National Wildlife Federation Files Suit Challenging Federal Highway Regulations

The National Wildlife Federation recently filed three suits seeking to reform Federal Highway Administration (FHWA) procedures for administering the federal-aid highway program. Readers of ELR will recall that last month's issue included a Comment regarding the partial publication of FHWA procedures. That Comment in turn relied upon an earlier ELR article co-authored by Robert Kennan, attorney for the National Wildlife Federation, which criticized the FHWA for failing to give its procedures adequate circulation.¹

The first lawsuit is directed FHWA's unwillingness to make a firm commitment to publish those of its procedures which fit the definition of "rules" under the Administrative Procedure Act. The second suit challenges the provision in the new Part 790.9(f) of the Code of Federal Regulations which amends previous procedures so as to allow for possible right-of-way acquisition before a corridor hearing on the location of a highway.² The third suit asks that FHWA policy exempting certain projects which received design approval before February 1, 1971 from environmental impact statement requirements be judged in violation of NEPA.

The National Wildlife Federation based its request for promulgation of all federal-aid highway program procedures on the Freedom of Information Act. The complaint asked that the FHWA be ordered to publish the basic information required by the Act: first, a general description of the course and method by which agency functions are channeled and determined; second, rules of procedure; third, descriptions of forms available and substantive rules, statements, and interpretations of general applicability related to the federal-aid highway program; and fourth, amendments or revisions of the foregoing. The complaint also notes that the FHWA was asked to provide the requested information in April of this year but failed to do so.

The second suit challenged procedures for right-of-way acquisition prior to a corridor hearing and requested a declaration [3 ELR 10110] that the language in Part 790.9(f) authorizing the procedure was void. Thecomplaint alleged that the procedure was adopted contrary to rule-making requirements and that the procedure violates NEPA and other laws requiring the consideration of environmental effects. An explanation of the legal theory advanced in the complaint requires a brief review of the history of the challenged section. The origins of Part 790 lie in Policy and Procedure Memorandum (PPM) 20-8,³ adopted in 1969 after a full public hearing. PPM 20-8 allowed the division engineer to approve the acquisition of right-of-way before a design hearing under criteria promulgated by the Federal Highway Administrator. Three years later, the Administrator issued an amendment to PPM 20-8 to allow for, among other things, the combination of location with design hearings. This amendment was made without hearings or public comment.

On May 9th of this year the FHWA published Part 790 to codify the procedures in PPM 20-8 as amended. Part 790.9(f) differed from PPM 20-8 in that the division engineer was given the added power of approving right-of-way acquisition before a corridor hearing, essentially before any opportunity for public comment. This change was also made without public comment. The section was further amended and now permits acquisition before a corridor hearing "in exceptional cases, with the approval of the Regional Administrator."⁴

The first count of the National Wildlife Federation complaint alleges that Part 790.9(f) was adopted contrary to the rule-making procedures required by the Administrative Procedure Act. The complaint alleges failure to provide notice and an opportunity to submit views and data, and failure to publish the rule at least 30 days before its effective date. Based on this count, the suit asks that the FHWA be enjoined from authorizing any right-of-way acquisition prior to a corridor hearing until the appropriate rule-making procedures are followed.

The second alternative count alleges that authorization of right-of-way acquisition before a corridor hearing and before FHWA approval of the proposed highway location violates the Federal-Aid Highway Act, NEPA, and several other statutes⁵ requiring full consideration of the environmental effects of major federal actions. The theory underlying this count is that once the acquisition of land has begun, residents begin to leave the area and a full consideration of possible alternative actions becomes impossible. The complaint therefore asks the court to enjoin the FHWA from implementing the amendment contained in Part 790.9(f).

The third suit seeks to challenge FHWA procedures for implementing § 102(2) (C) of NEPA. FHWA guidelines for impact statements were set forth in PPM 90-1⁶ which established an exemption, at the discretion of the division engineer, for projects which received design approval between January 1, 1970, and February 1, 1971. On June 27th of this year, the FHWA published a notice of proposed rule-making stating that two alternative amendments to 90-1 were being considered and asking for public comment by August 10, 1973. The first proposed revision requires an impact statement if plans, specifications, and estimates are submitted for approval before a new effective date, while the alternative would exempt projects if a request for approval of advertisements for bids is submitted prior to the effective date. It is proposed that the effective date be no later than January 1, 1974.

According to the complaint, the exemption period ending January 1, 1974, would apply to at least 320 projects involving more than $1 billion in federal-aid highway construction based on FHWA reports. The complaint asks that the practice of exempting projects which received design approval before February 1, 1971 be declared in violation of NEPA and that FHWA be permanently enjoined from accepting for approval any plans, specifications and estimates, or advertisements for bids for any projects until their procedures are revised to conform with NEPA requirements.

As discussed in last month's Comment, the FHWA in recent months has apparently become more sensitive to its procedural responsibilities to the public. The litigation filed by the National Wildlife Federation may thus serve to stimulate further internal reform. If this is indeed the case, and both the plaintiffs and the FHWA are seriously interested in environmentally protective procedures, settlement of the suits may be possible. The situation may be similar to that following the filing of Natural Resources Defense Council v. Fri, discussed elsewhere in this month's Comments, which resulted in an accord between the parties regarding the schedule for EPA's completion of water pollution regulations.

1. Copies of the complaints available on request from the ELR Digest Facsimile Service. National Wildlife Federation v. Brinegar, Civil Action No. 1269-73 (D.D.C., filed June 25, 1973) 5 pp., $0.50; National Wildlife Federation v. Tiemann, Civil Action No. 1270-73 (D.D.C. filed June 25, 1973) 11 pp., $1.10; and National Wildlife Federation v. Tiemann, Civil Action No. 1318-73 (D.D.C., filed June 29, 1973) 10 pp., $1.00. See Comment, Federal Highway Administration Considers Publishing Procedures, 3 ELR 10088 (June 1973), and Peterson and Kennan, The Federal-Aid Highway Program: Administrative Procedures and Judicial Interpretation, 2 ELR 50001 (1972).

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

3. ELR 46520.

4. 38 Fed. Reg. 15956 (June 19, 1973).

5. Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653 (f); section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f; and section 309 of the Clean Air Act of 1970, 42 U.S.C. § 1857h-7.

6. ELR 46106.