The Federal-Aid Highway Program: Administrative Procedures and Judicial Interpretation

Ronald C. Peterson ^**

This article was initiated while Mr. Peterson participated in the National Wildlife Federation's legal internship program in 1971.

[2 ELR 50001]

The federal-aid highway program is the nation's most extensive and expensive continuing public works program. In 1971 alone, $4.7 billion were distributed to the states as reimbursement for highway building costs.¹ Since 1956, these federal expenditures have been funded by highway user taxes deposited into the Highway Trust Fund.² Highway trust funds are used only for building highways.

Under thefederal-aid highway program, state highway departments are responsible for planning, designing and constructing federal-aid highways. The federal government reimburses the states for a portion of the federal-aid highways' costs. The Federal Highway Administration (hereafter referred to as the "FHWA") administers the federal-aid highway program.³ Its primary responsibility is to assure that the state highway departments have adhered to federal standards before the states are reimbursed for a portion of the federal-aid highways' costs. This responsibility is carried out by requiring the state highway departments to obtain federal approvals at various stages in the highway building process.

Several recent popular publications have described the adverse environmental and social impacts of the federal-aid highway program.⁴ The Highway Trust Fund has knowledgeable and articulate critics.⁵ But very little is known outside the federal and state highway agencies about the way in which the federal-aid highway program is actually administered. This article was prompted by that lack of knowledge and by the semantic and conceptual confusion that pervades most discussions of the FHWA's procedures.

The principal source of confusion is easily identified. The FHWA's published procedures are incomplete, outdated and virtually inaccessible. The United States Department of Transportation's formal regulations on the administration of the federal-aid highway program fill only eight pages in the current Code of Federal Regulations. Most of the FHWA's [2 ELR 50002] operating procedures, on the other hand, are published in several categories of voluminous, obscure directives: Orders, Policy and Procedure Memoranda (PPM's), Instructional Memoranda (IM's), and Administrative Memoranda (AM's).⁶ The Department of Transportation maintains that these directives do not have the status of regulations.⁷

Copies of these directives and periodic indices to them are, in theory at least, available to the public for inspection and copying. In several weeks spent attempting to obtain copies of the most important numbers at FHWA's national headquarters, we found that there is no routine circulation of new or revised operating procedures outside the federal government, state highway agencies and highway-related private organizations such as the American Road Builders Association and the Associated General Contractors of America. Copies of directives which are out of print cost twenty-five cents per page and must be ordered specially; no public duplicating equipment is available at any FHWA office anywhere in the country. Because it is so difficult to obtain copies of FHWA's operating procedures, the Environmental Law Reporter has published in the Statutory and Administrative Materials section most of the procedures to which reference is made in this article.

Even after one obtains copies, the operating procedures are difficult to interpret. Many terms are not defined, and some are used with obviously different meanings in different contexts. Some operating procedures still apparently in force have not been revised or updated for fifteen years.⁸

We shall attempt to describe and analyze FHWA's administrative procedures for reimbursing states for a portion of the cost of constructing highways on the Interstate, primary and urban systems of federal-aid highways.⁹ First, we shall describe and discuss a key concept in FHWA's administration of the federal-aid highway program: the "project." This concept is important because state highway departments must submit "projects" for FHWA approval in order to obtain reimbursement. We shall see that the dimensions of these "projects" are defined not by any inherent or consistent logic, but rather by the state highway departments' particular needs for federal-aid highway funds.

Second, we shall describe and discuss the three types of FHWA approvals that each "project" must receive in order for a state to obtain federal reimbursement: program approval, approval of plans, specifications and estimates, and authorization to begin work.

Third, we shall examine procedures involving two more formal FHWA approvals: "location" approval and "design" approval. These additional procedures, which indirectly involve federal reimbursement, were designed to make it possible to review highway plans on more than a project-by-project basis in order to implement federal laws which are intended to mitigate the federal-aid highway program's adverse environmental and social impacts.

Finally, we shall consider two troublesome general questions the courts have encountered in reviewing the approval of federal-aid highway projects.

The following discussion is not detailed enough to take account of variations which may occur with respect to any particular highway proposal. The FHWA's actual administration of the federal-aid highway program is much more complex, because it is much less formal, than the FHWA's published directives may indicate. The actual practice followed by the FHWA for approving federal-aid highway projects in a state like New Jersey is much different from the practice followed in a state like Nevada. There is at present no way for an [2 ELR 50003] interested citizen to know how or why these practices may differ from state to state. It is difficult enough to attempt to determine what their similarities may be.

This article does not pretend to be comprehensive. It is based primarily on the FHWA's published directives, which may be inaccurate because they seem to be incomplete and partially outdated.It is also based on discussions with personnel at the FHWA's national headquarters. We are grateful for their generous assistance and shall respect their requests to remain anonymous. If there are errors or gaps in our analysis, we welcome correction. We believe administration of the federal-aid highway program is much too important and too public an undertaking to be obscured as it now is by secrecy and confusion.

I. The Federal-Aid Highway Project

The federal-aid highway program is administered through the FHWA's approval of "projects" submitted by the states to obtain federal reimbursement.¹⁰ Section 105(a) requires states to submit "programs of proposed projects" for approval. Section 106(a) requires approval of plans, specifications and estimates for "each proposed project" included in an approved program. We shall discuss highway "programs" and FHWA's approval procedures in the following section. It is necessary first to consider what a highway "project" is in the context of obtaining federal reimbursement.

The states divide federal-aid highway building into "projects" that include whatever items of work and whatever lengths of a highway as are useful or convenient in obtaining the approvals necessary for federal reimbursement. A "project" may refer to various items of work, such as planning, surveying, right-of-way acquisition, demolition, grading, paving, etc. But a "project" may also refer to work on various lengths of a highway. These two variables — items of work and length — may be illustrated by an example. If a state proposes to construct a highway from A to B, a distance of fifty miles, it could seek to obtain FHWA approval of one project which includes all the items of work necessary to build the entire highway. On the other hand, the state could seek to obtain FHWA approval of several projects, each including an item or items of work on all or part of the highway. Thus, the state might propose a planning project for the entire highway, a right-of-way acquisition project for ten miles, a grading and paving project for two miles, and so on.¹¹

The definitions of "project" in the Federal-Aid Highway Act and the regulations thereunder are suifficiently broad to encompass total or partial construction on any length of a highway.¹² Further, FHWA's published directives place no limitation on the states' project proposals in terms of the items of work or length of the highway involved. For purposes of seeking the approvals necessary to obtain federal reimbursement, states may submit projects which propose total or partial construction on any length of a highway.

Although they are not required to do so, states usually request federal approval for projects proposing partial construction on short lengths of a highway. Projects submitted by the states seldom cover more than a few of the many items of work necessary to build a highway. The length of highway sections is seldom very long in projects other than planning projects. This prevailing practice of proposing projects in an [2 ELR 50004] incremental, piecemeal fashion enables the states to spend federal-aid highway funds as rapidly as possible but, as we shall see, it poses serious difficulties in implementing federal laws which are intended to mitigate the highways' adverse environmental and social effects. For this reason, it is important to understand why the practice prevails.

The principal factors encouraging the states to request federal approval of projects proposing partial construction on short lengths of a highway are the unusual way in which Congress authorizes expenditure of federal-aid highway funds and the FHWA's related funding mechanisms. Congress authorizes the expenditure of federal funds for most federal grants-in-aid programs in two stages. First, it enacts an authorization for appropriation of a fixed sum for a particular use during a specified fiscal year or years. Second, it appropriates a fixed sum for that use during the specified fiscal year or years. The authorization places a ceiling on the amount of money that can be appropriated. The appropriation is the amount that is actually available for expenditures. The full amount authorized need not be appropriated and frequently is not.

The federal-aid highway program is unusual in that federal-aid highway funds are made available for expenditure before appropriation. As indicated above, the funds are derived from highway user taxes deposited in the Highway Trust Fund. Congress periodically authorizes the Secretary of Transportation to apportion Highway Trust Fund revenue among the states by categories of highways.¹⁴ There is no authorization for appropriation in the conventional sense; the authorization is one for apportionment among the states. There is therefore no ceiling placed on the amount of federal-aid highway funds that Congress may later appropriate during any particular fiscal year or years, apart from actual Highway Trust Fund assets.

Federal-aid highway funds are apportioned among the states, for the fiscal years to which the authorization for apportionment refers, according to the formulae contained in section 104.¹⁵ Section 118 provides that these authorized and apportioned funds are "available for expenditure" for two years after the close of the fiscal year for which they are authorized. For example, the funds which Congress authorized for apportionment in the Federal-Aid Highway Act of 1970 for fiscal year 1971 and fiscal year 1972 are available for expenditure from the date of apportionment until June 30, 1974 and June 30, 1975, respectively. No money changes hands when federal-aid highway funds are apportioned under section 104. Actual disbursement cannot occur until after Congress appropriates the funds.

The FHWA considers the words "available for expenditure" in section 118 to mean available for "contractual obligation." In other words, the FHWA considers that it may enter into contractual obligations to disburse federal-aid highway funds after they have been authorized for apportionment and apportioned among the states. A contractual obligation under the federal-aid highway program is in fact a type of expenditure. After the federal government obligates itself to pay its proportional contribution to a state, it is subject tosuit if it fails to pay the full amount of that contribution when it is due.¹⁶

When seeking the appropriation of federal-aid highway funds for a fiscal year, the Federal Highway Administrator estimates the total amount of money to be disbursed during the year under contractual obligations that will then become due. This estimate is the basis for his appropriations request for the federal-aid highway program. Since the funds requested have already been obligated, the appropriations committees and Congress consider themselves bound to appropriate no less than the requested amount unless they question the accuracy of the Administrator's estimate.

Apportionments of federal-aid highway funds under section 104 are calculated in lump sums for each of the categories of federal-aid highway within a state. At the time of apportionment, the funds are not designated for use in relation to any particular highway. Each state is free to designate the proposed highways for which it will request federal reimbursement and to establish its own priorities for undertaking work on those highways. The FHWA places the federal aid highway funds which have been apportioned to a particular state, and are thus available for expenditure, in an "unprogrammed balance" account. Whenever the state receives the necessary program approval of a project under section 105(a), FHWA transfers the federal share of that project's cost from the state's "unprogrammed balance" account to an "approved program balance" account, and these funds are considered to be available for obligation by the state only on that project.

If a state should request federal reimbursement for an expensive, large project, one involving total construction, or partial construction of a long highway. [2 ELR 50005] most or all of the apportionment for a particular fiscal year might be reserved for use only on that project. Since actual obligation of federal-aid highway funds (by approval of plans, specifications and estimates under section 106(a)) and disbursement might not occur for several years, the state would deprive itself of the use of its apportioned funds by submitting such large projects for FHWA approval. For example, if a state received the necessary program approval under section 105(a) for a project involving total construction of a fifty-mile highway from A to B, the total cost of that highway would be subtracted from the state's unprogrammed balance account for the year for which program approval was requested. The funds would then be placed in the state's approved program balance account and would be available for obligation only on the A to B project. Even though some of the funds would not actually be obligated for some time because the highway would necessarily be built in stages over a long period of time, these funds would not be available to the state for any other purpose. Because states do not wish to restrict their use of federal-aid highway funds in this way, they tend to submit many small projects for FHWA approval.

Moreover, if a state receives the necessary program approval of a project under section 105(a) and, as a result, the federal share of the cost of that project is reserved from a particular fiscal year's apportionment, plans, specifications and estimates for that project must be obtained under section 106(a) (thereby obligating the federal government to pay its share of the project's costs) within two years after the fiscal year for which the apportionment was made. Otherwise, pursuant to section 118(b), the apportionment will no longer be available for expenditure but will lapse. If obligation of apportioned funds is delayed because of the number of items of work or the length of the highway involved in a single project, a state risks losing authority to spend some federal-aid highway funds. Needless to say, the states do not wish to lose authority to spend any federal-aid highway funds.

Other factors as well encourage states to seek FHWA approval of projects proposing partial construction on short lengths of a highway. The FHWA's published directives require the states to identify each project submitted for program approval under section 105(a) as falling into one or more of three categories of partial construction: preliminary engineering, right-of-way acquisition, and actual construction.¹⁷ Thus total construction must be divided into distinct items of work in order to identify the items as falling into one of these categories. Although the states are not required to submit projects for work in only one category,¹⁸ there is undoubtedly a tendency to do so simply because the categorization is required.

