On the Road Again: Certification Acceptance Forces NEPA to Adapt

Jeff Morgenthaler

The federal-aid highway approval process is a labyrinth of which Daedalus could be proud. A series of Policy and Procedure Memoranda (PPMs), Instructional Memoranda (IMs), and Orders creates an administrative maze which the Federal Highway Administration had until recently managed to protect from presentation in the Code of Federal Regulations. Attempts to overlay the requirements of the National Environmental Policy Act of 1969 (NEPA)¹ on this complex and intricate procedure have not proven wholly satisfactory, in part because of the inherent inadequacy of a single comprehensive impact statement to embrace the ramifications of a ten to twenty year construction program. In the course of litigation, the "timing" of an impact statement — that point at which a draft impact statement should first be made public — has emerged as a critical variable in the effectiveness of highway environmental assessment.

Now, to the consternation of those who felt that they were beginning to perceive the proper procedure and timing for highway impact statements, the Federal Highway Administration has shifted from the tactics of King Minos to those of the Queen of Hearts. On May 8, 1974, the Federal Highway Administrator announced that although the pre-1974 procedures for highway federal-aid approvals had worked well, "the State highway departments have reached a degree of maturity such that they no longer need careful and detailed scrutiny … in some areas of program administration,"² and for that reason the existing federal-aid approval structure would for the most part be discarded.

In its place, all but Interstate federal-aid highways could, at the option of the states, be built under a "Certification Acceptance" arrangement by which the Federal Highway Administration (FHWA) would allow states to construct federal-aid highways without extensive federal supervision if that agency determines that pertinent state laws and regulations are equivalent to existing federal procedures. Such a determination of equivalency would relieve the state of the necessity of obtaining the detailed step-by-step approvals which constitute the pre-1974 federal-aid highway development process, and allow it to pursue its own "equivalent" process. Fifty labyrinths may replace the one.

In light of this bizarre turn of events, it seems proper to examine briefly what used to be federal-aid highway approval terminology and process, and to try to determine what elements remain.³ It may also be worthwhile to investigate the juristic trends in application of NEPA to federal-aid highways, and to examine those elements of the impact statement process which have proven less than effective. Special attention will be paid to the timing of an impact statement and to the "Action Plan" concept, which the Federal Highway Administration hopes will increase effective consideration of economic, social, and environmental effects of transportation system development.

Still, after establishing that background of pre-1974 highway construction procedure and environmental assessment techniques, the critical question will still remain: Can the National Environmental Policy Act be applied to the federal-aid highway development process in a manner that will increase effective environmental assessment without creating undue expense or delay?

Terminology

The federal-aid highway program is administered by the Federal Highway Administration (FHWA) of the United States Department of Transportation under authority of the Federal-aid Highway Act, 23 U.S.C. § 101 et seq. Essentially, the program creates a structure under which a state may obtain eligibility for, or commitment of, federal monies to assist it in highway construction.The allowable extent of federal financial participation varies according to the type of highway involved, reaching a maximum of 90 percent for highways in the Interstate system. If a state desires to construct a road entirely with its own funds, it need not seek any type of federal approval. Federal funding may be for work completed as well as proposed construction.

A highway "system" is a large-scale network of interconnecting roads. It is generally a state-wide network, but the term may be applied to a more localized but highly complex set of roadways, such as the highways of a large conurbation.

Highway "systems planning" is an ambiguous term. It may refer simply to state highway planning on a large scale, or to a specific federally-funded urban highway planning process in compliance with federal regulations.⁴ [4 ELR 50024] As used herein, it will indicate the generic concept of large-scale advance highway planning.

A highway "program" is a bookkeeping concept. It is that amount of state-wide highway construction which a state seeks to have federally funded in one fiscal year. It is an annual state-wide fiscal and planning concept only, and as such is always subject to change.

A highway "project" is a construction and financing unit. It is that stage or portion of a highway, definable or identifiable in terms of mileposts, upon which work is progressing or funds are being spent. Few states, if any, can afford to build an entire highway in one leap, so highway construction or reconstruction is broken down into projects for the purpose of funding and letting contracts. The FHWA recognizes three types of projects: preliminary engineering, right-of-way acquisition, and actual construction. A number of proposed projects for one fiscal year is a program. A number of completed projects is a system.

