Introduction

On July 23, 1973, a consent judgment was entered against the defendants in a lawsuit in Washington, D.C., titled National Wildlife Federation v. Tiemann.¹ This article explains the terms of a settlement agreement included in the consent judgment and suggests ways in which citizens concerned about ongoing construction of the federal-aid highways affected by the settlement agreement may take advantage of it.

I. The Lawsuit

The rules of the Federal Highway Administration (FHWA) for implementing the National Environmental Policy Act of 1969 (NEPA) are contained in the FHWA's Policy and Procedure Memorandum 90-1 (PPM 90-1).² These rules have exempted proposed federal-aid highway construction which received FHWA "design approval" before February 1, 1971 from NEPA's requirements for preparing environmental statements.³

On June 29, 1973, the National Wildlife Federation (NWF) filed a lawsuit in the United States District Court for the District of Columbia. NWF asked the court to enjoin the FHWA from continuing to exempt proposed federal-aid highway construction from NEPA's requirements for preparing environmental statements because the proposed highway received "design approval" before February 1, 1971. The consent judgment entered against the defendants in this lawsuit on July 23, 1973, represents the FHWA's concession that NWF's interpretation of the law is correct. Neither the FHWA nor a state highway agency may maintain that any particular proposed federal-aid highway construction is exempt from NEPA's requirements for preparing environmental statements simply because it received FHWA "design approval" before February 1, 1971. Although there may be other reasons why an environmental statement cannot or should not be prepared for a proposed federal-aid highway, the date the FHWA approved the highway's design no longer has any legal significance at all.

II. The Highway Affected by the Settlement Agreement

No one knows exactly how many proposed federal-aid highways the FHWA illegally exempted from NEPA's requirements for preparing environmental statements. Nor does anyone know at this time how many of these highways, or portions of them, remain to be constructed. The FHWA's estimates range from 700 to 1,100. The settlement agreement's first objective is to identify each proposed highway previously considered to be exempt from NEPA's requirements for which the preparation of an environmental statement would still be meaningful.

The settlement agreement prescribes a two-step process for identifying these proposed federal-aid highways. This process involves (1) identifying certain key requests for approval which state highway agencies will submit to the FHWA between August 15, 1973, and January 1, 1974, and (2) identifying the "highway section" to which each key request for an FHWA approval will refer. In order fully to understand the following discussion in this article, it is important to keep in mind the general statutory framework for administering the federal-aid highway program and the crucial distinction between federal-aid highway "projects" and federal-aid "highway sections."

A. The general statutory framework for administering the federal-aid highway program.

Congress has established the federal-aid highway program in several statutes which have been codified in Title 23 of the United States Code. Under the federal-aid highway program, the federal government reimburses the states for a portion of federal-aid highway construction costs. State highway agencies are responsible for planning, designing and actually constructing federal-aid highways. The FHWA's primary responsibility is to assure that certain federal standards have been met before the states are reimbursed. The FHWA carries out this responsibility by requiring state highway agencies to request and obtain [3 ELR 50086] certain FHWA approvals at various stages in the ongoing process of planning, designing and actually constructing federal-aid highways.

Under the federal-aid highway program, Congress provides for an annual apportionment of the federal funds which are used to reimburse the states for highway construction. These apportionments are provided in lump sums for the categories of federal-aid highways in each state (Interstate, urban, primary, secondary, economic development highways, etc.). At the time federal funds are apportioned they are not designated for use to reimburse the construction costs of any particular proposed highway. Each state is free to establish its own priorities for undertaking the construction work for which it will request federal reimbursement during a particular fiscal year.

B. The distinction between federal-aid highway "projects" and federal-aid "highway sections."

Under the federal-aid highway program, state highway agencies seek FHWA approval and federal reimbursement for proposed federal-aid highway "projects." A project does not relate to any particular length of a proposed highway; it relates to proposed highway construction work. The state highway agencies divide proposed construction into projects that include whatever items of work are useful or convenient in obtaining the FHWA approvals necessary for federal reimbursement. These projects may involve any reimbursable highway construction work, including planning, designing, acquiring rights-of-way, demolishing structures, grading, paving and landscaping, in an infinite variety of combinations.

A federal-aid "highway section," on the other hand, is a particular length of a proposed highway. It is the length of a proposed highway for which an environmental statement must be prepared under the FHWA's rules in PPM 90-1.The term is defined in paragraphs 3.a and 6 of PPM 90-1 as follows:

Highway Section — a 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. (See paragraph 6)….

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.

