STATEMENT FOR THE RECORD
AMERICAN ASSOCIATION OF STATE HIGHWAY TRANSPORTATION
The American Association of State Highway and Transportation Officials (AASHTO), is a non-profit trade association representing the collective interests of all fifty-state departments of transportation, the District of Columbia, and Puerto Rico. The issue of environmental stewardship and streamlining are of critical importance to the membership of AASHTO, and we thank the chairman and committee for holding today’s hearing.
The purpose of our statement today is to outline specific statutory recommendations for advancing stewardship efforts and for streamlining the process. The current decision-making process for delivering transportation projects has become increasingly complex leading to inherent inefficiencies and redundancies. Targeted statutory reforms designed to provide structure and to streamline the process are necessary if we are to improve the pace of transportation project delivery.
In the next 25 years, the U.S. population is predicted to grow by 60 million, with most of that growth in metropolitan areas. Our gross domestic product is projected to reach 29 trillion dollars (approximately 1.5 times today’s levels in real terms); and, if current trends persist, the number of annual vehicle-miles traveled is predicted to grow even more rapidly than the population or the economy, swelling from 2.75 trillion annual vehicle miles traveled in 2000 to over 4 trillion annual vehicle miles in 2025. Americans will expect policymakers and transportation professionals to provide transportation facilities and services to accommodate this growth efficiently, at low cost, and in a socially and environmentally responsible manner. As transportation officials, we must find ways to deliver a transportation system that simultaneously promotes economic growth, eases congestion, and enhances the natural and built environment. In order to meet this challenge, we must deliver transportation projects faster and better in the years to come. This will require a two-pronged approach: first, transportation agencies will need to make a renewed commitment to environmental protection and enhancement; and second, Congress will need to assist by enacting legislative changes to streamline the environmental review process.
Environmental stewardship begins not with new laws and regulations but with a commitment by transportation agencies themselves to make environmental protection and environmental enhancement an integral part of their mission. State DOTs have taken this responsibility seriously and as a result the majority of them are demonstrating strong leadership in this area. In October 2001, AASHTO commenced a Stewardship Demonstration Projects Initiative, whereby state DOTs were invited to voluntarily register examples of stewardship projects in their state. These projects are tracked on a quarterly basis with the goal of sharing information on best practices and lessons learned between states. As of today, 23 states have registered a total of 39 projects.
AASHTO has classified the stewardship projects submitted into four categories and/or levels of stewardship:
LEVELS OF STEWARDSHIP
Level 1: proiect by project stewardship initiatives. Examples include individual enhancements such as planting extra trees, adding stormwater treatments and/or retrofits, extending sidewalks and trails, etc.
Level 2: programmatic stewardship efforts addressing multiple projects. Examples include the establishment of context sensitive design programs, the development of best management practices, the formation of partnerships with resource agencies and other pertinent partners and stakeholders, etc.
Level 3: organizational and cultural changes within an agency. For example, the State of New York adopted an environmental stewardship ethic whereby all employees are encouraged to look for opportunities on a daily basis to enhance the Department’s environmental performance.
Level 4: institutionalization of environmental stewardship. Examples include the development of an environmental management system or similar system to track environmental quality assurance/control procedures.
If one is to look at the four stewardship levels, one might predict that the majority of state transportation agencies are still operating in level one (i.e., implementing stewardship on a project by project basis). However, AASHTO recently reviewed the 39 projects that were submitted to its demonstration program and concluded that almost three-quarters (3/4) of the projects being proposed were in levels 2, 3, and 4 (please see attachment A). Irrespective of how these projects are working, or even if they are only in their infancy, the fact that state DOTs are even considering these types of projects is significant and should be recognized. State DOTs are committed to preserving, protecting, and enhancing the environment. It is not business as usual at state DOTs. For example, under state leadership, the federal-aid highway program is creating 2.5 acres of wetlands for every acre that is taken for road construction; highways can now be counted as one of the biggest recyclers in America, through re-milling pavements, use of fly ash in concrete, and the use of crumb rubber as a component of road surfaces; and if a historic preservation project is to be undertaken in this country, chances are considerable that it will be wholly or partly financed via transportation dollars — the transportation sector has become the largest financial contributor of historic preservation projects.
AASHTO believes that there are opportunities for environmental stewardship activities and approaches during every phase of the transportation delivery project: planning, design, construction, operations/maintenance. It is our goal to have state DOTs voluntarily incorporate stewardship activities into each phase, as appropriate.
