Testimony to
“Project Delivery and Environmental Stewardship”
September 19, 2002
Charles Hales
Transit Planning Principal,
HDR
Portland, Oregon
Mr. Chairman, , members of the Committee on
Environment and Public Works. My name
is Charles Hales. I am the Transit
Planning Principal with the engineering firm of HDR in Portland, Oregon. HDR is a member of the American Council of Engineering Companies, and supports their efforts to improve project delivery. I am pleased to testify today as a former elected official and as
a principal of HDR. In both of those capacities, I have worked collaboratively
with a broad coalition of environmental and smart growth organizations. Some of them have endorsed my testimony
here today and have
supplied supporting materials for the points I will make here; those include: The Surface Transportation
Policy Project, Environmental Defense, The Sierra Club, The National Coalition to Defend
NEPA, Defenders of Wildlife and the Natural Resources Defense Council.
tThank you for this
opportunity to advise you
on your work on federal policy affecting transportation project
delivery. In both my public service as
Portland’s Transportation Commissioner and in my role now in the private
sector, building public works - particularly transportation projects -– has been and is the
focus of my work.
I am pleased to testify today on my own
behalf, on behalf of HDR, and on behalf of the Surface
Transportation Policy Project, and Environmental Defense and the Sierra Club..
Twelve years ago, I was working in
the development and construction industry.
In 1991, I made the decision to and run and was elected to the for
office asof Portland City Commissioner. I did so because I believed that Portland
was about to experience a major wave of growth and change, and I wanted to help
steer our course through the perils and opportunities that growth brings. As it turned out, I was correct in that
prediction; Portland boomed in the ‘90’s, and I was involved in the
construction of over $2 billion worth of infrastructure. I’m happy to report that we have grown
well. Money Magazine and others share
my opinion when they call us America’s Most Livable City.
My experience
might prove instructive as you consider issues involved with the
reauthorization of the Transportation Equity Act for the 21st
Century (TEA-21), and ideas for “streamlining” the planning process required
under this law or the National Environmental Policy Act (NEPA). What weI have found is a this set of
principles , borne outthat have been validated
in project after project:
(1)
Public works projects
are “place-makers.” This is true
whether the project is a highway, a, a transit line, a, a park, a community center, or a police
station. To pretend otherwise is…well,
to pretend. When we build a freeway
interchange or light rail line, we exert a massive influence on the character
and destiny of the land around the project.
AAmericans
have created a lot of unlovely places have been created and and wasted a lot of infrastructure money wasted by ignoring this
principle. Suburban sprawl results fromis
the compartmentalized, rather than the integrated, approach to land use and
development planning on one handin one realm, whileand the
provision of public works on the otherhappens in another. In an era when infrastructure dollars are
limited (actually, is there ever a time when this isn’t true?) and quality of life is the most important driver of local
economic development, designing projects whichto support the “place” is the only prudent
investment strategy for public funds. The
alternative strategy, and one, which is far too common, is , rather than building
public works projectsprojects,
and letting the “place” spontaneously develop
around them., is the
only prudent investment strategy for public funds. Sprawl, congestion and other
unintended consequences are the predictable result.
(2)
Given the first principle I just described, Lland use planning must lead project
engineering. The “purpose and need”
stage of NEPA is applied common sense.
Before we build a project, we need to ask what our goals are and how a
proposed “improvement” will advance those goals. We need to honestly consider all the alternatives. We need to examine the consequences and side-effectsside effects of the
proposed improvement. If we don’t we
will not leverage the benefit of the infrastructure investment as we should,
and we will likely create problems whichproblems that will be worse and more
expensive to solve than the one whichone that we just “solved.” The classic example of this phenomenon is
the much-repeated fallacy of the past fifty years: expanding highways to
alleviate traffic congestion. We don’t
need to be subtle about this issue anymore: building highway capacity without
integrating transportation planning and project design with regional and local
land use planning is counterproductive.
Lewis Mumford
warned us more than fifty years ago when he said thatsaid, “Americans will
soon have every facility for moving around the city, and no reason whatsoever
to go there.” Transportation
investments which serve a well-thought-out land use plan pay dividends; those
which take an engineering-only approach cause terrible side-effects or at
least, don’t perform very well or very long.
My company summarizes the integrated approach in three words: community,
mobility and environment. It is
sound public policy to respect all three.
(3) In
addressing these basic questions, we need to bBring all stakeholders
and points of view to the table. As
I mentioned, I’ve built a lot of infrastructure and now, as a principal with
HDR, I look forward to being involved with building a lot more. For those projects to succeed, their
concept and design must be informed by all who have a stake in themall who have a stake in them
must inform their concept and design.
The “good old days”, in which a Robert Moses Moses in New York or in
my state, a Glenn Jackson could locate and authorize a project by fiat, are
gone. The public, with good cause,
won’t stand for it. Similarly, federal,
state, regional and local agencies have their responsibilities under law, and
they are bound to carry them out.
An open, inclusive process of considering all the
issues involved in a major infrastructure investment is legally, pragmatically, and,
and politically required.
The good news I have to report, Mr.
Chairman, is that these principles are not simply lofty ideals., butThey are standard
practice in my community. That this
is true, and that, and as a result Portland is widely
considered to be one of America’s most livable cities, is not a coincidence.
My community’s experience shows
that the best way to “streamline NEPA” is to go through the planning process
right the first ,time and only once. We have made a sustained commitment to
comprehensive land use and transportation planning. We work collaboratively to integrate the requirements and address
the concerns of federal and state regulatory agencies in our plans and
projects. We then ask those agencies to
sign off early on purpose and need. We
base our project priorities on the plans.
We are thrifty in our expenditure of public monies. We build transportation projects on time and
on budget. And our transit projects in
particular outperform their projections.
Our experience beliesallays some concernmyths
about environmental review:
(1) The most
frequently-cited myth is It is not my experience that environmental
groups and NIMBY’s (not-in-my-back yard neighborhood groups) will exploit
environmental review and tie needed projects up for years. If there is any place in America where this
should be true, it is Portland, Oregon.
Our state is loaded with environmentalists (remember the book
“Ecotopia”?), and our city is populated with neighborhood activists. To make matters worseIn fact, Portland
actually goes so far
as to provides funding and staff support for
neighborhood associations and gives them a free land use appeal right for
discretionary land use decisions. Some
might expect this to be a recipe for paralysis.
Yet the contrary is
true. In the ten years I served as a
Portland City Commissioner and as Portland’s representative to the MPO for our region,
we built dozens of major highway, transit, sewer, and water projects, and other
major facilities. In almost no case…allow me
to repeat that…in almost no
case was
a have projects been held up by appeals, litigation or
multiple trips through the NEPA process or though state or local review. I’m proud of that track record; I believe that I made good decisions. I must admit, though, that I was not
infallible. Some appeals are
meritorious; they are part of the checks and balances system, and their scrutiny
accomplishes a legitimate purpose of these laws: avoiding bad projects, or
reshaping them to be good ones.
Similarly, in ten years
of rapid growth and dramatic change in the built landscape of my city, only a handful of
private development projects in Portland were blocked by citizencitizen blocked a handful of
private development projects in Portland or neighborhood appeals.
Thisappeals. This paradox is
explained by the fact that we have taken the coordination, public involvement and
alternatives analysis goals of NEPA and TEA-21 to heart. We plan, we work for consensus, and we
follow our plans. We are a case study
that demonstrates that good administrative practice gets good treatment under
the federal requirements. We demonstrate
that even in a city with an EndangeredEndangered Species swimming through its
downtown, federal and state agencies can reach agreement and construction of
public works and private development can continue apace.
(2) EAnother myth
is that environmental review does not need to hold up projects or add
significantly to their costs. adds
significant cost to projects, and that “cutting all that red tape” will save
the taxpayers’ money. If
my community’s citizens are “green,” they are also “tight.” Oregonians are frugal, and expect frugality
in public expenditure. In my
experience, this expectation is more likely to be met with a truly good faith
effort to follow these planning and alternatives analysis requirements. To borrow a popular phrase, planning is
expensive and time-consuming, but not compared to the alternative.
(3) These laws and regulations don’t foster internecine warfare
among public
agencies; done right, environmental review reduces interagency conflict. The Oregon DOT, like most state DOTs, is still primarily a road
and highway organization. The ODOT
staff has, however, incorporated this planning-based approach in their
work. They, in return, expect counties
and municipalities to work collaboratively with them; for example, we are transitioning
some former state highways located in urban areas into locally-managed
streets. These projects don’t require
environmental review, but the cooperative working relationships forged in
environmental review makes these other “win-win” agreements possible.
Environmental review requirements,
well integrated and well administered, help assure that good projects are
advanced with public support, avoiding adverse impacts and mitigating unavoidable
impacts. This translates into public acceptance and smoother permitting. While there are opportunities for better
administration of such reviews, changes in law are not generally needed to make
this happen. Indeed, efforts to expedite project delivery are
likely to fail and work against sound decision-making if they set arbitrary
time limits, curtail public and judicial review, limit consideration of
alternatives and determinations of project purpose and need, or allow use of
project segmentation and analysis models insensitive to induced traffic and
other indirect impacts. Such approaches are likely to spur increased conflict
and reduced public support for transportation funding and programs.
It’s not possible to mandate cooperation, consensus and trust. Trying to push projects forward by the means I just listed will fail because in a complex environment like the design and permitting of a major public works project, cooperation, consensus and trust are necessities, not niceties. Likewise, it’s not possible to measure a transportation project’s success on transportation or engineering terms alone, so evaluation measures, if the Committee pursues them, should evaluate a project’s affect on a community’s goals and plans. Land use results – i.e. the places where Americans live their lives – are not a “secondary effect.”
When I was first contacted about testifying before your committee, I was reluctant to accept the invitation. I knew that the subject was streamlining the approval process for transportation projects, and that the committee would, necessarily, confer with experts on the specific language of federal law and the regulations, both current and draft, which have been promulgated to implement these laws. My reticence was based on my understanding that I am not one of those experts and, more powerfully, that I have spent ten years governing a growing city and building major infrastructure projects without having to think much about NEPA or the planning requirements of TEA-21.
That, ultimately, is my message and
why I am here after all: if you take
the commonsense planning, coordination and public involvement requirements of
these federal policies seriously, they don’t get in your way. If you are committed to the spirit of these
laws, the particulars are relatively unimportant. And as a local or state official, your time is much better spent
in genuine consensus-building and integrated planning than in complaining about
the regulations. or defending against citizen suits. Ou
r experience is that if citizens participate in the
planning process and have a clear buy-in and responsibility for commitment, there are few
suits. The plan is the community’s
plan. I should also emphasize that one does not need to
adopt Portland’s
approach, or anyone else’s; a community is free to plan its own future, not
imitate anyone else’s
approach in order to get these beneficial results.
My message is not just the
minimization of the negative. I’m
not simply saying that if one plans, coordinates and communicates, the federal
regulatory requirements are not so bad.
It’s
The results
can be better than that:. aA community which first,
engages in real, comprehensive, and sustained land use planning, and which secondly, makes infrastructure
decisions subordinate to consistent with that
plan, and thirdly conducts a genuine and
genuinely open process of alternative analysis not only gets through the
environmental review process with a minimum of difficulty; the people of
this community own the
results of the planning process and get to live in a better place.
That is the opportunity that environmental review offers to states and localities. I hope that this committee, in its work on the next transportation bill, encourages us all to get serious about taking it.
Thank you. I would be pleased to answer any questions.
Attachments:
·
Attachment 1, "Expediting Project Delivery Without Sacrificing
Environmental Protection," summarizes broadly supported principles for accomplishing improved project
delivery and better environmental stewardship through better administration of the
planning and project
review process.
These principles are fully consistent with the approach we have followed to achieve
success in Portland.
·
Attachment 2, "Questions and Answers About Environmental Streamlining," provides
important background on the debate over streamlining vs. stewardship and transportation
project delivery, including information about sources of project delay
identified by AASHTO and FHWA studies.
·
Attachment 3, "The Most Environmental Impact: Forests, Highways and Army Corps of Engineers,"
shows the share of agencies issuing Environmental Impact Studies (EISs) by year and the trends in
number of EISs filed each year. These charts show that transportation still
accounts for a large
share of projects
that are so environmentally significant as to trigger a full EIS, but that the number of
EISs filed is actually declining slightly overall.
·
Attachment 4, "Environmental Streamlining: Better Decisions from Integrated Transportation
Plans/Reviews? Or Steam-rolling for Destructive New and Bigger Highways and Airports?,"
summarizes key talking points developed by Environmental Defense to explicate the
current public policy
issues in this area
and offering ideas for what streamlining should and should not seek to accomplish
if it is to protect the environment and expedite project delivery. These are principles
that are highly consistent with our experience in
Portland and I commend them to your attention.
· Attachment 5, "Comments by Environmental Defense on
Proposed Metropolitan Planning and NEPA
Streamlining Rules," provides important background on the statutory requirements for
regional planning in TEA-21 and how these relate to NEPA requirements, Title VI
of the Civil Rights
Act, and other
elements of the federal highway law that require consideration of the adverse effects of air
pollution prior to the approval of plans and specifications for a highway, as well
as measures to eliminate or minimize the adverse effects of air pollution. The
approaches advocated in these comments are consistent with Portland's efforts to integrate
transportation, growth management, and air quality efforts.
· Attachment 6, "Letter to Transportation Secretary Rodney
Slater from Rep. John Lewis and four other
members of Congress, December 2000",
calls for U.S. DOT to adopt a
national mobility goal to measure the performance of metropolitan transportation system and ensure
equal access to employment opportunities and public facilities through
regional transportation plans and timely progress towards this goal through
transportation improvement programs. Adoption of this goal would be consistent with making our communities better places to
live, with greater transportation choices, with a transportation system that delivers
effective performance for all citizens, fostering a sense of place and a sense of
region built on access to opportunities.
Attachment 1:
EXPEDITING
PROJECT DELIVERY WITHOUT SACRIFICING ENVIRONMENTAL PROTECTION
In an effort to accelerate transportation project
delivery, some have suggested short-changing the environmental review process
by eliminating public participation and imposing deadlines on participating
agencies. However, recent data tell us
that well over half (62%) of delayed
projects are stalled due to lack of funding, local support and project
complexity – not environmental
review. More expedient project delivery
– and better projects -- can be realized through more sensible planning, early
stakeholder involvement and simply taking advantage of existing programs. Better administration of current
environmental laws by state and federal agencies and project sponsors is the
key to success, not changes to law.