A highway "segment" is an environmental law concept. It is that portion of a highway which a reasonable man would consider to be a whole for purposes of assessing the environmental impact of a project. Segment size will vary with the potential impact of a project; it is not rigidly tied to the actual length of the project at hand. A segment may cross state lines; it may consider the impact of highways feeding or fed by the highway on which the project lies. One court kept terminology misuse to a tolerable minimum when it said that "the considerations which make it advisable to segment a project for federal approval and financing or for the purpose of construction contracts do not necessarily have any relationship to the environmental impact of the project."⁵

If one can keep the preceding concepts in mind, half the battle will be won. The other half lies in determining which of those concepts is intended by a court's or an agency's use of a term.

Procedures⁶

The inevitable third half of understanding the existing law of road construction is deciphering "the process." A good grasp of the existing procedure is necessary to acquire a feeling for the post-1974 process and its environmental law consequences. Indeed, the existing approval process is for the moment still the law, and will be altered only as states receive Certification Acceptance (CA).

The first point of federal involvement in the existing approval process is program approval, which does not involve the approval of programs. As indicated above, a program is composed of more than one project; however, FHWA program approval amounts to little more than multiple project review, for the approval of the program does not in practice depend upon the approval of all of its component projects at the same time. Instead, the FHWA may very likely approve individual project proposals as they flow into the office, never seeing an integrated program.

The specifics of program approval involve determinations that the project is planned with the proper degree of involvement of local officials, in accordance with sound planning principles, with due regard for specified land uses, and with assurances of equal employment opportunity.⁷

There are two key facts to remember about program approval. First, it does not relate to one large, nebulous program, but rather to the component, somewhat less uncertain but still quite sketchy projects within that program. A description of a project for purposes of program approval may be no more than a sentence or two. Second, it is at this point that eligibility for federal funds arises. A state may not be reimbursed for the cost of any work that was begun on a project before program approval was obtained.⁸ When a state includes a project within its program for federal approval, it is taking an affirmative step to ensure federal-aid eligibility.

The next major level of approval required of a state seeking federal aid is acceptance of plans, specifications and estimates, known as PS&E approval. Successful completion of this review constitutes a contractual commitment on the part of the federal government to pay its share of the project costs.⁹ For the most part, PS&E approval goes merely to the financial merits and engineering feasibility of the project, but there is one crucial action-forcing provision that gives the public its first opportunity to have a voice in the project. Before a construction project can receive PS&E approval, the state must hold two public hearings — a location public hearing to obtain public opinion as to the general path or corridor through which a highway project will pass, and a design public hearing to present the more specific elements of the project in a designated location.¹⁰ The conduct and results of each hearing must receive specific FHWA review — location approval and design approval.

No such hearings are required for PS&E approval of preliminary engineering and certain acquisitions of right-of-way, although expenditures on those projects may be [4 ELR 50025] substantial. Indeed, it may be difficult to ascertain the precise point at which PS&E approval is given on non-construction work, for such approvals are often made piecemeal by the FHWA. The actual date of approval of any phase of highway construction or planning may be similarly obscured by the hand-in-hand partnership between the state highway departments and the FHWA; the two work very closely, and approval may be promised by the FHWA long before it is formally given. Ascertaining the date of PS&E construction approval is much easier; not only is it more formal, but the dates of location and design public hearings and the approval of the results of these proceedings by the FHWA provide identifiable points before which PS&E construction approval could not have been given.

The merits of the public hearing procedures are beyond the scope of this inquiry, but it should be noted that prior to this first opportunity for public input the state has normally expended considerable sums of money on preliminary engineering studies and may have begun right-of-way acquisition. Even a highly organized and broadly based body of citizens may find that at this late stage its pleas for alteration or abandonment of a project are coldly received by a public agency that is already committed by policy and finances to the pursuit of a "preferred alternative."

The third and final major pre-construction approval required for a federal-aid highway project is authorization to proceed with work. This is an administratively imposed requirement, and so does not involve meeting statutory standards. What does constitute the requirements for such an authorization is unclear even to the most experienced observers, but it appears to be an administratively created opportunity to impose additional ad hoc conditions prior to obligation of federal funds, in apparent conflict with the statutory contractual commitment created by PS&E approval.¹¹ Once authorization to proceed with work has been obtained, the construction may commence.

