By: James E. Stephenson
Yancey Brothers Company
P.O. Box 43326
Atlanta, Georgia 30378
On Behalf of the American Road & Transportation Builders Association
July 30, 2002
Mr. Chairman, Senator Smith, members of the Committee, thank you very much for providing the American Road and Transportation Builders Association (ARTBA) an opportunity to present its views on the transportation conformity process, the Congestion Mitigation and Air Quality (CMAQ) improvement program and new technologies before this committee today. I would like to say at the outset that ARTBA shares your interest in assuring that all Americans breathe clean air. We are not here today to suggest a radical overhaul of the conformity process. We would, however, like to suggest some badly-needed “fine-tuning” of federal law that will not only improve public health from a clean air perspective, but also improve the efficiency of making environmentally-sound and needed transportation investments.
I would also, at the start, like to thank each member of this committee for everything you have done this year to prevent a severe year-on-year cut in federal highway investment for Fiscal Year 2003 that potentially could occur through strict enforcement of the Revenue-Aligned Budget Authority (RABA) provision of the Transportation Equity Act for the 21st Century (TEA-21). We truly appreciate the leadership that each member of this committee has shown on this issue.
I am Jim Stephenson, president of Yancey Brothers Company in Atlanta, Georgia. We are the Caterpillar dealer for the northern half of the state of Georgia. As you know, Atlanta has had its share of problems with the conformity process over the past several years. I have personally taken a very active role in trying to solve these problems. I serve on the Board of Directors of the Georgia Regional Transportation Authority (GRTA), which was established by the governor of Georgia in 1999 to tackle Georgia’s conformity problems. I am also a member of the ARTBA Board of Directors.
ARTBA celebrates its 100th anniversary this year. Based in Washington, D.C., ARTBA was organized in 1902 by a visionary Michigan public official, Horatio S. Earle, for the purpose of advocating federal legislation to create a “National Capital Connecting Highway System.” That vision was realized with the enactment of the Interstate Highway construction program and Highway Trust Fund in 1956. ARTBA has more than 5,000 members and provides a consensus voice representing all sectors of the transportation construction industry – public and private -- before Congress, the White House and the federal agencies. The industry ARTBA represents generates $200 billion annually to the nation’s Gross Domestic Product and generates more than 2.5 million jobs for American workers.
Under the federal Clean Air Act, the U.S. Environmental Protection Agency (EPA) regulates six criteria pollutants: ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, particulate matter (also known as soot and dust) and lead. For each pollutant, EPA has established minimal targets that must be met known as the National Ambient Air Quality Standards (NAAQS).
If an area exceeds EPA’s standards for any one of these “criteria” pollutants, it is designated a nonattainment area, triggering a series of steps that must be taken to come into compliance with the standards. In addition, for ozone, carbon monoxide and some particulate matter nonattainment areas, the EPA further classifies the area based on the magnitude of the nonattainment. These classifications are used to specify what pollution reduction measures must be adopted for the area and what deadlines must be met to bring the area into attainment.
Currently, the most pervasive problem for transportation planning purposes is ozone, followed by carbon monoxide and particulate matter. For ozone, the EPA utilizes the following classifications of attainment depending on the magnitude of the problem: Extreme, Severe, Serious, Moderate and Marginal. These classifications dictate when an area must achieve attainment status for ozone and what measures must be taken to achieve attainment.
Ozone is formed through a complex chemical reaction between volatile organic compounds (VOCs) and oxides of nitrogen (NOx) in the presence of sunlight. To reduce ozone, one must reduce one or both of the precursor pollutants. VOCs are best described as fumes emitted from sources such as automobiles, chemical manufacturing plants, dry cleaners, paint shops and others that uses solvents. NOx is formed when combustion occurs at high temperatures. It is primarily emitted from electric utilities, industrial boilers and transportation sources. Since sunlight and warmer temperatures cause these reactions, ozone violations typically occur during the late afternoon hours on hot summer days.