Specifically, we propose the following:
q
PLANNING -- Transportation
planning which considers communities and protected resources such as public
parks, wildlife habitat, historic sites and scenic areas will produce better
projects that are less likely to incur opposition and delay. Integrate existing resource protection
efforts into transportation planning to ensure future projects will avert
impacts. Taking protected resources
into account at the beginning, and planning accordingly will both protect
resources and facilitate project approvals.
Effective policy would support efforts to develop, harmonize, and
coordinate state and local transportation, environmental, resource and land use
planning.
q INVOLVEMENT – Involve the affected community early,
substantively and continuously throughout the planning and project review
process. Since so much delay is
attributed to local controversy and lack of support, it makes sense to design
projects with significant public participation in order to build support and
improve acceptance. Promote more public
involvement in transportation plans.
q
COORDINATION – Mandate better
coordination among participating agencies.
Direct state DOTs to work collaboratively with state and federal
resource agencies, municipalities and other interested parties to develop
environmentally sound transportation projects and plans. States can ensure participation by employing
TEA-21’s under-utilized §1309(e), which
authorizes compensation for resource agencies’ increased transportation project
review workload.
q
CLASSIFICATION – Properly classify
projects for environmental review. Too
often, problems in project reviews arise because transportation agencies seek
to waive appropriate environmental review for a complex project with multiple
impacts by classifying it as a Categorical Exclusion or Environmental
Assessment. This often causes later
legal or regulatory delay as critics seek to challenge a flawed administrative
process.
q
ALTERNATIVES AND
IMPACTS – Effectively
consider a wide variety of alternatives, as well as secondary, induced and
cumulative impacts in project planning, design and review. The best process engages stakeholders in
identifying partial build alternatives, travel demand management strategies,
alternative investments, and other approaches to avoid or mitigate negative
impacts. Build consensus for action by
addressing broader stakeholder concerns, rather than imposing narrowly focused objectives
on the community. Many delays,
especially for controversial projects, arise when agencies have failed to
effectively consider impacts on specific populations or neighborhoods, or the
effects of transportation infrastructure projects on land use, travel behavior
and public health.
What is Environmental
Streamlining?
During
the legislative battle to reauthorize the Intermodal Surface Transportation
Efficiency Act (ISTEA) in 1997 and 1998, the highway building industry and
interests strongly pressed Congress to include language that would “streamline”
the environmental review procedures as they are applied to transportation
construction projects. Many projects,
they contend, are needlessly delayed by strict environmental regulations,
increasing costs and denying American drivers the efficient transportation
system they deserve. “Over the years,
the well-intentioned NEPA process has become enmeshed in a web of duplicative
bureaucratic reviews.” (Cooperative Environmentalism, American
Highway Users Alliance, http://www.highways.org/roadblock/co_op_enviro.html)
In 1998, Congress
rejected the streamlining proposals put forward by the highway lobby that would
have seriously undermined many of the nation’s key environmental accountability
laws, such as the 1969 National Environmental
Protection Act (NEPA). The Transportation Equity Act for the 21st
Century (TEA-21) instead affirmed recent best administrative practices by
encouraging a more coordinated transportation project environmental review
process. US DOT has since helped foster adoption of better practices across the
nation through guidance and training.
Proposed final rules based on TEA-21 planning and project review
language have been shelved recently after several years of development.
However, some in the road lobby have continued to press for a rollback of
environmental laws through rulemaking and legislation. With TEA-21 up for reauthorization
in 2003, these issues will be the subject of several congressional hearings.
Transportation
planning and project review requirements were put in place by our elected
officials in response to the serious damage done to countless individuals and
communities by the road and transportation construction industry. Highways
create profound permanent changes to our communities and regions, imposing
significant impacts on surrounding areas, including economic, social, cultural,
as well as environmental.
Before
NEPA, road builders across America bulldozed homes, neighborhoods, farms, and
businesses in cities, suburbs, and rural areas without recourse for citizens
and local leaders to shape decisions. Thanks to NEPA and ISTEA/TEA-21 reforms,
residents now have a right to know about the effects of transportation project
decisions before they are final and opportunities to help shape consideration
of alternatives to proposed transportation projects and plans. These laws work
with other environmental statutes, like the Clean Air Act and Endangered
Species Act, to help protect public health, community well being, and the
natural environment from potentially profound negative impacts of transportation
investments. The time it takes to review projects under NEPA is often well
spent in producing better projects and decisions. Without NEPA, countless
places we now cherish as economic, cultural, and environmental assets, such as
old town New Orleans or Washington, DC’s Rock Creek Park would have been paved
as freeways.
What Does TEA-21 Say
About This?
TEA-21,
the successor to ISTEA, contained §1309, which mandates that the DOT Secretary
will “develop and implement a coordinated environmental review process for
highway construction and mass transit projects...” The elements of streamlining include:
Ø
Agency
identification and participation: At the earliest possible time, the DOT shall
identify and notify all state and federal agencies with jurisdiction or
review/permitting responsibilities for the project.
Ø
Concurrent
reviews: Presently, projects are reviewed by many different agencies in
sequence. Each agency must wait for the
one before it to review the project.
Section 1309 suggests these reviews take place simultaneously where
practicable.
Ø
Cooperatively
determined time periods: All agencies involved in the review will agree to
delivery dates, after considering respective resources and other commitments.
Ø
Assistance
to affected Federal agencies: State DOTs may provide funds to the reviewing and
permitting agencies to assist them in meeting the cooperatively determined time
periods.
Ø
Dispute
resolution: In the event that a review cannot be completed within the
cooperatively determined time period, the DOT will provide notice and enter
into additional consultation before closing the matter.
Why do road projects
take so long to deliver?
Transportation
projects that receive Federal support must follow environmental review
procedures prescribed in the National Environmental Policy Act (NEPA), which
also acts as an umbrella process for guiding compliance with key elements of
other Federal environmental laws, such as the Endangered Species Act, Clean
Water Act, and the National Historic Preservation Act. NEPA establishes three classes of
environmental review actions for transportation projects, based on the
magnitude of their anticipated environmental impacts:
I. Environmental Impact Statement (EIS) - For
major projects with significant impacts
II. Environmental
Assessment (EA) - For projects where impacts are not clearly established
III.
Categorical Exclusion (CE) - For minor projects with little or no significant
impacts
Non-Environmental Factors. Despite the rhetoric, the vast majority of
transportation projects are not subject to environmental review and very few
are actually delayed. According to a
2000 study by the association of state transportation agencies (AASHTO), 91% of
all environmental documents produced by state DOTs are Categorical Exclusions
(CE). Less than 2% are EISs. Contrary to the horror stories generated
by highway advocates, processing times
for environmental review average between 8 months and 3.5 years, depending on
the level of complexity associated with the analysis. (Environmental
Streamlining: A Report on the Delays Associated with the Categorical Exclusion
& Environmental Assessment Processes, by TransTech Management, Inc.,
October 2000).
Recent studies by the
Federal Highway Administration and AASHTO including a survey of 33 responding
state DOTs, show that delay in project delivery are most often due to lack of
funding or low priority project (33% of delay), local controversy (16%), and
complex project/no reason given (13%). Projects that raise complex
environmental issues - specifically, wetlands, historic structures and places
and parkland impacts – do take longer to review, but these issues arise in only
a small share of projects. FHWA found that in projects in which an EIS is
required (those with significant impacts to the environment or human health),
the NEPA process accounted for 28% of the total time required for the entire
project development process. The NEPA process time is not necessarily additive
and is often coincident with other activities and phases completed by the state
DOT or project sponsor.
Lack of Funding TEA-21
significantly increased funding for new roads and highways. It did not, however, increase funding to the
agencies charged with reviewing and permitting all of these new projects. Projects that require review may be delayed
because they are sent to already overburdened resource agencies which are not
funded, staffed or equipped to meet the additional demand. Some increase in the timeliness and effectiveness
of project reviews could be achieved by addressing this discrepancy.
Complexity of
Review. According to a 2001 FHWA study,
the median time for a NEPA process to be completed is 3.0 years (median) or 3.6
years (mean). The NEPA process starts
from the Notice of Intent, through interagency meetings, public scoping
process, study and modeling of alternatives, preparation of a draft EIS or EA,
public hearings, and finalization of environmental document and record of
decision, including the usual consultation process with affected local elected
officials. Even in the 1970s, when
environmental projects and their documents presented fewer complex issues, mean
time for the NEPA process was 2.2 years. For complex projects, a three years is
often the minimum time necessary to complete an effective NEPA process.
Arbitrary deadlines that short-circuit such project reviews would sacrifice
effective involvement of affected communities and development of strategies to
mitigate or avoid adverse impacts.
According to the FHWA
review, the length of time for the NEPA process to occur depends on whether
certain issues are involved—if a wetlands (section 404 of the Clean Water Act)
permit is involved, the time increases from 2.4 years to 4.3 years. If the right-of-way involves public parkland
(section 4f of the DOT Act), the mean time increases from 2.8 years to 4.7
years. More complex projects take more
time and cannot be legislated with one-size-fits-all deadlines.
Regional Difference. Regional differences are also striking.
Region 10 had a minimum and median NEPA time of 1 year, with 6 of 11 projects
finishing their NEPA process in 1 year.
Region 1 also had a minimum NEPA process time of 1 year, but a maximum
of 9 years and thus a median of 4.5 years.
In fact, every region except one had a minimum NEPA process time of 1
year (FHWA 2000). This indicates that
natural resource agencies can and do process NEPA documentation in a short
period for appropriate, non-complex projects now.
Unrealistic
Expectations. In a review of projects
catalogued by 33 state DOTs designated as categorically excluded from NEPA (CE)
or requiring only an Environmental Assessment (EA), AASHTO reports (Transtech
Management, 2000) that state DOTs processed, on average, 294 CEs and 21 EAs
annually. Delays were reported
according to whether the project was delayed “more than 15 days” and “more than
30 days.” Several state DOTs may have had very unrealistic expectations about
the length of time in which natural resources agencies would process NEPA
documents. These expectations ranged from a minimum of one week for a CE to an
average of 8 months, and two weeks for an EA to an average of 14 months.
Miscategorization of
Projects. The AASHTO survey showed that delay reported by state DOTs
was, not surprisingly, related to the complexity of the project. State DOTs reported that Section 4f (DOT
Act), Section 106 (National Historic Preservation Act) and Section 404 (Clean
Water Act) accounted for most of the delay (53-66%), with Endangered Species
(35%) and Community Impacts (16%) falling much farther behind. Unlike the FHWA study, however, the AASHTO
survey did not correlate delay, and the length of delay, with confounding
variable like 404, 4f and 106 issues.
Based on the high number of CEs and EAs that involved
404, 106 or 4f issues reported in the AASHTO survey, it is likely that state
DOTs reporting delays in this survey had processed some complex projects with
significant impacts using lower-level environmental documentation than
required. This can result in natural
resource agencies needing to request more information to document impacts and
to analyze mitigation measures, which delays sign-off in the review
process. Perhaps the state DOTs in the
AASHTO study should have processed the CEs as EAs, and processed the EAs as
EISs, given the prominence of these confounding 404, 4f and 106 issues. The DOTs’ expected response times from
environmental resource agencies would have been more realistic, tending more
toward the average length of time, causing fewer delays to be reported. There
is anecdotal information that in some states, no-impact enhancement and bikeway
projects may have been subject to excessive reviews relative to their scope,
delaying them and increasing their cost.
There
is no question that America’s transportation infrastructure is imperative to
our mobility, productivity and success.
However, we cannot deny that it has also had significant impacts on our
environment. Four million miles of
roadways cover no less than 1% of our total land area, approximately the size
of the state of South Carolina.
Unfortunately, not all of those roads were planned wisely, leaving a
destructive – and permanent – footprint on our landscapes and wildlife
habitat. New or expanded freeways can
become a powerful force for sprawl, traffic, and pollution growth. These in
turn lead to increased incidence of childhood asthma, cancer, and premature
death of those with respiratory disease. Major road projects have often harmed
the vitality of older communities, reduced access to jobs and public facilities
for people without cars, and exacerbated environmental injustice. For all these
reasons it is imperative that transportation decisions be made only after
careful consideration of not only the immediate need and purpose, but also the
long-term and cumulative effects and strategies to mitigate these. As well, transportation decisions cannot be
made in a vacuum, but only after consultation with all stakeholders and
interested parties.
However,
there are opportunities to improve the quality and reduce the length of
transportation project reviews without compromising the environment, community,
and cultural resource protection. Much of the delay in project delivery of
which transportation agencies complain can be avoided if these agencies
identify and meaningfully address conflicts at the beginning of the planning
process, rather than being forced to address them later after litigation or
extended interagency conflict.
The
environmental community strongly objects to any measure that would weaken our
nation’s environmental protections – regulations that receive widespread public
support and that are largely responsible for the quality of life we enjoy
today.
1.
Involve stakeholders early, substantively, and
continually in planning and project review. Accomplishing this will require greater funding for
resource agencies and public involvement in the process. For example, the U.S.
Fish and Wildlife Service has received no additional funding to do
environmental reviews since TEA-21 was passed, even though its workload of
projects to review has risen by more than 70 percent. State DOTs have the
authority to fund resource agencies to be involved in the project design and
review process and some, like Pennsylvania, do so. Far too many projects are
delayed because they are planned and designed before regulatory agencies and
affected stakeholders are ever consulted.
If they are involved from the beginning, they can steer transportation
agencies clear of problems early.
2.
Consider and mitigate or avoid secondary, induced,
and cumulative impacts.
Many delays, especially for controversial projects, arise when agencies have
failed to consider effectively the disparate impact of benefits and burdens on
different subgroups or neighborhoods or the effects of transportation on land
use, travel behavior, and public health. The federal transportation planning
requirements established in ISTEA and TEA-21 encourage regional and state
transportation plans that consider needs and requirements of other sectors.
Many regions and states are making progress in integrating transportation, land
use, air quality, water quality, habitat conservation, and community economic
development planning. Such integration allows identification of more
cost-effective projects that satisfy more constituencies with fewer adverse
impacts. But many agencies still resist
adoption of best practice analysis methods, segment projects into small
sections to avoid considering cumulative impacts, and seek to avoid
accountability for project and plan impacts.
3.
Effectively consider alternatives in planning and
project reviews.
An effective process engages stakeholders in identifying partial build
alternatives, travel demand management strategies, alternative investments, and
other approaches to avoid or mitigate negative impacts and builds consensus for
action by addressing broader stakeholder concerns, rather than simply boosting
mobility. NEPA Project Purpose and Need definition is a critical step in
accomplishing this. If the Purpose and Need is too narrowly defined, the review
process may face delay or failure because the wrong project gets designed and
it does not address critical community problems.