Certification Acceptance

On May 8, 1974, the Federal Highway Administrator, without formal public hearings or comment,¹² promulgated an amendment to Chapter 1 of Title 23 of the Code of Federal Regulations.¹³ The new regulation created a procedure called "Certification Acceptance" by which a state might exempt itself from most of the currently required federal approvals discussed above. Under this regulation, the FHWA will examine the statutory and administrative procedures of each state requesting Certification Acceptance, and if the FHWA finds them to meet the requirements of Title 23 and regulations created thereunder, the state will then be relieved from most federal supervision of its actions after program approval. Obviously, if the FHWA should pursue its examination in a lackadaisical manner, states might be left to pursue highway construction under procedures which bear no relationship to the requirements of federal law.

While a state might choose to follow a procedure exactly as provided in the existing federal regulations, such is not anticipated. Even if such a process should exist on paper in a state, no federal supervisory role will be pursued to ensure compliance. The states will be required to retain only the specific elements of program approval¹⁴ and location and design public hearing.¹⁵ Under certification acceptance there is no location approval, no design approval, no PS&E approval, no authorization to begin work, and the two-hearing procedure may be compressed into one.¹⁶

Manipulation of Procedures

The existing federal-aid highway approval system lends itself to manipulation, especially in its relationship to NEPA. Soon after the passage of the National Environmental Policy Act it became evident that states could disclaim an intent to seek federal aid while maintaining eligibility for federal assistance right up to the day before the letting of a contract. Only then would the state announce its decision to participate in the federal program, admit the project's "major federal action"¹⁷ status, and begin an in-depth NEPA environmental impact statement (EIS) — long after many alternatives (certainly including the alternative of no highway at all) had been precluded.¹⁸ By delaying recognition or acknowledgment of the "federalness" of its project the state could ensure that when an EIS came due, many of the controversial — and crucial — environmental issues would be moot or the outcome a foregone conclusion.

States also discovered that by not seeking federal aid on [4 ELR 50026] controversial phases of projects or sections of a highway, it could hopefully avoid the need for an EIS as to that phase or section. For example, a state could self-fund the preliminary engineering and right-of-way acquisition of a highway without even seeking federal approval, then obtain acknowledgment of compliance with federal requirements at the construction stage when the path and impact of the highway is all but settled.¹⁹ Or, if one-stretch of a highway was environmentally controversial, a state could seek federal aid on all but that short stretch of the highway and avoid NEPA compliance as to the only piece of concrete that truly needed it.²⁰

These schemes have been thwarted to a certain extent by the courts, but the results and the techniques used to reach those results have been less than uniform. Courts have grappled extensively with such problems as adequacy of public hearings,²¹ protection of parklands,²² adequacy of impact statements,²³ and proper EIS segment length,²⁴ but the more basic issue of timing has emerged as the fulcrum of NEPA federal-aid highway suits.

Few would anticipate that allowing state to promulgate their own project procedures will lessen the abuse. While Certification Acceptance in theory does not reduce the responsibilities of the state under NEPA,²⁵ at least two FHWA division engineers have commented that the lack of contact between the state and the FHWA would impair the effectiveness of the impact statement process.²⁶ Chief counsel for the FHWA has recognized that "[t]here simply are not enough FHWA policemen under the present procedure or the new CA procedure to insure compliance with the law by detecting every infraction and taking corrective action. The states must therefore be even more alert under the new CA procedure for violations, abuses, and the arrogant disregard of the rights of citizens conferred by the Federal-aid Highway Act."²⁷ Since such violations, abuses and arrogant disregard for rights presumably are perpetrated by the state highway departments, one must wonder whether supervision and prevention of such conduct is best placed in their somewhat soiled hands.

The potential problems involved in such an unsupervised shovelling of funds to the state highway departments closely parallel those posed by revenue sharing grants. The very applicability of NEPA to revenue sharing funds is a formidable issue which fortunately does not arise in Certification Acceptance,²⁸ but both may well be plagued by the persistent refusal of the states to consider environmental issues adequately when left to spend monies as they please. The elimination of continuous contact between state and federal highway agencies can only add to the already substantial evidence of the inability or unwillingness of states to conduct adequate environmental assessment of highway construction.²⁹

The potentials for abuse which CA adds to the federal-aid highway program, combined with the already well-known techniques for state avoidance of NEPA, make it likely that timing of impact statements will remain a crucial issue. A review of the current state of the law and possible improvements thereon is in order.

Existing Environmental Assessment

Courts and federal administrative agencies have long [4 ELR 50027] proceeded on the premise that environmental impact statements "should be prepared at the earliest possible point in time. They should be prepared early enough in the process so that the analysis of the environmental effects and the exploration of alternatives with respect thereto are significant inputs to the decision making process."³⁰ Such a policy ensures that the agency making the proposal will have made the least possible commitment to taking the action prior to assessing environmental impacts, and that pre-statement environmental damage will be minimized. The early preparation of an impact statement is especially critical to the consideration of alternatives. Administrative guidelines require a "rigorous exploration and objective evaluation of the environmental impacts of all reasonable alternative actions, particularly those that might enhance environmental quality or avoid some or all of the environmental effects…"³¹

In addition to their recognition of the need for an early EIS, the courts are for the most part aware of the potential for state abuse of the federal-aid approval system. Most will take this into account, so that the rationale of many decisions in this field appears to be based more on equity principles than on the statutes involved: "Common sense suggests that all the protections which the Congress has sought to provide would be futile gestures were the states and federal agencies allowed to ignore statutes and regulations until deleterious effects upon the environment have actually occurred while the option for receiving federal funds still remains open."³² Courts do not, however, assume that an agency's actions are suspect; the burden of proof is on the party charging an abuse.³³

To resolve the problems created by the need for early impact statements and the potential for state delay of those statements, the courts have found that a highway may become federal in nature prior to the spending of any federal funds. Such a finding is essentially equitable, based on a feeling that "the highway has, through various circumstances, taken on such a federal character that the purposes behind the federal laws would be defeated unless their requirements were met."³⁴ Such a finding of pre-funding federalness also has basis in FHWA interpretation of its responsibilities under NEPA.³⁵

Most courts have sought to tie this pre-funding federal action to funding eligibility. A leading case asserted that "the state should not have the considerable benefits that accompany an option to obtain federal funds without also assuming the attendant obligations."³⁶ Other courts have similarly found that when a state obtains eligibility for federal-aid funds it simultaneously shoulders the burdens of federal environmental law.³⁷

Courts have seized upon the location hearing in their search for that early point at which eligibility arises and an impact statement becomes necessary. Some judges were drawn to this event by their lack of understanding of any of the federal-aid approval terminology and process except the need for such hearings.³⁸ Others have apparently felt that this definable, significant event constitutes a clearing in a jungle of administrative procedure where piecemeal approvals and agency project promotion fall to a slowed pace to be scrutinized by the public eye. Many courts have properly given weight to the official FHWA declaration in PPM 90-1 that the location hearing is the point at which statutory requirements mandate the preparation of a draft environmental impact statement.³⁹

Though the law seems to be firming up that the draft impact statement should make its first public appearance just before the location hearing, anyone who has ever suspected that some highways involve greater costs than benefits will fear that such an entrance is far too late. By the time of the location hearing the state highway department's energy has focused on one preferred alternative location, and it comes to the meeting armed with a formidable array of statistical weapons calculated to overwhelm the "uninformed" public who may oppose the project. Certainly the alternative of no highway at all has by then been cast aside, as have most alternative transportation modes. Though the impact statement may, as required,⁴⁰ consider the ramifications of no construction, the agency has committed its time, money, manpower, and self-perpetuation too deeply to risk examining such propositions in depth at this late stage. The inertia of the concrete coalition is immense.

The implementation of Certification Acceptance will even further diminish the effectiveness of a location hearing EIS. Since official FHWA location approval is no longer required, the hearing has lost its character as an identifiable point of federal intervention at which an EIS [4 ELR 50028] should be offered. No longer may one be assured that the local public reaction to the contents of the EIS will be monitored by a federal agency. The location hearing has lost much of its significance, federal supervision of its conduct and content has been removed, and its appropriateness as the single correct point for an impact statement seems less evident.

In apparent recognition of the need for earlier and continuous environmental assessment, and in response to a congressional mandate,⁴¹ the FHWA on June 1, 1973 promulgated guidelines designed to "assure that adequate consideration is given to possible social, economic and environmental effects of proposed highway projects and that the decisions on such projects are made in the best overall public interest."⁴² These pre-CA guidelines recognize the very problems discussed above, and expressly state that "many significant economic, social, and environmental effects of a proposed project are difficult to anticipate at the system planning stage and become clear only during location and design studies. Conversely many significant environmental effects of a proposed project are set at the system's planning stage."⁴³ To ensure that state highway departments will consider both levels of environmental consequences, the FHWA guidelines require state compilation of "Action Plans." An Action Plan sets forth a systematic interdisciplinary decision process designed to maximize input from other agencies and the public, and to guarantee comprehensive consideration of alternative actions. Like Certification Acceptance, there will be a different Action Plan, and thus a different decision process, for each state. Action Plans remain in full effect after Certification Acceptance.⁴⁴

An Action Plan can be an impressive document. The Ohio Action Plan review draft⁴⁵ runs over four hundred pages and teems with sociological, environmental, and political science jargon. It, like other Action Plans, is designed to reassure even the most paranoiac environmentalist that the state department of transportation acts at every stage of its operations with the good of the environment and society clearly in mind.

On paper, the Action Plans seem the perfect tool to force state environmental responsibility in highway projects. However, while states do have to send their Action Plans to the FHWA for review and approval, the FHWA intends only limited monitoring of compliance with the terms of the plans.⁴⁶ Without the creation of a clearly nondiscretionary state duty to abide by the terms of their plans and a careful FHWA review and approval of those plans, they may become just another documentation of bureaucratic duplicity. While Action Plans do seem a conceptual step in the right direction, their substantive weakness leaves the need for bolstering the NEPA process unaffected.

Overall, the potential for state abuse of the approval process, the undesirability of a single location hearing impact statement, the ineffectiveness of Action Plans, and the blurring of process by Certification Acceptance make it imperative that the timing of highway impact statements be re-examined.

Tiered Impact Statements

Four and one-half years of experience with the preparation of impact statements have brought a degree of maturity to the judicial view of environmental assessment. Where before courts felt tied to a format of a single EIS, to be produced at a specific point in a process, many now have realized that the "tiering" of impact statements may prove a much more effective technique.

Tiering is a refinement of the multiple impact statement concept. It provides for more than one impact statement during the development of a program, timed in stages, or tiers. Each tier covers more specific, detailed impacts than the previous tier, and builds upon the broader, more general findings that came before. Tiering is particularly well suited to long-term developments which begin with research, progress to planning, and end in construction of individual projects. The progression of highway development from systems planning through program approval and on to the specific project review is an excellent example of the type of progressive development to which tiered impact statements are applicable.

Scientists' Institute for Public Information v. Atomic Energy Commission⁴⁷ did much to bring tiered impact statements closer to widespread usage. There the U.S. Circuit Court of Appeals for the District of Columbia examined the need for a broad, programmatic impact statement during the research and development of Liquid Metal Fast Breeder Reactor technology. The AEC argued that an impact statement would become necessary only if and when each reactor was actually built. The court rejected this contention and found that the research and design stage was an appropriate time to consider the broad programmatic impacts which would result from any such reactor. Subsequent individual impact statements [4 ELR 50029] could consider more specific impacts at each reactor site. The court fully endorsed the concept of programmatic impact statements, recognizing that the depth of analysis in early "umbrella" statements might well be limited by the preliminary stage of the action. "The issues, format, length and detail of impact statements for actions as diverse as [short highway projects and broad technological development] must of course differ. NEPA is nota paper tiger, but neither is it a straitjacket."⁴⁸

The tiering of programmatic and project impact statements has likewise been endorsed by the final Council on Environmental Quality guidelines.⁴⁹ The U.S. Forest Service has adopted the principle, and now prepares broad impact statements on large areas designated for timber sales, as well as individual statements on some contracts to harvest included parcels.⁵⁰ In Stop H-3 Association v. Volpe, the court suspended pre-construction design and engineering studies until an umbrella EIS had been prepared covering the entire length of the highway.⁵¹

It is important to recognize that while a broad preliminary impact statement may necessarily give only tentative or speculative treatment to some issues, this need not decrease its validity or usefulness. The mandate of NEPA to "recognize the worldwide and long-range character of environmental problems" and "initiate and utilize ecological information in the planning and development or resource-oriented projects" (emphasis added)⁵² can only be met by judicial flexibility in review of impact statements. Courts are meeting this challenge by allowing variation in the form, degree of detail, and depth of analysis of impact statements.⁵³ The environmental lawyer can only applaud such a development, but must urge judicial vigilance lest agencies use the fact that an environmental assessment must be tentative as a mask for inaccurate or inadequate evaluations.

