Federal Highway Administration Considers Publishing Procedures

The Federal Highway Administration (FHWA) recently promulgated additional regulations for public hearings on highway locations and design and for consideration of social, economic and environmental effects in the development of federal-aid highway projects.¹ These regulations codify earlier policies and procedures contained in Policy and Procedure Memorandum (PPM) 20-8² and Instructional Memorandums (IM) 20-3-72 and 20-4-72.³ The substance of those earlier documents has been brought over into the codification with few changes, although the highway department has been informally soliciting comments for a wholesale revision.

Promulgation of highway regulations has traditionally been a rare event. In an earlier ELR article,⁴ Ronald Peterson and Robert Kennan reviewed existing FHWA procedures and found them "incomplete, outdated and virtually inaccessible." At that time only eight pages of FHWA procedures had been published as formal regulations. Since the publication of that article, FHWA has begun a process of reviewing all their operating procedures to determine which of them should be promulgated formally and published in the Federal Register. FHWA also plans to publish a manual of those internal procedures not viewed as appropriate for formal promulgation. The recent codification, the new Part 790, is the first amendment to result from the review process.

So far, the FHWA has not made a formal commitment to publish all of its operating procedures, a situation that has generated some criticism. Environmental lawyers point out that the Department of Transportation regulations stipulate that IMs and PPMs do not have the legal force of regulations,⁵ although the courts have consistently rejected DOT's position and have given PPMs the force of law. FHWA has also not announced a timetable or list of likely subjects for future promulgations, except for regulations on utility relocation and action plans which FHWA claims are imminent.

To summarize and update somewhat the description of FHWA procedures set out in the Peterson-Kennan article, all federal-aid highway projects are required to comply with the public hearing requirements detailed in Part 790. Opportunity for two hearings is provided. The first, a "corridor public hearing," is held to allow for discussion of the need for and location of a proposed federal-aid highway. The second, a "highway design public hearing," is held after the route location has been approved. It covers specific location and major design features, including the social, economic and environmental effects of alternate designs. Both hearings must be held if any requests are received after publication of notice twice in a newspaper having general circulation in the area of the proposed highway. Notice also must be sent to local public officials, public advisory groups and interested persons who enroll on a list maintained by the state highway departments. Transcripts of hearings are to be sent to the Division Engineer and made available for public inspection and copying.

Requests for location or design approval must include documentation showing consideration of "the need for fast, safe and efficient transportation together with highway costs, traffic benefits and public services including provisions of national defense as well as discussion of anticipated social, economic and environmental effects of the proposal and alternatives. The report must include consideration of effects raised at public hearings and must identify adverse effects, indicate measures to minimize them, and estimate the costs of the measures considered. Projects which had received design approval but not approval of plans, specifications and estimates (PS & E approval) as of September 29, 1972, must submit a supplemental report to the Design Engineer documenting consideration of environmental, economic and social effects previously covered. Requested location or design approval also is to include "an analysis of the relative consistency of the alteratives with the goals and objectives of any urban plan that has been adopted by the community concerned."

Part 790 also lists minimal standards governing the Division Engineer's approval of route location and highway design. Hearings must be held, a transcript submitted, and location approval requested before a route location or a design can be approved. One substantive change appears regarding right-of-way acquisition. PPM 20-8 allowed the Division Engineer to authorize right-of-way acquisition before a design hearing if, in the Engineer's opinion, a delay in acquisition would result in "undue hardship" to property owners or substantially higher costs. This provision was the subject of a great deal of controversy, since it allowed a highly significant decision in the highway development process to be made at the nearly absolute discretion of the Division Engineer. Right-of-way acquisition begins an irreversible process of declining property values and a lessened motivation to maintain property.

Part 790.9 (f) provides the Division Engineer with even greater discretion. He now has the power to authorize the acquisition of right-of-way under certain circumstances before a corridor hearing, as well as before a design [3 ELR 10089] hearing. This makes the decision even earlier in the decision-making process, before any hearing. According to Highway Department officials, this section may be further amended in the near future, most likely to limit its application to exceptional circumstances with the approval of the regional administrator. However, acquisition before location approval under any circumstances runs counter to the intent of PPM 20-8 and Part 790. Meaningful public hearings are impossible if land has been purchased and people have begun moving out of the proposed area.

Most of the obscurities identified and discussed by Peterson and Kennan regarding the old policies and procedures still exist. For example, Part 790.9 (e) still refers to criteria for the authorization of "design engineering" and "right of way plans." FHWA procedures do not provide for either authorization, and the meaning of this section is not clear.

The meaning of "design approval" is also still ambiguous. In Part 790.3 (d) "design approval" is defined as the "action or series of actions by which the FHWA indicates that the essential elements of a highway as set out in 790.9 are satisfactory" for PS & E approval. Part 790.9 lists "design standards, number of traffic lanes, access control features, general horizontal and vertical alinement, right-of-way requirements and location of bridges, interchanges and other structures" as essential elements. However, the Part nowhere specifies whether this list is exclusive and how many elements must be satisfied for design approval. Nor is it clear what standards are to be used in judging whether a particular element is satisfactory. The meaning of "design approval" is important because it determines if environmental impact (NEPA) statements are to be filed under an earlier PPM, 90-1.⁶ PPM 90-1 states that projects receiving design approval between January 1, 1970, and February 1, 1971 require impact statements only if "in the judgment of the FHWA division engineer, implementation of (NEPA) to the fullest extent possible requires preparation of an environmental statement."

However, the courts have been almost universally ignoring PPM 90-1 in determining when NEPA requirements apply to a project initiated prior to January 1, 1970.⁷ Judicial review has focused on pragmatic considerations regarding project commitments unrelated to any artifically imposed approval date. As a result, the highway department now apparently will redraft and revise PPM 90-1.

1. Part 790-Public Hearings (Corridor and Design), 38 Fed. Reg. 12103 (May 9, 1973), ELR 46522.

2. 3 ELR 46520.

3. 3 ELR 46521.

4. Peterson and Kennan, An Analysis of Administration of the Federal-Aid Highway Program, 2 ELR 50001 (1972).

5. 23 C.F.R. § 1.32(a) (1972). See Peterson and Kennan, supra note 4, at 2 ELR 50002.

6. 3 ELR 46106.

7. See Peterson and Kennan, supra note 4, 2 ELR 50018-50020, and Indian Lookout Alliance v. Volpe, 3 ELR 20051 (S.D. Iowa 1972).