To assist state DOTs in this effort, AASHTO has developed, in partnership with the Federal Highway Administration, the AASHTO Center for Environmental Excellence. The mission of the Center is to augment the capacity of state DOTs to deliver environmentally sound transportation projects by encouraging environmental stewardship and promoting innovative approaches to streamline the project delivery process in ways that can be easily replicated.
The following legislative recommendations are made by AASHTO as a means to further advance state DOT stewardship activities:
AASHTO Center for Environmental Excellence. If state DOTs are to continue to increase their capacity for delivering environmentally sound transportation projects, by adopting and institutionalizing stewardship activities, it is imperative that technical assistance be provided. AASHTO, therefore, recommends that funding continue to be provided through FHWA to the AASHTO Center for Environmental Excellence.
Recommendation: Funding for the AASHTO Center for Environmental Excellence. Through FHWA, $2 million in annual funding should be provided for AASHTO’s Center for Environmental Excellence to provide technical assistance, and support for innovative state pilot projects and approaches.
Transportation Enhancements (TE). Over the last ten years though the transportation enhancement program, $4.9 billion has been programmed for projects such as building bike paths and preserving historic bridges. The transportation sector is the largest financial contributor of historic preservation and archeological projects conducted in the United States. AASHTO supports this valuable program and recommends that the funding for the TE program remain stable. Should the overall size of the surface transportation program increase, AASHTO recommends a commensurate increase in funding for the TE program.
Recommendation: Funding for the TE Program. The existing 10% set-aside for Transportation Enhancement funding in the Surface Transportation Program should be preserved.
AASHTO also recommends that the administrative restrictions imposed on how advanced payments for TE projects are made to states be removed.
Recommendation: Simplify TEs and Trails through Advanced Payments: Improve the existing advanced payment option for TE projects, by allowing states to receive advance payment from FHWA for the entire amount of the TE program on an annual
basis, and by directing FHWA to revise its guidance as needed to increase the flexibility of this payment option.
Recommendation: Establish Categorical Exclusions for all TEs. A fixed deadline should be established for FHWA to issue final regulations establishing that all TE projects qualify for a categorical exclusion from NEPA review, as proposed by FHWA in its May 2000 rulemaking proposal.
Programmatic Approaches: Inter-agency programmatic approaches can be useful in providing solutions to environmental challenges posed and faced by transportation projects. Innovative agreements and approaches proposed by federal and state agencies should be encouraged.
Recommendation: Funding for Programmatic Approaches. Funds should be provided to states and federal agencies such as the Environmental Protection Agency and the U.S. Fish and Wildlife Service to demonstrate how programmatic approaches can improve protection of wetlands, habitat, and other resources that may be affected by surface transportation projects.
NEED FOR STREAMLINING:
As the stewardship ethic takes root in transportation agencies the goal of providing better transportation projects is being realized. However, in order to provide faster transportation projects, AASHTO has concluded that Congressional help will be needed in certain targeted areas. Since the enactment of ISTEA and TEA-2l, AASHTO members have shared their experiences and have identified, from a practitioner’s viewpoint, the areas in the project delivery process that either are not working, or are not working as efficiently as they could. With the reauthorization of TEA-21 at hand, AASHTO believes that an opportunity exists to improve the process.
Over the years, AASHTO has conducted numerous studies, as has the Federal Highway Administration, examining the issue of delays in the project delivery process. Two of the most recent studies include an October 2000 study on Delays Associated with the Categorical Exclusion and Environmental Assessment Processes conducted by TransTech Management, Inc. on behalf of AASHTO and a January 2001 study on Evaluating the Performance of Environmental Streamlining: Development of a NEPA Baseline for Measuring Continuous Performance conducted by The Louis Berger Group on behalf of FHWA. In the Berger study, 100 EIS projects were selected for review. Key findings from this study included the following:
• For projects in which an EIS pursuant to NEPA was required, the time for project completion was approximately 13 years (Berger, 2001).
• The length of time for preparing an EIS pursuant to NEPA has increased from 2.2 years in the 1970s to 5 years in the 1990s. In 2001, the average time to complete an EIS takes over 5 years. (Berger, 2001).
• When a Section 404 Wetlands permit is requires, the EIS preparation time increased by 2 years (Berger, 2001).