Furthermore, by submitting projects which propose partial construction of short lengths of a proposed highway, a state may receive some federal-aid highway funds before it obtains all the FHWA approvals necessary to be reimbursed for the cost of the entire highway. As we shall see, federal funds cannot be used to reimburse the states for work undertaken on any actual construction project before plans, specifications and estimates for that project are approved under section 106(a). If a state submits a project for total construction (including actual construction), FHWA approval of the plans, specifications and estimates for actual construction must be obtained before federal-aid highway funds can be used for any of the work involved. Similarly, if a state submits a project for actual construction of a long highway section, FHWA approval of plans, specifications and estimates for the entire highway section must be obtained before federal funds can be used for any of the work. The states are anxious to proceed with federal-aid highway work on a continuing basis, and considerable time would be necessary to prepare plans, specifications and estimates for projects involving total construction or actual construction of a long section of highway. In order to avoid potential delays in obtaining FHWA approvals and to have federal-aid highway funds available on a continuing basis, the states are inclined to include few items of work in each project they submit and to submit projects on short lengths of a highway.

The fragmented way in which projects are submitted to FHWA for approval creates a serious dilemma for the FHWA officials responsible for approving the projects. While approval of one particular project may not itself be inconsistent with federal requirements, that project may be inextricably connected with others and, taken together, the approvals may be inconsistent with those requirements. If a proposed project cannot comply with a federal requirement and the inability to comply results from work undertaken pursuant to previous project approvals, the FHWA official is confronted with Hobson's choice. He may either violate the law by ignoring the requirement and the policy underlying it, or waste federal-aid highway funds previously disbursed under approved projects by requiring the state to redesign or rebuild the highway.

When this dilemma arises in the context of implementing requirements intended to protect environmental or social values, FHWA officials have tended to adopt the first alternative and ignore the requirements. In part, this tendency may be attributed to a lack of commitment on their part to the policies [2 ELR 50006] underlying the standards. This tendency may also be attributed to the less precise nature of the standards compared with such standards as those relating to design engineering. But the FHWA officials' dilemma results fundamentally from dividing highway building into fragmented projects for purposes of obtaining the approvals necessary for federal reimbursement.

II. Obtaining the Project Approvals Necessary for Federal Reimbursement

As the foregoing discussion suggests, the details of FHWA's administrative procedures for federal reimbursement are difficult for most interested citizens outside the federal and state highway agencies, as well as many within them, to understand. The procedures were fashioned when the requirements which FHWA implemented in approving reimbursement involved almost exclusively technical or engineering matters, such as assuring that curvature, superelevation and sight distance correlated with a proposed highway's design speed. These requirements could be implemented efficiently by the review of small, fragmented projects in acting on a state's request for one or more of the approvals we shall next describe.

The Federal-Aid Highway Act require states to obtain two federal approvals in order to obtain reimbursement for part of a project's costs. Section 105(a) requires the states to submit "programs of proposed projects" for approval, and section 106(a) requires approval of plans, specifications and estimates for "each proposed project" included in an approved program. The former approval is commonly called "program approval"; the latter is commonly called "PS&E approval." We shall use these terms hereafter to refer to approvals under section 105(a) and section 106(a), respectively. In addition, the regulations under the Federal-Aid Highway Act and FHWA's published directives require states to obtain a third approval: "authorization to proceed with work."¹⁹ We shall consider each of these approvals in turn. As we have seen, a "project" receiving any of these three approvals may include one or a number of items of work with respect to any length of highway.

Authority to give program approval, PS&E approval, and authorization to proceed with work is exercised for the most part by FHWA division engineers. In order to give program approval or PS&E approval, the division engineer must determine that the project meets certain federal statutory requirements. Some such requirements are specifically imposed on program approval or PS&E approval. Others are not as specific or are simply imposed on the "approval" of "projects."²⁰ In addition, partial or subsidiary approvals are given by division engineers during their frequent communications with the states' representatives. For example, a division engineer may approve a single blueprint of the design for a section of highway. The legal consequences of these partial or subsidiary approvals are uncertain.

A. Program Approval

A project is first submitted for FHWA approval when it is included in a state's federal-aid highway "program." Section 105(a) requires the states "as soon as practical after the apportionments for the Federal-aid systems have been made for any fiscal year," to submit to the Secretary of Transportation "for his approval a program or programs of proposed projects for the utilization of the funds apportioned." Program approval is necessary to enable a state ultimately to obtain reimbursement for part of the cost of the project. A state may not be reimbursed for the cost of any work [2 ELR 50007] begun on a project before program approval is obtained.²¹

Contrary to what one might expect on first reading section 105(a), program approval relates exclusively to individual projects. Each project in a program must be submitted on a separate FHWA form.²² Failure to approve a project submitted for program approval does not affect the status of a program or other projects in it.²³ Projects relating to a particular proposed highway may be submitted for approval in a program at one time or over the course of several years. Indeed, a state's program has no ascertainable unifying feature other than an intention, expressed with respect to individual projects, to use apportioned federal-aid highway funds in a particular fiscal year.

As indicated above, the FHWA's published directives require each project submitted for program approval to be identified as falling into one or more of three categories of partial construction: preliminary engineering, right-of-way acquisition, or actual construction.²⁴ In addition, the FHWA's operating procedures require each project submitted for program approval to be identified as being either in "stage 1" or "stage 2."²⁵ A state 1 identification indicates that the state is deferring a request for reservation of federal-aid highway funds apportioned to it. A stage 2 identification indicates that the state is requesting a reservation of funds from the apportionment of federal-aid highway funds for a particular fiscal year. Only projects identified as falling into the categories of preliminary engineering and right-of-way acquisition may be submitted for program approval in stage 1. Preliminary engineering and right-of-way acquisition projects may be submitted for program approval in stage 2, but projects in the actual construction category must be submitted in stage 2.²⁶ A reservation of apportioned Federal-aid highway funds is required for actual construction projects.

[2 ELR 50008]

The two stages in program approval thus relate to a state's intention to reserve apportioned federal-aid highway funds for obligation with respect to particular projects. Although a state may desire to begin certain types of work without reserving any portion of the federal-aid highway funds apportioned to it, program approval is required before the state may undertake work, even with its own funds, on any project for which it ultimately may receive federal reimbursement. Accordingly, a state may obtain program approval of certain projects in stage 1 without committing itself to use federal funds.²⁷ The state may consider that it will possibly use federal funds from future apportionments if it becomes necessary to do so, or the state may actually expect in the future to request a reservation of funds for a particular fiscal year. The state may then undertake work on these projects, using only its own funds, before federal-aid highway funds are reserved from an annual apportionment. By undertaking work with its own funds exclusively, the state is able to defer the additional FHWA approvals which will be necessary if it later seeks federal reimbursement.

Certain requirements imposed by the Federal-Aid Highway Act must be met before projects can be given program approval. Some of these statutory requirements refer explicitly to section 105(a), but others do so only by implication. The language of the Federal-Aid Highway Act suggessts that the following determinations must be made before program approval can be given to a project:

(1) that the project is located on an approved federal-aid system;²⁸

(2) that a project on the federal-aid urban system was selected by the appropriate local officials and the state highway department in cooperation with each other;²⁹

(3) that a project in an urban area of more than fifty thousand persons is based on continuing, comprehensive and cooperative transportation planning;³⁰

(4) that there is no feasible and prudent alternative to the use of certain types of land, including public parkland, by a project which requires its use and that all possible planning has been included to minimize harm to the land resulting from such use;³¹ and

(5) that the state has given assurances that equal employment opportunity will be offered in connection with proposed projects.³²

The Federal-Aid Highway Act itself makes no distinction between program approval in stage 1 and program approval in stage 2; the distinction is made by the FHWA's operating procedures. FHWA approval of a particular project in stage 1 results in no obligation or commitment of federal-aid highway funds with respect to the project. Together with FHWA's authorization to proceed with work, it marks a point in time after which reimbursable work may begin. In light of the constraints which may influence later determinations as the result of a state's work for which it may later seek reimbursement, there is good reason for requiring the determinations listed above to be made when particular projects are submitted to the FHWA for program approval in stage 1, as well as stage 2.

B. PS&E Approval

Section 106(a) requires states to:

… submit to the Secretary for his approval, as soon as practicable after program approval, such surveys, plans, specifications, and estimates for each proposed project included in an approved program as the Secretary may require…. [The Secretary's] approval of any such project shall be deemed a contractual obligation of the Federal Government for the payment of its proportional contribution thereto.

PS&E approval of a project contractually obligates the federal government to pay its share of the project's costs. After PS&E approval, a state is entitled to reimbursement of the full federal share of project costs if it has conformed to the approved plans, specifications and estimates and to all applicable federal laws and regulations.³³

[2 ELR 50009]

The FHWA's operating procedures require PS&E to be prepared and submitted for all federal-aid highway projects, including preliminary engineering, right-of-way acquisition, and actual construction projects.³⁴ Despite this requirement, FHWA officials have indicated to us that "formal" PS&E are sometimes not prepared, submitted or approved — particularly for preliminary engineering projects.

The requirement of PS&E approval provides public assurance that division engineers are informed in detail about each project approved. Moreover, many preliminary engineering projects may significantly influence future determinations by FHWA officials. For example, a preliminary engineering project for the preparation of PS&E for actual construction can be expensive and time-consuming. Since there is a natural reluctance to modify construction PS&E substantially after they have been prepared, it is particularly important that the review given these proposed preliminary engineering projects by FHWA officials be reflected in formal PS&E approval.

FHWA officials have also indicated to us that there is often no single PS&E approval. Rather, PS&E approval frequently consists of a series of approvals which may not even refer explicitly to section 106(a).³⁵ An obvious difficulty with this practice is that it is impossible in some cases to fix one date after which the federal government is obligated to pay its share of a project's costs. Another difficulty involves questions concerning rescission of partial PS&E approvals before a final PS&E approval is given.

PS&E approval, like program approval, is conditioned on the project's meeting certain federal statutory requirements. Again, some statutory requirements refer explicitly to section 106(a) but other references are only implied. The language of the Federal-Aid Highway Act suggests that, prior to granting PS&E approval, the following determinations must be made:

(1) that the estimated cost of construction engineering does not exceed ten percent of the total estimated cost of the project minus certain exclusions;³⁶

(2) that plans and specifications for the project provide for a facility that will adequately meet existing and probable future needs and conditions in a manner conducive to safety, durability, and economy of maintenance, and will be designed and constructed in accordance with standards best suited to accomplish the foregoing objectives and to conform to the particular needs of each locality;³⁷

(3) that, with respect to actual construction projects on the Interstate System, the geometric and construction standards (such as gradients, number and width of lanes, etc.) applied to the project are adequate to accommodate the types and volumes of traffic anticipated for such project and for the twenty-year period commencing on the date of PS&E approval of each project;³⁸

(4) that, with respect to projects approved after July 1, 1972, the plans and specifications include adequate measures to implement the Secretary of Transportation's standards for highway noise levels compatible with different land uses;³⁹

(5) that the state has held public hearings to consider the economic, social and environmental effects of the highway's location, and its consistency with any urban planning which has been done by the community.⁴⁰

In addition, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 requires the head of each federal agency to make certain payments "whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person on or after January 2, 1971."⁴¹ This Act repealed the relocation assistance provisions in section 501, et seq. of the Federal-Aid Highway Act, which prohibited the Secretary from approving "any project under Section 106 or Section 117 of this title" causing displacement of persons until he received certain assurances from the state.⁴² Because the legislative history of the 1970 Act indicates that it was modeled on the Federal-Aid Highway Act's relocation assistance provisions,⁴³ its operative provisions with respect to the highway program should also relate to PS&E approval.⁴⁴

C. Authorization to Proceed with Work

As indicated above, a state may not be reimbursed for the cost of any work which is begun on a project before program approval of the project is obtained. The regulations under the Federal-Aid Highway Act and the [2 ELR 50010] FHWA's published directives require the states to receive authorization to proceed with work, in addition the program approval required by section 105(a), on each project for which reimbursement may be requested.⁴⁵ Reimbursable work may begin only after both approvals are obtained.

Since the requirement of obtaining authoization to proceed with work is imposed administratively, no federal statutory requirements must be met before the authorization is given. Certain administrative requirements with respect to right-of-way acquisition projects and actual construction projects are found in PPM 80-2, paragraph 1b. (April 17, 1967) and PPM 21-12, paragraph 7 (Aug. 26, 1965), respectively.⁴⁶ Although no specific requirements are placed on authorization to proceed with work on preliminary engineering projects, the language of PPM 21-1, paragraph 4a.(1) (April 15, 1958) suggests that some requirements may be imposed on an ad hoc basis.⁴⁷

The most remarkable feature of this third, administratively-imposed approval is its apparent inconsistency with section 106(a). According to PPM 21-1 (April 15, 1958), authorization to proceed with work constitutes a "reservation and obligation" of federal-aid highway funds for all projects in the categories of preliminary engineering and right-of-way acquisition which previously received program approval in stage 2. With respect to preliminary engineering and right-of-way acquisition projects which previously received program approval in stage 1 and as to which authorization to proceed with work was previously given, stage 2 program approval constitutes a "reservation and obligation" of federal-aid highway funds.⁴⁸ For all actual construction projects, authorization to proceed with work constitutes "obligation" of federal-aid highway funds.⁴⁹

Section 106(a) provides that it is PS&E approval for a project which "shall be deemed a contractual obligation of the Federal Government for the payment of its proportional contribution thereto." PPM 21-1, however, does not require PS&E approval to precede either authorization to begin work on, or stage 2 program approval of, preliminary engineering and right-of-way acquisition projects. According to PPM 21-1, these approvals "constitute … obligation of Federal funds" without regard to PS&E approval. To reconcile PPM 21-1 with section 106(a), it is possible to consider PS&E approval as being an implied condition to the "obligation" of federal-aid highway funds referred to in PPM 21-1. If so, FHWA's published directives give no indication that such is the case. Indeed, FHWA apparently considers that federal-aid highway funds are obligated for preliminary engineering and right-of-way acquisition projects upon giving authorization to proceed with work or stage 2 program approval, but before it has been determined that the states have complied with the statutory requirements relating to PS&E approval.

The provision of PPM 21-1 which makes authorization to proceed with work an "obligation of Federal funds" with respect to actual construction projects also appears to be inconsistent with section 106(a). PPM 21-1, paragraph 4b.(1) indicates that the division engineer may issue such authorization "either when he advises the State of his approval of the PS&E for the project or at such other time as required conditions are met. …" (Emphasis added.) It is unlikely that the "required conditions" could be met before PS&E approval is given, because FHWA's operating procedures elsewhere require PS&E approval to precede authorization to "advertise the physical [2 ELR 50011] construction for bids."⁵⁰ FHWA apparently considers that it has authority to delay the "contractual obligation of the Federal Government" referred to in section 106(a) beyond the date of PS&E approval until other "required conditions are met."

III. Attempts to Ensure that Environmental and Social Factors Are Considered in Federal-Aid Highway Project Approvals

In recent years Congress has responded to growing public awareness of the federal-aid highway program's adverse environmental and social impacts. New laws, such as those requiring protection of public parks and consideration of the social effects of a highway's location, require FHWA and state officials to look beyond technical and engineering matters to relatively unfamiliar, intangible values in planning and building federal-aid highways. These standards cannot be implemented in the context of FHWA's administrative procedures for federal reimbursement. For example, it is not possible to make a meaningful determination that there is no feasible and prudent alternative to locating a highway through a public park by piecemeal review of a small incremental project whose dimensions have been defined by a state's federal-aid funding needs. The FHWA's administrative procedures for federal reimbursement do not provide the basis for the broad review necessary to implement these new laws.

This problem was highlighted in Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013, 1 ELR 20379 (5th Cir. 1971) [hereafter "San Antonio"]. Actual construction had been auzhorized for two sections of highway which terminated at either end of a public park in San Antonio, Texas. Plaintiffs alleged that before approving actual construction of the two end sections the Secretary of Transportation was obliged to comply with section 4(f) of the Department of Transportation Act, which provides:

[T]he Secretary shall not approve any program or project which requires the use of publicly owned land from a public park … of national, State or local significance … unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park … resulting from such use.⁵¹

Defendants argued that a section 4(f) determination was not required because neither of the two end sections required "the use of" park land. They maintained that section 4(f) was applicable only with respect to the middle section which actually passed through the park. Rejecting this argument, the court concluded that the two end sections and the section through the park were parts of a single "project" for purposes of section 4(f). It ruled:

[T]he Secretary's division of the project into three "segments" for purposes of giving approval to the two "end segments" was unauthorized by section 4(f). Section 4(f) provides that "the secretary shall not approve any … project which requires the use of any publicly owned land from a public park…." Section 4(f) does not authorize the Secretary to separate a "project" into "segments." In short, the Secretary acted beyond the scope of his authority and in violation of section 4(f) when he approved "segments" of a project before he had complied with his section 4(f) responsibilities. [Citations omitted.]⁵²

Although the FHWA had apparently authorized actual construction of the two end segments of the North Expressway consistently with its administrative procedures for federal reimbursement with respect to separate small projects, the court was properly concerned more about implementation of section 4(f)'s declared purposes than about semantic distinctions based on those procedures. It recognized that approval of the separate projects submitted by the state did not provide the overview necessary to implement section 4(f):

The frustrating effect such piecemeal administrative approvals would have on the vitality of section 4(f) is plain for any man to see. Patently, the construction of these two "end segments" to the very border, if not into, the Parklands, will make destruction of further parklands inevitable, or at least, will severely limit the number of "feasible and prudent" alternatives to avoiding the park. The Secretary's approach to his section 4(f) responsibilities thus makes a joke of the "feasible and prudent alternatives" standard, and we not only decline to give such an approach our imprimatur we specifically declare it unlawful.⁵³

San Antonio requires the Secretary of Transportation and the FHWA to consider future plans for adjoining sections of highway in determining whether any particular project meets the requirements of section 4(f). In addition, it warns the FHWA to be assured that routine approval of projects for purposes of federal reimbursement does not foreclose alternatives which are more consistent with federal policies encouraging environmental protection.

In two relatively recent directives, the FHWA has acknowledged that its approval of incremental federal-aid highway projects has not provided the broad review necessary to implement new national policies and has taken some steps to deal with the shortcomings of its administrative procedures. We turn now to an analysis of these two directives.

A. PPM 20-8

Section 128(a) provides:

[2 ELR 50012]

Any State highway department which submits plans for a Federal-aid highway project involving the by-passing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Any State highway department which submits plans for an Interstate System project shall certify to the Secretary that it has had public hearings at a convenient location, or has afforded the opportunity for such hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of such highway. Such certification shall be accompanied by a report which indicates the consideration given to the economic, social, environmental, and other effects of the plan or highway location or design and various alternatives which were raised during the hearing or which were otherwise considered.⁵⁴

In PPM 20-8, the FHWA attempted to relate the requirements of section 128(a) to the project approvals necessary for federal reimbursement.⁵⁵ The stated purposes of PPM 20-8 are "to ensure, to the maximum extent practicable, that highway locations and designs are consistent with Federal, State and local goals and objectives," and "to afford full opportunity for effective public participation in the consideration of highway location and design proposals by highway departments before submission to the Federal Highway Administration for approval."⁵⁶ To achieve these purposes, PPM 20-8 requires states to obtain two formal FHWA approvals in addition to the project approvals necessary for federal reimbursement: (1) "location" approval, which follows a "corridor public hearing," and (2) "design" approval, which follows a "design public hearing."⁵⁷

PPM 20-8 makes location approval and design approval conditions precedent to obtaining some types of FHWA approvals of some classes of projects for purposes of federal reimbursement. Paragraph 10d.(1) of PPM 20-8 authorizes FHWA division engineers to "approve a route location and authorize design engineering" only after the state has requested location approval, corridor public hearings have been held, the state has submitted the transcripts and certifications required by section 128, and "the requirements of this PPM and of other applicable laws and regulations" have been met. Paragraph 10d.(2) of PPM 20-8 authorizes the division engineers to "approve the highway design and authorize right-of-way acquisition, approve the right-of-way plans, approve construction plans, specifications, and estimates, or authorize construction," only after the route location has been approved, the state has requested "highway design approval," design public hearings have been held, the state has submitted the transcripts and certifications required by Section 128, and "the requirements of this PPM and of other applicable laws and regulations" have been met.

A great deal of difficulty has arisen in implementing PPM 20-8. One reason is that the terminology used in paragraph 10d. is not sufficiently precise to indicate clearly which types of approvals or classes of projects submitted for federal reimbursement are conditioned on location approval or design approval. The reference in paragraph 10d.(2) to authorizing "right-of-way acquisition" and [2 ELR 50013] "construction" suggests that design approval must precede FHWA's authorization to proceed with work on any project in the categories of right-of-way acquisition or actual construction. Paragraph 10e. of PPM 20-8, however, permits division engineers to authorize the acquisition of rights-of-way before a design hearing "under criteria to be promulgated by the Federal Highway Administrator … in other appropriate instances." These criteria, which are set forth in IM 20-1-69 (April 8, 1969), authorize the approval of full takings before a design hearing if approval of a final location is "positively fixed to the degree that there is assurance that the entire parcel will be required for the highway right-of-way and the takings are necessary to provide orderly and humane dislocation of displacees…."⁵⁸

The reference in the paragraph 10d.(2) to approving construction plans, specifications and estimates suggests that PS&E approval of all projects in the actual construction category are conditioned on design approval. However, because the FHWA's published directives do not appear specifically to provide either for authorization to begin work on "design engineering" (Paragraph 10d.(1)) or for approval of "right-of-way plans" (Paragraph 10d.(2)), the reference to those actions in PPM 20-8 is obscure.

A second reason for the difficulty in implementing PPM 20-8 has been the novelty of its requirements. No single date after which the requirements of PPM 20-8 become applicable is specified. Rather, PPM 20-8 is drafted so as to be applicable only if the requests for "location approval" or "design approval" were made after its effective date.⁵⁹ Because there was no counterpart to either location approval or design approval before PPM 20-8 was issued, it has been difficult to determine how to apply the new requirements to highway building underway at that time.

Prior to issuance of PPM 20-8, the FHWA's published directives did not explicitly provide for formal location approval of federal-aid highways. Approval of a highway's location could take place piecemeal, as the FHWA approved individual reimbursable projects based on more detailed maps or plans of the highway and, in the process, alternative routes were considered and rejected.⁶⁰ For example, FHWA officials have informed us that the division engineer's approval of a state's periodic cost estimates for completing its portion of the Interstate system was frequently regarded as tacit approval for the Interstate locations shown on maps included in the cost estimates.⁶¹ Although a state might has specifically requested the FHWA to approve the location of some proposed highways, particularly controversial locations, it was not required to do so.

In PPM 90-1 (August 24, 1971), the FHWA acknowledged that its administrative procedures before PPM 20-8 was issued had no counterpart to "a formally documented FHWA design approval."⁶² It attempted to resolve the problem by asserting that design approval was "that action or series of actions" by which FHWA indicated to the state that:

… the essential elements of the highway as set out in paragraph 10 of PPM 20-8 were satisfactory or acceptable for preparation of the PS&E. Such actions may have consisted of review and comments upon [2 ELR 50014] preliminary plans, schematic drawings, design studies, layouts or reports or unconditional approval to acquire all the right of way for a project.⁶³

The states were directed in PPM 90-1 to "identify those projects in the above category" and to prepare a memorandum for concurrence by a division engineer "citing the document(s) or action(s) which it believes are equivalent to design approval." The division engineer's concurrence was to "serve as verification that the previous actions or approvals were in effect design approval."⁶⁴

The identification of design approval pursuant to this directive in PPM 90-1 may ultimately create more confusion than it dispels. First, the reference to "the essential elements of the highway as set out in paragraph 10 of PPM 20-8" is ambiguous. Presumably reference is made to paragraph 10b.(1)(b) of PPM 20-8, which describes some "essential elements" to be included in design study reports, "such as design standards, number of traffic lanes, access control features, general horizontal and vertical alignment, right-of-way requirements and location of bridges, interchanges, and other structures." But PPM 90-1 does not indicate whether some or all of these "essential elements" must have been satisfactory to the FHWA, or whether in a particular case there may be other "essential elements" which are not specifically mentioned in PPM 20-8. Moreover, PPM 90-1 contains no standards or criteria to guide FHWA division engineers in determining whether the "essential elements" were or were not "satisfactory or acceptable for preparation of PS&E." Since the FHWA's operating procedures admitteldy did not provide for the formal approval of "essential elements" of a proposed highway's design before PPM 20-8 was issued, a division engineer's determination that the "action or series of actions" referred to in PPM 90-1 were taken on specific dates may be entirely arbitrary.

Second, the terms "preparation of the PS&E" in the context quoted above are ambiguous. Because PS&E approval is required for all reimbursable projects,⁶⁵ it is difficult to identify the types of approvals and classes of projects to which the terms "preparation of PS&E" refer. Moreover, the "action or series of actions" identified by the states may be those which PPM 20-8 requires to follow design approval. As we have seen, paragraph 10d.(2) of PPM 20-8 indicates that design approval must precede authoritization to proceed with work on some projects in the category of right-of-way acquisition. In addition, approval of "right-of-way plans" (whatever that may be) must await design approval. It is difficult to understand, for example, how "unconditional approval to acquire all the right of way for a project" could be tantamount to design approval when PPM 20-8 requires design approval to precede unconditional approval to acquire some right-of-way.

B. PPM 90-1

The principal purpose of PPM 90-1 (Aug. 24, 1971) was to implement four separate federal statutes intended to avoid or mitigate the adverse environmental impacts of the federal-aid highway program: the National Environmental Policy Act of 1969 ("NEPA");⁶⁶ section 4(f) of the Department of Transportation Act (which is now identical to Section 138 of the Federal-Aid Highway Act);⁶⁷ section 106 of the Historic Preservation Act of 1966;⁶⁸ and section 309 of the Clean Air Act of 1970.⁶⁹ PPM 90-1 relates the operative provisions of [2 ELR 50015] each statute to the location approval and design approval requirements of PPM 20-8.

In PPM 90-1, FHWA implicitly acknowledged some of the shortcomings of its conventional project concept in implementing environmental protection legislation by introducing a new concept: the "highway section." The highway section is a unit of a proposed highway for which an environmental statement is to be prepared under section 102(2)(C) of NEPA. PPM 90-1 defines "highway section" as:

… as substantial length of highway between logical termini (major crossroads, population centers, major traffic generators, or similar major highway control elements) as normally included in a single location study.⁷⁰

Some guidance as to the size of these units is provided by paragraph 6 of PPM 90-1:

The highway section included in an environmental statement should be as long as practicable to permit consideration of environmental matters on a broad scope. Piecemealing proposed highway improvements in separate environmental statements should be avoided. If possible, the highway section should be of substantial length that would normally be included in a multi-year highway improvement program.

Although PPM 90-1 does not expressly state that location approval under PPM 20-8 is the "major federal action" to which the requirements of section 102(2)(C) of NEPA relate, it indicates that the highway section for which an environmental statement is prepared will be the same as the section of highway submitted to the FHWA for location approval.⁷¹ "Highway agencies" are required to prepare the environmental statements required by Section 102(2)(C) of NEPA and to prepare information relating to the requirements of section 4(f) of the Department of Transportation Act.⁷² "Highway agency" is defined as "the agency with the primary responsibility for initiating and carrying forward the planning, design, and construction of the highway," in most instances, the state.⁷³

The question whether "construction and operation" of a particular highway section "will have a significant effect upon the environment" for purposes of section 102(2)(C) of NEPA is to be determined by FHWA division engineers and the highway agency.⁷⁴ If the anticipated impact of a highway section is deemed to be "not significant," a "negative declaration" must be prepared by the highway agency and concurred in by the FHWA division engineer.⁷⁵ Appropriate local, state and federal agencies are to be consulted in the "early stages" of a "proposal to develop or improve a highway section."⁷⁶

PPM 90-1 requires a draft environmental statement, including any necessary section 4(f) information, to be made available to the public not later than the time when the first notice of a corridor public [2 ELR 50016] hearing is given under PPM 20-8.⁷⁷ The Environmental Protection Agency has an opportunity to comment on the proposal under section 309 of the Clean Air Act of 1970 at that stage.⁷⁸ Review under section 106 of the Historic Preservation Act proceeds independently, but its "provisions should be satisfied" before a state submits its final environmental statement to FHWA.⁷⁹ If an historic site is involved, the procedures with respect to lands protected by section 4(f) of the Department of Transportation Act must be followed.⁸⁰

The procedures in PPM 90-1 must be followed "for each highway section proposed for construction … which receives or received design approval on or after February 1, 1971."⁸¹ If a highway section received location approval — but not design approval — prior to February 1, 1971, special procedures are provided for preparing and processing environmental statements "during the design studies." With respect to highway sections which received design approval between January 1, 1970 (the effective date of NEPA) and February 1, 1971, environmental statements will be prepared only if "in the judgment of the FHWA division engineer, implementation of [NEPA] to the fullest extent possible requires preparation and processing of an environmental statement."⁸²

Implementation of PPM 90-1 with respect to highway building underway when it was issued will probably be as difficult as implementation of PPM 20-8 has been. Because of the new procedures' close connection with PPM 20-8, many of the uncertainties described above which have impeded the identification of location approval and design approval prior to the date it was issued will also impede the implementation of PPM 90-1. In particular, the provisions of PPM 90-1 relating to NEPA are likely to be troublesome.

The FHWA made no attempt to implement NEPA formally until eleven months after its effective date. On November 30, 1970, a draft instructional memorandum containing the FHWA's proposed guidelines for compliance with NEPA was circulated to division engineers for comment. Notwithstanding the tentative character of the instructional memorandum, the FHWA Notice transmitting it directed: "The state highway departments should be requested to immediately begin implementation of the draft guidelines." (Emphasis added.)⁸³

As indicated above, PPM 90-1 in its final form treats highway sections which received design approval between January 1, 1970 and February 1, 1971 differently from others. Environmental statements are to be prepared for those highway sections only if" in the judgment of the FHWA division engineer, implementation of [NEPA] to the fullest extent possible requires preparation and processing of an environmental statement." The draft instructional memorandum circulated on November 30, 1970 contained no such provision. It simply recited that its procedures did not apply "to projects that received or receive design approval before February 1, 1971." (Emphasis added).⁸⁴ The draft instructional memorandum stated further:

Design approval be established and documented in one of the following three ways, dependings on when such design approvals were or are given … (3) For those projects which the SHD is presently preparing the construction PS&E and there is not documentary evidence that the BPR [Bureau of Public Roads] indicated its acceptance of the essential design elements prior to the SHD undertaking preparation of the PS&E, the SHD may furnish the FHWA copies of drawings, plans, or other material showing the present status of the plan preparation. The SHD shall submit such material and the FHWA division engineer shall advise the State in writing, prior to February 1, 1971, that the design for a project or for a proposal is approved if he determines that the present status of the design or plan preparation meets the requirements for design approval outlined in paragraph 10 of PPM 20-8. (Emphasis added.)⁸⁵

The draft instructional memorandum's blanket exemption from NEPA for projects receiving design [2 ELR 50017] approval before February 1, 1971, together with the FHWA's directive to implement the draft guidelines immediately, created a significant incentive for the states to obtain FHWA design approval before that date. Not suprisingly, an extraordinary number of design approvals were given or documented during January, 1971. In these circumstances, serious questions may be raised about any decision by an FHWA division engineer that an environmental statement was not necessary with respect to a highway section given design approval shortly before February 1, 1971.

PPMs 20-8 and 90-1 begin to provide a framework in which interested citizens can participate in highway planning and the FHWA can undertake the broad review required to implement recent federal legislation protecting environmental and social values. The "highway section" concept in PPM 90-1 is probably the most important development toward consideration of proposed highway plans on more than a piecemeal basis.⁸⁶ Without clarification of the FHWA's administrative procedures, however, the strength of that framework cannot be realistically evaluated.

Most federal and state highway officials have been accustomed to thinking of federal-aid highway "projects" as small, incremental steps in achieving larger plans. They have not been noticeably anxious to submit the states' larger plans to what they commonly regard as uninformed public criticism and unnecessary reevaluation. In addition, most state highway officials consider it their overriding responsibility to spend the maximum amount of federal-aid highway funds available. The states' current highway work schedules are therefore carefully synchronized with the FHWA's funding mechanisms. In the past, these factors have made both federal and state highway officials reluctant to accept either broad review of highway plans or delays of work in progress. New federal laws protecting environmental and social values, however, have necessarily had these consequences. Their full implementation depends on the spirit as well as the procedural tools with which the FHWA and the states will now approach the task.

IV. Judicial Review of Administrative Decisions under the Federal-Aid Highway Program.

Growing public concern about the environmental and social effects of the federal-aid highway program has found expression in a growing number of lawsuits challenging highways across the country. As we go to press, FHWA attorneys inform us that there are sixty-five "environmental" highway suits pending. Nineteen have been filed this year.The Highway Research Board's annual Highway Law Workshop, which has previously been concerned primarily with such topics as recent developments in condemnation law, will feature at its 1972 session a panel on "Defense of Environmental Law Suits." It seems certain that the FHWA's administrative procedures will be receiving increased scrutiny in court.

In the preceding discussion we have attempted to describe and analyze some of the FHWA's administrative procedures. On the basis of that discussion, we now turn to two of the general legal problems which have arisen in judicial review of these administrative decisions. Before doing so, however, it is essential to note that the details of the FHWA's administrative procedures have frankly puzzled competent counsel representing both sides, as well as many judges, in the recent suits challenging federal-aid highways. Many of the descriptions of these procedures in briefs and opinions have only a vague resemblance to our description of them. For this reason, it may be helpful to examine critically an erroneous summary in one recent decision.

Lathan v. Volpe, __ F.2d __, 1 ELR 20602 (9th Cir. 1971) involved a challenge to right-of-way acquisition for an Interstate highway between two interchanges on existing Interstate highways in Seattle, Washington. As a setting for its opinion, the court adopted "a description of the statutory scheme" from the brief of the federal defendants. Defining "any section of federally-funded roadway" as a "project," the court's description outlined five "successive stages" in the construction of a federally financed highway: (1) "program," (2) "routing," (3) "engineering design," (4) "right-of-way acquisition," and (5) "actual 'construction.'" The court stated:

Following approval of the program by the Secretary [pursuant to section 105(a)], the State selects the different project routes (23 U.S.C. 103(d) [sic.]) and prepares, for the Secretary's review — and approval if the proper standards are met — 'such surveys, plans, specifications and estimates for each proposed project included in the approved program' as relate to the route location. 23 U.S.C. 106(a). The same process is repeated with respect to design…. The 'right-of-way acquisition' stage follows the 'engineering design' stage….Finally, there is the actual 'construction' stage (PPM 21-7)….⁸⁷

This description is inconsistent in every respect [2 ELR 50018] with the procedures we have described. First, although the highway involved may have been considered as one "project" for purposes of selecting a corridor for its final location, it is doubtful that the projects submitted by the state to obtain federal reimbursement involved many items of work relating to the entire length of the highway. For this reason, it was probably incorrect to relate the approvals required by sections 105(a) and 106(a), in stages or otherwise, to the entire highway.

Second, although the court's description refers to route selection on a federal-aid system pursuant to section 103(f) as part of a "routing" stage which is said to follow program approval under section 105(a), the latter section expressly prohibits the approval of "any project on a proposed program which is not located upon an approved federal-aid system." Route selection on a federal-aid system pursuant to section 103(d) is necessarily the first step. Moreover, as we have seen, program approval relates to individual proposed projects. There is no separate "program stage."

Third, the court's description relates PS&E approval both to the "location" and to the "design" of the highway. We have seen, however, that PS&E approval under section 106(a) is given to separate projects submitted to obtain federal reimbursement. PS&E approval is given neither to the "location" nor to the "design" of any proposed federal-aid highway. Neither location nor design approval results in a contractual obligation on the part of the federal government to reimburse a state. We have also seen that IM 20-1-69 (April 8, 1969) permits substantial right-of-way acquisition to be authorized before design approval is obtained and while detailed design plans are being prepared. Right-of-way acquisition does not necessarily follow an engineering design "stage."

Fourth, we have seen that the term "actual 'construction'" is normally used to identify a project for certain types of work which is submitted to obtain federal reimbursement. Particularly in building expensive Interstate highways in urban locations (such as the highway involved in this suit), it is not uncommon for a state to begin actual construction work on one or more small sections pursuant to approved projects before completing engineering work on other sections. PPM 21-7 (April 21, 1971), to which the court's description refers, does not concern an actual construction "phase" or even actual construction projects exclusively. Rather, it prescribes the form and procedures for preparing and executing the "project agreements" which are required by section 110(a) for all reimbursable federal-aid highway projects.

We now turn to two problems which have arisen in judicial review of administrative decisions concerning federal laws which are intended to protect and environment or mitigate social dislocation.

A. Implementing New Federal Requirements in Relation to Ongoing Highway Building

Since federal-aid highway projects usually include few items of work on short lengths of a highway, a single project submitted to the FHWA for approval usually involves the continuation of work previously approved. Whenever a new federal requirement is imposed, the question arises whether particular projects which involve the continuation of work previously approved must comply with the new requirement before being approved by the FHWA for federal reimbursement. The spectre of "retroactive" application of new requirements has frequently been raised to support the contention that these projects should not be subject to the new requirement.

For example, suppose rights-of-way have been acquired for a highway from A to B and a new requirement is imposed as a condition to PS&E approval. Must the new requirement be met prior to approval of PS&E for an actual construction project on the same highway? Or suppose a highway has been proposed from A through B to C and the highway is in operation from A to B when a new requirement is imposed as a condition to program approval. Must a project for right-of-way acquisition from B to C meet the new requirement before program approval is given to it? These questions are difficult because the new requirement may necessitate reevaluation of previous decisions. The policy underlying the new requirement may suggest that the proposed highway should be redesigned, rerouted, partially reconstructed, or even abandoned.

New federal requirements should be waived for incremental aspects of federal-aid highway work in only a few exceptional situations. It will not always be possible meaningfully to implement the policies underlying a new requirement, and the hardship resulting from its imposition may clearly outweigh any benefit to be gained. In an overwhelming majority of situations, however, the importance to the public of new statutory protections against environmental degradation and social dislocation resulting from proposed federal-aid highways will outweigh any demonstrable hardship. For example, previous approval of projects for planning and engineering should not preclude a reassessment in light of the policies set forth in NEPA. The cost of additional planning, redesigning,or even abandoning the proposal to build a highway would be small in relation to most federal-aid highways' total cost and the public benefit to be derived from implementing NEPA's policies. Even if rights-of-way have been acquired, the difficulty in reassessing a highway proposal may not be great enough to justify waiving a new federal law that calls for reconsideration in light of new standards. The exceptional case would be one where actual construction is substantially underway when the new requirement is imposed.⁸⁸

[2 ELR 50019]

Although highway agencies' personnel are exasperated by any delay, imposing new federal requirements on the continuation of work approved previously should seldom result in serious hardship. A state's expectation of federal reimbursement in the full amount to which it deems itself entitled may be frustrated by many factors other than new federal requirements, such as budget restrictions, nonconcurrence of local authorities, and engineering difficulty or impossibility. Previous PS&E approvals may have obligated the federal government to reimburse a portion of the costs incurred. But this factor alone should not preclude reconsideration in light of new statutory policies if, with respect to the proposed highway as a whole, there is an opportunity to implement those policies in a meaningful way, and hardship to the state and federal governments does not clearly outweigh the benefit of implementing them.

The courts that have considered these problems have adopted common-sense solutions, for the most part avoiding entrapment in the semantic confusion that characterizes many legal arguments about the federal-aid highway program. For example, Morningside-Lenox Park Ass'n Inc. v. Volpe, 334 F. Supp. 132, 1 ELR 20629 (N.D. Ga. 1971) involved a challenge to part of I-485 in Atlanta, Georgia. Another part of the highway had been open to traffic since 1964. With respect to the part which was challenged, approximately $23,300,000 had been authorized for preliminary engineering and right-of-way acquisition. The total-cost, including construction, was $95,300,000. The court found that the location of the highway had been approved by FHWA in July, 1966. Pursuant to the FHWA's draft instructional memorandum on compliance with NEPA, the state had determined (and the FHWA had concurred) that design approval had been given with respect to separate sections of the highway on October 10, 1967 and August 25, 1969, respectively.

The federal government argued that NEPA was not applicable with respect to the challenged highway because the basic planning, authorization, approvals and hearings occurred prior to the effective date of the Act. The court nevertheless remanded the case to the Secretary of Transportation for compliance with section 102(2)(C) of NEPA. Relying primarily on NEPA's mandate that section 102(2)(C) be complied with "to the fullest extent possible" and on interim guidelines of the Council on Environmental Quality, the court concluded:

While much work has already been done, the Court is not dealing with a fait accompli. In short, the Court holds that compliance with Section 102 of the NEPA is required as to an ongoing federal project on which substantial actions are yet to be taken, regardless of the date of "critical" federal approval of the project.⁸⁹

The court then defined the scope of the Secretary of Transportation's responsibilities under NEPA in general terms. The court affirmed that it was "not directing the defendants to tip up a multi-million dollar highway project or otherwise to undo anything that has already been done." It was not suggested "that previous expenditure of funds and the status of work in general should be ignored." On the other hand, the court indicated that compliance with the procedures in section 102 of NEPA might result in a "final decision" which required "substantive alterations in or complete abandonment of the project." Such a decision was not foreclosed by commitments made before NEPA's effective date, but "policy and constitutional considerations which normally accompany a proposed divestment of vested rights (contract or otherwise) must be taken into account."⁹⁰

Morningside required a thorough reassessment of highway plans with a balancing of prior commitments against NEPA's new policies. "Obviously," the court took pain to say, "defendants may approach the compliance with Section 102 differently from what might be done with respect to new projects."⁹¹ The critical point was that these were "substantial actions … yet to be taken," not that certain approvals had already been granted. No particular significance was attached to the dates of FHWA location and design approvals, notwithstanding the provisions of PPM 90-1.

A second recent decision, Arlington Coalition on Transportation v. Volpe, __ F.2d __, 2 ELR 20162 (4th Cir. 1972), involved a challenge to ongoing actual construction of part of I-66 in Arlington, Virginia. The proposed location of the highway had been approved by the FHWA in June, 1959. Pursuant to the FHWA's draft instructional memorandum on compliance with NEPA, design approval had been obtained on January 21, 1971. In the proposed corridor, 93.9 percent of all dwellings had been acquired, 98.5 percent of all businesses had been acquired, 75.6 percent of all families had been relocated, 84.6 percent of all businesses had been relocated, and 84.4 percent of all necessary right-of-way had been acquired. However, only three small items of actual construction work had begun. The total estimated cost of the proposed highway was not stated in the court's opinion, but approximately $28,670,000 had been spent for rights-of-way acquisition. The remaining cost of rights-of-way acquisition was estimated to be approximately $5,330,000.

The court enjoined further work on the highway pending completion of the environmental statement required by section 102(2)(C) of NEPA. Rejecting the federal and state governments' argument that NEPA [2 ELR 50020] was not applicable because work on the highway was in progress on the Act's effective date, the court ruled:

Doubtless Congress did not intend that all projects ongoing at the effective date of the Act be subject to the requirements of Section 102. At some stage of progress, the cost of altering or abandoning the project could so definitely outweigh whatever benefits that might accrue therefrom that it might no longer be "possible" to change the project in accordance with Section 102. At some stage, federal action may be so "complete" that applying the Act could be considered a "retroactive" application notintended by the Congress. The congressional command that the Act be complied with "to the fullest extent possible" means, we believe, that an ongoing project was intended to be subject to Section 102 until it has reached that stage of completion, and that doubt about whether the critical stage has been reached must be resolved in favor of applicability.⁹²

In addition, the court rejected the governments' argument that NEPA was not applicable because FHWA had approved its design on January 21, 1971 pursuant to the draft instructional memorandum circulated on November 30, 1970:

We have held that Section 102(C) is applicable to a project until it has reached the state of completion where the costs of abandoning or altering the proposed route would clearly outweigh the benefits therefrom. In light of the "to the fullest extent possible" language, we have compared all of the steps already taken towards construction of Arlington I-66 with all of the steps yet to be taken and have concluded that this highway has not yet reached that stage of completion that cuts off application of Section 102(C). Manifestly the date of design approval alone does not accurately measure whether Arlington I-66 has reached the crucial stage, and determining the applicability of Section 102(C) by this standard alone would be arbitrary and capricious agency action and an abuse of administrative discretion.⁹³

Finally, relying on Morningside and Lathan, supra, the court ruled that although the Secretary of Transportation could take "previous investment in the proposed route" into account in deciding whether it should be altered or abandoned, further investment should await the Secretary's decision:

Further investment of time, effort or money in the proposed route would make alteration or abandonment of the route increasingly less wise and, therefore, increasingly unlikely. If investment in the proposed route were to continue prior to and during the Secretary's consideration of the environmental report, the options open to the Secretary would diminish, and at some point is his consideration would become a meaningless formality.⁹⁴

These courts wisely looked beyond the calendar to determine whether the application of NEPA or other similar federal laws is meaningful in a particular case. No particular FHWA approval should necessarily immunize federal-aid highways from new federal statutory requirements. As we have seen, neither location nor design approval obligates the federal government to reimburse a state for project costs. These approvals are administrative contrivances which enable the FHWA and the public to review highway planning on more than a project-by-project basis. In some cases location approval and even design approval are given years before changes in ownership or physical alterations of the land occur through substantial acquisition of rights-of-way, demolition of existing structures, or other actual construction work. If these or other particular FHWA approvals were considered unchangeable, the authority of Congress to establish new environmental or social policies with respect to the federal-aid highway program would be severely curtailed.

Finally, location approval permits a state to proceed with the submission of design engineering projects for purposes of federal reimbursement and acquisition of some rights-of-way. Through undertaking design work, the state may determine that a proposed location is not engineeringly feasible and would have to be changed. Even if the location is not changed as the result of design engineering, the state will have relied on location approval only to the extent of its design engineering costs and, in some cases, right-of-way acquisition costs. These costs are likely to be small in relation to the total cost of the highway's construction. In most cases where these costs are balanced against the importance of the public policies underlying new federal requirements, protecting environmental and social values, the extent of the state's reliance will not be sufficient to outweigh those policies.

B. Applying Federal Requirements to Highways Constructed with State Funds

Some states have attempted to avoid complying with new federal requirements protecting environmental and social values by taking the position that certain highways which are built partially or exclusively with state funds are exempt from those requirements. For example, suppose a state is determined to build a controversial federal-aid highway from A to B and has obtained federal reimbursement for preliminary engineering or right-of-way acquisition projects. After new federal requirements are imposed which could delay actual construction, the state may decide to finance the remaining work with its own funds. If continuing work on the highway is challenged because the new requirements have not been met, the state will argue that they are not applicable to items of work undertaken with state funds alone after their effective date.

Alternatively, a state determined to build a controversial highway from A to B could finance work preliminary to actual construction with its own funds [2 ELR 50021] but obtain the FHWA approvals necessary to remain eligible for federal reimbursement. That option is available, as we have seen, by requesting program approval in stage 1 for projects in the categories of preliminary engineering or right-of-way acquisition. The state becomes eligible for federal reimbursement for work undertaken on those projects after the FHWA has given them program approval in stage 1 and authorized the state to begin work on them.The state will intend to request federal reimbursement for those projects only if its need for federal funds outweighs the difficulty of complying with federal requirements. If challenged in court, for example, for failure to comply with federal relocation assistance requirements, the state will argue that those requirements are applicable only when it requests federal reimbursement.

In a third variation, a state could use its own funds exclusively to build the controversial and disruptive A to B portion of a proposed highway from A through B to C, intending to obtain federal reimbursement only for work relating to the B to C portion. The state would argue that the A to B portion of the proposed highway is a separate unit of construction which is not a federal-aid highway at all. There are many other possible variations.

A state's avoidance of federal requirements protecting environmental and social values in any one of these ways does not necessarily reduce either the total amount of federal-aid highway funds apportioned to the State or the total amount the state spends for building highways. We have seen that since federal-aid highway funds are not designated for use in relation to any particular highway when they are apportioned, the states are free to designate the proposed highways for which they will request federal reimbursement. A state may therefore use its own funds for highways whose progress would be primarily affected by new federal requirements and request federal reimbursement for less controversial or disruptive highways. It is largely a matter of bookkeeping. If the states are free to circumvent federal requirements in this way, the effectiveness of new federal laws which are intended to avoid or mitigate the federal-aid highway program's adverse environmental and social impacts will be substantially diminished.

A state's ability to avoid new federal requirements in this way is limited if the State's own highway revenues are not sufficient to enable it to build controversial or disruptive highways with its own funds. This is a more significant practical limitation in some states than in others. In some smaller or less populous states, the level of highway revenues is such that federal aid is essential to carry out any major highway improvement. Other states, such as California and Texas, have sufficient revenues allocated to their highway program to enable them to carry on extensive highway building using their own funds exclusively.

Although the ability of the respective states to avoid federal requirements through shifts in funding may vary considerably, federal-aid highway funds account for a substantial share of each state's total highway revenues and total capital highway expenditures. In 1970 (the most recent year for which figures are available), the states' total receipts for highways were $16.5 billion, of which $4.7 billion was federal aid.⁹⁵ In 1970, federal aid accounted for 51 percent of the states' total capital expenditures for highways. Federal-aid highway funds represented approximately 33 percent of California's total highway receipts, for example, and 56% of its total capital expenditures for highways. The states' overall highway building programs depend so heavily on federal-aid highway funds that it seems unrealistic to regard a major highway improvement undertaken by any state as being carried on in isolation from the federal-aid highway program.

When a state attempts to avoid federal requirements protecting environmental and social values with respect to a particular highway by shifts in funding, the questions presented may be analyzed with reference to the FHWA's administrative procedures for federal reimbursement and the consequences of particular FHWA approvals. But such a limited analysis in most instances will overlook fundamental realities. If the state's building a particular highway with its own funds does not result in a reduction of apportioned federal-aid highway funds, federal funds are in effect enabling the state to do indirectly what federal law prohibits it from doing directly. Moreover, a state's decision to avoid federal requirements by building a highway with its own funds makes it impossible to apply federal laws protecting environmental and social values to all citizens similarly situated. The residents of the state that builds a highway with its own funds do not have the same protection as residents of states that are financially unable to take the same action. In these circumstances, avoidance of some federal requirements, such as public hearings and possibly relocation assistance, may raise Constitutional questions.⁹⁶ New federal laws should be applicable to highway work undertaken by a state with its own funds in situations where a state has obtained federal reimbursement for prior work relating to the highway or has become eligible for reimbursement and reserves the right to request it. In these situations, the state has either obtained, or expects to obtain, tangible benefits from its participation in the federal-aid highway program with respect to a particular highway. Congress may attach conditions to those benefits, regardless of the point in time they are, [2 ELR 50022] or may be, obtained.

This issue was decided recently in La Raza Unida v. Volpe, 337 F. Supp. 221, 1 ELR 20642 (N.D. Calif. 1971), appeal docketed No. 9th Cir. ___, 1971; petition for cert. filed, 40 U.S.L.W. 3523, 3529 (U.S. April 27, 1972) (No. 71-1394), involving a proposed fourteen-mile highway on the federal primary system in the cities of Hayward, Union City and Fremont, California. The state had acquired thirty to forty percent of the land it would need in Hayward, but none in the other two cities. Plaintiffs sought an injunction alleging failure to comply with the federal relocation assistance requirements, NEPA and section 4(f) of the Department of Transportation Act. Both state and federal defendants moved to dismiss plaintiffs' causes of action on the ground that the highway was not a "federal-aid highway." They argued that the statutory requirements did not apply "until federal funds have been approved or federal participation is assured."

The court noted that the state had not requested or obtained federal funds, but there was a dispute as to whether it would eventually do so, "plaintiffs saying 'definitely' and defendants saying 'probably not.'"⁹⁷ Apparently the state had obtained stage 1 program approval of several separate projects, including right-of-way acquisition projects, thus remaining eligible for federal reimbursement, but deferring a request for funds which had been apportioned to it. Not wishing to foreclose the option of requesting reimbursement in the future, the state had obtained FHWA action in 1966 which the court described as "location approval."

The court enjoined further work on the highway, holding that it was a "federal-aid highway" for purposes of the applicable relocation assistance and other laws:

The state should not have the considerable benefits that accompany an option to obtain federal funds without also assuring the attendent obligations. Any project that seeks even the possible protection and assistance of the federal government must fall within the statute and regulations.⁹⁸

The court was not impressed by the state's disingenuous argument that it should be permitted to acquire rights-of-way before complying with the federal relocation assistance requirements, NEPA and section 4(f) of the Department of Transportation Act. Deferral of compliance with those laws until the immediate need for federal reimbursement prompted the state to request reservation of the funds apportioned to it, would tend to make the laws' requirements meaningless. The court ruled that the state could not have it both ways. States should either comply in a meaningful way with the requirements of all laws relating to the federal-aid highway program or forego any expectation of obtaining federal reimbursement. The peculiarities of FHWA's administrative procedures should not be used to evade federal requirements which are intended to avoid or mitigate the adverse environmental and social impacts of the federal-aid highway program.

In San Antonio, supra, which we discussed previously in another context, a state attempted to avoid compliance with new federal requirements by purporting to forego any federal reimbursement for the costs of building a controversial, disruptive highway. The state proposed to build the North Expressway between two Interstate highways in San Antonio, and had proposed to request federal reimbursement of up to fifty percent of the North Expressway's costs. The middle section of the North Expressway was planned to pass through Brackenridge-Olmos Park, lands protected by section 4(f) of the Department of Transportation Act. Actual construction was authorized for the two end sections of the North Expressway, which terminated at either end of the park. On May 27, 1971, the Fifth Circuit entered an order enjoining actual construction work pending appeal.

Five days after the stay order was entered, the Texas Highway Department passed a resolution reciting: "[T]he [North Expressway] will be built with 100% state money if necessary…. [E]ligibility [for federal funding] is neither determinative of whether or not the highway will be built, nor of the schedule of its construction." Counsel for the state informed the Fifth Circuit that if federal law prohibited federal participation in the North Expressway "other eligible projects will be submitted to take up available federal funding."⁹⁹

The Fifth Circuit enjoined the state from continuing construction of the North Expressway pending compliance with section 4(f) of the Department of Transportation Act and section 102(2)(C) of NEPA. Observing that permitting the state to proceed "would be giving approval to the circumvention of an Act of Congress," the court ruled that a state "may not subvert [the principle of supremacy of federal law] by a mere change in bookkeeping or by shifting funds from one project to another."¹⁰⁰ On remand to the district court, the parties stipulated that Texas had previously received $1,818,600 in federal-aid highway funds as reimbursement for part of the cost of the North Expressway. The state then refunded that sum to the Treasurer of the United States and moved to dismiss the [2 ELR 50023] suit. The district court denied the motion, and the Fifth Circuit denied the state leave to appeal that decision.¹⁰¹ On May 15, 1972, the United States Supreme Court denied the state's petition for certiorari.¹⁰²

The most striking feature of San Antonio was the Texas Highway Department's blatant defiance of federal environmental protection laws. The Department's conduct underscored the fact that it proposed, through shifts in funding, to do indirectly what it was unable or unwilling to do directly. Federal-aid highway funds requested in greater proportions than usual for other highways in the state would have subsidized the state-funded construction of the North Expressway.

Other features implicit in San Antonio suggest that the decision may significantly deter the states from avoiding new federal requirements through shifts in funding. The North Expressway was, for all intents and purposes, a federal-aid highway. It was probably being built to geometric and design standards required by the FHWA for its class of highways. It was certainly being built in close physical proximity to other federal-aid highways. Most of the traffic which would use the North Expressway had either origin or destination that required the use of other federal-aid highways. In short, the transportation function it was designed to serve was that of other federal-aid highways in the San Antonio highway system. Having ruled that the Secretary of Transportation was precluded from dividing the North Expressway into segments for purposes of complying with section 4(f) of the Department of Transportation Act and NEPA, the court might have ruled that the state was precluded from dividing the highway system in San Antonio, or even the State of Texas, into segments for purposes of complying with the same Acts.

Although San Antonio does not indicate that the court considered those factors, they may be important in other suits.¹⁰³ If a proposed highway is functionally equivalent to or integrated with federal-aid highways, if the state is not prepared to forego some apportioned federal-aid highway funds while using state funds exclusively to build the highway and if the federal requirements that would otherwise be applicable offer protection to the public that is not available under state law, the highway should be deemed a federal-aid highway. The nature of the federal-aid highway program is such that any other results would undermine the new environmental and social policies Congress has established.

** B.A., 1960, Pomona College; B.A. Oxon, 1962, Oxford University; LL.B., 1965, University of Washington School of Law; Counsel, National Wildlife Federation, Washington, D.C.

1. U.S. Department of Transportation press release, April 1, 1972.

2. The Highway Trust Fund was created by section 209 of the Highway Revenue Act of 1956, which was Title II of the Federal-Aid Highway Act of 1956, ch. 462, Tit. II, 70 Stat. 397. The Federal-Aid Highway Act, 70 Stat. 374, as amended, is codified in 23 U.S.C. § 101, et. seq. References to condified sections of the Act will thereafter be made by section number without further identification and will not be footnoted.

3. The FHWA was established on April 1, 1967 as one of the operating administrations of the new Department of Transportation. At that time the FHWA included, as a separate organizational unit, the Bureau of Public Roads, This Bureau, surviving various name changes and reorganization plans, had exercised primary responsibilities with respect to the federal interest in highway building since 1894. On August 10, 1970, the FHWA was reorganized along functional lines and the Bureau of Public Roads ceased to exist as a separate organizational unit. FHWA Order 1-1 (Dec. 12, 1970).

The functions of the FHWA with respect to the federal-aid highway program are currently carried out in its national headquarters at 400 Seventh Street, S.W., Washington, D.C. 20590, and in nine regional offices, each including four or more states. The FHWA's federal-aid highway functions are carried out on the state level under the direction of division engineers, one in each state, the District of Columbia and Puerto Rico. Each state organization is further subdivided into districts and areas within districts. These organizational subdivisions frequently, but not always, correspond with the organizational subdivisions of the corresponding state highway departments.

4. See, e.g., B. Kelley, The Pavers and the Paved, (1971); H. Leavitt, Superhighway-Superhoax, (1970); A. Mowbray, Road to Ruin, (1969).

5. See, e.g., testimony of Peter S. Craig in Hearings on Economic Analysis and the Efficiency of Government Before the Subcomm. on Economy in Government of the Joint Economic Comm., 91st Cong., 2d Sess., pt. 5, at 1120 (1970); D. Salaman, Towards Balanced Urban Transportation: Reform of the State Highway Trust Funds, 4 The Urban Lawyer 77 (1972). The Secretary of Transportation has recently proposed legislation under which some money from the Highway Trust Fund could be used for urban public transportation at the option of state or local authorities, beginning in fiscal year 1974. See U.S. Department of Transportation press release, March 14, 1972; S.3590, 92nd Cong., 2d Sess. (1972). For an incisive analysis of that proposal, see Forbes, April 15, 1972 at 27.

6. Some FHWA directives of particular importance to the public are not published at all. For example, on May 20, 1971, the public hearing provisions of PPM 20-8 (Jan. 14), 1969), ELR 46505, were made applicable to all forest highway "projects" by amendment to a Memorandum of Understanding between the Forest Service and the FHWA. Neither the original Memorandum nor the amendment are published in any category of the FHWA's directives. The amendment was circulated within FHWA more than two months after it was executed by means of a Notice dated July 27, 1971.

7. 23 C.F.R. § 1.32(a) (1972) provides:

The [Federal Highway] Administrator shall promulgate and require the observance of policies and procedures, and may take other action as he deems appropriate or necessary for carrying out the provisions and purposes of Federal laws, the policies of the Federal Highway Administration, and the regulations in this part. No such direction, policy, rule, procedures, or interpretation contained in a Federal Highway Administration order or memorandum shall be considered a regulation or create any right or privilege not specifically stated therein. (Emphasis added.)

However, the Comptroller General has ruled that the FHWA's policies and procedures have the force and effect of law and are not subject to retroactive waiver. 43 Comp. Gen. 31 (1964). See generally, O. Gray, Environmental Requirements of Highway and Historic Preservation Legislation, 20 Catholic U.L. Rev. 45, 62 n. 66 (1970). In the concurring and dissenting opinions in Triangle Improvement Council v. Richie, 402 U.S. 497 (1971), five Supreme Court Justices characterized IM 80-1-68 (Sept. 5, 1968) as a "regulation." Cf. Parker v. United States, __ F.2d __, 1 ELR 20489 (10th Cir. 1971), cert. denied __ U.S. __ (1972) (Forest Service Manual deemed "regulations").

8. see, e.g., PPM 21-1 (April 15, 1958) ELR 46507; PPM 20-4 (1956) ELR 46502. Although the former PPM has been amended on seven occasions, the amendments have never been compiled into one document.

9. See sections 103(e), (b) and (d). We do not discuss the approval of projects on other types of federal-aid highways (highways in the federal-aid secondary system; forest highways; public lands highways; forest and public lands development roads and trails; parkways; park roads and trails; Indian reservation roads; economic growth center development highways).

10. We use the term "state" hereafter as an abbreviation for "state highway department" as defined in section 101(a).

11. In an attempt to avoid confusion in the following discussion, it is necessary to define some terms we shall use. "Total construction" will hereafter refer to all items of work in combination, that are necessary to build any given length of highway. "Partial construction" will refer to an item or items of work, such as planning, right-of-way acquisition, grading, paving, landscaping, etc., within total construction. Neither "total construction" nor "partial construction" is synonymous with "actual construction." We shall hereafter use that term in the sense it is frequently used within the FHWA: to denote items of work involving the alteration of physical relationships, such as clearing rights-of-way, relocating utilities, and building a highway structure. See the definition of "construction" in PPM 21-12, par. 3 (Aug. 26, 1965), ELR 46517. Since actual construction refers to items of work within total construction, it is a type of "partial construction" as we use that term hereafter.

12. Section 101(a) defines "project" as "an undertaking to construct a particular portion of a highway, or if the context so implies, the particular portion of a highway so constructed." "Construction" is defined as:

The supervising, inspecting, actual building, and all expenses incidental to the construction or reconstruction of a highway, including locating, surveying, and mapping (including the establishment of temporary and permanent geodetic markers in accordance with specifications of the Coast and Geodetic Survey in the Department of Commerce), acquisition of rights-of-way, relocation assistance, elimination of hazards of railway grade crossings, acquisition of replacement housing sites, and acquisition, and rehabilitation, relocation, and construction of replacement housing.

"Project" is defined in 23 C.F.R. § 1.2(b) (1972) as:

An undertaking by a State highway department for highway construction, including preliminary engineering, acquisition of rights-of-way and actual construction, or for highway planning and research, or for any other work or activity to carry out provisions of the Federal laws for the administration of Federal aid for highways.

13. The term "project" will hereafter refer to the projects submitted by the states to obtain the FHWA approvals necessary for federal reimbursement. The term is frequently used to refer to a section of highway which the person using the term considers a single unit, but which may actually be several projects for purposes of federal reimbursement. The term is also frequently used to refer to the section of highway on which public hearings are held and as to which "location" or "design" approval is given pursuant to PPM 20-8 (Jan. 14, 1969). ELR 46505. A great deal of confusion has resulted from using the term indiscriminately.

14. See, e.g., the Federal-Aid Highway Act of 1970, Pub. L. No. 91-605, Tit. I, § 105(a), 84 Stat. 1715. Such authorizations are usually made in even calendar years with respect to the following odd fiscal year and the even fiscal year thereafter. For example, the Federal-Act Highway Act of 1970 authorized the Secretary of Transportation to apportion federal-aid highway funds for the fiscal years beginning July 1, 1971 and July 1, 1972.

15. In recent years, the Office of Management and Budget (formerly the Bureau of the Budget) has, as an anti-inflationary measure, attempted to reduce federal-aid highway disbursements by imposing limits on the amount of federal-aid highway funds which may be obligated by the states after they have been apportioned. See generally, 42 Op. Att'y Gen. (Feb. 25, 1967). The following discussion does not take account of the complications resulting from this practice.

16. See Massachusetts v. Connor, 248 F. Supp. 656, 658 (D.Mass. 1966), aff'd, 366 F.2d 778 (1st Cir. 1966).

17. PPM 21-1(5) (Feb. 2, 1962) ELR 46513, amending PPM 21-1 par. 8a. (April 15, 1958) ELR 46507, requires each project submitted for program approval to be reported on Form PR-1. The form requires the project work to be identified as preliminary engineering (PE), acquisition of right-of-way (ROW), or construction (C).

18. See PPM 21-3, 3 (Nov. 20, 1968) ELR 46515; PPM 80-2, par. 1a. (April 17, 1967) ELR 46519; PPM 21-12, par. 6 (Aug. 26, 1965) ELR 46517.

19. 23 C.F.R. § 1.12 (1972); PPM 21-1, par. 2a. (April 15, 1958) ELR 46507. The FHWA's operating procedures also require the states to obtain location approval and design approval of proposed highway sections. PPM 20-8 (Jan. 14, 1969) ELR 46505. These approvals are discussed in the next section.

20. The statutory requirements imposed on program approval and PS&E approval are referred to in the text infra. The provisions of the Federal-Aid Highway Act that impose certain requirements on the Secretary of Transportation's approval of "projects," but do not indicate what type or types of approval are involved, include the following:

1. Section 116(c) requires the Secretary to "withhold approval of further projects of all types" if federal-aid projects previously constructed are not being properly maintained by a state.

2. Section 137(b) prohibits the Secretary from approving "any project" on the federal-aid urban system for fringe and corridor parking facilities until he makes certain determinations concerning maintenance, operation, financing and design standards of the facility.

3. Section 137(e) prohibits the Secretary from approving "any project" on the federal-aid urban system for fringe and corridor parking facilities unless "he determines that it is based on a continuing comprehensive transportation planning process carried on in accordance with section 134 of this title."

4. Section 141 requires the Secretary "before approving projects under this chapter" to obtain certain assurances from a state concerning the state's right-of-way acquisition policies.

5. Section 142(d) prohibits the Secretary from approving any project for the construction of bus lanes in urbanized areas unless:

(1) such project (A) will avoid the construction of a highway project under this title which increases automobile traffic capacity, (B) will provide a capacity for the movement of persons at least equal to that which would be provided by the avoided highway project, and (C) will not exceed in the amount of the federal share, the federal share of the cost of the avoided highway project; or (2) no other feasible or prudent highway project can provide the additional capacity for the movement of persons by motor vehicles on highways (other than on rails) provided by this project.

6. Section 142(e) prohibits the Secretary from approving any project for the construction of bus lanes in urbanized areas unless he receives "assurances satisfactory to him from the State that public mass transportation systems will have adequate capability to fully utilize the proposed project."

21. PPM 21-1, par. 2a (April 15, 1958) ELR 46507.

22. PPM 21-1(5) (Feb. 2, 1962) ELR 46513, amending PPM 21-1, par. 8a. (April 15, 1958). The form, PR-1, is appended to the PPM.

23. Section 105(a) authorizes approval of a program "in whole or in part."

24. See note 13, supra. These categories are defined in FHWA's operating procedures as follows:

Preliminary Engineering. PPM 21-3, par. 2 (Nov. 20, 1968) ELR 46515, provides:

a. Preliminary engineering is any engineering activity executed preparatory to the letting of a contract for construction or the undertaking of construction by force account. The activities listed in the following tabulation (not necessarily complete) individually or in combination are classified as preliminary engineering when related to a specific proposed improvement:

Economic and feasibility investigations

Surveys

Mapping

Route studies to determine desirable location from among several alternates

Subsurface investigations including borings and soil profiles

Preparation of preliminary plans and estimates, as a basis for final construction plans

Right-of-way studies when not authorized as a partof the right-of-way phase

Preparation of construction plans, specifications, and estimates.

b. Engineering reports prepared in connection with any of the above items are not considered a separate activity.

See also, PPM 21-1, P 4a.(2) (April 15, 1958) ELR 46507.

Acquisition of rights-of-way. PPM 21-1, P 4a.(3) (April 15, 1958) ELR 46507, provides that a right-of-way project may be for:

… studies to determine the relative right-of-way costs and other factors pertinent to alternate construction locations, including incidentals connected with the acquisition of rights-of-way on a selected construction location, or actually to acquire rights-of-way on a selected construction location, including incidentals connected therewith, or for both.

See generally PPM 80-1 (March 20, 1969).

Construction. PPM 21-12, P 3 (Aug. 26, 1965), ELR 46517, provides that contruction consists of the following phases:

a. Right-of-way clearance phase — which means the removal, adjustment or demolition of buildings and other major obstructions within the right-of-way limits when performed separately from the contract for the physical construction of the project. This phase does not include: (1) the acquisition of right-of-way; (2) the removal of trees and brush or any other work that is included in the contract for the physical construction of the project; nor (3) any right-of-way clearance work that, under the terms of the right-of-way acquisition agreement, is the obligation of the property owner from whom the right-of-way was acquired.

b. Utility phase — which means the removal, relocation or adjustment of publicly or privately owned utilities as necessary to accommodate the highway, except that it does not include any work that is to be performed at the expense of the utility company.

c. Railroad phase — which means the removal, relocation, or adjustment of railroad facilities as necessary to accommodate the highway. It is limited to work that is incidental and a necessary preliminary to the physical construction phase and does not include the building of grade separation structures nor the installation of protective devices under separate major contracts.

d. Physical construction phase — which means the actual construction of the highway itself with its appurtenant facilities. It includes any right-of-way clearance or utility and railroad work that is a part of the contract for the physical construction phase instead of a separate phase as described under paragraphs 3a, 3b, and 3c.

25. PPM 21-1, par. 3a. (April 15, 1958) ELR 46507. Written notice is required for each project approved by FHWA in stage 1 and stage 2. Id., pars. 4a.(1) and 4b.(1).

26. Id., pars. 3b. and 3c.

27. Id., par. 4a.(5) provides:

Stage 1 program action is intended (a) to permit certain work preliminary to the physical construction of the highway to proceed prior to the availability of Federal funds, (b) to facilitate advancement of the project to Stage 2 when and if Federal funds are provided, and (c) to permit authorization of preliminary engineering or right-of-way which action establishes the date on and after which eligible costs incurred in performance of such work on Stage 1 projects may be reimbursed from available Federal funds, if the work is subsequently approved in a Stage 2 program.

28. Section 105(a).

29. Section 105(d).

30. Section 134.

31. Section 138, ELR 41602, which is now identical with section 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f) (1970), ELR 41605, prohibits the approval of "any program or project which requires the use of" certain categories of land for a highway unless there is no feasible and prudent alternative and the program includes all possible planning to minimize harm resulting from such use. See discussion, infra. Since program approval under section 105(a) is the first approval given projects which require the use of land in the protected categories, such as right-of-way acquisition projects, it seems logical to require compliance with section 138 at the time program approval is given.

32. Section 140.

33. Section 121(c) provides that no federal funds can be paid with respect to a project that is not covered by a "project agreement," and section 110(a) requires PS&E approval before FHWA can enter into a project agreement. Section 121(b) provides that a state is entitled to final payment of federal-aid highway funds only after completion of a project "in accordance with the plans and specifications."

34. PPM 21-5, par. 2 (Jan. 7, 1969).

35. Informal, piecemeal approvals are probably most frequently given to PS&E for preliminary engineering projects, because PPM 21-5, par. 10c. (Jan. 7, 1969) specifically requires division engineers to "advise the state in writing of approval of the right-of-way PS&E and of the construction PS&E."

36. Section 106(c).

37. Section 109(a), ELR 41601.

38. Section 109(b), ELR 41601.

39. Section 109(i), ELR 41601.

40. Section 128(a), ELR 41602. See discussion, infra.

41. 42 U.S.C. § 4622 (Supp. 1971).

42. Section 502. Section 120 of the Federal-Aid Highway Act of 1970 specifically retained rights and liabilities existing under prior laws. 23 U.S.C. § 502n.

43. See Triangle Improvement Council v. Richie, 402 U.S. 497, 449-500, 1 ELR 20305, 20306 (1971) (concurring opinion of Mr. Justice Harlan dismissing writ of certiorari as improvidently granted).

44. See IM 80-2-70, par. 7, 23 C.F.R. Ch. I, pt. 1, App. A.

45. 23 C.F.R. § 1.12 (1972); PPM 21-1, par. 2a. (April 15, 1958) ELR 46507. Form PR-2, Attachment 1 to PPM 21-7 (April 21, 1971) ELR 46516, the form for project agreements required by section 110(d), makes authorization to proceed with work evidenced by the date entered opposite each specific item of work on the form. Form PR-2 will be available shortly in the ELR Digest-Facsimile Service under Georgia Botanical Society v. Volpe. Although FHWA's operating procedures usually refer to authorization to proceed with work in relation to individual projects, PPM 21-1(8) (April 22, 1963) ELR 46514, amending PPM 21-1, par. 4a.(3) (April 15, 1958) ELR 46507, indicates that authorization to proceed with work on right-of-way acquisition projects which have received program approval in stage 1 "may be issued on an entire route, route-section or project basis."

46. PPM 80-2, par. 1b. (April 17, 1967) ELR 46519, for example, prohibits authorization "to actually acquire rights-of-way on a selected construction location" until the state "has complied with the public hearing requirements."

47. "Written notice of authorization to proceed with preliminary engineering, or acquisition of right-of-way, or both, shall be issued to the State, together with conditions controlling the work which may be performed and the subsequent Federal-aid reimbursement." (Emphasis added.)

48. PPM 21-1, par. 4b.(1) (April 15, 1958) ELR 46507 provides:

Written notice of authorization to proceed with preliminary engineering or acquisition of right-of-way [projects approved in stage 2], or both, shall be issued to the State … when such written notice was not given under a Stage 1 program, and such written authorization shall constitute reservation and obligation of Federal funds. When such written notice of authorization to proceed with preliminary engineering or acquisition of right-of-way, or both, was given in a Stage 1 program, written notice to the State of program approval in Stage 2 constitutes a reservation and obligation of Federal funds.

49. The same subparagraph goes on to provide:

Written authorization for a state to advertise for bids or to proceed with force account construction shall be issued by the division engineer either when he advises the State of his approval of the PS&E for the project, or at such other time as required conditions are met, and such written authorization shall constitute obligation of Federal funds.

50. PPM 21-12, par. 7a. (Aug. 26, 1965) ELR 46517.

51. 49 U.S.C. § 1653(f) (1970) ELR 41605, now identical with 23 U.S.C. § 138 (1970), ELR 41602.

52. 446 F.2d at 1022-23, 1 ELR at 20385.

53. Id. at 1023, 1 ELR at 20385.

54. Section 128(a) was originally enacted in 1956, ch. 462, § 116(c), 70 Stat. 385. It was modelled after section 13 of the Federal-Aid Road Act amendments of 1950, ch. 912, § 13, 64 Stat. 791. Section 128(a) was amended in 1968 to require consideration of social effects, environmental impact, and consistency with the affected community's goals and objectives of urban planning. Federal-Aid Highway Act of 1968, Pub. L. No. 90-495, § 24, 82 Stat. 828. The reporting requirement was added in 1970, Federal-Aid Highway Act of 1970, Pub.L. No. 91-605, Tit. I § 135, 84 Stat. 1734.

55. PPM 20-8 (Jan. 14, 1969) is published in 23 C.F.R., ch. I, pt. 1. App. A (1972) ELR 46505. See 34 Reg. 727 (1969) and 33 Fed. Reg. 15663 (1968). An earlier version of PPM 20-8, par. 3g. (Aug. 10, 1956) ELR 46503, directed district engineers to authorize the states to proceed with work on preliminary engineering projects involving the preparation of PS&E for actual construction, or right-of-way acquisition projects, or both, "with the understanding" that a public hearing would be held before right-of-way was "acquired to an extent committing the state to the proposed location." But see PPM 80-2, par. 1b. (April 17, 1967). A 1959 supplement to the 1956 version of PPM 20-8 stated that a "public hearing was required prior to the time that a state highway department may proceed with certain Federal-aid projects for the improvement of previosly selected or designated routes." PPM 20-8(1), par. 2b (June 16, 1959), ELR 46504. It did not indicate what those projects were.