It is important to note that this definition is applicable whether or not the highway for which an environmental statement is prepared is partially completed. The definition of "highway section" in PPM 90-1 makes no distinction between new highways and partially completed highways.

We now turn to the first step in the settlement agreement's two-step process for identifying each proposed highway previously considered to be exempt from NEPA's requirements for which the preparation of an environmental statement would still be meaningful.⁴

G. Identifying key requests for approvals which state highway agencies will submit to the FHWA between August 15, 1975 and January 1, 1974.

The settlement agreement requires the FHWA's division engineer in each state to review all the requests for approval of proposed federal-aid highway "projects" which the state highway agency intends to submit to the FHWA between August 15, 1973 and January 1, 1974. If the proposed request for FHWA approval is of a kind specified in the settlement agreement, the FHWA division engineer is prohibited from granting the request until he has determined whether an environmental statement should be prepared for the highway section to which the request refers.

To identify a proposed request for approval as being included within the settlement agreement, the FHWA's division engineer must ask a series of questions about each request which will be submitted to the FHWA between August 15, 1973 and January 1, 1974. First, the division engineer must ask: Does the request relate to proposed highway construction for which an environmental statement has been prepared or is being prepared? The answer to this question should be readily available to the division engineer from the records in his office. If an environmental statement has already been prepared, no further compliance with NEPA's procedural requirements is necessary. We have been assured that if an environmental statement is being prepared for a proposed highway, the FHWA's current policy requires withholding further FHWA approvals for most right-of-way acquisition and physical construction work until the environmental statement is completed.⁵

If the FHWA's division engineer finds that the state highway agency's request relates to proposed federal-aid highway construction for which no environmental statement has been prepared or is being prepared, he must [3 ELR 50087] then ask this question: Does the request relate to proposed construction that is a major federal action significantly affecting the quality of the human environment? In answering this question, the division engineer will consult Appendix F to PPM 90-1. This Appendix provides, in pertinent part:

2. The following should be used to determine whether a proposal to construct or improve a highway section is a major action.

a. Highway sections entirely or generally on new location.

b. Major up-grading of an existing highway section resulting in a functional characteristic change (e.g., a local road becoming an arterial highway). Such changes usually result by adding lanes, interchanges, access control, medians, etc., and require extensive right-of-way acquisition and construction (grading, base, paving, bridges, etc.) which have the potential of significantly affecting the human environment.

3. Any of the following highway sections should ordinarily be considered as significantly affecting the quality of the human environment.

a. A highway section that is likely to have a significantly adverse impact on natural ecological, cultural, or scenic resources of national, State or local significance.

b. A highway section that is likely to be highly controversial regarding relocation housing resources.

c. A highway section that divides or disrupts an established community or disrupts orderly, planned development or is inconsistent with plans or goals that have been adopted by the community in which the project is located or causes increased congestion.

d. A highway section which involves inconsistency with any national, State or local standard relating to the environment; has a significantly detrimental impact on air or water quality or on ambient noise levels for adjoining areas; involves a possibility of contamination of a public water supply system; or affects ground water, flooding, erosion or sedimentation.

If the proposed highway construction is in both categories — for example, if it involves a highway section entirely on a new location that is likely to have a significantly adverse impact on scenic resources of local importance — then the division engineer must find that the proposed construction is a major federal actionsignificantly affecting the quality of the human environment.

If the FHWA division engineer concludes that a particular proposed request for FHWA approval relates to highway construction (1) for which no environmental statement has been prepared or is being prepared and (2) which is a major federal action significantly affecting the quality of the human environment, he must then ask two additional questions. If the answer to either question is "yes," the division engineer may not grant the request until he has determined whether an environmental statement should be prepared for the highway section to which the request refers.

The first additional question the FHWA division engineer must ask is this: Is the proposed request to approve right-of-way acquisition, other than hardship cases or protective buying in extraordinary circumstances, or for demolition necessary to protect public safety? If so, then the division engineer must withhold his approval. Most, if not all, proposed right-of-way acquisition was intended to be covered by the settlement agreement's temporary prohibition on FHWA approvals. The exceptions for hardship cases, protective buying in extraordinary circumstances, and demolition necessary to protect public safety were intended to be truly exceptional. If anyone encounters a situation where a division engineer proposes to ask a Regional Federal Highway Administrator to approve projects within these categories, he should contact NWF Resources Defense for assistance.