• When Section 4(f) approval (regarding the protection of historic or park resources) was required, the EIS preparation time increased by 2 years (Berger,
In the TransTech Management study, 40 states were surveyed on categorical exclusion (CE) and environmental assessment (EA) projects. Key findings from this study showed:
• A majority of state DOTs experience some CE and EA process-related delays. The three environmental compliance requirements that commonly contribute to delays in preparation of both EAs and CEs were Section 4(t), Section 106, and Section 404.
• Delays approximately triple environmental review processing times from about 8 months to just under two years for CEs, and from under 1.5 years to 3.5 years for EAs.
AASHTO recognizes, however, that studies are only as good as the methodology used, the questions asked, and the data provided. Therefore, AASHTO, believes it is time to move the debate beyond competing studies and facts over whether there are indeed ‘delays’ in the environmental review process, towards a more thoughtful discussion on process improvement, i.e., how to achieve a more effective and efficient decision-making process.
In a sense, the concept of “delay” has become simply a shorthand term for a deeper problem — a decision-making process that has grown so cumbersome, complex, and unwieldy that it no longer serves the practitioners well. The complexity of the NEPA process increases gradually, year by year, as a result of new laws, regulations, court decisions, technologies, and policy decisions. Taken alone, each new addition to the process may be worthwhile. For example, there has been increased emphasis in recent years on issues such as environmental justice and secondary and cumulative impacts. But as these areas receive increased attention, there has been no corresponding attention paid to ensuring the process works well together, i.e., that inefficiencies and redundancies are eliminated. Rather, the entire process tends to expand in scope; the “menu” of issues to be addressed and tasks to be completed expands. The result is greater and greater complexity yielding to greater and greater inefficiencies.
The changes recommended by the AASHTO membership are not radical, nor are they designed to alter the fundamental premise behind the National Environmental Policy Act (NEPA); rather they are designed to eliminate duplications and unintended inefficiencies in the system thereby strengthening the overall NEPA decision-making process. Moreover, these are changes that can only be accomplished legislatively.
Issue: Improving the Linkage between Planning and NEPA:
In October 1993, FHWA issued revised regulations implementing the planning provisions of ISTEA. These revised regulations included a new concept — the major investment study or MIS, which was not specifically called for in ISTEA.
The regulations required an MIS for any “major metropolitan transportation investment” where “federal funds are potentially involved”. Two options were specified for preparing an MIS in the regulations. Under Option 1, the MIS was to be prepared as a stand-alone study prior to the NEPA process. Under Option 2, the MIS was to be combined with the Environmental Impact Study (EIS) into a single document.
The two options for the MIS raised significant concerns:
• Option 1 MIS (prepare MIS, then EIS): When Option 1 was used, the “decisions” made in the MIS process were often discarded when the NEPA process began. In effect it became necessary to start over again in the NEPA process, which caused the MIS process to lose credibility among agencies and the public.
• Option 2 MIS (prepare MIS and EIS together): While the Option 2 MIS avoided the problems with Option 1, it also provided less flexibility. The Option 2 MIS was, in fact, an expanded EIS; it did not provide a vehicle for conducting a corridor-level planning study before making a commitment to prepare a full EIS for a specific project.
In reaction to the experience with the MIS, Congress enacted Section 1308 of TEA-21 which directed U.S. DOT to “eliminate the major investment study. . . as a separate requirement and promulgate regulations to integrate such requirement, as appropriate, as part of the analysis required under the planning and NEPA process for highway and transit projects. Section 1308 also provided that “the scope of the applicability of such regulations shall be no broader than the scope of such section.”
In May 2000, FHWA and PTA issued a notice of proposed rulemaking for new statewide and metropolitan planning regulations. AASHO strongly opposed the MIS integration provisions contained in the PH WA’s proposed planning regulations for many reasons, the least of which the proposed regulation directly contradicted Section 1308 of TEA-21 in that the new requirement was broader in its applicability than the original MIS regulation.
Today, the MIS regulation is largely unenforced, but remains in effect. In lieu of new regulations, States and Metropolitan Planning Organizations have begun to develop new and innovative ways to integrate planning with NEPA.
In order not to lose the innovation occurring at the state and local levels, and to eliminate regulations that today are largely ineffective, AASHTO recommends eliminating the MIS requirements.
Recommendation: Eliminate MIS Requirement. Congress should direct the U.S. DOT to eliminate the MIS requirement, effective immediately and to recognize the innovations that have occurred at the state and local levels.