4.
Properly classify projects for environmental review. Too often, problems in project reviews arise
because transportation agencies seek to waive appropriate environmental review
for a complex project with multiple impacts by classifying it as a Categorical
Exclusion, causing later legal or regulatory delay as critics seek to challenge
a flawed administrative process. On other occasions, transportation agencies
may subject small and very low impacts enhancement projects, such as a bikeway,
to cumbersome environmental review that causes extensive delay and increased
cost without significant gains in the quality of the project.
Improving transportation project delivery by the
above principles requires better administration of the planning and project
review process under existing statues. Changes in law could be helpful, but
only if they foster more timely and widespread adoption of these principles by
transportation agencies.
Efforts to weaken NEPA and other project review
requirements with artificial deadlines and restrictions on involvement of
resource agencies and the public in the definition of purpose and need and identification
of alternatives are destined to disable effective reviews, leading to more
conflict and litigation over contentious projects. Efforts to weaken NEPA undercut US DOT efforts to encourage
transportation and resource agencies to support best practices in
transportation project review that can improve project delivery. Congress
should support and strengthen the initiatives by some state transportation
agencies to foster stronger environmental stewardship and more broadly
integrated planning and project development.
Attachment 3:
The Most
Environmental Impact:
Forests, Highways, and Army Core of Engineers
The Number of EISs
Filed is Decreasing
Core Laws Assuring Information & Accountability
Attachment 5:
COMMENTS BY
ENVIRONMENTAL DEFENSE ON PROPOSED METROPOLITAN PLANNING AND NEPA STREAMLINING
RULES
Environmental
Defense submits the following comments on the proposed revised metropolitan
planning and NEPA-streamlining rules. These comments are submitted on behalf of
the 400,000 members, staff, officers and board of Environmental Defense, a
not-for-profit organization incorporated in the State of New York, but with
members in every state of the Union.
I. COMMENTS ON DOT METROPOLITAN PLANNING
RULEMAKING:
ENVIRONMENTAL DEFENSE SUPPORTS EFFORTS TO
STREAMLINE CURRENT REGULATORY STRUCTURES BY INTEGRATING METROPOLITAN PLANNING,
NEPA REVIEWS OF PROJECTS, AND ASSESSMENT OF TITLE VI COMPLIANCE
Transportation
system planning and development has broad and often destructive impacts on
natural resources and adverse impacts on environmental values important to the
American people. The principle objectives of the environmental community are
the development of transportation planning programs and the adoption of
transportation alternatives that will help
· reduce or eliminate
the loss of wild lands, critical habitat for endangered or threatened species,
and farmland to development;
· preserve critical
wildlife habitat;
·
reduce air pollution in nonattainment areas;
· prevent unacceptable
health risk from exposure to toxic air contaminants emitted by highway
vehicles; and
· reduce combustion of
fossil fuels that contribute to global warming.
In the transportation context, these environmental
objectives are largely consistent with the objectives of other communities of
interest, including the interests of low income, racial, ethnic and disabled
minorities who seek to enhance access to employment, housing, educational
facilities, churches and public facilities and to avoid disparate adverse
health and economic burdens, and interests committed to preserving cultural
resources and valuable features of the built environment. This consistency
among objectives is shared because the strategies that serve each of these
interests include the expansion of transit and transit-oriented development and
the reduction of SOV use (VMT) and highway-dependent development. Taken
together, these interests represent the views of a broad segment of the
American public. Their objectives provide appropriate criteria for the
evaluation of DOT’s proposed metropolitan transportation planning regulations
and the effort to integrate and streamline those requirements with the
previously separate requirements under NEPA and 23 USC §109(a) and (h) that
govern individual project reviews.
Proper
implementation of TEA-21, the Clean Air Act, Clean Water Act, the Endangered
Species Act, NEPA, Title VI of the Civil Rights Act and the Americans With
Disabilities Act can serve these mutually shared objectives. The proposed
revisions to DOT’s metropolitan planning and NEPA rules provide a context for
allowing environmental, mobility, economic development, energy and equity
objectives to be adequately considered and most effectively achieved through
the selection of choices that optimize all of these equally valid objectives.
The revision of these regulations provides an opportunity to require that
alternatives to traditional highway investment and highway-dependent
development be given full and comprehensive analysis, and that the pros and
cons of the two divergent paths with regard to each of these multiple
objectives be fully explored in the transportation planning arena.
Commenters therefore support DOT’s
efforts to create a decision-making structure that eliminates the overlap, gaps
and repetition between the systems level decisions made by MPOs and the project
level decisions made by implementing agencies, while at the same time ensuring
that all the major interests are heard in the planning process, and that the
product of an integrated planning/NEPA process ensures consideration of
alternatives that can maximize the overall benefits to the American people from
transportation investments. We believe
that this effort at streamlining will improve the planning and implementation
of projects by highlighting that mix of investments that will optimize the
multiple interests outlined above. We therefore urge DOT to clarify the
mechanisms for integrated decision-making, and to highlight the ways in which
an integrated planning/NEPA process should evaluate the environmental,
mobility, economic development, energy and equity objectives established under
various federal laws and policies.
Many elements of these four major objectives have
been adopted by law to provide national guidance for the metropolitan planning
process and the review by federal agencies of proposed projects and programs
that receive federal funds. These laws include TEA-21, the Clean Air Act, NEPA,
the Clean Water Act, the review of adverse impacts on environmental, social and
economic values under 23 USC §109, the Endangered Species Act, and the
equitable impacts of programs on low income, racial, ethnic and disabled
communities under the Civil Rights Act and the Americans With Disabilities Act.
DOT has not previously attempted to integrate these various objectives into one
decision-making process. The current proposal attempts to achieve that result.
Those who oppose this effort to develop an
integrated decision-making process obviously have a stake in being able to
isolate, and thereby ignore, one or more of these valid objectives of the
transportation planning process. The process for deciding how the nation’s
transportation investments are to be made is too important to allow a process
to continue that leaves major objectives and major community interests out of
the process. The vast sums at stake and the health, mobility, economic and
other needs of so many communities that can be adversely affected by these
decisions demand that the process be open, comprehensive and take all
legitimate interests into account.
Environmental Defense believes that the proposed
rules begin to lay out a comprehensive, integrated planning/NEPA process, but
falls short in a number of respects. We also identify ways in which we believe
the proposal should be improved to achieve the Department’s objectives, or must
be improved to meet the applicable requirements of federal law.
TEA-21
revised and re-enacted Title 23, U.S. Code, which governs the funding,
construction and planning of highways and other major transportation facilities
other than transit, and also made substantial changes to the Federal Transit
Act in Title 49. In large metropolitan areas, federal law allows the
expenditure of federal transportation funds only on transportation projects
that are included in transportation plans and transportation improvement
programs (“TIPs”) adopted by metropolitan planning organizations and
incorporated into the state transportation improvement program. 23 USC §§134
and 135. The designated metropolitan planning organizations (“MPO”) for each
city larger than 200,000 population is required to adopt a 20-year long range
transportation plan and a three-year TIP identifying the transportation
projects that will qualify for federal transportation funding in each
metropolitan planning area.
1. REGIONAL TRANSPORTATION PLANS REQUIRED TO ACCOMPLISH
THE STATUTORY OBJECTIVES FOR PLANNING.
In § 134(a)(2) Congress directed MPOs to develop
long range transportation plans
that “accomplish” the “objective” enacted in
paragraph (1):
(2)
Development of plans and programs.--To accomplish the
objective
stated in paragraph (1), metropolitan planning
organizations designated under subsection (b), in cooperation with
the
State and public transit operators, shall develop transportation
plans
and programs for urbanized areas of the State.
The “objectives stated in paragraph (1)” are:
(1)
Findings.--It is in the national interest to encourage and
promote
the safe and efficient management, operation, and
development of surface transportation systems that will serve the
mobility
needs of people and freight and foster economic growth and
development within and through urbanized areas, while minimizing
transportation-related fuel consumption and air pollution.
These
are not hortatory goals, but are described in the title of the subsection as
the “general requirements” of the section. Under the terms of the Act, these
requirements should be applied to guide the metropolitan planning process.
Environmental Defense asks that the planning rules require MPOs to at least develop
a transportation/land use scenario and investment strategy that would optimize
each of these four objectives. In current practice, more often than not, these
requirements are ignored by MPOs as factors to be taken seriously, and are
usually not satisfied by the Plans and TIPs adopted by most MPOs. Most MPO
Plans do not –
· provide for the development of a surface
transportation system that will improve or even maintain mobility for all
population groups;
· foster economic growth and development in the area
to the extent feasible with transportation investments;
· minimize transportation-related fuel consumption;
and
· minimize air pollution.
Quantitative
evidence has recently become available indicating that regional plan scenarios
other than highway-oriented plans adopted by most MPOs could much more closely
approach these statutory objectives by investing substantially more in transit
and transit-oriented development. Evidence from Portland, Denver and other
western cities indicate that combined land use and transit investments can
reduce VMT by as much as 17% compared to freeway-oriented sprawl development
scenarios. These strategies also produce comparable reductions in fuel
consumption and air pollution, in addition to enhanced mobility. They foster economic
development by reducing the costs of travel and reducing the public and private
costs of regional development.
The
evidence from Portland OR of improved mobility, lower transportation costs and
improved personal income, reduced fuel consumption and improved air quality
presented by Nelson supports the conclusion that substantially different
outcomes with regard to the four “objectives” defined by TEA-21 can be achieved
with different planning approaches. The outcomes that will result from highway
investment and highway-dependent development are much more likely to produce
the results observed in Atlanta, which has been shown to exacerbate pollution,
produce the highest VMT/person rates in the world, stimulate higher fuel
consumption rates, and ultimately, impair mobility and slow economic growth.
This evidence demonstrates that metropolitan plans that invest primarily in
increased highway capacity and thereby promote sprawl do not optimize or
satisfy the statutory objectives of metropolitan planning.
TEA-21
therefore provides a framework for requiring DOT rules that must require
metropolitan areas to at first identify, and then adopt, investment and land
use strategies that would better approximate the objectives in the Act.
Commenters believe that if MPOs engage in an exploration of how these statutory
objectives may be optimized, then plans will have crossed the initial hurdle of
demonstrating that more beneficial alternatives are feasible and
cost-effective. Then we can move beyond those threshold issues to stimulate a
public debate and create even greater public awareness over the mobility, cost,
fairness and environmental advantages of such plans compared to highway-dependent
sprawl development.
2. RELATIONSHIP BETWEEN PLANNING FACTORS AND PLANNING
“OBJECTIVES” REQUIRED BY TEA-21.
The implementation of
the planning objectives required by § 134(a) is not in
conflict with the statutory bar against judicial
review of plans based on the planning factors in §134(f). TEA-21 prohibits
judicial review of transportation plans and programs based on consideration of
the seven planning factors in § 134(f), but the 1998 amendments do not bar
enforcement of the planning factors by DOT through either its ad hoc review and
approval of TIPs or through its planning regulations. In addition, while there
is significant overlap between the planning factors in § 134(f) and the four
planning “objectives” in § 134(a), the Act does not bar judicial enforcement of
the statutory objectives which are required to be “accomplished” by an MPO
plan. Nor does the bar against judicial review of an MPO’s failure to address
each of the planning factors bar a suit against DOT for failing to adopt
planning rules that track the “general requirements” of the Act. Thus, the
planning rules provide an opportunity for DOT to flesh out how the four
planning objectives of § 134(a) will be implemented through the transportation
planning process.
ED
asks that, at a minimum, DOT should revise the planning regulations to require
that MPOs develop at least one investment/land use scenario that optimizes each
of the four planning objectives for the applicable metropolitan area. To
support this requirement, DOT should review regional plans from the largest 50
metropolitan areas to identify strategies and programs that are the most
effective in improving mobility while supporting economic development and
minimizing fuel consumption and air pollution. ED also believes that such plans
are ultimately required by the Act.
Environmental Defense
believes that numerous strategies are available that
promote the optimal accomplishment of the four
objectives defined by TEA-21. The most important and most effective of these,
as demonstrated by Nelson, above, is a general commitment to serve mobility
demand with expanded transit and other shared-ride services rather than
increased highway capacity. But in addition to this broad policy direction,
there are numerous specific strategies that support transit-oriented system
development. Some of these strategies include land use options, and others are
emissions control measures that help reduce motor vehicle emissions. Taken
together, there is a large and highly effective array of options that support
the adoption of regional plans designed to optimize the four planning
objectives.
A candidate
list of reasonably available strategies for adoption as part of regional plans
in almost all cities might include:
1.
Commuter Choice Programs: parking cash out, tax
credit and other incentives for employer subsidies of transit fares, and tax
incentives for employee purchase of transit and van benefits;
2.
Discounted pre-paid transit fare instruments designed
for effective Commuter Choice promotion (e.g. $65/month regional passes),
reduced transit fares and fare free zones;
3.
Accelerated bicycle and pedestrian improvements and
bicycle/pedestrian access to transit;
4.
Land use transportation control strategies: large
scale in-fill redevelopment with TDM and encouraging accessory apartment
development in transit oriented neighborhood and centers;
5.
Replace diesel fleet vehicles with CNG or electric
to reduce high-risk toxic emissions and improve the attractiveness of bus
travel;
6.
Transit priority treatment and improved traveler
information services;
7.
Value pricing and road and parking pricing
incentives and information services;
8.
Transit and paratransit service expansion (e.g., to
achieve a targeted increase in person trips by transit and paratransit);
9.
I/M for diesel vehicles and/or roadside pull over
testing of diesels;
10.
CARB diesel fuel;
11.
I/M enhancements:
e.g.: extend dynamometer test to
constant 4 wheel drive vehicles; require replacement of dysfunctional catalysts;
raise repair cost waiver limits; expand geographic scope; provide repair subsidies or tax credits to
low income persons.
a. Selected
Strategies Reasonably Available Everywhere --Commuter Choice.
Background. For the vast majority
of working Americans, a free parking space at work has for decades been the
sole commuter benefit offered by employers.
If you drive alone to work you gain the benefit. If you take transit, carpool, walk, or bike,
you lose the benefit and likely pay your own daily transit fare. With this kind of incentive, its no surprise
that on any given day nine out of ten American commuters drive to work (Hu and
Young, 1992) and nine out of ten of the cars driven to work have one occupant
(Pisarski, 1996). Yet the 85 million "free" or subsidized employer
parking spaces actually cost American business $36 billion per year
(Association for Commuter Transportation, 1996). By spurring more driving,
these subsidies exacerbate traffic congestion and air pollution.
