively coordinated with the states, careful consideration can be given to developing and assessing: the environmental impacts of a proposed project, alternatives with varying impacts, how the proposed project meets a community's needs, where will the project be constructed, how it is constructed, and who is affected by the project during and upon completion.
The NEPA process also provides a good mechanism for public involvement. Because of the profound impacts that a transportation project can have on communities and the physical environment, hearing from the public about possible concerns before a final agency action is selected can result in better informed decisions. It can also provide an outlet for the public to present perspectives that may otherwise not be known to the decision maker. From a streamlining perspective it is also preferable to provide meaningful public participation during the NEPA process to reduce the likelihood that a citizen will challenge a decision in court.
The goal of streamlining the environmental review process is to assure better compliance with NEPA, not to weaken the NEPA. Streamlining NEPA cannot be about cutting corners, or trying to narrow artificially the environmental and social consequences that must be studied. Rather, streamlining means making sure that, from the earliest stages of project scoping through issuance of a record of decision, agencies meet NEPA's important analysis and public participation requirements. Early and effective coordination between state and federal agencies, for example, is an effective streamlining approach.
One of the most effective ways for an agency to meet NEPA's goals and requirements is to have sufficient staff, in addition to the designated NEPA liaison required by CEQ regulations, to assist with educating co-workers about NEPA and achieving compliance. Several of our client agencies have recently assigned individuals specifically to fill these roles and this assignment should make a positive difference in how those agencies implement their NEPA obligations. There is the added benefit of creating an institutional framework within the agency for considering environmental issues in decisionmaking, thereby weaving NEPA compliance into the fabric of the agency.
The NEPA process is also a good tool to develop and provide information that is useful to decisionmakers trying to address and limit urban sprawl. Newspapers reflect the contemporary public concern about urban sprawl, and there continues to be a healthy debate about the role of the federal government in responding to this issue. During an environmental review of a proposed major federal action a decisionmaker must consider the environmental and ecological impacts, as well as other effects, including economic and social impacts. These are precisely the types of impacts that are typically implicated in any discussion of urban sprawl.
As a flexible decision making framework, NEPA is also well tested to address another issue: environmental justice. On this point I am responding, in particular, to questions raised about the appropriateness of including environmental justice considerations in the proposed regulations. Executive Order 12898 and the CEQ guidance on environmental justice already require that federal agencies take these matters seriously and address them in environmental reviews. In addition, CEQ's guidance will be given deference by the courts. By revising its NEPA regulations to require consideration of environmental justice concerns, DOT is simply reflecting the requirements that already exist under the Executive Order and CEQ Guidance.
In addition to the Executive Order and CEQ Guidance, agencies have good policy reasons to take environmental justice concerns seriously. There are well documented instances where environmental costs are disproportionately borne by low-income and minority populations. For example, there is a much higher rate of lead poisoning among African-American and low-income children than in other populations. There is also anecdotal evidence, including right here in Washington, D.C., that low-income and minority populations endure higher rates of illegal dumping, dilapidated housing, and a lack of safe parks for their children.
A proposed transportation project may implicate environmental justice in a variety of ways. There may be an issue about how environmental burdens resulting from a proposal, such as air and noise pollution, may be distributed. Another commonly-cited environmental justice concern is the lack of public participation from low-income and minority populations during project review. Careful consideration of these, and other environmental justice concerns, is consistent with the President's Executive Order and the CEQ guidance. With the dramatic funding increases approved in TEA-21 and the enhanced concerns about links between transportation projects and environmental justice, the proposed rule appropriately clarifies that the affected public, including minority and low-income citizens, has an opportunity to participate and present their views during the planning and environmental review processes. The CEQ Guidance emphasizes the importance of meaningful public participation throughout the NEPA process, and how better to reach traditionally under-represented groups by using nontraditional means of providing notice, and accessible and convenient meeting times and locations. Just as NEPA can provide a framework for providing meaningful information to a decisionmaker about the urban sprawl implications of transportation investments, it also can assist in improving the participation from minority and low-income populations, and assuring careful consideration of their environmental concerns.
NEPA has brought about enormous changes in the last thirty years it has led to widespread consideration of environmental values in decisionmaking, increased public participation and involvement, and has made a substantive, positive difference in how the federal governmental acts. Implementing the projects funded by TEA-21 in conjunction with strong NEPA compliance will help DOT to fulfill Congress' mandate declared more than thirty years ago that : "It is the continuing policy of the Federal Government [in cooperation with others] ... to use all practicable means and measures ... to create and maintain conditions under which [hu]man[s] and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans."