State and federal governments are faced with a challenge of investing in transportation projects that meet their constituents' needs while complying with clean air requirements, environmental protection, and historic preservation. Because the transportation planning process isn't perfect, delays can happen. But eliminating safeguards that protect our health, environment and treasured resources is not the answer. Instead, in the relatively small number of cases where reforms are necessary, states and communities are adopting better administrative and planning practices to address them.

Jeff Morales, director of California's Department of Transportation, put it simply: "We need to work collaboratively to streamline the entire process of moving projects forward. Attempts to weaken or bypass the environmental laws should not be part of that effort. If everyone involved in the regulatory process focuses on fixing the administrative delays and hurdles, we'll get better projects that result in better environmental protection, and get them faster and at less cost."¹

Now that Congress has begun debate on reauthorizing the transportation bill, some critics have held up a handful of delayed transportation projects as scapegoats for making wholesale programmatic changes. As the evidence below demonstrates, however, public review and planning protections benefit project development, protect public health, and preserve the historic and cultural fabric of our communities.

Transportation conformity is an accounting tool that requires that transportation planning result in projects that achieve good air quality in a time frame mandated by health-based National Ambient Air Quality Standards. This is accomplished by ensuring that pollution from cars and trucks -- or "mobile sources" -- in an area "fit" within the mobile source emissions budget established as part of state plans for ensuring healthy air quality standards. The 1990 Clean Air Act Amendments strengthened transportation requirements to solve a problem: Transportation infrastructure investments such as sprawl-inducing highways and poor accounting for emissions had been getting in the way of cleaning up air quality.

Tracking the transportation sector's impact on air quality is a crucial tool for helping states protect public health and meet clean air goals. And it must be done frequently, because errors in arithmetic or unrecorded transactions, and changes in conditions and assumptions are unfortunate facts of life. Such inaccuracies are compounded if not found and corrected. State departments of transportation claim that mistakes in such accounting -- called "lapses" in conformity -- create crises in transportation planning, and should be dealt with by reducing the frequency of conformity determinations. In other words, less checking will turn up fewer errors. The idea is ridiculous from a health perspective -- and especially so since only 10 percent of about 600 conformity demonstrations since 1997 resulted in a transportation plan being stalled, according to the Environmental Protection Agency. Two-thirds of the delays -- referred to as "conformity lapses" by transportation experts -- lasted just six months or less.²

A recent report by the General Accounting Office (GAO) found that, by a 2:1 margin, air agency officials believe that reducing the frequency of conformity determinations for transportation plans from the current 3 years to 5 years would have a negative effect on their state's ability to meet clean air standards. And by a 3:1 margin, air agency officials believe that doing so for shorter-term transportation programs would have the same negative effect.³ The same report shows that nearly half (43 percent) of conformity lapses between 1997 and 2002 were due to insufficient time or staff resources or administrative/technical difficulties.⁴ This is clear evidence that much of the perceived "problem" would disappear given additional resources for the planning process along with added technical support and training. Congress should provide additional resources to states so that they are better able to cope with the work required by conformity, rather than eviscerating it and endangering public health.

Signed into law in 1970 by the Nixon administration, the National Environmental Policy Act (NEPA) requires the federal government to examine the potential environmental impact of federally funded activities and share those findings with the public. Under NEPA, the U.S. Department of Transportation and other federal agencies have the opportunity to fix problems with environmental compliance and review before decisions are finalized.

Frankly, it is a myth that the judicial review afforded by NEPA has contributed to delays in delivering surface transportation projects as much as its detractors would say. In fact, only 3 percent of federally funded transportation projects require preparation of an Environmental Impact Statement (EIS).⁵ The number of federal projects requiring EISs -- of which surface transportation projects are just a subset -- has been steadily declining and infrequently challenged in court (See graph below).

It is true that producing an environmental impact statement (as opposed to an environmental assessment) takes time -- between one and five years -- and more so when the project is controversial.⁶ But in most cases, environmental reviews are not a significant source of delay. In a 2000 study of 89 projects that had been delayed at least five years, the Federal Highway Administration found that the most significant factors slowing down these projects were lack of funding, local controversy, low priority, and project complexity -- which collectively accounted for 62 percent of the delays.⁷ Environmental reviews were not much of a time killer.

So how can the review process be streamlined while maintaining the integrity of environmental regulations? Improving project development and delivery cannot be achieved by gutting environmental reviews. Instead, we must recognize that natural resource agencies need resources, including money for staff and tools for conducting reviews so that better projects can be delivered faster. For instance, federal and state agencies are trapped by outdated technology, and some advances suggested by a 2000 National Research Council report that would benefit the review process include new collaborative planning and design processes, use of GIS to determine natural and community constraints on a project (called "gap analysis"), and computer visualization programs that allow users to view a proposed project and its potential impact in three dimensions.⁸

For more information on NEPA, check out "Stewardship, Not Steamrolling" on NRDC's website.

When Congress created the U.S. Department of Transportation in 1966, it established a national policy that road construction give special protection to parks, recreation areas, historic sites, and wildlife refuges. The policy is codified in Section 4(f) of the Transportation Act. Despite strong evidence of the success of Section 4(f), new proposals to fast-track highway projects are trying to eviscerate its strong standards. Why? State departments of transportation complain that compliance with this common-sense protection is delaying projects.

One difficulty routinely cited is litigation and the losing record of the states. Specifically, opponents point to the requirement to find "prudent" and "feasible" alternatives to taking parklands or historic sites in 4(f) and claim that the courts have interpreted these terms inflexibly, leaving states in a bind. However, in a recent University of Kentucky study, researchers analyzed the evidence and found that, on the contrary, "4(f) is not an insuperable hurdle, which invariably will impose great additional costs or stop a project cold. The overall trend is reassuring to state highway agencies that want a more flexible approach to 4(f) cases..."⁹ Additionally, the researchers found that:

"By citing the factors identified in the rulings of the appeals courts and documenting the reasons for rejecting an alternative, highway officials can be confident that they can prevail in court, should a suit prove unavoidable. In many cases, they have been dealt a better hand than they realize."¹⁰

And these conclusions are backed up by solid research on appeals court cases. In fact, when takings of protected properties are challenged, plaintiffs objecting on 4(f) grounds lost their appeal in all but one instance in the last 18 years.¹¹

Outside of the courts, state transportation agencies are also successfully resolving project development issues. Those that respond constructively to the substantive protections afforded historic sites by Section 4(f) would agree with Charles Adams of the Maryland State Highway Administration who stated in a recent Transportation Research Board publication: "We've come to the realization that the Highway Department doesn't have all the answers."¹² The best way to prevent time-consuming conflicts over 4(f) issues is to accelerate the spread of such practices, which are based on a shift in the way transportation planning is done.

As more states adopt this new way of doing business, several tried-and-true ways of addressing 4(f) responsibilities will become commonplace. They will be dealt with early in project development. States will assess the relevant context -- the community and environmental features of the landscape -- before beginning project design. The rationale for doing so is as important as it is simple. As Kentucky's Transportation Secretary James Codell tells his engineers: "You should act as if the project is going through your own back yard."¹³

With this in mind, Departments of Transportation at the state level must uphold their obligation to protect historic places seriously, and consult regularly with their own cultural resource professionals and with state historic preservation offices. They should also increasingly understand the value to their work of early, continuous and substantive public and local government involvement.

Over the last few decades, America has made tremendous progress in structuring transportation investments that are more accountable to taxpayers and less harmful to the environment. Weakening or removing safeguards in the Clean Air Act, NEPA, and Section 4(f) would effectively turn back the clock to an era of more pollution and damaged historic sites -- and an over-reliance on highways rather than investing in transportation choices that benefit all Americans.

Notes

1. As quoted in "Stay The Course: How To Make TEA-21 Even Better," Surface Transportation Policy Project, March 2003.

2. EPA's comments were in response to a Government Accounting Office (GAO) report, "Federal Planning Requirements for Transportation and Air Quality Protection Could Potentially More Efficient and Better Linked," April 2003, GAO-03-581.

3. Ibid.

4. Ibid.

5. GAO testimony before Congress, "Preliminary Information on the Timely Completion of Highway Projects," September 19, 2002, GAO-02-1067T.

6. Ibid.

7. See http://www.fhwa.dot.gov/environment/strmlng/eisdelay.htm

8. "Technologies to Improve Environmental Concerns in Transportation Decisions," National Cooperative Highway Research Program (NCHRP) Project 25-22, Transportation Research Board (TRB), 2002.

9. O'Connell, Lenahan and Hopwood, Theodore, "The Evolution of 4(f) in the Courts: The Circumstances and Conditions That Render Acceptable the Use of Protected Properties," Kentucky Transportation Center, University of Kentucky, 2003.

10. Ibid.

11. Ibid.

12. "A Guide to Best Practices for Achieving Context Sensitive Solutions," NCHRP Report 480, TRB, 2002.

13. Ibid.