1998 Federal Tax Code
Change Makes Commuter Choice Reasonably Available Across America. New federal tax law
changes make Commuter Choice incentive strategies universally available as
potential Transportation Control Measures to meet Clean Air Act requirements in
areas that fail to meet the National Ambient Air Quality Standards to protect
public health. The 1998 Federal Transportation Equity Act for the 21st
Century (TEA-21) gives new incentives to reward employees and employers who
help reduce traffic and pollution problems.
The Commuter Choice provisions in TEA-21, Section 9010, modify the
Internal Revenue Code and enable employers to offer employees options for
qualified transportation fringe benefits. There are three principal Commuter
Choice options: (1) Employees can purchase up to $65 dollars per month in
transit benefits using pre-tax income (an amount that increases to $100 in
2002) which slashes the effective cost of transit. (2) Employers can offer tax-free subsidies for their employees'
transit costs, with the same limits.
And (3) employers can now offer cash in lieu of parking --
"cashing-out" old inflexible parking subsidies.
Emission Reduction Benefits. The most effective Commuter Choice option is the
parking cash-out incentive, which helps reduce use of single passenger motor
vehicles for those who have the alternative of carpooling, telework, bicycling,
walking, or using public transportation. A study of California companies
offering this new cash-out option found that one out of eight employees who formerly
drove to work chose to leave their car at home so they could instead take a
raise in pay (Donald Shoup, ‘Evaluating the Effects of Cashing Out
Employer-Paid Parking,’ Transport Policy,
Vol. 4, No. 4, Oct. 1997, pp. 201-216.). The share of commuters diverted from
solo driving by a cash out option was highest in urban centers with good
transit options and lower in suburban fringe areas where transit is not
available or very limited and where even carpooling is harder to arrange.
The
other Commuter Choice options are employer-paid transit benefits and employee
purchase of transit or vanpool benefits using pre-tax dollars. Both of these
reduce the cost of using public transportation or vanpools where these are
available. EPA recently made estimates of the emissions benefits of the
Transitchek program in New York, a transit subsidy program targeting commuters
that takes advantage of this federal law change. EPA estimated reductions of
about 85 Tons/Yr VOCs, 73 TPY NOx, and 615 TPY CO in 1999. In correspondence
with staff of the Senate Environment and Public Works Committee in 1999, the
EPA Office of Mobile Sources estimated that a national commuter choice program
assuming a 5-10% employee participation rate would generate:
·
A reduction in commute VMT of 1.6 to 3.2%
·
Reductions in VMT of 10,000,000,000 to
20,000,000,000 miles
·
Emission Reductions of...
·
HC: 27,000-54,000 short tons
·
CO: 240,000-480,000 short tons
·
NOx: 16,800-33,600 short tons
·
CO2 1,180,000- 2,360,000 metric tons
Effects on
Employee/Employer Costs. The savings for employees offered by the federal
tax law changes are significant and make a high level of employer and employee
participation in the next several years realistic. For example, an employee
earning $50,000 per year who spends $1000 annually on transit could realize a
tax savings (at 42%) of $420 as a result of paying their transit cost using
pre-tax dollars, exercising one of the new Commuter Choice options, while their
employer would gain payroll tax savings (at 7.65%) of $76 per employee (Arthur
Andersen). Even if the cost to set up and administer the program equals 2% of
the transit benefit, the employer will still enjoy payroll savings of $56.
Employers are likely to face new costs to offer transit passes or added cash
income in lieu of parking, but these can also translate into substantial cost
savings of several types. It is much cheaper for an employer to boost
non-taxable employee benefits than to offer added taxable income to retain or
attract workers, which is an increasing issue in a tight labor market. If the
employer is able to expand employment without adding more parking spaces or to
otherwise avoid the cost of building, leasing, or maintaining parking spaces
for workers, capital cost savings can amount to $5,000 to $20,000 per avoided
space and operating costs can amount to $750 to $3,000 or more per year per
avoided space. Such savings are often significant enough to more than pay for a
cash in lieu of parking or transit pass benefit.
State Commuter Choice
Incentives. Several states and local governments have offered
added transit tax credits, including Washington, New Jersey, and Georgia. Maryland in 1999 adopted the largest tax
credit; a 50 percent state tax credit for employer-provided transit benefits
that saves employers up to $30 a month per employee. Some governments, like Connecticut and Montgomery County,
Maryland, sell discounted transit passes to employers, matching employer
contributions dollar for dollar, to stretch federal and state tax benefits even
farther. Several years ago California adopted a law requiring large employers
who lease parking spaces to offer employees added cash income in lieu of
parking, but implementation of the law was impeded until recently when
conflicting federal tax laws which had worked against cash-out programs were
changed.
Broad Support for
Commuter Choice Incentives. Commuter Choice programs have been shown to unite
the diverse interests of environmentalists, business, labor and transit and
highway advocates. Most realize that
Commuter Choice is good for business and for communities. Commuter Choice is a voluntary incentive
that boosts travel options and supports more efficient use of the roads and
transit we already have. It can provide
quick relief to traffic-strained communities and will expand market
opportunities for new forms of access to suburban jobs. Low- and moderate-income workers benefit
particularly, since commuting costs represent a larger relative burden on them,
and they tend to be more reliant on ridesharing and transit. The Alliance for
Clean Air and Transportation, a new national group representing a diverse array
of sectors, including the road builders, automobile industry, environmentalist
and health groups, the American Association of State Highway and Transportation
Officials, the National Association of Regional Councils, and the US DOT and
EPA, in February 2000 adopted a consensus goal of making Commuter Choice
benefit programs a standard part of the American worker benefit program over
the next five years.
The Need to Go Beyond Marketing and Generalized
Expressions of Support. However, Commuter Choice will have an effect on air
pollution only if people know about it and use it, and if the opportunities for
cost savings offered by aggressive implementation of these incentives are made
evident and available to developers, building owners and tenants, and
commuters. Marketing alone has been shown to be inadequate to win widespread
adoption of Commuter Choice incentives. Mandates for employers to meet
pre-established requirements to reduce employee commuting car trips have evoked
resentment and resistance from some businesses. But there are many other
strategies that can be taken by states, regional bodies, and local
municipalities that can foster rapid and widespread adoption of Commuter Choice
incentives so these might become available to the average commuter. Additional
financial incentives and support by transportation agencies and other
government bodies are essential to rapid adoption of Commuter Choice voluntary
incentives and can be highly cost-effective in reducing congestion and
pollution.
Commitments for Commuter Choice. The measures below
are a reasonably available set of steps that municipal, regional, and state
agencies can take to assure that potential VMT-reduction, transit ridership
improvement, and air pollution reduction benefits from Commuter Choice will be
realized in a timely manner. Non-attainment areas could also include the
following reasonably available elements as part of their SIPs:
(1) Municipal and state
agencies within the TMA and/or non-attainment area should adopt written
commitments that they will provide public leadership by offering Commuter
Choice options to their own workforce on a rapid implementation timetable,
including management, administrative, and budget commitments to make this
possible, and
(2) Municipal and state
agencies within the TMA/non-attainment area should adopt written commitments
that they will aggressively promote Commuter Choice options to employers and
commuters in their region with marketing, technical and administrative
assistance, new transit fare products, and new financial incentives for
employers and employees that are adjusted annually in an effort to meet stated
performance targets.
(3) The RTP and/or SIP
should include targets and timetables for (a) providing different segments of
the labor force with Commuter Choice options of various types and (b) achieving
increased levels of use of various Commuter Choice incentives by various
portions of the labor force. For example, an MPO plan and/or SIP could identify
the following model targets, which could be used as the basis for estimating
optimal planning objectives and/or SIP credits if accompanied by commitments to
reasonably linked funding and policy commitments that could be anticipated to
meet these targets:
Illustrative
Target for Share of Employees or Employers Who Are Offered Opportunity to:
|
|||
Public Sector Employees in Region |
To
Purchase Pre-Tax Transit/Van Benefits |
Receive
Employer-Paid Transit/Van Benefits |
Receive
Added Cash Income in Lieu of Parking at Work |
1st
year |
50% |
50% |
10% |
2nd
year |
100% |
75% |
25% |
3rd
year |
100% |
100% |
50% |
4th
year |
100% |
100% |
75% |
5th
year |
100% |
100% |
100% |
Illustrative
Target for Share of Employees or Employers Who Are Offered Opportunity to:
|
|||
Private Sector Employees in Region |
Purchase
Pre-Tax Transit/Van Benefits |
Receive
Employer-Paid Transit/Van Benefits |
Receive
Added Cash Income in Lieu of Parking at Work |
1st
year |
25% |
10% |
5% |
2nd
year |
50% |
25% |
10% |
3rd
year |
75% |
50% |
20% |
4th
year |
85% |
65% |
40% |
5th
year |
90% |
75% |
60% |
Illustrative
Target Share of Employees Offered Opportunity for Benefit Who Use It:
|
|||
|
Purchase
Pre-Tax Transit/Van Benefits |
Receive
Employer-Paid Transit/Van Benefits |
Receive
Added Cash Income in Lieu of Parking at Work |
1st
year |
20% |
10% |
10% |
2nd
year |
20% |
15% |
15% |
3rd
year |
20% |
15% |
15% |
4th
year |
20% |
20% |
20% |
5th
year |
20% |
25% |
25% |
(1) Municipal, regional,
and state agencies within MPO planning region and/or the non-attainment area
should identify for priority funding in the next Transportation Improvement
Program (TIP) and Regional Transportation Plan (RTP) Commuter Choice promotion
initiatives and related incentives. This should include funding for:
(a) transit, rideshare,
and alternative commute program marketing, paid advertising, and transportation
management associations,
(b) development of new
pre-paid discount transit fare instruments and seamless regional transit fare
and service coordination designed to facilitate easy marketing (e.g.,
introducing a new unlimited use $65/month regional transit pass that can be
purchased by or through employers),
(c) promotion of pre-paid
employer-subsidized transit fare instruments to both employers and employees,
(d) transit fare buy-down
programs that match employer contributions towards employee transit commute
benefits with public sector subsidies (e.g., the Montgomery County, MD, Fair
Share program) or tax credits (e.g., the Maryland or Washington State Tax
Credits for employers who pay for transit benefits or who offer cash in lieu of
parking payments)
(1)
Municipalities should agree to incorporate
incentives for adoption and use of Commuter Choice incentives by employees,
employers, and developers through additional flexibility in the application of
zoning parking requirements, in requiring that leases and property transactions
separately identify the cost of parking spaces and offer options for reduced
parking in exchange for covenants and agreements to incorporate cash in lieu of
parking and employer paid transit benefits in building leases and other real
estate transactions. Municipalities should agree to require Commuter Choice
strategies to be considered in traffic planning, site plan and development
review decisions, zoning and parking ordinance revisions, access-to-jobs
programs and local tax policy.
A bicycle and
pedestrian SIP commitment might also include funding of a program for
community-based bicycle and pedestrian planning and improvements. In a very
large share of communities there is significant unmet demand for the retrofit
of sidewalks, for pedestrian traffic safety improvements, for enhanced
connections of neighborhoods to schools, and for better pedestrian and bicycle
access to public transportation. A SIP commitment to fund planning and public
involvement to identify, design solutions, and address local needs such as
these is a critical part of assuring effective additional efforts in this arena
beyond the accelerated funding of TIP and RTP bicycle and pedestrian
projects. Because of the difficulty of
estimating emission reduction benefits related to many small scale projects, it
is important for the SIP emission analysis to aggregate these into a performance-oriented
package. In other words, the SIP should set realistic but ambitious mode share
objectives and trip reduction objectives related to improving bicycle and
pedestrian friendliness of particular areas, fund travel monitoring and
planning to evaluate the effectiveness of the overall effort, and not waste
time evaluating each individual component of the non-motorized travel
investment and service enhancement effort. As the overall package is
implemented, the investments, plans, and policies should be actively evaluated
together and resources allocations and policies should be refined in response
to experience.
c. Large and Small Scale Transit-Oriented In-fill
Redevelopment with Demand Management
Background. There is a growing
consensus among land development and real estate experts that some of the best
emerging opportunities for market-responsive growth of new housing and
employment are in infill redevelopment in existing communities, including urban
and inner suburban areas that have been in decline in recent decades. (see for example,
Roxanna Guilford, ‘Experts say inner cities will boom in 21st
century,’ Atlanta Business Chronicle,
May 7, 1999) Steps are being taken by some regions to facilitate this shift in
development focus. For example, Portland, Oregon, Newark, New Jersey, and
Atlanta, Georgia are all taking steps in various phases of progress, towards
renewal of brownfields and older neighborhoods.
Emission Reduction Benefits. There is substantial
evidence that significant air quality benefits can be achieved by modifying land
development patterns to limit urban sprawl and facilitate transit use. A recent EPA-funded report concludes that
careful land use planning can reduce vehicle trip lengths and promote shifts to
transit, bicycling and walking modes.
EPA, Office of Mobile Sources, Background
Information for Land Use SIP Policy, Final Report, Contract No. 68-C7-0051
(9/30/98)(available on EPA, OMS web site, and appended to our prior comments as
Exhibit D). For example, the report
cites studies showing that development at infill sites can result in vehicle
NOx emissions that are 27% to 42% lower than at more dispersed locations. Id. at 5.
The report identifies specific strategies to achieve such results,
including planning that promotes transit-oriented development, density
transfers, and design elements that encourage pedestrian, bike, transit and
ridesharing activity (e.g., narrower streets, sidewalks, bike lanes, traffic
calming devices). Id. at 10-11. The report further identifies a number of
cities throughout the nation where such strategies have been adopted and
included in air quality plans. Id. at
20-33. For example, the maintenance
SIP for Portland, Oregon identifies several land use TCMs, including an urban
growth boundary, requirements for transit-oriented development, and a regional
parking policy. Id. at 24-25. The 1994 Sacramento, CA., ozone SIP
contains land use-related TCMs, including a requirement that new developments
include mitigation measures to achieve a 15% reduction in vehicle
emissions. Id. at 22-23. The San Francisco clean air plan includes
land use planning measures, and programs to promote pedestrian travel and
traffic calming. Id. at 21-22. The EPA report also identifies a number of
other land use TCMs that have been adopted in other cities, although not yet
included in clean air plans. Id.
at 26-30. All of the above-referenced strategies are within the arena of potential
RACM that must be considered by the states.
See 42 U.S.C. 7408(f)(1)(A)(xiv).
The Atlanta region recently won approval from EPA
for a TCM which is composed of a projected 6 million square foot mixed use
infill brownfield redevelopment on a 135-acre parcel, together with a
regionally significant highway bridge across an interstate road that is needed
for site access, and a comprehensive transportation demand management and
transit service package for the site and nearby area. This project qualified as
a TCM because it was possible to demonstrate that the package of measures,
investments, and development would contribute to reduced regional vehicle miles
of travel by locating more jobs and housing close to the regional center with
appropriate services and incentives.