Issue: Reforming the NEPA Process:
1. Agency Roles and Responsibilities
It is frequently said that “collaboration” among agencies is the key to successful streamlining. And it is true that a collaborative effort — rather than an adversarial or compartmentalized approach — contributes to effective decisionmaking. However, it is equally important to remember that effective collaboration requires a clear understanding of each party’s role and responsibilities. Without clearly defined roles, collaboration breaks down.
As currently interpreted by the Council on Environmental Quality (CEQ), the NEPA process allows for two distinct agency roles: as “lead agency” and as “cooperating agency.” In the NEPA process for a highway project, the FHWA and the State typically serves as joint lead agencies. One or more environmental agencies sometimes serve as cooperating agencies, particularly if they have direct permitting authority over the project — e.g., the Corps if a Section 404 permit is needed. However, among the dozen or so environmental agencies involved in the NEPA process, the majority usually have no specifically designated role in the process. They are referred to, in common parlance, as “the agencies.”
In TEA-21, Congress recognized the need to define more clearly the roster of agency participants in the NEPA process. It stated that the USDOT “shall, at the earliest possible time, identify all Federal agencies” that have jurisdiction by law over a project or may be required by Federal law to conduct a review or issue a permit or other approval. The laws did not require State agencies to participate in the coordinate review process, but recognized that “a State, by operation of State law, may require that all States agencies” participate in the process if they meet the same criteria as the Federal agencies.
Implementation of this requirement has been varied. In some States, the agency participants are clearly identified through NEPA-404 merger agreements. In others, the identification of agency participants is more informal. More generally, there has been a reluctance to negotiate memoranda of understanding (MOAs) as suggested in TEA-21, possibly out of concern that the negotiation of an MOA would itself become a source of delay and a focal point for inter-agency disputes.
In addition, the distinctions among agencies roles in the NEPA process have become blurred over time. The result has been that “Lead” agencies — especially FHWA — have grown reluctant to make decisions on key issues (particularly purpose and need) without obtaining consensus from each of the other agencies involved in the process. In some cases, written “concurrence” is required. This approach, while laudable in its intent, had had the counter-productive effect of giving each participant a “veto” over the purpose-and-need statement. It is a recipe for paralysis in decision-making.
In these circumstances, it is critical for Congress to (1) strengthen the requirement that all agency participants be clearly identified at the outset of the NEPA process, and (2) clarify the respective roles of the various agencies in the process. Specifically, we recommend the following approach:
Recommendations: Designate the USDOT and State DOT (or other project sponsor) as the lead agencies in the NEPA process for surface transportation projects. This provision would confirm that transportation agencies bear the responsibility for leading the NEPA process for transportation projects.
Give the lead agencies responsibility for inviting other agencies to participate in the NEPA process. The benefit of this approach is that it separates the issue of who participates from the more complex issue of how to manage the process — e.g., deadlines, documentation, etc.
Define in general terms the respective roles of the lead agencies and the cooperating agencies. In essence, the lead agency would bear the responsibility for making decisions about the management of the NEPA process — on issues of schedule, type of documentation, level of detail, and so forth. The participating agencies would have responsibility for commenting on issues within their expertise, in accordance with the project schedule. The participating agencies also would fully retain their authority under other laws — e.g., the authority to grant or deny required permits.
Create a simpler, more effective method for resolving inter-agency disputes. TEA-21 contains a seemingly effective dispute resolution mechanism: it requires resolution of any dispute between federal agencies within 30 days after the Secretary of USDOT finds that such a dispute exists. Through guidance, the USDOT has created bureaucratic hurdles that must be overcome before such a finding is made, and as a result the dispute resolution mechanism has never been used. A more effective approach would place the decision about whether to trigger dispute resolution in the hands of the party with the greatest interest in moving a project forward — namely, the project sponsor.
2. Milestones and Time Frames
As defined in regulations, the NEPA process has relatively few internal milestones. In the case of an environmental assessment (EA) or categorical exclusion (CE), the regulations contain no internal milestones; there is no requirement for any formal announcement when the process begins; for any public comment periods; or for the release of draft documents. In the case of an environmental impact statement (EIS), the regulations require more: (1) a notice of intent to initiate the process, (2) a scoping stage, (3) a draft environmental impact statement, followed by a comment period of at least 45 days, (4) a final environmental impact statement, followed by a waiting period of at least 30 days, and (5) a record of decision. But even in the case of an EIS, the regulations define no milestones for agency or public comment in the crucial — and often lengthy — period between the notice of intent and the issuance of the draft environmental impact statement.