56. PPM 20-8, pars. 3a., 1a. (Jan. 14, 1969), ELR 46505.

57. A section of highway for which location approval or design approval is given under PPM 20-8 is frequently referred to as a "project." The meaning of that term in this context, however, is different from its meaning in the context we have previously discussed. Like a project submitted for purposes of federal reimbursement, a "project" submitted for location or design approval need not include any particular length of highway. There is no requirement that the same section of highway be submitted for both approvals, and the states have frequently divided a section of highway which has received location approval into several smaller sections for purposes of obtaining design approval. See e.g., the descriptions of the public hearing procedures in Arlington Coalition on Transportation v. Volpe, 332 F. Supp. 1218, 1 ELR 20486 (E.D.Va. 1971), rev'd, __ F.2d __, 2 ELR 20162 (4th cir. 1972) and Morningside-Lenox Park Ass'n v. Volpe, 334 F.2d 1327, 1 ELR 20629 (N.D.Ga. 1971). Neither location nor design approval, however, entitles a state to begin reimbursable work or obligates the federal government to contribute to the cost of building the section of highway involved. In the context of PPM 20-8, the term "project" refers only to the section of highway for which location approval or design approval is obtained.

58. According to the interpretive release accompanying the final text of PPM 20-8 in the Federal Register, paragraph 10e was included to take account of advance acquisitions of right-of-way pursuant to section 108(c). See 34 Fed. Reg. 728 (1969). The expansive criteria in IM 20-1-69, however, appear to be inconsistent with the purpose of a design hearing defined in paragraph 4b.(2) of PPM 20-8.

59. See pars. 6a, 6d. The courts as well as FHWA officials have had difficulty interpreting the provisions of paragraph 6. Some of these interpretive problems are discussed in Comment, Recent Developments Regarding the Public Hearing Requirements of Federal Highway Law, 1 ELR 10154 (1971) and Comment, Highway Design and the Public Hearing Requirements of Federal Highway Legislation, 1 ELR 10103 (1971).

60. Location approval under PPM 20-8 is easily confused with selection or designation of a proposed highway as part of a federal-aid system pursuant to section 103(f). The FHWA's approval of a state's selection or designation of a proposed highway in a federal-aid system does not, however, constitute approval of the highway's location within the meaning of PPM 20-8. The former action, which involves a state's and FHWA's agreement about a general description or map of a highway, is required by section 105(a) to precede the program approval for any project involving the highway. See generally PPM 10-1 (May 28, 1965), ELR 46501.

PPM 20-4 (Aug. 10, 1956) ELR 46502, sets forth policy "applicable to all projects hereafter approved for construction on the approved location of the routes of the Interstate System." Paragraph 3b. distinguishes "general locations" of the system's routes which had already been designated and as to which "existing highways have been used as convenient indications of the general location" from "the location on which an Interstate system route is to be constructed." The latter locations are required:

… to be determined by means of engineering, traffic and economic studies, including consideration of local needs, and agreed upon by the State and the Bureau of Public Roads in advance of the time the route or a portionthereof between intermediate control points in proposed for improvement as an interstate project. The location on which construction is to be performed shall be shown on appropriate maps and be subject to the approval of the Bureau of Public Roads. Maps shall be of such scale that the relation of the proposed location to the culture in the area is clearly shown. Ibid.

We know of no similar guidelines for highways on the federal-aid primary or urban systems.

61. The cost estimate requirements are set forth in section 104(b) (5). The Secretary's cost estimates are based on cost estimates submitted to the FHWA by the states.

62. PPM 90-1, P 5e.(1) (Aug. 24, 1971), ELR 46106. See also Comment, supra, 1 ELR 10154, 10156.

63. Ibid.

64. Ibid.

65. PPM 21-5 (Jan. 7, 1969). See discussion at 50009. supra.

66. 42 U.S.C. § 4321, et seq. (1970) ELR 41009. Section 102(2)(C) of NEPA, requires "the responsible officials" in each federal agency to prepare an environmental statement on "major Federal actions significantly affecting the quality of the human environment." See generally R. Peterson, An Analysis of Title I of the National Environmental Policy Act of 1969, 1 ELR 50035 (1971).

67. 49 U.S.C. § 1653(f) (1970), ELR 41605. Section 4(f) prohibits the Secretary from approving "any program or project" which requires the use of certain types of land unless (1) there is "no feasible and prudent alternative to the use of such land," and (2) the program includes "all possible planning to minimize harm" to the land "resulting from such use." See generally O. Gray, Environmental Requirements of Highway and Historic Preservation Legislation, 20 Catholic U.L. Rev. 45, 49-55 (1970).

This statutory provision has been construed by the Supreme Court, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971).This construction has been supplemented by the district court's opinion on remand, 2 ELR 20061 (W.D. Tenn. Jan. 5, 1972). See also Comments at 1 ELR 10001, 10035, 10062, and 2 ELR 10011. The 9th Circuit recently construed the language of the section as applying to highways which "use" parklands even if that use does not actually include acquisition of right-of-way within the park boundaries, Brooks v. Volpe, 2 ELR 20139 (9th Cir. March 2, 1972).

68. 16 U.S.C. § 470f (1970). Section 106 requires the head of any federal agency having jurisdiction over a proposed "federally assisted undertaking," prior to "the approval of the expenditure of any Federal funds on the undertaking to take into account"the effect of the undertaking on any district, site, building, structure or object" included in the National Register of Historic Places. In addition, the Advisory Council on Historic Preservation must be afforded "a reasonable opportunity to comment with regard to the undertaking." See generally, O. Gray, Environmental Requirements of Highway and Historic Preservation Legislation, n. 67, supra at 55-58.

69. 42 U.S.C. § 1857 h-7 (1970), ELR 41226. Section 309 requires the Administrator of the Environmental Protection Agency to "review and comment in writing on the environmental impact of any matter" relating to his duties and responsibilities which is contained in any "newly authorized Federal projects for construction" and any other major federal action to which section 102(2)(C) of NEPA applies. See generally Comment, Section 309 of the Clean Air Act: EPA's Duty to Comment on Environmental Impacts, 1 ELR 10146 (1971).

70. PPM 90-1, par. 3a. (Aug. 24, 1971), ELR 46106.

71. See id, par. 6i. Although PPM 90-1, ELR 46106, does not expressly prohibit the states from continuing their practice of dividing a section of highway which has received location approval into several smaller sections for purposes of design approval, the term "highway section" is used in PPM 90-1 as a synonym for the term "project" in PPM 20-8. For example, paragraph 5a. of PPM 90-1 requires an environmental statement under NEPA to be prepared "for each highway section … which receives or received design approval … on or after February 1, 1971." (Emphasis added.) The policy against "piecemealing" for purposes of locating approval would seem to be equally applicable to "piecemealing" for purposes of design approval, particularly if a proposed highway had received location approval before NEPA's effective date and design approval is deemed to be the "major federal action" which makes NEPA applicable to a proposed highway.

72. Id. at pars. 6b., 6i.

73. Id. at par. 3e. PPM 90-1's procedures for preparation of environmental statements by the states rather than the FHWA appear to be inconsistent with section 102(2)(C) of NEPA, which requires environmental statements to be prepared by "the responsible federal official." See Greene County Planning Board v. FPC, __ F.2d __, 2 ELR 20017, 20021 (2d Cir. 1972). These procedures are defended by the FHWA on the grounds that the agency does not have sufficient personnel capable of preparing them and that the substantial costs of preparing them may be partially reimbursed from Highway Trust Fund revenues if they are prepared by the states.

In requesting FHWA approval of a federal-aid highway proposal, a state is in a position similar to that of a private applicant for a federal license or permit to use public lands or to obstruct a navigable waterway. A state's conflict of interest, like that of such a private applicant, would seem necessarily to preclude an impartial environmental assessment of alternatives to the action it proposes to take, including the alternative of taking no action. Moreover, at least some states are subdelegating their delegated responsibility to prepare environmental statements to private consulting firms. One such contract in our possession requires a private consultant to prepare a final environmental statement in accordance with PPM 90-1 and, among other things, to review and assess all federal and state agencies' comments on the draft environmental statement prepared by the state, including comments of the U.S. Department of Transportation's Office of Environment and Urban Systems. This practice twice removes FHWA officials from the environmental assessment section 102(2)(C) of NEPA appears to require them to make. Although it may be impossible as a practical matter for FHWA officials to assume full responsibility for preparing environmental statements, PPM 90-1's procedures should require their responsibility for evaluation of environmental factors to be no less direct and personal than their evaluation of technical, engineering and safety factors. See Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109, 1117-1119, 1 ELR 20350-20351 (D.C. Cir. 1971).

74. Id. at par. 6b.

75. Id. at pars. 6m., 6n.

76. Id. at par. 6a.

77. Id. at par. 6c.

78. Id. at par. 6f.

79. Id., at App. A; par. 5d.

80. Id. at App. A, par. 2.

81. Id. at par.5a.

82. Id. at par. 5b. But see Arlington Coalition on Transportation v. Volpe, __ F.2d __, 2 ELR 20102 (4th Cir. 1972) (Environmental statement required where location approval occurred in June, 1959 and design approval occurred on Jan. 21, 1971); Morningside-Lenox Park Ass'n v. Volpe, 334 F. Supp. 132, 1 ELR 20629 (N.D.Ga. 1971). (Environmental statement required where location approval occurred before July, 1966 and design approval occurred prior to Jan. 1, 1970).

83. FHWA Notice dated Nov. 30, 1970 transmitting National Environmental Policy Act Guidelines for implementation proposed by FHWA.

84. Draft instructional memorandum dated Nov. 24, 1970, par. 4b. The draft instructional memorandum's blanket exemption from NEPA for projects receiving design approval before February 1, 1971 was modified before PPM 90-1 was issued in response to the D.C. Circuit's decision in Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C.Cir. 1971). That decision invalidated a provision in the Atomic Energy Commission's NEPA regulations which prohibited any consideration of environmental issues by its hearing boards at proceedings officially noticed before March 1, 1971.

85. Id. Determinations with respect to design approval which were made between December, 1970 and PPM 90-1's date of issuance (August 24, 1971) were made pursuant to par. 4b. in the draft instructional memorandum quoted in the text, rather than par. 5e.(1) of PPM 90-1. The two paragraphs are not identical. See Environmental Law Fund v. Volpe, __ F. Supp. __, 2 ELR 20225, 20226, n.7.

86. That objective will be attained only if the words "logical termini" in PPM 90-1's definition of "highway section" are interpreted in relation to the objective of implementing the policies underlying the applicable statutory requirements, rather than simply locating points on a map. PPM 21-1, P 7d. (April 15, 1958), defines route sections, for purposes of identifying project locations, as starting and terminating at some "logical point, such as a State or county boundary, beginning (or end) of a route within a State, intersection of Interstate Routes, stream crossing or other appropriate point." Termini that assist in identifying project locations are not necessarily "logical" in the context of PPM 90-1, ELR 46106.

87. 1 ELR 20602-03.

88. See Elliott v. Volpe, 328 F. Supp. 831, 1 ELR 20243 (D.Mass. 1971).

89. 334 F. Supp. at 144, 1 ELR at 20633.

90. Id. at 145, 1 ELR at 20634.

91. Id.

92. 2 ELR 20164.

93. Id. at 20164-65.

94. Id. at 20165.

95. These and the following data are taken from U.S. Department of Transportation — FHWA news release, Oct. 22, 1971 and the accompanying table SF-21. The table also appears in an FHWA publication, Highway Statistics — 1970.

96. See D.C. Fed'n of Civic Ass'ns v. Volpe, 434 F.2d 436, 1 ELR 20539 (D.C. Cir. 1970); cf. Goldberg v. Kelley, 397 U.S. 254 (1970).

97. 1 ELR 20643.

98. Id at 20644. The court held that the FHWA action it termed "location approval" was "the initial action necessary to qualify [the highway] for federal funds." As we have seen, "location approval" for purposes of PPM 20-8 has quite a different function. Although the opinion is not clear, the court may have been referring to the FHWA's program approval of certain projects in stage 1, which would have made the state eligible for eventual reimbursement with respect to those projects.

99. 446 F.2d at 1027.

100. Id.

101. Texas Highway Department v. Named Individual Members of the San Antonio Conservation Society. Misc. No. 2243 (5th Cir., 1972).

102. 40 U.S.L.W. 3539.

103. See e.g., Civic Improvement Committee v. Volpe, 2 ELR 20249 (4th Cir. May 15, 1972).