Commitments for Land Use Strategies. Other regions should be encouraged to develop pilot
projects that build upon these models for land use strategies and/or TCMs with
comprehensive travel demand management, transit services, and appropriate
incentives.
To pick one example in the Washington, DC region, a
land use strategy could be focused on the New York Ave/NOMA (North of
Massachusetts Ave) corridor Metro-oriented redevelopment zone. The DC
Government could identify and package a focused redevelopment zone, related
transportation improvements, and supportive transportation demand management
policies as a comprehensive land use strategy, building on the precedent set by
the Atlantic Steel project in Atlanta, which recently qualified as a SIP TCM.
In Atlanta, this 135-acre brownfield redevelopment site in Midtown Atlanta
required major transportation investment in the form of a highway bridge across
I-75/I-85 to connect it to a MARTA metro station an provide needed access for a
6 million square foot mixed use development. The Atlantic Steel project could
only proceed if this transportation project was bundled with added transit
investments and services, the in-fill redevelopment project and appropriate
urban design guidelines, and supportive transportation demand management to
assure that it would reduce total motor vehicle trips and travel in the region.
US EPA helped the Atlanta region with technical modeling assistance that helped
demonstrate the emission benefits. This innovative packaging of strategies
allowed the transportation investments to move forward despite a transportation
conformity lapse in metropolitan Atlanta which blocked other new highway
funding approvals.
With the DC region facing tight motor vehicle
emission budgets, a similar approach could be followed for the NY Ave/NOMA
corridor redevelopment, where a new metro station and transit oriented
redevelopment proposals are gathering momentum, but have not yet been accounted
for in the regional transportation land use, transportation, and air quality
planning process. Similar strategies that also qualify for emissions reduction
credit as a SIP measure could be developed in other regions to assure priority
access to funding for transportation investments needed to support in-fill
development and to safeguard such investments should a region fall into a
conformity lapse.
A smaller scale land use strategy would be geared
to removing zoning, permitting, building, parking, and site design code
barriers that now impede adaptive reuse of existing buildings for accessory
apartments, neighborhood serving retail, and environmentally appropriate home-based
business uses in residential areas. Many local jurisdictions now prohibit
accessory apartments or make it difficult to provide affordable ‘granny flats’
in existing single-family homes in transit-oriented neighborhoods close to
employment centers. One reasonably available land use strategy would facilitate
such conversions with code changes, technical assistance and financing, for
example to help empty nesters age in place while repopulating older
neighborhoods back to their historic population levels. By helping more working
families live close to jobs, this would cut vehicle miles of travel, congestion
and pollution. The RTP and/or SIP could establish targets for creating new
housing units in place in existing transit served neighborhoods, for example,
for accessory units to provide for a 1% increase in the number of total housing
units per year in zones that are within walking distance of designated ‘smart
growth’ centers or within walking distance of transit operating at least once
every 15 minutes.
Background. An air pollution control measure that has
been implemented in an increasing number of areas around the nation is the
phase-out of diesel buses and fleet vehicles on an accelerated schedule and
replacing them with new buses and fleet vehicles powered by substantially
cleaner fuels, such as natural gas or stored electric power. Although this strategy primarily serves the
objective of minimizing air emissions, it can also enhance the attractiveness
of busses as an alternative to driving and could reduce consumption of fuels
that contribute most to greenhouse gas emissions and dependence on foreign
energy sources.
Emission Reduction
Benefits. Studies show that in-use emissions of NOx and VOCs
by natural gas buses are about one-third those of diesel buses. Natural Resources Defense Council, Exhausted by Diesel, How America's
Dependence on Diesel Engines Threatens Our Health, Ch. 6 at 1-2
(1998)(available at: www.nrdc.org/nrdc/nrdcpro/ebd/chap6.html). See also T.C. Coburn, B.K. Bailey, and K.J.
Kelly, National Renewable Energy Laboratory, Results from Federal Emissions
Tests on Alternative Fuel Vehicles and their Implications for the Environment
and Public Health. A just released report by the National Association of State
and Local Air Quality Officials looking at the health impact of particulates
concludes that up to 125,000 Americans may contract cancer as a result truck,
bus and other diesel engine emissions.
Numerous businesses and bus systems around the nation are now using CNG
vehicles, and thus it is clearly an established technology. NRDC Report at 3-10. For all these reasons, and given the
substantial number of diesel fleet vehicles operating in most regions, a diesel
conversion program is clearly a RACM that must be considered for inclusion in
the SIP.
SIP Commitments for
Diesel Bus Replacement. Although the issue cost of purchasing alternative
fuel vehicles is higher than conventional diesel fuel buses, clean fuel buses
are a wise investment in the long run.
Diesel buses cost 30 to 50 thousand dollars more then standard diesel
buses. Natural gas costs average 15 to
40% less than gasoline or diesel and the engines require less maintenance so
you get a long term operating cost benefit. The greatest benefit it offers is
the reduction of harmful smog to our health.
Over its expected lifetime a CNG bus will save approximately 190
thousand gallons of diesel fuel, also decreasing dependency on petroleum. A
city in California recently became the first public agency in U.S. to park a
fleet of Diesel buses and switch overnight to a fleet of 100% natural gas,
reporting few difficulties in making the transition due to extensive training
of staff for the change.
A SIP for diesel bus replacement should identify
the timetable for bus replacement, the age of buses being replaced, and
adequate funding resources for the replacement.
The essential
elements of NEPA are 1) identification of the purpose and need for a proposed
project or program, 2) an assessment of a project’s or program’s significant
impacts on the human environment, 3) consideration of alternatives when
significant impacts are expected, 4) identification of mitigation measures to
eliminate or minimize significant impacts, and 5) a public process for review
of need, impacts, alternatives and mitigation options. These are elements of
decision-making under NEPA that we believe apply to the development of multiple
transportation projects in a metropolitan area. They are currently not elements
required to be considered in the metropolitan planning process. Instead, they
are required to be considered as part of each project review under NEPA. This
approach requires the implementing agencies with little responsibility for
making regional, systems level decision, to evaluate the cumulative
environmental and other impacts of multiple projects in a region. It also
empowers the implementing agencies to second-guess, and then effectively veto,
the regional choices made by an MPO by rejecting those regional choices as
options to be considered in the EIS process under NEPA.
The current process
therefore requires overlap and duplication by requiring implementing agencies
to reconsider regional impacts and alternatives that may have been considered
by the MPO, and also to undermine the authority to make regional systems
decisions granted to MPOs by TEA-21. DOT’s proposed rules provide an
opportunity to remedy these defects in the current program.
Currently, the NEPA process is typically applied,
if not exclusively, to individual highway and transit projects. In almost all
cases, the only impacts reviewed are at the corridor level. As a result, most
of the impacts of the transportation system we are most concerned about, e.g.,
loss of wild lands and farmland to regional development, regional air
pollution, energy consumption and greenhouse gas emissions, are ignored. The
cumulative impact of multiple project decisions on mobility, access for the
transit-dependent, public and private costs, and large scale environmental
impacts are not addressed. The current NEPA process is not serving the major
interests and objectives outlined above, nor is it supporting the development
and consideration of alternative plans that can approach the statutory
objectives of TEA-21.
The failure of the transportation planning process
and the NEPA process to address these impacts is the legal Achilles’ heel of
project development under current law. NEPA challenges to highway projects have
begun to raise the lack of cumulative impact analysis as a basis for stopping
projects. See, e.g., the 1997 decision of the 9th Circuit court of
appeals in which a highway EIS was remanded when the EIS failed to catalogue
past projects and discuss the cumulative impacts of past, present, and expected
future projects in the area. The Court held that the agency did not meet its
burden to fully explain the cumulative impacts. Carmel-By-The-Sea v. U.S. Dept.
of Transp., 123 F.3d 1142 (9th Cir. 1997). To address this
requirement of NEPA, DOT must either advance the NEPA consideration of
cumulative and regional impacts and alternatives into the MPO planning process,
or consider those impacts separate from the planning process in which those
decisions are made by MPOs.
The approach to integrating NEPA into the planning
process that is described in the proposed rule makes an attempt to open the
option of considering such impacts in the planning process, but is fraught with
potential pitfalls. The proposal places almost exclusive emphasis on using the
planning process to satisfy the need under NEPA to identify an individual
project’s purpose and need. The proposal does not address any requirement that
the NEPA process address cumulative regional impacts, or more importantly,
address alternatives to the regional planning approach that provides the
assumptions used to support findings of project-level purpose and need.
If the NEPA process is to meaningfully address
regional and cumulative impacts, it should be integrated into the planning
process. For NEPA to be integrated into the planning process, regional planning
must then consider alternatives on a regional scale. NEPA, then, links back to
the requirement for accomplishing the four planning objectives under TEA-21
above. When NEPA requires an assessment of alternatives, one of the issues
always is what alternatives must be considered besides the proposed project and
the no-build alternative. TEA-21 provides an answer: to the extent Congress
defined the “objective” of the planning process, then it also defined the
parameters of at least one planning scenario that must be considered, or in
NEPA terms one of the alternatives to the projects proposed in the region,
i.e., a fiscally constrained scenario that optimizes each of the four statutory
planning objectives.
1. Incentives and
Guidelines to Support MPO Completion of Regional NEPA Analyses.
We recognize that DOT may not require MPOs to take
on responsibility for performing as part of the regional planning process a
regional and cumulative impact analysis that meets the requirements of NEPA.
However, we believe that DOT can provide clear regulatory guidelines and
incentives to MPOs and implementing agencies that would encourage and
facilitate the cooperative integration of NEPA into the planning process. These
would include 1) developing a procedure in the planning rules that would
clearly empower an MPO that chooses to undertake responsibility for regional
NEPA analysis, and 2) an incentive by ensuring the availability of resources
when an MPO undertakes the responsibility.
MPOs are not likely to accept the responsibility
for regional analyses that would meet NEPA criteria if 1) they lack assurance
that their work product will be used to guide the subsequent corridor-level
review of individual projects, and 2) they are not provided the incremental
staff and resources that allow such reviews to be performed. DOT’s rules can
overcome these obstacles by establishing criteria and a procedure for MPOs to
enter into MOAs with implementing agencies that commit the MPO to undertaking
the analysis responsibility while committing the implementing agencies to use
the results of the MPOs assessment of alternatives and choice of preferred
alternative. The undertakings could be linked administratively by modifying the
proposed rule that would prohibit the approval of individual projects until
after the completion of NEPA review and conformity. That rule could also
prohibit the approval of individual projects that are not consistent with the
system approach developed by the MPO pursuant to its delegated NEPA
responsibilities.
The rule could allow an MPO to opt into the NEPA
process by adopting certain provisions into its regional transportation plan.
Once those elements of its plan are adopted and incorporated into the statewide
transportation plan, those provisions would govern both the MPO’s and the state
DOT’s relative rolls with regard to addressing various aspects and scales of
analysis under NEPA. Such a process, subject to some federal minimum criteria,
would also allow each MPO and its State DOT to shape particular elements of the
NEPA partnership to meet their respective needs.
At the same time, however, the federal rules also
need to make clear that if an MPO opts into this NEPA responsibility, federal
funds available to the State to perform NEPA reviews would need to be
transferred to the MPO. This could be accomplished through the statutory
authority that allows federal agencies to make funds available to state and
local entities to promote the streamlining of project reviews.
II. NEPA
RULE COMMENT – ENVIRONMENTAL DEFENSE SUPPORTS THE INTEGRATION OF SOCIAL AND
EQUITY ISSUES REQUIRED BY 23 USC §109 AND THE CIVIL RIGHTS ACT INTO A SINGLE REVIEW
PROCESS UNDER THE NEPA UMBRELLA.
Environmental Defense supports DOT’s view that all
project impacts, including social, economic, equity and energy impacts of
projects that are required to be evaluated under 23 USC § 109(h) and the Civil
Rights Act, should be included in an integrated analysis that is exposed to
public scrutiny through the NEPA review process. We understand that a
comprehensive assessment of the environmental, social, economic, equity and
energy impacts of projects would include all corridor-level impacts that
adversely affect such important values as—
· human health;
· interests protected
under Title VI of the Civil Rights Act;
· protection of open
space and wildlife habitat, with special emphasis on preservation of critical
habitat for endangered and threatened species;
· preventing global
warming; and
· the four values
identified as “objectives” of the transportation planning process: mobility,
economic growth, minimizing air pollution and fuel consumption.
Although ED supports DOT’s comprehensive framework
for addressing these issues and stakeholder interests, we are also concerned
about a number of issues that are not adequately addressed by the proposed
rule, including the failure to fully describe the relationship between
project-level reviews and related regional analyses performed as part of the
planning process, the cumulative impacts of multiple projects in a region on
important environmental, social and economic values when those impacts are not
fully addressed as part of the planning process, the failure to clarify the
scope of alternatives that must be considered at the regional level either as
part of the planning process or an assessment of cumulative impacts as part of
project-level assessments, and the apparent abandonment of DOT’s current
regulatory interpretation of 23 USC § 109(h) that requires the adverse effects
of a project to be mitigated as a condition for approval.
These concerns are raised in the context of
specific examples of adverse impacts that are reasonably anticipated to result
from the approval of major highway capacity-expanding projects. We take this
approach for three reasons: 1) we believe these issues are of major public
concern and deserve the attention of the Department’s top decision-makers, 2)
these issues are already being raised or will be raised in the near future with
regard to specific planned or proposed highway projects, and 3) we believe the
final rules should be written to specifically anticipate how the Department and
implementing agencies will address these issues.
ISSUE I:
CANCER AND OTHER ADVERSE HEALTH RISKS FROM TOXIC AIR POLLUTANTS AND FINE
PARTICLES EMITTED BY HIGHWAY VEHICLES.
This first issue is presented in response to recent
evidence showing that people living in communities located near heavily
traveled highway facilities are being exposed to concentrations of toxic and
hazardous air pollutants emitted by motor vehicles that cause an extremely high
and unacceptable risk of cancer including childhood leukemia, and other respiratory
and cardiovascular disease.