One of the most important developments in recent years has been the adoption of key milestones during the development of an EIS or EA. These milestones typically include (1) development of the project purpose-and-need and (2) the selection of alternatives for detailed study in the NEPA document. There also may be other milestones, such as selection of a preferred alternative. These milestones are frequently established in interagency agreements, which are commonly known as “NEPA-404 merger” agreements or simply as “streamlining agreements.”
The establishment of these milestones has greatly changed the dynamics of the NEPA process, by providing earlier and more formal opportunities for agency and public involvement in the process. These milestones have important benefits: they produce a more open process with increased agency and public involvement, while also helping to ensure that any major disagreements are identified and resolved early in the process. However, it must be recognized that these milestones also create additional procedural hurdles that must be cleared in the early stages of the process, or risk creating new opportunities for delay.
At each of these milestones, the lead agency has an important decision to make — a decision that will greatly influence the subsequent course of the NEPA process. It is reasonable and appropriate to expect — in the case of an EIS, and for some EAs — that there will be both agency coordination and public involvement at these critical points. It also is reasonable to expect that, within a reasonable time frame, the lead agencies will make decisions on these issues and move the process forward.
It is not necessary to designate, in statute, the specific milestones that must be included as part of the NEPA process. However, in order to ensure the proper functioning of these milestones, AASHTO recommends that two key principles be clarified:
Recommendations: Establish “default deadlines” for agency and public comments at any milestones that are embodied in an inter-agency agreement or other procedures, with some allowance for alternative deadlines to be established or extensions to be granted.
Clarify that responsibility for decision-making at these milestones rests with the lead agency, and that the lead agency is not required to achieve complete consensus before moving the process forward.
3. Purpose and Need
A critical step in the NEPA process is the definition of a project’s purpose and need. According to the CEQ regulations, which state than an EIS “shall briefly specify the underlying purpose and need” of the proposed action. This same requirement has been adopted, over time, as an element of an EA. The purpose-and-need is important for a simple reason: an alternative that does not meet the purpose-and-need is not considered to be a “reasonable” alternative and thus can be eliminated without detailed consideration in the NEPA document.
Because the statement of purpose and need helps to determine which alternatives are considered and which are dropped, the definition of purpose and need has become a flash-point for conflict in the NEPA process.
The courts have made it clear that agencies have broad discretion to define a project’s objectives in a purpose-and-need statement. In essence, the rule is simply that an agency must define the objectives “reasonably.” Courts have recognized, for example, that agencies can consider policy direction given by Congress in legislation when defining a purpose and need. Similarly, FHWA has recognized in its guidance that purpose-and-need statements can be based on a wide range of factors, including legislation, land use plans, and capacity needs.
Despite the guidance given by courts and FHWA’s own regulations, there has developed a widespread perception that the NEPA process must start with a “blank slate” — i.e., that the definition of purpose-and-need cannot be based on policy decisions that were made outside the NEPA process by Federal, State, or local policy makers. Moreover, it has become widely accepted that the purpose and need statement must be neutral as among transportation modes — i.e., that it is legally improper to define a project’s purpose as providing new highway capacity or transit capacity. The result has been the adoption of increasingly vague purpose and need statements, which refer obliquely to goals such as “increasing transportation mobility.” Such vague statements of project objectives are viewed as “safe,” in the sense that they cannot be criticized as biased for or against a particular mode or alternative. But when purpose and need is defined that broadly, the range of potentially reasonable alternatives is virtually infinite.
AASHTO doe not recommend that Congress dictate a particular set of objectives in statute. The lead agencies should have the flexibility to define a project’s purpose and need as they see fit, depending on the circumstances of each project. However, AASHTO does recommend that Congress enact legislation providing clear guidance on how to define a project’s purpose and need. In particular, the legislation should recognize the following principles:
Recommendation: The purpose-and-need statement in a NEPA document can be based on policy decisions that are made outside the NEPA process — e.g., in federal legislation, in State laws, in State and metropolitan transportation plans, and in local land use plans. For example, it is legitimate and appropriate for a transportation project to have the purpose of supporting planned growth as reflected in local land use plans.
The purpose-and-need statement in a NEPA process for a surface transportation project should, when possible, specify a particular mode or modes. This principle would not eliminate the lead agencies’ obligation to justify its purpose-and-need statement; it could not define a project’s purpose as adding highway capacity simply for the sake of adding highway capacity. But it would encourage the adoption of mode-specific purpose and need statements, when the conditions exist to support such a decision.
