FHWA Agrees to Change NEPA Exemption Procedures; Article Describes Next Steps for Environmentalists

A Comment in last month's ELR¹ described three suits filed by the National Wildlife Federation seeking to reform Federal Highway Administration procedures. That Comment suggested that FHWA might want to settle these suits, which challenged FHWA's practice of exempting from NEPA requirements federal-aid highway construction projects which received design approval before February 1, 1971. As it turns out, in the meantime a consent judgment has been approved, and appears in the Litigation section of this month's ELR.²

Under the terms of the settlement, FHWA will not, after January 1, 1974, authorize advertisements for bid or right-of-way acquisition (except in exceptional hardship circumstances) for projects which are major federal actions significantly affecting the environment until a sufficient environmental impact statement has been filed. In the interim period before January 1, the FHWA division engineers will be responsible for evaluating whether environmental impact statements should be prepared for specific highway sections. Each state highway administration will be required to publish a list of proposed highway sections, the criteria for NEPA reassessment, and an invitation for comments. The FHWA will also publish a list of projects and its case-by-case determination of whether an environmental impact statement is required.

Robert M. Kennan, counsel for the National Wildlife Federation, believes that the settlement may affect as many as 1,100 highways, or portions of highways, which FHWA authorized illegally. In an article in this month's ELR,³ he calls on environmentalists to help ensure that [3 ELR 10125] environmental statements are prepared for on-going highway construction. Mr. Kennan's article explains in detail both the agreement and the steps which concerned environmentalists, laymen as well as lawyers, can take to secure its implementation.

The criteria for determining whether or not an impact statement must be done prior to FHWA authorization no longer include an arbitrary date of design approval. Under the new procedure, the division engineer is to balance the costs of delaying the proposed highway against the benefits to be derived from preparing an environmental statement. If there is any doubt as to where the balance lies, a statement is to be prepared.

The consent agreement represents a significant improvement in FHWA procedures for implementing NEPA. Several hundred highways with a construction cost of millions of dollars will not be reevaluated through the environmental impact process. The FHWA is to be congratulated for accepting the constructive criticism of the National Wildlife Federation. The public can finally look forward to a meaningful opportunity to participate in the federal-aid highway program.

1. Comment, National Wildlife Federation Files Suit Challenging Federal Highway Regulations, 3 ELR 10109 (July, 1973).

2. National Wildlife Federation v. Tiemann, 3 ELR 20688 (D.D.C. July 23, 1973).

3. The Settlement Agreement in National Wildlife Federation v Tiemann, 3 ELR 50085 (August, 1973).