The most compelling evidence is presented in a
research report released in March 2000 by the South Coast Air Quality
Management District in California that demonstrate both measured and modeled
regional exposures to toxic air pollutants across a large portion of the Los
Angeles air basin. The study demonstrates that toxic pollutants emitted by
motor vehicles measured at eight sites accounts for an unacceptably high cancer
risk in the range of 1 in 1,000 exposed individuals to 1 in 700. See, Multiple
Air Toxics Exposure Study-II (March 2000)[attached]. The study found that the
total cancer risk in the L.A. Basin from toxic air pollutants measured at these
8 monitoring sites ranges from 1,100 in 1 million (or 1 in 900) to 1,700 in 1
million (or 1 in 670), and that 90% of the total cancer risk is attributable to
toxic air pollutants emitted by mobile sources. Id. ES-3, ES-5. Most of the
mobile source cancer risk is associated with exposure to the toxic pollutants
benzene, 1,3 butadiene, formaldehyde and diesel particulate matter (“DPM”). The
concentrations measured at these eight sites appears not to measure the actual
high exposure site since the Compton monitoring site measured the highest
concentrations of other mobile source-related toxic pollutants, but DPM was not
measured at that site. If DPM concentrations at that site are proportionally
higher compared to other sites in the study in the same ratio as benzene, 1,3
butadiene and formaldehyde, the actual peak cancer risk would likely exceed 1
in 500 exposed persons.
In addition, concentrations of toxic pollutants
estimated by a regional air quality model show that neighborhood exposures near
heavily traveled highways is significantly higher than exposures monitored at
the regional monitoring stations, producing a cancer risk as high as 1 in 130
(5800 in 1 million) in some receptor areas. Id., Fig. 5-3a, p.5-11. These
estimates may be conservative since the concentrations estimated by the model
in receptor areas where monitoring stations measured actual concentrations
showed that the model in almost all cases underpredicted the measured
concentrations.
Significantly, the estimates of increased cancer
risk predicted in MATES-ll is supported by recent epidemiology data. Evidence of
the incidence of childhood leukemia in Denver during the late 1970s and early
80s, Pearson and colleagues (2000), shows an association between residential
location within 750 feet of a major traffic corridor and an elevated incidence
of childhood leukemia. These data suggest that exposure to higher than regional
urban background concentrations of motor vehicle emissions is a significant
risk factor for childhood leukemia.
In addition, other research provides evidence of
increased incidence of other adverse health outcomes for residents of
neighborhoods near heavily traveled highways. Brunekreef and colleagues (1997)
show that adverse health outcomes including premature mortality and increased
morbidity through increased respiratory and cardiovascular effects are
associated with the increase in ambient fine particulate matter, e.g.,
particles less than 2.5 microns in diameter (“PM2.5”) from roadway
sources.
Taken together, this evidence requires that a
comprehensive risk assessment be performed to determine the health risks for
neighborhoods located near heavily traveled roadways that are proposed to be
built or expanded in densely populated metropolitan areas, and that
alternatives to the development of high cancer risk travel corridors be chosen
as the preferred alternative or that mitigation be adopted to prevent the
incremental health risk attributable to toxic air pollutants emitted from these
projects.
A. Approximating
Exposures Outside The L.A. Basin.
The MATES-II study
demonstrates that the modeling tools are available to perform risk assessments
to estimate cancer risk attributable to motor vehicle emissions on a regional
scale, and traditional EPA-approved line models are available to assess the
incremental risks for populations living in close proximity to highway sources
of air toxic emissions.
It is reasonable to use the MATES-II results as a
screening tool to identify the travel corridors outside the L.A. basin where
unacceptably high cancer risks are likely. These results are relevant to estimating
exposure to toxic air pollutants for populations outside of the L.A. Basin when
population densities and vehicle trips are comparable to those observed in
heavily traveled highway corridors in the L.A. Basin. Exposures to toxic air
pollutants by residents living near heavily traveled highways outside of the
L.A. Basin can be reasonably estimated by comparing with the concentrations
measured and/or modeled near roadways with similar traffic levels in Los
Angeles. MATES concentration maps indicate that the highway corridors
associated with the highest modeled and measured concentrations of toxic air
pollutants are the Harbor Freeway (I-110), Long Beach Freeway (I-710), and the
Santa Ana Freeway (I-5) through Los Angeles and Anaheim. CalTrans data shows
that these corridors carry annual average daily traffic (AADTs) of between
200,000 to 350,000 vehicles.
Residents located near heavily traveled highway
corridors with comparable AADTs in other urbanized areas should experience
exposures to mobile source toxic air pollutants at least as high as those
reported in Los Angeles. Emissions from highways with comparable AADTs in the
other 49 states would be expected to be higher than those observed in
California because emissions of DPM and toxic VOC species are lower for both
diesel and gasoline-fueled vehicles that are subject to California emissions
standards and that burn fuels meeting California fuel standards. Therefore, it
is reasonable to estimate that exposures to mobile source toxic pollutants for
residents near highways with AADTs above 200,000/day will likely be higher than
those reported in MATES-II, but for screening purposes can reasonably be
assumed to experience exposures at least as high as those reported in L.A.
For residents located immediately adjacent to
heavily traveled highways, cancer risks will be significantly greater than
those reported for the 8 regional monitoring stations in MATES-II. The higher
modeled peak concentrations are more likely to approximate exposures for nearby
residents. Standard line models used to estimate concentrations of criteria
pollutants emitted by motor vehicles on highways generally show that
concentrations at the right-of-way are ten times higher than concentrations 300
meters away from the R-o-w. Thus exposures for families living closest to
heavily traveled highways may be substantially greater than the concentrations
measured at regional monitoring stations reported in MATES-II.
B. Significance Of
Health Risks.
These
high cancer risks for nearby residents, and even higher risks for those living
adjacent to roadways, far exceed the risk levels adopted by EPA and Congress in
setting national health standards, and are unacceptable to the residents of
these neighborhoods. EPA has summarized the consensus cancer risk policy of
federal agencies as requiring careful assessment of cancer risks in situations
where the population risk is greater than 1 in 1 million.
Where the entire U.S.
population is exposed to a chemical classified as a probable human carcinogen,
the agency consensus appears to be that risks less than 1 in 1 million
generally can be found acceptable without consideration of other factors while
risks greater than that level require further analysis as to their
acceptability.
56 Fed. Reg. 7757 (February 25, 1991). On the other
hand, EPA and other federal agencies have generally acted to reduce cancer
risks greater than 1 in 10,000. Id. Here, the cancer risk for those living near
heavily traveled highways is at least 1 in 1,000 to 1 in 650.
Except for diesel particulate, these risk estimates
are derived from well-established risk factors that have been the subject of
intensive scrutiny for many years. Although the MATES-II cancer risks are
derived from risk factors adopted by the California environmental agencies,
those factors do not differ significantly from those reported by EPA. See
Integrated Risk Information System (EPA, Cincinnati,
OH)[http://www.epa.gov/iris]. In addition, these risk estimates are NOT for the
maximally exposed individual living adjacent to heavily traveled highway
corridors, but rather for regional populations. Nearby neighborhood exposures
are substantially higher, and may be as much as an order of magnitude higher
for the maximally exposed individuals.
With regard to diesel particulate, the cancer risks
in MATES-II are estimated based on unit risk factors adopted by California, but
not yet by EPA. “The current EPA position is that diesel exhaust is a likely
human lung carcinogen and that this cancer hazard exists for occupational and
environmental levels of exposure.” 65 FR 35,446 (June 2, 2000). This characterization of DPM as a carcinogen
is supported by NIOSH, the International Agency for Research on Cancer, and
WHO. Id. The National Toxicology Program at NEIHS on May 15, 2000, also listed
diesel particulate as a “known human carcinogen.” Although a risk factor for
DPM has not yet been adopted by a federal agency, more than enough data has
been accumulated from numerous epidemiological studies to allow a risk factor
to be adopted for risk assessment purposes.
It is also clear that this issue, or the need to
assess health risks in heavily traveled corridors will not be resolved by
regulatory action proposed by EPA. EPA’s current proposed diesel rule
anticipates that “selected air toxics chosen for analysis are expected to
decline by the same percentage amount as hydrocarbon exhaust emissions.” 65 FR
35,460. EPA estimates that heavy duty vehicles “account for about 3 percent of
national VOC and 8 percent from mobile sources in 2007.” 65 FR 35,458. Total
VOC reductions expected from the rule, as shown in Table II.D-3, are about
230,000 t/yr from a 2007 HDV inventory of approximately 430,000 t/yr. While a
significant reduction in total HDV emissions, this 55% reduction of air toxic
emissions from HDV will reduce total vehicle emissions of air toxics by only
about 4.5% between now and 2020. This reduction in total highway vehicle
emissions will not significantly reduce cancer risk in heavily traveled highway
corridors.
In addition
to cancer risks, the increased mortality and other adverse health effects
attributable to fine particle exposures currently measured in these corridors
raise additional questions about the public health price we are asking citizens
to pay as a result of increased highway capacity. DOT has recently estimated
the adverse health effects attributable to highway vehicle emissions, including
increased premature deaths and other serious respiratory and cardiovascular
diseases, to cost the American public in excess of $40 to $64 billion/year,
depending on whether a premature death is valued at $2.7 million or $4.8
million. See Table 9, Addendum to the 1997 Federal
Highway Cost Allocation Study Final Report, U.S. Department of Transportation,
Federal Highway Administration (May 2000).
Table 9. Estimated
Economic Costs of Motor Vehicle-Related Air Pollution in 2000 1 |
||||
Pollutant |
Impact |
Costs of Rural
Motor Vehicle Travel $1990 (millions) |
Costs of Urban
Motor Vehicle Travel $1990 (millions) |
Costs of All Motor
Vehicle Travel $1990 (millions) |
Particulate Matter |
Mortality2 |
12,695 |
21,558 |
31,162 |
Particulate Matter |
Non-fatal Illness |
3,683 |
6,232 |
9,183 |
Sulfur dioxide,
nitrogen dioxide, carbon monoxide |
Non-fatal Illness |
0 |
51 |
51 |
Ozone |
Non-fatal Illness |
28 |
16 |
47 3 |
Total |
16,406 |
27,857 |
40,443 4 |
|
1Costs for
"criteria" pollutants only (does not include toxic pollutant
costs). Excludes certain health-related costs and costs of reduced
visibility, crop damage, and material damage not quantified by EPA. 2Mortality costs
based on DOT's $2.7 million estimated cost of a premature death. 3 Does not include ozone mortality costs, which
are highly uncertain. 4 Comparable estimate using EPA's value of life is
$64,681. Source: Abt Associates, 1998, pages 9-11. |
As noted in the cost study, these costs do not
include the health effects caused by air toxic emissions from highway vehicles
discussed above. A disproportionately high portion of the adverse health
effects associated with these costs, as well as the costs themselves, will be
experienced by nearby communities and not the larger community as a whole.
These risks become doubly troubling if the residents who are most affected are
the least empowered among us, and the least able to move or take other actions
to defend themselves from the adverse health risks of motor vehicle pollution.
Therefore,
commenters believe that this evidence of --
·
significant risk of adverse health effects from
current exposures to regional concentrations of motor vehicle pollution;
· the large incremental
risk for citizens living in close proximity to heavily traveled roadways, and
· the increased
exposure and corresponding health risk that can be expected if increased
capacity contributes to increased mobile source emissions in these corridors;
requires analysis and the adoption of non-polluting
transportation alternatives and/or development of mitigation measures under
NEPA, 23 U.S.C. § 109, and Title VI of the Civil Rights Act before any action
may be taken to approve highway projects that cause or contribute to cancer
risks in excess of acceptable risk levels, premature mortality from various
cardio-pulmonary diseases, and the increased incidence and severity of the
morbidity effects of exposures to emissions from motor vehicles.
C. Legal Authority Requiring
Assessment of Health Risks.
NEPA, section 109(h) of title 23, DOT’s current
regulations implementing these statutory requirements in 23 CFR Part 771, and
applicable judicial precedents require that an agency consider the adverse
public health effects of air pollution associated with the construction of a
highway. See Lathan v. Volpe, 350 F
Supp 262 (WD WA 1972); Keith v. Volpe, 352 F Supp 1324, 1335 (CD CA 1972); see also 40 CFR § 1508.8; 40 CFR
1502.16. The proposed rules, however, are unclear about what stage of the
process these effects will be addressed, how alternatives will be considered in
the process, and whether mitigation will be required if alternatives are not
selected.
1. NEPA.
It is well settled that an EIS must be performed
for any federally funded activity that will or may have a significant impact on
the human environment. Agencies and courts generally require an EIS when
evidence “show[s] that the proposed project would materially degrade any aspect
of environmental quality."[1]
Courts do not need to find that the action will have significant effects – only
that the action may cause significant effects.[2]
Where there are substantial questions as to whether the project will create a
significant impact, it is not reasonable for an agency not to do an EIS.[3]
It has long been recognized that air pollution
associated with highways has a significant impact on the human environment. In
the context of air pollution, a brief or conclusory discussion of impacts is
insufficient to satisfy the mandates of NEPA. See I-291 Why? Ass'n v. Burns, 517 F.2d 1077, 1080 (2nd Cir. 1975).
One court noted that an incomplete or limited evaluation of the air pollution
created by a highway expansion is egregious because “automobile emission was
responsible for approximately 50% of the air pollution throughout the country .
. ..” See Keith v. Volpe, 352 F Supp
1324, 1334 (CD CA 1972). Therefore, where evidence shows that toxic and
hazardous air pollutants emitted by mobile sources cause a significant risk to
public health, a full EIS examining the extent to which each project will add
to existing adverse health effects by allowing increased exposure to hazardous
and toxic air pollutants emitted by mobile sources is required to reveal the
true public health risks associated with the expansion of major highways.
2. 23 U.S.C. § 109(a) and (h).
In
addition to NEPA, federal highway law, 23 USC §109(a), requires consideration
of the adverse effects of air pollution prior to approval of the plans and
specifications for a highway, and § 109(h) requires measures that “eliminate or
minimize” the adverse effects of “air pollution”.
In a case challenging DOT’s approval of a highway
project without assessing its impact on air pollution, the court in D.C.
Federation of Civic Associations v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971), held
that 23 U.S.C. § 109(a) required such an analysis:
We can find no basis in the statute's
language or purpose for the conclusion that certain hazards are, as a matter of
law, immaterial to the Secretary's evaluation of a project's safety. The
District Court would surely agree that Congress did not intend to permit
construction of a bridge in a situation, however rare, where air pollution
would be a significant threat to safety. It does not follow, of course, that
air pollution will be a significant hazard in all-or even any-highway projects.
And the District Court apparently concluded that no extraordinary dangers are
likely to arise from the Three Sisters Bridge. Still, the gathering and evaluation
of evidence on potential pollution hazards is the responsibility of the
Secretary of Transportation, and he undertook no study of the problem.
DOT’s approval of the
highway bridge was remanded.