4. Range of Alternatives
The analysis of alternatives has been called the “heart” of an environmental impact statement. Indeed, the alternatives analysis is vital to the effectiveness of an EIS, or any other NEPA document for that matter. But it is a mistake to assume — as some critics of streamlining have done — that the value of an alternatives analysis can be measured by its breadth. In fact, as the U.S. Supreme Court has noted, an alternatives analysis that seeks to cover every conceivable alternative ends up becoming “frivolous boilerplate.” When it comes to alternatives analysis, more is not always better. The key challenge for lead agencies is to determine the proper range of alternatives in each case.
The basic rule for determining the range of alternatives in a NEPA document is that the document must consider “all reasonable alternatives.” This regulation provides the basis for lawsuits challenging an EIS for failing to consider a particular alternative, and can also provide a basis for a resource agency to delay or deny issuance of a permit. In these circumstances, lead agencies have a strong incentive to widen the scope of their alternatives analysis, often devoting substantial time and resources to “alternatives” that have strong backing from potential litigants or permitting agencies, even if those alternatives have little likelihood of being selected.
On the other hand, lead agencies also operate under guidance that requires all reasonable alternatives to be studied to a “comparable” level of detail. This guidance tends to encourage an “all or nothing” approach to alternatives analysis: either an alternative is included and studied to the same level as all the other alternatives, or it is not included at all. This guidance actually discourages the development of a wide range of alternatives in NEPA documents. It also discourages lead agencies from conducting additional, more detailed analyses of their preferred alternative (once it is identified), out of fear that they will then be criticized for not studying all of the alternatives to the same level of detail.
Decisions about the scope and depth of the alternatives analysis generally are made early in the NEPA process, following the definition of the project’s purpose and need.
However, it is not uncommon for new alternatives — or new variations on existing alternatives — to be developed or proposed much later in the process. Of course, the very nature of the NEPA process requires an openness to new alternatives as the process evolves. Still, the decision to put new alternatives on the table late in the process can cause considerable complications. In addition to revising the NEPA document itself, the lead agencies often must conduct further consultation under other laws (Section 106, Section 7, etc.) and revise the documentation required for those consultation procedures. Despite these problems, lead agencies often end up devoting substantial time and attention to late-identified alternatives, out of concern about potential litigation and permitting.
As a result of these factors, alternatives analyses in NEPA documents are becoming increasingly detached from decision-making. To provide greater flexibility and usefulness in the analysis of alternatives, AASHTO recommends the following:
Recommendation: Require analysis of a “reasonable range of alternatives,” rather than “all reasonable alternatives.” This change would eliminate the incentive to develop an encyclopedic, exhaustive set of alternatives, and would encourage a more pragmatic approach to the analysis of alternatives.
Require a “reasonable” analysis of each alternative, rather than requiring that each alternative be studied in a “comparable” level of detail. This change would eliminate the incentive to study all alternatives to the same level of detail, and would encourage a more pragmatic approach to the analysis of alternatives.
5. Section 4(f) Reform
In their regulations, FHWA and PTA have established a policy of making transportation decisions in the “best overall public interest.” Yet, as described above, the real “drivers” in the NEPA decisionmaking process are frequently individual statutes that require protection of specific resources. These resource-protection requirements serve important purposes, but can have the unintended effect of distorting decisionmaking in the NEPA process.
In the context of TEA-21 reauthorization, it is not realistic to address all of the environmental regulatory requirements applicable to transportation projects. However, there is one particular requirement that can and should be addressed during reauthorization: Section 4(1).
Section 4(1) is a federal law that applies only to the USDOT. This laws prohibits the USDOT from approving any project that uses certain protected resources — parks, recreation areas, refuges, and historic sites — unless the USDOT finds that (1) there is no “prudent and feasible” alternative that avoids such resources or causes less harm to them, and (2) the project includes “all possible planning to minimize harm” to those resources.
The problems with Section 4(1) are well-documented in the attached appendix, and will not be repeated in detail here. The core problem with Section 4(1) is a lack of flexibility, balance, and common sense. For example, Section 4(f) forces the USDOT to avoid historic resources on privately owned land unless the cost of avoidance reaches “extraordinary magnitude.” This “extraordinary magnitude requirement” applies in all cases, even when the impact is minor. As a result, FHWA frequently finds itself in the position of protecting a minor historic property at the expense of other, more sensitive environmental resources or communities. These decisions undermine not only the credibility of individual decision-makers or agencies, but of the NEPA process as a whole.