Mr. Chairman, there’s no doubt that we have made great progress over the past 30 years in improving the nation’s air quality. Much of this progress has been achieved through technology advancements spurred by motor vehicle emissions standards and controls and cleaner fuels. Between 1970 and 1999, carbon monoxide emissions from on-road vehicles were reduced by 43 percent. Volatile organic compounds – a precursor to ozone – were reduced 59 percent. Particulate matter (PM-10) emissions have been reduced 33 percent.
In fact, Mr. Chairman, the only pollutant that has increased since 1970 has been Nitrous Oxides (NOx) – the other precursor of ozone – which is up 16 percent. However, despite the increase in overall NOx emissions, the amount of NOx being emitted from automobiles is down 31 percent since 1970.
EPA’s monitoring data are also encouraging. Exceedances of EPA’s ozone standards are down 80 percent since 1990. Exceedances of the carbon monoxide standard are down 97 percent and exceedances of the PM standards are down 81 percent since 1990. These numbers are even more remarkable given that since 1970, the U.S. population has grown over 30 percent, the number of licensed vehicles has increased about 90 percent and the number of vehicle miles traveled has increased 143 percent.
Progress has also been made with the other pollutants. For instance, on-road sulfur dioxide emissions have been reduced nearly 60 percent since 1970, although transportation is not considered a significant source of sulfur (97 percent is not transportation related). In addition, lead has been virtually eliminated from our air with the introduction of unleaded gasoline.
Mr. Chairman, while great progress has been made all around in improving the nation’s air quality, I want to emphasize that most of that progress has come from the transportation sector. For example, carbon monoxide emissions from on-road vehicles have been reduced 45 percent since 1970. The reduction from non-transportation sources, over the samer period, however, is just over 10 percent. We hope the committee will keep this in mind as it moves forward with reforms in the future.
I would also like to point out to the committee that reforms being discussed in the stationary source arena could have unintended consequences for transportation. As you know, for each criteria pollutant for which an area fails to meet EPA’s standards, the Clean Air Act requires the state to prepare a State Implementation Plan (SIP) to show how it will “attain” the air quality standard over a designated period of time. A SIP typically contains restrictions on stationary sources (e.g., factories), area sources (e.g., landfills) and mobile sources (e.g., off road equipment, yard equipment, and motor vehicles). From a transportation planning perspective, this exercise is a “zero-sum” game. If emissions from area sources and stationary sources are given more leeway in the SIP, fewer emissions can come from transportation sources. “Emissions reductions inequity” can put severe constraints on the construction of future transportation improvement projects, since a region’s transportation plan must “conform” to the emissions budget for motor vehicles in the SIP.
Please do not forget about the transportation sector when looking at approaches like emissions credits trading program for power plants, since it is primarily the transportation sector that is penalized when an area is not meeting air quality standards. If a power plant is allowed to emit greater emissions in the Atlanta area because of credits they bought from a cleaner plant in Illinois, that does nothing to help Atlanta solve its transportation conformity problems. It only puts greater pressure on the transportation emissions budget. While we applaud the committee’s desire to think “outside-the-box” and use incentive-type systems, please do not forget that transportation planning is very regional and can often conflict with the commercial interests of large stationary polluters.
Mr. Chairman, as I already stated, huge gains have been made in emissions reductions from automobiles. And in the future, advanced engine and fuel technologies such as alternative fueled vehicles, hybrids and fuel cells and the tighter Tier II standards -- which the transportation construction industry actively support – will continue to have major, positive impacts on air quality without reducing the mobility of the American public. As in the past, air quality gains from the transportation sector will likely rely on technology advances, not transportation control measures.
When the Clean Air Act Amendments of 1990 were enacted, they were based on a false premise or assumption – that increases in vehicle miles traveled (VMT) would overwhelm the emissions-reduction capacity of technological advances. Quite the opposite has happened. Despite an increase in VMT of 39 percent since 1990, vehicles have become much cleaner. They will be “squeaky” clean by 2020. With new standards for truck engines and diesel fuels in place, there will likely be many more gains from the transportation sector in improving the nation’s air quality in the coming years.
These facts should lead Congress to seriously examine and question many of the transportation-related programs that were developed in conjunction with the Clean Air Act Amendments of 1990. These programs all operate under the assumption that the only way to get meaningful reductions in emissions is by reducing VMT, largely by shifting people to non-auto modes of transportation. The conformity process is based on this false assumption, as is the Congestion Mitigation and Air Quality (CMAQ) improvement program, which was first implemented under the Intermodal Surface Transportation Efficiency Act (ISTEA) and then extended under TEA-21.
CMAQ was authorized to spend $14.1 billion over the life of ISTEA and TEA-21 on programs in ozone and carbon monoxide nonattainment areas that primarily constitute transportation control measures, such as HOV lanes, mass transit, carpool/vanpool programs, etc. However, some programs that could prove most effective in actually reducing pollution, have always been excluded from receiving CMAQ funds, such a vehicle scrappage programs. According to EPA, less than 10 percent of the nation’s motor vehicle fleet emits over 40 percent of mobile generated hydrocarbon pollution and the “dirtiest” one percent of vehicles emit over 25 percent. With the money that has been spent on CMAQ during its life, almost all of these dirtiest cars could have been replaced with new cars, resulting in real quantifiable reductions in air pollution.
A recent report by the Transportation Research Board (TRB), “Assessing 10 Years of Experience” of the CMAQ program recently concluded that most CMAQ-funded programs have not yielded significant emissions reductions and will provide even less in the future because the auto fleet has become so “clean” when it comes to emissions. TRB could not find any quantifiable benefits from how the CMAQ funds are being spent.
Despite this conclusion, however, the committee that authored the report recommended that the CMAQ program be continued. The committee further said that “existing restrictions on projects involving construction of new highway capacity should be maintained.”
Mr. Chairman, I would suggest that if, indeed, the goal of the CMAQ program is to (1) reduce congestion, and (2) promote better air quality, that one of the best ways to achieve both goals at the same time is by reducing bottlenecks on the nation’s roads. It is estimated by the Texas Transportation Institute that congestion in the nation’s largest metropolitan areas costs Americans $78 billion per year. That means less time with your family and more fuel wasted. Also, cars perform at their worst from a pollution standpoint in stop and go traffic. Depending on the pollutant, car engines run most efficiently around 45 – 50 miles per hour.
The CMAQ committee also recommended that the program be expanded to cover all pollutants and air toxics, not simply limiting CMAQ funds to those areas out of attainment for carbon monoxide and ozone. Mr. Chairman, as I already discussed, the main source of many of these other pollutants, such as sulfur dioxide, come not from transportation, but elsewhere. To apply CMAQ funds to these additional areas would only dilute the program even more and turn a not very effective program into a very ineffective program.
We think some accountability needs to be built into the CMAQ program so that money is only being spent on activities that produce real, quantifiable emissions-reduction results.
Mr. Chairman, many have also called for substantially increasing the funding for CMAQ during the reauthorization of TEA-21. Such a goal could be accomplished by substantially increasing funding for the entire highway program.
Mr. Chairman, that leads me to my comments about the conformity process itself. There are two things I hope you take from this hearing today, (1) that government agencies and planning bodies need more flexibility on conformity and (2) the public -- especially those who contract with government agencies to build transportation improvement projects – need more predictability in the transportation conformity process.
One of the major problems with the conformity process is that people have tried to turn it into an exact science, when it is anything but. All you have to do is to look back at the predictions made during the enactment of the Clean Air Act Amendments of 1990 to understand that “modeling of future events” often does not reflect reality.
An example of this is EPA’s transition from the current Mobile V model to the Mobile VI model for predicting future on-road emissions. In applying the new Mobile VI model to current data, regions will experience a substantial short-term increase in predicted emissions as compared to the Mobile V model. While over the long term, the Mobile VI model shows decreasing emissions, this could cause substantial problems for many areas and threaten a potential conformity lapse in the short term. Even though the data being entered into the models is the same, each shows very different outputs.
This problem is amplified by the fact that quite often transportation plans and the SIPs they are supposed to conform with are often out of sync with one another. This is largely due to the fact that transportation plans have very long planning horizons and have to be updated frequently, while most air quality plans have very short planning horizons and are updated infrequently. As a result, many of the planning assumptions that must be used for conformity determinations of transportation plans are not consistent with the assumptions that were used in the air quality planning process to establish emissions budgets and to determine appropriate control measures. In other words, because the most recent planning data must always be used, an increase in emissions and possible conformity lapse can occur simply because the numbers or models relied on in the transportation plan are not the same numbers relied upon in the air quality plan.
Part of this is due to the fact that the priority of various transportation projects often changes and every time this occurs, the plan needs to be updated. While many have suggested that the planning horizons should be brought more in sync with one another, another option would be to simply allow greater flexibility in the process, recognizing the inexact science involved. Rather than requiring plans to conform to the “nth-degree,” perhaps a 10 percent “cushion” should be allowed so that transportation planners would not have to amend their plans every time they want to add or subtract even a relatively insignificant project. In addition, such a cushion would permit some differences in planning data or models and would allow a margin of error for modeling assumptions planning organizations make but have no real way of predicting with precision -- such as economic growth or the current price of gasoline -- even though such things have a substantial impact on future travel or the use of larger vehicles like SUVs.
Very few conformity lapses occur because a region has a major clean air problem. They occur because one of the parties involved cannot meet a particular deadline. As a result, the conformity process has become a top-heavy bureaucratic exercise that puts more emphasis on “crossing the t’s and dotting the i’s” rather than engaging the public in true transportation planning that is good for the environment and the mobility of a region’s population.
Mr. Chairman, flexibility in the conformity process has also been constrained by litigation initiated over the past several years by parties opposed to individual transportation projects and/or the concept of increasing highway capacity. In 1997, in Sierra Club v. EPA, the court said EPA could not continue the practice of allowing areas that are new non-attainment areas to have a one-year grace period before they need to perform a conformity test. This could have had a devastating impact on communities when EPA implements its new ozone and PM2.5 standards, now slated for 2004. However, seeing the unfairness of this, Congress acted and reinstated this grace period through the legislative process.
In yet another court case in 1999, in Environmental Defense Fund v. EPA, the court struck down EPA’s practice of “grandfathering” projects when a conformity lapse occurs. Up to this point, when an area went into a conformity lapse, projects could proceed if they had already met all of the necessary environmental requirements and were part of a conforming transportation plan at the time of the lapse. In defending its own rule before the court, EPA stated:
· “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 process. 42 U.S.C. 7506(c)(2). [EDF v. EPA, Case No. 97-1637, Respondent’s Brief, June 10, 1998, p. 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.’” [EDF v. EPA, Case No. 97-1637, Respondent’s Brief, June 10, 1998, p. 36.]
This decision had a devastating impact in my own hometown of Atlanta. At the time of the decision, Atlanta was in a conformity lapse. As a result of the decision, 54 of 71 major priority projects that had been vetted through years of planning were put on hold, even though they had already passed all of the necessary environmental tests.
During the last Congress, Senator Bond introduced legislation that would have restored the practice of grandfathering. While his legislation passed this committee, it never made it to the Senate floor. We would strongly urge this committee to take this issue up once again.
Two other long-standing practices have also been struck down by the courts, which has reduced flexibility in the conformity process and deserve this committee’s attention:
· EPA is often not able to approve a state’s motor vehicle emissions budget in time for a conformity determination to be made. Prior to the EDF v. EPA case mentioned above, these budgets were assumed to be automatically approved if EPA did not act within a certain period of time. That decision, however, struck down this long-standing practice.
· Many states have not been able to meet their ozone compliance deadlines since much of their clean air problem is the result of ozone drifting in from other areas, known as ozone transport. In the past, EPA has granted extensions to the deadline in some of these areas. However, in Sierra Club v. EPA (D.C. Cir. 2002), the court ruled that EPA does not have the authority to grant these extensions and must, instead, “bump” these areas into the next higher classification of nonattainment, which would trigger several additional mandatory control measures.
Without the flexibility option of “grandfathering” projects, we have seen a significant increase in conformity-related litigation. Those opposed to an individual project—or the mix of projects or modal funding in a transportation plan—have been given tremendous leverage by the EDF v EPA decision. They can now use conformity-related litigation as a sure way to temporarily, if not permanently, stop previously approved, environmentally-sound projects and plans. Threatened with such litigation—or actually sued over conformity process-related issues— state and local planning agencies are put under enormous pressure to either give into the demands of the dissenting minority, or face endless rounds of litigation.
In response to this reality, ARTBA joined with several other industry groups in 1999 to form Advocates for Safe and Efficient Transportation (ASET), a litigation group aimed at assisting governmental entities in defending the transportation planning and delivery process. While many of the professional environmental groups talk a lot about wanting a more “inclusive” transportation planning process, the fact of the matter is really quite different. Since ASET was formed, it has spent hundreds of thousands of dollars, not in arguing the merits of many of these cases, but in battling with environmental groups over simply trying to get a seat at the table. I could provide you a pile of court briefs where groups like the Sierra Club argue adamantly that the construction labor organizations and industry should not have a say in the final decision about transportation plans. The truth is the Sierra Club and many of their colleague organizations do not want an inclusive planning process. They want a process where they and they alone make the decisions.
When the planning process is allowed to be hijacked by any one individual group, bad decisions are made. The truth is that America needs a dynamic transportation network to meet the needs of a growing population and economy. Such a network should include improving public transit, increased utilization of synchronized traffic signalization and other “smart road” technologies, improving local management of traffic incidents to clear roadways quickly and adding road capacity where appropriate and desired by a majority of local citizens. This is key to reducing traffic congestion and the unnecessary auto, truck and bus emissions it causes. It is also essential to maintaining time sensitive ambulance, police and fire emergency response service.
Mr. Chairman, I believe very strongly in the transportation planning process – a process that involves public involvement by all stakeholders and final decisions that are made by public officials. However, we have come to a point where the planning process is breaking down under a mound of litigation. It Atlanta alone, there have been no fewer than seven lawsuits over the past three-and-a-half years challenging the conformity process in some way. I would urge this committee to reform the conformity process so we can get away from all of this litigation and return the planning process to the people through our elected public officials, not a few special interest groups.
Unfortunately, Mr. Chairman, the main purpose of many of these obstructionist lawsuits brought by the environmental groups is to delay badly-needed transportation improvement projects. One witness from the environmental community put it best before this very committee during testimony in 1999. He said, “In the struggle between proponents and opponents of a… [highway] project, the best an opponent can hope for is to delay things until the proponents change their minds or tire of the fight.” According to an ARTBA study last year of state departments of transportation, an estimated $1.3 billion worth of highway projects were canceled or delayed in 2000 due to transportation conformity problems.
Sadly though, such delay can have tragic consequences. According to the U.S. Department of Transportation (DOT), almost 42,000 people are killed each year on our nation’s highways. One third more people in the U.S. die of traffic crashes each year than from bronchitis and asthma combined. One person in the U.S. dies from a traffic crash every 13 minutes and there is one crash–related injury every 10 seconds. Traffic crashes are the leading cause of death in the U.S. for people ages 6-33, and their economic cost is estimated to be $230.6 billion each year in added medical costs, insurance costs, etc. That’s about 2.3 percent of the U.S. gross domestic product. To put this figure in perspective, the total annual public and private health care expenditures caused by tobacco use have been estimated at $93 billion annually!
Indeed, Mr. Chairman, roadway safety is a huge public health crisis! The sad part is that, according to U.S. DOT, approximately 15,000 of these deaths annually – are in crashes in which substandard roadway conditions, obsolete designs or roadside hazards are a factor. According to a Federal Highway Administration (FHWA) study, for every $100 million we spend on highway safety improvements, we can save over 145 lives over a 10-year period.
Delays, however, also have other costs associated with them. Besides the costs associated with increased congestion, when an area is out of conformity, it can be sanctioned with the loss of federal highway and transit monies. This happened in Atlanta for about a year-and-a-half. It’s true that when sanctions are put in place that the money isn’t completely cut off. Instead, states are forced to choose between redirecting the money to other transportation improvement projects in the state or forfeiting it back to Washington, D.C., at the end of the year to be sent to another state. In our case, however, this led to some very fast and rash decisions, since we either had to spend the money or lose it.
As you know, transportation improvement projects simply cannot be created overnight. As a result, the money was spent on a lot of simple projects that were definitely not a priority in the state prior to the sanctions kicking in. In addition, since design and right-of-way acquisition were cut off on several priority projects at the time, it has taken a long time to get these projects back up-and-running, since the money that would have been spent on them was spent on lower priority projects. Sanctions were lifted in Georgia about two years ago, but over half of the projects that were put on hold at the time are still lingering.
Because of the inefficiencies involved in highway sanctions, I would urge Congress to rethink how this entire process works. Rather than penalizing areas that fail to meet air quality standards, perhaps Congress should consider rewarding those communities that make the greatest progress in cleaning their air. Using sanctions that cut off badly needed transportation improvement funds only exacerbates the problem resulting in increased congestion and worsened air quality. However, incentive-based systems have been very successful in other arenas and perhaps this would also work in transportation planning.
Mr. Chairman, the most troubling part about all of this is that we are headed for a potential train wreck in a few years when EPA implements its new tighter standards for ozone and fine particulate matter. According to preliminary numbers obtained from the U.S. DOT, the number of counties that will be out of attainments for the ozone standard alone will rise from 414 counties presently to 656. Many more will be out of attainment for particulate matter.
As you know, these new standards were first proposed in 1997 and have been held up by the courts until just recently. EPA currently plans to designate the new nonattainment areas in 2004 and state implementation plans (SIPs) will be due in 2007-2008 for these new areas.
According to U.S. DOT, the new standards will result in much larger nonattainment areas that will be more complex, covering a lot of multi-state areas and rural areas. Rural areas, especially, will have a difficult time meeting the conformity requirements since they lack the resources and expertise to properly deal with all of the requirements under conformity. Many of these areas will not be able to develop air-tight plans right off the bat, thus, opening the door to lawsuits. These areas must be given adequate time (at least two years) and resources to develop the detailed databases that are needed to demonstrate conformity.
Congress should also examine closely how the new standards will be implemented. As I said, EPA plans to designate the new nonattainment areas in 2004. As a result of the one-year grace period passed by Congress a couple of years ago, conformity determinations will have to be made in these areas starting in 2005. However, it is highly unlikely that states will have emissions budgets in place at that time since the SIPs will not be due until 2007-2008. Without an emissions budget to conform to, how will these determinations be made? In the past, EPA has used what it calls a “build -- no build” test. However, under this test it is very hard to demonstrate that various transportation projects fall into conformity. The test is also an easy target for those who would rather litigate.
Mr. Chairman, Senator Smith, and other members of the committee, I truly appreciate your willingness to hear from me today on behalf of ARTBA. If I could just summarize my comments:
1) We are making huge progress on cleaning up the air, but almost all of this progress can be attributed to technology gains, not transportation control measures;
2) In changing how stationary sources of pollution are regulated, please keep in mind the unintended consequences it can have on transportation planning;
3) In reauthorizing TEA-21, results-based accountability should be built into the CMAQ improvement program;
4) Greater flexibility and predictability is needed in the transportation planning and conformity process;
5) We need to do something to put a stop to the endless litigation that is tying our planning process into knots;
6) Congress should consider rewarding those communities that make the greatest progress in cleaning their air rather than simply relying on sanctions to enforce the Clean Air Act, and;
7) Delaying transportation improvement projects results in deaths and other costs to society.
I have attached a list of proposed legislative reforms as Appendix A to my written testimony. Thank you for listening and I look forward to any questions the committee might have.
APPENDIX A – POSSIBLE LEGISLATIVE SOLUTIONS
1. Recognize the imprecision of data inputs. Modeling is an inexact science at best. Requiring conformity to be demonstrated to the nth decimal point makes little sense from a public policy standpoint. As a result, conformity should be allowed to be demonstrated if the emissions from the transportation plan are at least within 10 percent of the emissions budget and SIPs should contain an adequate “margin of safety” to avoid conformity lapses due to marginal changes in expectations. For example, MPOs have no control over economic growth or the price of gasoline, yet these are the primary factors in determining increased travel or the use of larger vehicles like SUVs.
2. Transportation emissions are treated much differently in a SIP than emissions from other sources, such as area or stationary sources. While transportation emissions are essentially treated as a sectoral “cap,” other sectors only have to meet source-by-source regulations. Transportation emissions regulations should be refocused to SIP elements that can actually make a difference in achieving emission reductions, such as inspection/maintenance programs, different fuels, etc.
3. Clean up ambiguities in the statute and the regulations. Over the years, there have remained several “holes” in the conformity process and many more have been produced through adverse court decisions and legislative action, making it difficult for planning bodies to ascertain clear guidance. This often leads to confusion and, ultimately, litigation. These ambiguities need to be cleaned up to restore predictability and stability to the transportation planning process.
4. Restore grandfathering or create other safe harbors for projects. Conformity must be forward-looking. Retroactive invalidation of projects after funding approval is disruptive and equally bad for smart growth and mobility. A conformity lapse stops all projects, transit and highway alike, and puts construction crews out of work without notice. EPA previously permitted limited grandfathering until a 1999 court ruling invalidated it. Once a transportation project is in a conforming plan, it should be permanently grandfathered until built or removed from the plan.
5. A new conformity determination should not be required if one or several projects are added to the transportation plan, as long as the net emissions from their inclusion will not add more than 3 percent to projected transportation emissions in the plan. In reality, added emissions from a single highway project are minuscule and this will avoid what is largely a paperwork exercise.
6. Provide Motor Vehicle Emissions Budget (MVEB) adequacy and regulatory flexibility. A 1999 court ruling struck down an EPA rule that conferred automatic MVEB approval if EPA did not act promptly and called into question EPA's overall process for approving MVEBs in submitted-but-not-yet-approved SIPs. Conformity obligations often arise with short notice due to changes in attainment status or failure of EPA to timely approve MVEBs or SIPs. Without an approved MVEB, conformity determinations cannot be found and transportation projects cannot be approved.
7. Prohibit MVEB judicial review. Under existing regulations, EPA can declare a MVEB adequate for transportation planning purposes prior to approval of the entire SIP. This approval process is not as comprehensive as full SIP approval and EPA reserves the right to withdraw its approval at anytime (therefore, it is not a final agency action). Environmental groups have filed lawsuits alleging that preliminary MVEB approval must be as rigorous as final SIP approval and EPA has not contested jurisdiction in these lawsuits. (Example: 1000 Friends of Maryland suit against EPA.)
8. Further protection from lawsuits. Planners have to rely on good faith and current state-of-the-art modeling and estimates to develop air quality and transportation plans. Environmental groups are attacking the estimates and demanding exactitude that doesn't exist. There has to be protection from disruptive lawsuits that paralyze the process, perhaps by requiring plaintiffs to make an initial showing of bad faith before filing suit. In absence of that, agreement by the MPO, state air quality agency, EPA and U.S. DOT should be per se evidence of the validity of emissions estimates. (Example: Sierra Club sued Sacramento for using EPA's own numbers.) Almost 200 counties will face conformity for the first time under the revised ozone and particulate matter standards. They will not be able to develop airtight plans right off the bat, thus opening the door to lawsuits. These areas must be given adequate time (at least two years) and adequate resources to develop the detailed databases needed to demonstrate conformity. Smaller MPOs, in particular, are ill-prepared to fulfill all of the conformity requirements.
9. Equal intervention rights. Environmental groups are using lawsuits to pressure policy makers and exclude other stakeholders. Contractors and transportation users should have the right to participate in lawsuits as equals to environmental groups. A double standard leads to duplicative lawsuits and moves the planning process out of the public forum and into the courtroom.
10. Adequate funding. Smart growth planning depends on interconnectivity and multi-modal options, i.e., a mix of integrated transit and highway. No one wants to ride a bus to a metro station if the bus is stuck in traffic. Congress should provide both highway and transit funding and recognize that highway capacity projects that connect to transit systems are beneficial. (Example: Sierra is opposing HOV lanes in Atlanta that access MARTA and provide emergency vehicle access.)
11. Try to develop a system where areas that make progress to clean air quality receive an incentive for doing so, rather than relying on sanctions to enforce the Clean Air Act. One possible option would be to divert additional CMAQ funding to these areas.