Federal highway law goes beyond NEPA by requiring
that the decision to approve a highway be –
made in the best
overall public interest taking into consideration the need for fast, safe and
efficient transportation, public services, and the costs of eliminating or
minimizing such adverse effects and the following: (1) air, noise, and water
pollution; (2) destruction or disruption of man-made and natural resources,
aesthetic values, community cohesion and the availability of public facilities
and services; (3) adverse employment effects, and tax and property value
losses; (4) injurious displacement of people, businesses and farms; and (5)
disruption of desirable community and regional growth. Such guidelines shall
apply to all proposed projects with respect to which plans, specifications, and
estimates are approved by the Secretary after the issuance of such guidelines.”
23 USC §109(h). At a minimum, this provision
requires DOT to determine the costs of eliminating or minimizing the adverse
health effects attributable to air pollution, and then requiring mitigation in
the “best overall public interest.”
DOT’s 1987 regulations implementing
this requirement and NEPA providing that
the analyses required
by §109(a) and (h) are to be performed as part of the NEPA review
of the project. 23
CFR Part 771. The proposed NEPA rules continue to adopt this integrated
approach. Thus because both §109(a) and (h) require an analysis of the adverse
effects of air pollution and the costs of eliminating or minimizing such
effects, an EIS is required.
Section 109(h) also requires DOT to “eliminate or
minimize” the adverse effects attributable to a new or expanded highway. This
provision is implemented through DOT regulations in 23 CFR §771.105, but has
not been applied by FHWA with regard to the adverse health affects associated
with toxic and hazardous air pollutants emitted from highway projects. The
current DOT regulation adopts as --
the policy of the [Federal Highway] Administration
that:
(b) Alternative
courses of action be evaluated and decisions be made in the best overall public
interest based upon a balanced consideration of the need for safe and efficient
transportation; of the social, economic, and environmental impacts of the
proposed transportation improvement; and of national, State, and local
environmental protection goals.
(c) Public
involvement and a systematic interdisciplinary approach be essential parts of
the development process for proposed actions.
(d) Measures
necessary to mitigate adverse impacts be incorporated into the action. Measures
necessary to mitigate adverse impacts are eligible for Federal funding when the
Administration determines that:
(1) The impacts for
which the mitigation is proposed actually result from the Administration
action; and
(2) The proposed
mitigation represents a reasonable public expenditure after considering the
impacts of the action and the benefits of the proposed mitigation measures. In
making this determination, the Administration will consider, among other
factors, the extent to which the proposed measures would assist in complying
with a Federal statute, Executive Order, or Administration regulation or
policy.
On its face, paragraph (d) requires that measures
necessary to mitigate the adverse health effects of hazardous air pollutants be
incorporated into the plans and specifications for the project. Subparagraphs
(1) and (2) then establish criteria for determining whether the costs of
mitigation are eligible for federal funding. But the rule does not appear to
contemplate the approval of a project that would have significant adverse
effects on human health without requiring that those effects be mitigated. This
requires that the project either include measures to eliminate long-term human
exposure to the levels of hazardous air contaminants that are associated with
significant risks of adverse health effects, or that alternatives be developed
that can prevent these adverse health effects.
3. Title VI Of The
Civil Rights Act, And Related Guidance.
Causing
adverse health effects such as increased incidence of cancer, increased
premature death and other serious diseases to populations near heavily traveled
highway corridors also takes on a discriminatory character when these impacts
are imposed disparately on low income, ethnic or racial minorities.
a. Requirements of the Civil Rights Act.
Title VI and its
regulations prohibit recipients of federal funds from engaging in intentional
discrimination on the basis of race, color or national origin, as well as
unjustified adverse disparate impact discrimination for which there are less
discriminatory alternatives. Title VI provides
that "[n]o person in the United States shall on the ground of race, color,
or national origin, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance." 42
U.S.C. § 2000d. DOT has
promulgated regulations that bar disparate impact discrimination by recipients
of federal funds to effectuate the provisions of Title VI. See 42
U.S.C. § 2000d-1, 49 C.F.R. §
21.5(b)(2). Accord, Memorandum from
Attorney General Janet Reno to Heads of Departments and Agencies that Provide
Federal Financial Assistance, Use of the Disparate Impact Standard in
Administrative Regulations Under Title VI of the Civil Rights Act of 1964 (July
14, 1994).
The President's Order on Environmental Justice
requires each federal agency, including FHWA, to make achieving environmental
justice part of its mission. Exec. Order 12,898 (Feb. 11, 1994). DOT and FHWA have in turn promulgated orders
to implement the President's Order. DOT Order on Environmental Justice (DOT
Order 5610.2) (April 15, 1997); FHWA Actions To Address Environmental Justice
in Minority Populations and Low Income Populations 6640.23 (Dec. 2, 1998). These orders affirm the principle of using
the planning process to implement Title VI, related civil rights statutes,[4]
and the federal environmental laws to avoid intentional and adverse disparate
impact discrimination. DOT recently issued Guidance to MPOs confirming that
these criteria are to be applied in reviewing transportation plans and TIPs.
While Title VI and
[environmental justice] concerns have most often been raised during project
development, it is important to recognize that the law applies equally to the
processes and products of planning. The
appropriate time for FTA and FHWA to ensure compliance with Title VI is during
the planning certification reviews conducted from Transportation Management
Areas (TMAs) and through the statewide planning finding rendered at approval of
the Statewide Transportation Improvement Program (STIP)." See FHWA
and Federal Transit Administration ("FTA"), Memorandum re: Implementing Title VI Requirements in Metropolitan and
Statewide Planning (Oct. 7, 1999) at 2.
A valid disparate impact claim under Title VI has
three main components. First, an action
by an agency that receives federal funding has a disparate adverse impact based
on race, ethnicity or national origin.
The disparities may be demonstrated through statistical evidence,
numerical disparities or anecdotal evidence.
Second, any action that has such a disparate impact must be justified by
business necessity. Third, even if the
action would otherwise by justified by business necessity, the action may be
prohibited if there are less discriminatory alternatives to accomplish the same
end. A disparate impact claim does not
require proof of intentional discrimination.
See United States Department of
Justice, Civil Rights Division, Title VI Legal Manual (Sept.1998)
("DOJ Title VI Legal Manual") at 53-59 and cases cited.
The federal environmental laws are an integral part
of the transportation equity framework.
The civil rights laws require equal justice for all under the
environmental laws as well as the transportation laws. The environmental laws can also provide
substantive standards for assessing intentional and disparate impact
discrimination claims. See, e.g., Transportation Equity Act for the
21st Century ("TEA-21") (codified in titles 23, 49 and
scattered sections of title 42, U.S.C.);
Clean Air Act, 42 U.S.C. § 7401 et seq. as amended; National Environmental Policy Act ("NEPA"), 42 U.S.C. §
4234; and the environmental review requirements for highway projects in 23 U.S.C. §109(h). Thus, for example, an
action that will add air pollution and have an adverse disparate health impact
against low income, ethnic or communities of color would not be justified by
business necessity and might in some cases also depart from substantive clean
air standards in violation of both the Clean Air Act and Title VI. A number of less discriminatory alternatives
might be readily available – such as compliance with Clean Air Act standards in
cases where standards apply, or in cases where standards do not apply, taking
actions that avoid the increased pollution such as providing mobility with
non-polluting alternative modes, or protecting communities from the harmful
exposures by creating protective buffer zones.
b.
Applying the Civil Rights Act to Address Pollutant
Exposures.
Disparate impacts of motor vehicle pollution on
communities is a concern brought into focus by a growing body of evidence that
neighborhoods located in close proximity to large numbers of motor vehicles are
exposed to substantially higher concentrations of primary fine particles and
hazardous air pollutants known to cause cancer and cause or exacerbate other
serious adverse health effects including asthma, cardiovascular and lung
disease. Included in this recent research is evidence that children living
within 750 feet of a major roadway are 12 times more likely to contract
leukemia than children living farther away. Unlike secondary pollutants such as
ozone that are formed in the atmosphere and cause regionally dispersed
exposures, primary pollutants are most concentrated at the source. Populations
living near sources of motor vehicle emissions such as highways and
interchanges are exposed to substantially greater concentrations of the vehicle
pollutants that endanger public health. The motor vehicle pollutants of particular
concern include fine particles smaller than 2.5 micrometers in size, and the
carcinogens benzene, 1,3 butadiene, formaldehyde, and numerous components of
diesel particulate matter.
The signatories to this request are concerned about
the adverse health effects of exposure to these pollutants by all our
residents; low income and middle class alike. Children are especially at risk
from all of these effects, including a greater likelihood of suffering from
childhood leukemia and other life-threatening diseases.
But this concern focuses most on the residents of
neighborhoods adjacent to the major Interstate and other heavily traveled
highway corridors where average daily vehicle trips are currently in the
150,000 range and projected to increase substantially after the proposed
capacity expansion in the corridor, and corridors where future travel is
expected to reach the 150,000 AADT range. Because residents living near such
heavily traveled traffic corridors are at risk of experiencing substantially increased
incidence of cancers, premature mortality, more frequent hospitalizations for
respiratory and cardiovascular disease, more frequent asthma attacks requiring
medical attention, greater use of medications and increased costs of medical
care, prescriptions and loss of income from lost work time, they request that
an EIS be prepared for each such project.
An appropriate consideration of alternatives under
NEPA necessarily should include an evaluation of the extent to which
reallocation to transit of the funds allocated to these highway projects could
contribute significantly to reducing travel demand, VMT and diesel-fueled
vehicles thereby reducing resulting emissions of toxic air pollutants. An
analysis of the health and other benefits to be obtained from an optimal
transit investment strategy would best be undertaken at the planning stage. But
if such an analysis is not performed by MPOs, such analysis must be performed
by the implementing agencies before any project EIS is approved.
To the extent that a regional analysis reveals
disparate health impacts on low income, racial or ethnic minorities that are
not consistent with the requirements of Title VI, then such analysis needs to
be considered by DOT as a basis for not approving an MPO’s plan and TIP.
D. The
Proposed Rule Does NOT Provide Assurance That This Issue Will be Effectively
Addressed.
Most large metropolitan area long-range plans and
TIPs may be expected to include a number of new or expanded highway projects
where traffic levels are likely to cause or contribute to cancer risks in
excess of 1 in 1,000 (perhaps all projects with 150,000 AADT or more where
human populations reside within 300 meters of the R-o-W). In many of these
corridors, the associated toxic or hazardous air pollutants emitted by mobile
sources already are creating a cancer risk far above the levels that would
trigger an assessment to consider the need for mitigation measures to protect
public health. Proposed new capacity in both new and existing highway
corridors, and expected increases in daily vehicle trips that would occur in
and be promoted by such new capacity, will significantly increase the
unacceptably high cancer risks to populations exposed to hazardous air
pollutants in these corridors. These high cancer risks trigger an obligation
under NEPA and § 109(h) of the federal highway code to assess the magnitude of
these risks to regional populations, to residents living nearby and to families
living immediately adjacent to these highway facilities, to identify mitigation
measures, and to require the implementation of measures necessary to “eliminate
or minimize” the adverse effects of air pollution attributable to the project.
These projects typically are not being analyzed for
their contribution to emissions of hazardous air pollutants, either as part of
the planning process, the NEPA process or as part of the scoping and design of
the projects. Neither the plans, specifications and estimates nor a project
agreement may be lawfully approved under 23 U.S.C. § 106(a) until the adverse
effects on public health attributable to the emissions of hazardous air
pollutants from mobile sources in these corridors are assessed, and
alternatives necessary to prevent those adverse effects are selected as the
preferred alternative or mitigation is required as part of the project
approval.
The current planning and NEPA processes do not
provide a context for evaluating the full scope of alternatives that could
protect the public from these cancer risks. Project-level review of individual
highway projects do not provide the appropriate scale for consideration of
alternatives that would include land use, transit-oriented development and
regional expansion of transit services as strategies for reducing overall
travel demand or SOV use, or fleet conversions or fuel modifications that could
significantly reduce regional emissions of diesel particulate and other
hazardous air pollutants.
At the same time, the planning process as conducted
by most MPOs, and certainly as required by DOT’s current planning regulations,
do not require that health risks attributable to the emissions of toxic air
pollutants from mobile sources be considered at all, nor do they consider
regional alternatives that could reduce VMT and emissions of air toxics.
The proposed rules take a step in the right
direction by allowing the agencies responsible for the planning process to
evaluate impacts on a regional scale, and to consider regional alternatives,
but this approach is not required. If a regional scale impact analysis is not
voluntarily undertaken by regional planning agencies, there is no procedure
identified in the proposed rule that provides for regional scale analysis of
impacts, alternatives or mitigation measures such as buffer zones around major
travel corridors. If such a regional scale analysis were undertaken by FHWA
outside the planning process, there is also no mechanism to ensure that
regional alternatives are implemented as part of the regional plan and TIP.
To remedy these deficiencies in current practice,
we ask DOT to require that all projects above a threshold likely to contribute
to exposures that would be associated with cancer risks greater than 1 in 1
million be subject to a risk assessment to characterize the local exposures and
provide reliable information to local residents of their expected cancer risk.
The risk assessment should be included in an EIS that considers the range of
regional and corridor-level alternatives that could reduce travel demand or SOV
use, and mitigation measures that would ensure effective separation of human
populations from areas likely to be contaminated with unacceptable high
concentrations of carcinogens and other threats to human health.
ISSUE 2: EFFECTS OF INDUCED DEMAND.
Looming
large over all assessments of the adverse effects of vehicle use and the
evaluation of alternative transportation investments is the failure to account
for the widely recognized phenomenon known as “induced demand.” The failure to
account for this effect of the construction of new highway capacity results in
the serious underestimation of VMT in a corridor, and consequently the failure
to accurately estimate motor vehicle emissions for conformity purposes or for
performing a risk assessment to predict the adverse health effects of mobile
source air toxics, the overestimation of the mobility benefits of new capacity,
the failure to account for the land use effects of temporarily improved travel
times in a corridor, and the under-valuation of the benefits of non-highway
transportation alternatives.
Environmental
Defense submits a report by Norman Marshall, a respected expert in this field,
summarizing the latest research quantifying the magnitude of this effect in the
U.S. This evidence demonstrates that the effect is large, is relatively
consistent wherever it has been measured, and can significantly undermine the
reliability and usefulness of travel demand and VMT forecasts for virtually all
purposes if it is not taken into account.