The second additional question the FHWA division engineer must ask is this: Is the proposed request one to authorize advertisements for bid for work which will physically disturb the soil at a place other than a place where grading work was authorized before August 15, 1973? If the project for which advertisements for bid are proposed will involve any work disturbing the soil at a place other than one where grading was authorized before August 15, 1973, then the division engineer must withhold his authorization until he has determined whether an environmental statement should be prepared.

For example, suppose a state highway agency proposes to construct a new federal-aid highway ten miles long. As of August 15, 1973, the FHWA division engineer has already authorized grading and drainage work on five miles. The remaining five miles of right-of-way have been acquired. The state highway agency proposes to request FHWA authorization to advertise for bids for a project which includes grading the remaining five miles and paving ten miles. The grading and drainage work authorized before August 15 may go forward, but the division engineer must withhold authorization to advertise for bids for the new project.

D. Identifying the "highway section" to which each key request for FHWA approval refers.

After the FHWA division engineer identifies the key requests for approval which the state highway agency will submit to the FHWA between August 15, 1973 and January 1, 1974, he must take the second step in the two-step process of identifying each proposed highway for which preparation of an environmental statement would still be meaningful. The division engineer must next identify the "highway section" to which each key request for FHWA approval refers.

This step is superficially simple, but actually rather complicated. We have seen that PPM 90-1 defines "highway section" as "a substantial length of highway between logical termini … as normally included in a single location study," and directs: "The highway section included in an environmental statement should be as long as practicable to permit consideration of environmental matters on a broad scope." We have also seen that the definition of "highway section" in PPM 90-1 makes no distinction between new highways and partially completed highways.

[3 ELR 50088]

In the negotiations preceding the settlement agreement, FHWA officials informed us that the definition of "highway section" in PPM 90-1 is an "ideal" applicable only to new highways. They said that there is a more restrictive "operating definition" of "highway section" which is applicable to partially completed highways. This "operating definition," they suggested, could lead a division engineer to define a "highway section" as being the length of a highway included in a proposed project for physical construction work, whatever that length might be.

The FHWA has not written down any "operating definition" of "highway section" or even acknowledged in writing that such a thing exists. Each FHWA division engineer presumably carries his own "operating definition" around with him in his head. We believe that the only legitimate definition of "highway section" appears in the FHWA's rules implementing NEPA, paragraphs 3.a and 6 of PPM 90-1. Because the courts have held that federal agencies must comply with their own rules implementing NEPA,⁶ the FHWA division engineers must use the definition of "highway section" in PPM 90-1 in identifying the proposed highways for which preparation of an environmental statement would still be meaningful under the settlement agreement.

For example it would not normally be proper for a division engineer to define a highway section as being the length of a highway included in a proposed project for physical construction. Normally the termini for such a project are "logical" only in terms of the state highway agency's schedule for obtaining federal reimbursement under the federal-aid highway program. The termini for each highway section affected by the settlement agreement should be "logical" in terms of the definition in paragraph 3.a of PPM 90-1. They should be "major crossroads, population centers, major traffic generators, or similar major highway control elements," regardless of whether the "highway section" between them is partially completed.

III. The Procedure for Determining whether Preparation of an Environmental Statement Would Still be Meaningful

The procedure to be used by the FHWA for determining whether an environmental statement should be prepared for the highways affected by the settlement agreement (a "NEPA reassessment") is relatively simple. The FHWA division engineer will require the state highway agency to publish one or more public notices in the largest daily newspaper of general circulation in the vicinity of each highway section which is subject to a NEPA reassessment. Each notice must contain:

(1) A list of highway sections which are subject to the NEPA reassessment. The list must describe each highway section's location, termini, length and proposed number of lanes;

(2) The criteria for NEPA reassessment; and

(3) An invitation for interested persons to submit comments to the FHWA's division engineer relating the criteria for NEPA reassessment to any or all of the highway sections in the list within 30 days after publication.

Anyone, including the state highway agency, may submit comments to the FHWA division engineer within the thirty-day comment period. After the comment period has ended, the division engineer will decide whether implementation of NEPA to the fullest extent possible requires preparation and processing an environmental statement for each highway section in the published list. The settlement agreement requires the division engineer to make these decisions using the criteria for NEPA reassessment in the consent judgment. The decision with respect to each highway section must be in writing and must be furnished, free of charge, to anyone who requests it.

As soon as possible after the FHWA division engineer decides whether an environmental statement is required for particular highway sections which are subject to the NEPA reassessment, the state highway agency will be required to publish another public notice in the largest daily newspaper of general circulation in the vicinity of the highway section. This notice must contain:

(1) A list of the highway sections for which the FHWA division engineer's decision was made. The list must describe each highway section's location, termini, length and proposed number of lanes;

(2) A statement that the division engineer has decided that preparation of an environmental statement is, or is not, required for each highway section; and

(3) The address where any person may obtain copies of the division engineer's written decisions.

If the FHWA division engineer decides that an environmental statement should be prepared for a particular highway section, the settlement agreement prohibits him from granting any key request for FHWA approval⁷ until a final environmental statement for the highway section has been lodged with the President's Council on Environmental Quality for thirty days.

IV. Taking Advantage of the Settlement Agreement

If you are concerned about ongoing construction of a federal-aid highway which may be affected by the settlement [3 ELR 50089] agreement and you wish to assure that an environmental statement is prepared for the highway, there are several things you can do.We have no reservations about providing whatever assistance we can. Administration of the federal-aid highway program is so complex and so shrouded in secrecy that most concerned citizens and citizens' organizations begin with staggering disadvantages in dealing with a state highway agency and the FHWA.

First, you should make contact with NWF Resources Defense, which is preparing additional memoranda and furnishing additional materials to citizens and citizens' organizations concerned about ongoing highway construction affected by the settlement agreement. In order to keep our expenses to a minimum, we need to make contact with your directly.

Second, you should write or telephone theFHWA division engineer in your state to make certain that the highway you are concerned about is made subject to the NEPA reassessment and gets on a published list. Information presently available to us indicates that the states which have the most proposed highways affected by the settlement agreement are: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, Nevada, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Virginia, and Washington.

Third, you should look carefully at the "highway second" which the division engineer includes in the NEPA reassessment. We have seen that the division engineer may not follow the definition of "highway section" in PPM 90-1.If you believe that the "highway section" which the division engineer identifies for the highway you are concerned about is not consistent with PPM 90-1, you should write to him as soon as possible. You should describe the length of proposed highway you believe should be included in the NEPA reassessment and the reasons why the length of highway you recommend is more consistent with the definition in PPM 90-1. You should also insist that the division engineer require the state highway agency to publish another public notice which includes the length of highway you propose. You should submit comments on the highway section as the division engineer has defined it, but repeat your objection to his definition in your written comments. You or your attorney may wish to contact NWF Resources Defense for additional assistance.

Fourth, you should submit written comments to the division engineer relating the criteria for NEPA reassessment to the proposed highway you are concerned about. Your comments should be as informative, factual and precise as possible. The division engineer will be looking to you particularly for references to available information on the highway's significant adverse impacts, including impacts on air and water quality, noise levels and land use. If the proposed highway is controversial, you should make that fact known to the division engineer. If possible, please send a copy of your written comments to NWF Resources Defense.

1. 3 ELR 20688 (D.D.C.)

2. The current version of PPM 90-1 was published in the Federal Register on October 14, 1972, beginning at page 21809. Copies of PPM 90-1 should also be available, for a nominal charge, at the division engineers' offices.

3. The legal significance of FHWA "design approval," and the way in which PPM 90-1 exempted some proposed federal-aid highway construction from NEPA's requirements, are explained in detail in Peterson & Kennan, The Federal-Aid Highway Program: Administrative Procedures and Judicial Interpretation, 2 ELR 50001 (1972).

4. The FHWA is considering amending PPM 90-1 to require environmental statements to be prepared for any proposed highway construction for which a state highway agency requests FHWA approval on or after January 1, 1974. The settlement agreement requires its procedures to be followed, as a minimum, for all proposed highway construction previously considered exempt from NEPA's requirements for preparing environmental statements. The FHWA is free, however, to impose more stringent requirements than those contained in the settlement agreement on any part of that previously exempt proposed construction.

5. If anyone knows of any proposed federal-aid highway construction (1) for which an environmental statement is being prepared and (2) for which the FHWA proposes to authorize right-of-way acquisition or construction work which involves physical disturbance of the soil before the environmental statement is completed, he should contact NWF Resources Defense.

6. See, e.g., Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 424 (5th Cir. 1973) (Housing and Urban Development circular implementing NEPA); Environmental Defense Fund, Inc. v. TVA, 468 F.2d 1164, 1178 (6th Cir. 1972) (Tennessee Valley Authority statement of policy and procedure implementing NEPA).

7. Requests to approve right-of-way acquisition other than hardship cases or protective buying in extraordinary circumstances, or for demolition to protect public safety, and requests for authorization to advertise for bids for a project that includes any work which will physically disturb the soil at a place other than one where grading was authorized before August 15, 1973.

3 ELR 50085 | Environmental Law Reporter | copyright © 1973 | All rights reserved