To restore flexibility, balance, and common sense to Section 4(1), AASHTO recommends the following legislative changes:
Recommendation: Amend Section 4(1) to create an exemption for projects that have “no significant impact” on Section 4(1) lands. Allow value of resource, nature of impact, likelihood of preservation to be considered when determining significance.
Amend Section 4(1) to allow a more balanced, flexible approach to determining whether an alternative is “prudent.”
Amend Section 4(1) to allow Section 106 compliance to satisfy Section 4(f) for historic properties, if Section 106 results in a finding or agreement that is supported by the State Historic Preservation Officer (and by the Advisory Council on Historic Preservation, if the Advisory Council has elected to participate in the Section 106 process).
Establish in statute that highways on the National Highway System, including all Interstate highways, shall not be treated as historic resources for purposes of Section 106 or Section 4(1).
Over the history of the Federal-aid highway program, the Federal-State relationship has continually evolved. As a general pattern, responsibilities have been delegated to the States for routine matters, while the Federal government has retained responsibility for the overall management of the program and for specific issues that implicate national concerns — e.g., design standards on the Interstate System.
Against this backdrop, there have been increasing calls for Congress to consider delegation of certain Federal environmental responsibilities to the States as a means of expediting environmental reviews. While it must be recognized that delegation alone does not change the legal requirements that must be satisfied, it is also true that delegation can reduce the organizational complexity described above — i.e., the number of different individuals and agencies involved in making any single decision. Thus, delegation is a simple and powerful tool for reducing unnecessary complexity and thereby streamlining environmental reviews.
The following approach to delegation is recommended:
Recommendation: Authorize delegation of categorical exclusions that are specifically listed in FHWA’s regulations. On a day-to-day basis, State DOTs would be responsible for determining whether a project qualified for a CE. The USDOT would exercise a periodic oversight role, to ensure that the CEs are being properly applied.
Consider broader delegation of USDOT authority to State DOTs, which could include delegation of environmental responsibilities for all environmental assessments (EAs) or even for all environmental impact statements (EISs).
Consider broader delegation of environmental regulatory and permitting authority from Federal environmental agencies to their State counterparts.
7. Dispute Resolution/Lawsuits
Under current law, there is no statutorily defined time period that specifically applies to a lawsuit challenging a decision by the FHWA or FTA. Instead, the timing of a lawsuit against the FHWA or FTA is governed by two legal principles:
• There is a general six-year statute of limitations for suits against the United States. (28 USC § 2401(a)). This means that, in general, a lawsuit challenging FHWA’s compliance with NEPA must be filed no later than six years after the NEPA process ends (e.g., six years after the CE, FONSI, or ROD is issued).
• The common law principle of laches may bar some lawsuits even before the six-year time limitations period has ended. In essence, laches bars lawsuit that are considered to be “too late.” For example, a lawsuit filed after construction has begun generally would be barred by laches; however, there are no absolutes in the interpretation of the laches doctrine.
Because the six-year limitations period is so long, and the applicability of the laches doctrine is often uncertain, the potential for litigation continues to exist long after the NEPA process ends — in some cases months or even years afterwards. As a result, it is difficult if not impossible for the USDOT agency and the project applicant to achieve true closure on the environmental process within a reasonable time after the process ends. The lingering uncertainty discourages prompt implementation of project decisions, and exposes project applicants to the risk of an injunction at the eleventh hour, just before construction is about to begin.
To avoid these problems in the context of airport projects, Congress has established a 60-day deadline for lawsuits challenging decisions by the FAA. (49 USC §46110) In fact, the same legislation also requires all lawsuits against the FAA to be filed directly in a U.S. Court of Appeals, basically skipping the U.S. District Court — and thus expediting
the ultimate resolution of any legal challenges. The FAA provisions have not been extended to FHWA and FTA.
Recommendation: Congress should establish a fixed time limit (e.g., 60 days) for lawsuits to be filed challenging federal agency decisions approving surface transportation projects.
As the practitioners and implementers of the surface transportation program, the AASHTO membership stands ready to work with the Committee to improve the current decision-making process to ensure that future needs of both the transportation system and the natural and human environments are met today and in the future.