Based
upon his experience reviewing the transportation planning tools applied in four
of the nation’s largest cities, Mr. Marshall also documents that induced demand
is generally not being addressed in a comprehensive way by MPOs in the planning
process. He concludes that this failure casts into doubt the acceptability of
VMT projections used for conformity determinations, the travel demand
assumptions used to justify the need for individual projects, and the
meaningful comparison of alternative projects and services.
Based on this evidence, Environmental
Defense asks DOT to require that induced demand be expressly addressed in the
regional planning process, in making conformity determinations under the Clean
Air Act, and in all corridor-level EISs and EAs under NEPA. Tools for reliably
assessing the effect of this phenomenon are rapidly emerging, and will quickly
evolve into the planner stock-in-trade if planners are required to account for
this effect. The failure to provide national guidelines that provide consistent
uniform practices will merely invite frequent legal challenges to regional
plans, conformity determinations and EISs on the ground that these analyses are
fundamentally flawed by the failure to adequately address this statistically
proven effect of new capacity.
III. OTHER CIVIL RIGHTS ACT AND AMERICANS WITH
DISABILITY ACT CONCERNS.
Environmental Defense supports DOT’s
effort to require consideration of the disparate effects of transportation
investments on low income, racial, ethnic and disabled communities. We believe
the Department is taking a major step forward in requiring meaningful
consideration of the kinds of adverse disparate impacts on communities of color
that are prohibited by the Civil Rights Act, and the discriminatory effects on
the disabled that are prohibited by the Americans With Disabilities Act .
However, we are concerned that the proposal goes no further than elevating the
visibility of these issues without requiring remedial measures designed to undo
the disparate effects of decades of investment in highways that disadvantage by
diminishing mobility and access for populations that do not own or operate
personal motor vehicles. Although legally DOT’s duty to remedy these adverse
effects on mobility and access may be limited to populations protected under
the Civil Rights Act or the Americans with Disability Act, the policy issues
implicated by these concerns extend to all populations that do not drive,
including the elderly, the disabled, unlicensed teenagers and those who cannot
afford personal motor vehicles. In most cities, these underserved or dis-served
populations are 30% of the community. Their mobility needs are real, are
legitimate, and must be met too.
To
move beyond the mere expression of concern for these populations, Environmental
Defense asks that DOT adopt a national mobility goal for all populations in the
community, and planning requirements that govern data collection and analysis
and the development of strategies to meet the national mobility goal within a
reasonable period of time.
The
national mobility goal should be aimed at the development of regional
transportation systems that serve SOV-owners and those who are dependent on
other modes more or less equally with regard to essential mobility criteria.
The essential criteria for measuring the performance of regional transportation
systems should include, at a minimum--
· the comparative costs
of travel and travel time for those who drive and those who are
transit-dependent;
· equal access to
places where existing and new jobs, affordable housing, educational services
and public facilities are located;
· the social and
economic impacts on communities that result from effective access to employment
opportunity, housing located within a reasonable commute of jobs and
educational facilities and community facilities in various portions of the
metropolitan area.
Quantitative performance measures to assess the
performance of regional transportation systems should be developed through the
planning process, and MPOs should be required to adopt strategies that are
designed to move the region toward the national goal. The continued award of
grants subject to the requirements of Title VI of the Civil Rights Act and the
ADA should be conditioned on the adoption and expeditious implementation of
strategies designed to achieve the national mobility goal.
IV. CONCLUSIONS.
Based on the data, legal analyses and
policy considerations discussed above, Environmental Defense makes the
following requests and recommendations--
1.
Environmental Defense generally supports streamlining proposals designed to
ensure that the gaps between the current planning process and the NEPA/§109
review of projects are eliminated by establishing procedures that allow for
adequate consideration of the regional and cumulative impacts of transportation
investments as part of the regional planning process. We also request that more
specific procedures be adopted in the rule to allow MPOs to accept
responsibility for performing a regional impacts analysis adequate to meet the
requirements of NEPA, and to provide assurances that implementing agencies will
accept and rely upon adequate NEPA analyses performed by MPOs.
2. Environmental Defense also supports
DOT’s efforts to streamline the current fragmented review of the environmental,
social, economic, equity and energy impacts of transportation decisions by
integrating all these criteria required to be addressed by applicable federal
laws into the regional planning and NEPA review process.
3.
Environmental Defense is concerned, however, that these reviews may not be
performed adequately, or may not be adequately documented and explained so that
they may be exposed to full and careful public scrutiny and debate. To ensure
that the planning/NEPA/§ 109 processes openly address the needs and concerns of
all interests with a stake in the environmental, social, economic, equity and
energy impacts of transportation decisions, Environmental Defense asks that the
recommendations adopted by DOT as part of its review of the adequacy of the
public involvement program implemented by the Atlanta Regional Council be
adopted as requirements of the metropolitan planning rules. See Assessment of
Environmental Justice and Public Involvement in the Atlanta Metropolitan Area
(Draft Report), U.S. Department of Transportation (April 17, 2000).
4. Environmental Defense objects to
provisions of the proposed rules that weaken current regulatory requirements
that govern the review of projects and the consideration of alternatives.
Specifically, we oppose the removal of language in current 23 CFR § 771.105(d)
implementing § 109(h) that requires the mitigation of adverse effects of
highway projects. We believe the text of the current rule is required by law
and should be retained in the new rules. DOT has offered no rational basis for
the modification and weakening of these requirements. The proposed rule change
is therefore arbitrary and capricious.
5. The proposed rules
should be revised to make clear that no plans, specifications and estimates,
nor any project agreement required by 23 U.S.C. § 106(a) may lawfully be
approved for highway projects that expand capacity in heavily traveled
corridors or that will become a heavily traveled corridor until an EIS has been
completed that fully evaluates the full range of adverse environmental, social
and economic effects of the proposed projects, evaluates both regional and
corridor scale alternatives to the proposal, and identifies appropriate
mitigation to “eliminate or minimize” these adverse effects as required by 23
USC § 109(h), and that includes necessary mitigation in the plans and
specifications for each project.
6. We oppose DOT’s
failure to retain language in the current MIS rule, 23 CFR § 450.318(c), that
defines the scope of alternatives to be considered as part of a corridor-level
review for major capacity enhancing projects The proposed rules should be
revised to make clear that the scope of any analysis of alternatives to
proposed projects performed to satisfy NEPA will consider a range of
corridor-level alternatives at least as broad as those required to be
considered in the current MIS rule, 23 CFR 450.318(c). We believe the current
rule has served well to guide project reviews, has become familiar to agencies
and local governments involved in the review process, and is a good outline of
the scope of corridor-level review of alternatives required by NEPA. The
requirement in TEA-21 to integrate the MIS process into the NEPA process does
not provide a justifiable basis for deleting the language from the MIS rule, but
rather argues for carrying it forward into the streamlined NEPA process.
7.
Environmental Defense requests that DOT modify the final rule to establish
guidelines for the appropriate consideration of the four objectives in 23 USC §
134(a) that are required to be accomplished by metropolitan plans. Such
guidelines should require that MPOs identify a fiscally constrained planning
scenario for the region that will optimize the four objectives. Such guidelines
should identify the types of projects, programs, facilities, services, pricing
and tax incentives and land use strategies that will most likely be expected to
optimize these four objectives. At a minimum, MPOs should be required to
consider all such measures and provide a rational basis for not adopting them
as part of a regional transportation plan.
8.
The failure to account for the effects of induced demand seriously undermines
the reliability, accuracy, credibility and validity of VMT estimates used to
develop regional transportation plans, evaluate alternatives to proposed plans
and projects, and to estimate regional emissions from motor vehicles. DOT must
address this serious deficiency that undermines the acceptability of regional
transportation plans, NEPA reviews of alternatives and conformity determinations
under the Clean Air Act wherever induced demand is not fully accounted for.
Environmental Defense requests that DOT issue guidelines that require agencies
to use state-of-the-art modeling tools to account for this effect whenever
regional transportation plans, EIS/EA reviews or conformity determinations are
being performed as part of the regional planning, conformity or NEPA process.
9.
Environmental Defense requests that DOT support its proposed requirements to
consider the disparate impacts of transportation investment policies on low
income, racial and ethnic communities
by requiring that a) performance criteria be identified by the regional
planning agencies, b) that the impacts of past practices and any proposed new
or revised regional plan be routinely quantified with respect to such
performance criteria as part of the regional planning process, and c) that
regional planning agencies adopt target improvements in the performance
criteria as part of developing the regional plan.
10.
Environmental Defense requests that DOT adopt a national goal to guide the
regional planning process to achieve the elimination of disparate impacts of
each regional transportation system as required by Title VI of the Civil Rights
Act. The goal should be defined as the development of a regional transportation
system that ensures equal access to all existing and new places of employment,
housing, worship and public facilities by populations that do not own or
operate personal vehicles, without imposing disparate cost and travel time
burdens on such populations. The rule should require that regional
transportation plans adopt strategies to implement the national goal with all
deliberate speed.
Environmental
Defense appreciates this opportunity to comment on the proposed regulations,
and would welcome any further opportunities to explore the issues raised by
these comments with the Department.
Respectfully
submitted,
Robert
E. Yuhnke
Counsel
for Environmental Defense
Michael
Replogle
Director, National
Transportation Program
[1] See Sierra Club v. Babbitt, 69 F. Supp. 2d 1202 (E.D. Cal.1999); Davis v Coleman, 521 F2d 661, 673 (9th Cir. 1975). Citing Environmental Defense Fund v. Armstrong, 487 F.2d 814, 817 n. 5 (9th Cir. 1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973).
[2] See Davis v Coleman, 521 F2d 661, 673 (9th Cir. 1975).
[3] See Sierra Club v. Babbitt, 69 F. Supp. 2d 1202, 1214 (E.D. Cal.1999); Davis v Coleman, 521 F2d 661 (9th Cir. 1975). The court said it was obvious that the construction of a large intersection on a major highway would have significant impacts on the quality of the human environment, despite the states conclusory assertions to the contrary.
[4] See, e.g., 49 U.S.C. section 5332(b).
[i] Nelson, Arthur C. Effects of Urban Containment on Housing Prices and Landowner Behavior. In Land Lines, Cambridge, MA: Newsletter of the Lincoln Institute of Land Policy, May 2000 Volume 12 , Number 3, www.lincolninst.edu.
Attachment 6:
December 4, 2000
Transportation
Secretary Rodney Slater
U.S. Department of
Transportation
400 7th
St SW
Washington, DC
Dear Secretary
Slater:
One of the consequences
of urban development during the past half century has been the erection of
barriers to mobility that have imposed inequitable burdens on many
African-Americans, Latinos and other racial, ethnic, disabled and age
minorities in the U.S. These Americans often do not share in America’s economic
progress in part because they are denied access to the majority of new jobs,
affordable housing, educational and entrepreneurial opportunities located in
new suburbs where access is restricted to those who drive cars. Woefully
inadequate or non-existent transit services outside the urban core deny equal
access to all who live in America’s cities and depend on public transportation
for their mobility. To ensure equitable transportation services for the
elderly, the young, disabled and those who cannot afford to drive, these
barriers to equal access must be overcome.
Federal transportation laws
require metropolitan areas, acting through regional planning agencies, to
develop regional transportation plans that guide the future expansion of urban
transportation systems. Congress has directed that metropolitan areas adopt
20-year plans that “encourage and promote the safe and efficient management,
operation, and development of surface transportation systems that will serve
the mobility needs of people….” 23 U.S.C. §134(a)(1) and (2). Once
adopted, these plans govern the expenditure of federal and State transportation
funds in metropolitan areas.
All federally funded programs,
including the transportation programs developed through regional transportation
plans, are subject to the requirements of Title VI of the Civil Rights Act. Title VI and its regulations prohibit recipients of federal
funds from engaging in intentional discrimination on the basis of race, color
or national origin, as well as unjustified adverse disparate impact
discrimination for which there are less discriminatory alternatives. Title VI provides that "[n]o
person in the United States shall on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance." 42 U.S.C.
§ 2000d.
The federally funded
transportation systems developed in most American cities during the last half century
deny the benefits of regional mobility and equal access to the 30%, or more, of
Americans who cannot or do not drive personal vehicles. The new transportation
planning rules, that you recently proposed to implement the Transportation
Equity Act for the 21st Century, seek to begin the process of
reversing the inequities of past transportation investment practices. Among
other improvements in the metropolitan planning process that would be required
by the proposed rules, DOT would require planning agencies to assess the
disparate impacts of the current transportation system and develop plans that
begin to remedy those impacts.
We applaud you for launching
this initiative to remedy the adverse social and equity effects of
transportation systems in many metropolitan areas that rely almost exclusively
on highway development with no comparable expansion of the transportation
services needed by those who do not drive. However, we are concerned that the
proposed rules contain no clear standard against which regional mobility for
all people is to be judged. Without clear direction in the federal rule, we are
not sure that your initiative will achieve significant results.
We propose the adoption of a
national mobility goal to measure the performance of metropolitan
transportation systems. The goal can
provide a benchmark for evaluating whether metropolitan areas with clearly
inadequate transportation systems are investing in the strategies needed to
remedy the inequities of past practices.
This national mobility goal could
foster development of regional transportation systems that serves the whole
population by ensuring that those who are dependent on means of travel other
than driving a car are served equally with regard to essential mobility
criteria. These criteria for measuring performance of transportation systems
should include, at a minimum, evaluation of whether the systems are designed to
--
· ensure equal access to employment
opportunity, affordable housing, educational and community facilities, health
services, and places of worship in various portions of the metropolitan area
through the Regional Transportation Plan;
· ensure early substantial progress towards
this equal access mobility goal through the Transportation Improvement Program;
and
· ensure that those who are transit-dependent
or rely on shared-ride services do not face increased travel cost, travel time,
safety hazards, or degradation of travel conditions compared to those who drive
personal vehicles.
We ask that language be added to
the proposed rule to define the mobility goal as “the development of a regional
transportation system that ensures equal access to all places of employment,
housing, worship and public facilities, including access for populations that
do not own or operate motor vehicles, without imposing disparate cost and
travel time burdens on such populations.“ The rule should require that
“regional transportation plans and Transportation Improvement Programs adopt
strategies to implement the national mobility goal with all deliberate speed.”
We seek your support for the
adoption of this goal as part of the metropolitan planning rules soon to be
issued by the Department of Transportation. The adoption of a national mobility
goal can lay the foundation for the development of future transportation
systems that will break down the mobility barriers to equal access in American
cities. Issuing regulations that effectively promote equal access could be an
important legacy of this Administration to those who need a hand up, not a hand
out.
Sincerely,
Rep.
John Lewis
Rep.
Edolphus Towns
Rep.
Carolyn Kilpatrick
Rep.
Elijah Cummings
Rep.
Cynthia McKinney