Tiering of impact statements can represent a dollar savings for the promoters of any project. It allows each impact statement to build upon the findings of previous statements, eliminating the costly process of re-examining properly discarded alternatives. Tiering also ensures that environmental impacts which might demand alteration or abandonment of a project or program will be discovered at an early point, when the costs of such action are as low as possible. Tiered statements provide a fuller record for judicial review, and allow the promoter of a project to demonstrate that adequate consideration has been given to environmental factors.

It is evident that consideration of highway environmental impacts has suffered in the past from an excess of structure. Courts saw case after case on highways roll through their courts and consciously or unconsciously imposed a rigid single-statement format that proved illsuited to the purposes of NEPA and the needs of the public. The coming of Certification Acceptance and the blurring of the process upon which that environmental assessment structure was imposed creates a propitious moment for the application of impact statement tiering to highway development. It is time for this area of environmental law to reach the level of maturity attained by others.

Tiering Under Certification Acceptance

The implementation of a tiered impact statement format typically involves the preparation of a broad "umbrella" impact statement, followed by progressively more detailed impact statements at each identifiable tier. There is obvious need for judicial flexibility in allowing umbrella impact statements in the highway construction program. While it may be difficult to identify the point at which an umbrella statement logically becomes required, the early consideration of the impacts involved in a long-range, large-scale state highway plan is clearly desirable. If such a plan is formally issued by the state, then a court is presented with an opportune moment for requiring preparation of an impact statement on the entire system, assuming the inclusion of federal-aid roads in the network. Even without formal issuance of highway system plans, the courts should be open to suggestions that a de facto plan exists and requires umbrella statement preparation.

One writer has suggested⁵⁴ that an impact statement be required during the continuing, comprehensive and coordinated transportation planning required by law to take place on any highway project in a city of over 50,000 persons.This planning stage, known as "§ 134 planning" after the section of Title 23 which mandates it, would seem to be suitable for considering the broad programmatic implications [4 ELR 50030] of an urban highway network.⁵⁵ It would provide early assessment of alternatives and would elevate impact examination to the higher policy level which NEPA envisions. Federal funds are routinely involved in § 134 planning, and their grant (and possibly all federal highway aid to a state) could be conditioned on a showing that the state had complied not only with the statutory requirement to conduct such planning, but also with its responsibilities under NEPA.

Since such planning applies only to urban areas, a tie between it and NEPA would not entirely fill the need for early assessment of impacts. Another logical point presents itself: program approval. While courts have in the past rejected this timing, the growing acceptability of impact statement tiering, the inadequacies of current highway environmental assessment, and the procedural changes brought about by Certification Acceptance have changed the situation considerably. The fact that a project is somewhat vague at the program approval stage no longer renders it a necessarily undersirable point for an impact statement; its very speculativeness may allow particularly effective consideration of alternatives, and the current judicial trend is to allow adaptation of impact statements to the level of information available. In addition, program approval is now the only pre-construction point at which the federal presence intrudes into the process. This is the only time that close federal-state coordination is assured. There is also strong agency policy supporting a program approval EIS. The Department of Transportation has declared the "approval of state highway programs and plans prior to the grant of money" to be federal actions⁵⁶ and NEPA requires an impact statement where these actions are major and significantly affect the quality of the human environment. Highway program approvals clearly meet these two additional requirements,⁵⁷ if a specific project did not, a negative declaration by FHWA would be in order.

The negative declaration concept is a key element in impact statement tiering.⁵⁸ A negative declaration is a formal determination by an agency that the proposed action poses no foreseeable environmental impacts, so that an impact statement is not required. Such a tool can obviously be abused by an agency that is opposed to impact statement preparation, but may also be a legitimate means of preventing unreasonable NEPA burdens. However, two facets of this tool must be borne in mind. First, a negative declaration may never be based on the premise that an impact statement would add costs to the project in excess of any possible benefits. One of the purposes of an EIS is to determine whether a project should be built at all; if not, preliminary EIS costs lead to savings, not additional expenses.⁵⁹ Second, another purpose of an EIS is to determine whether impacts exist, not just their extent. A negative declaration is inappropriate unless there is no foreseeable environmental impact whatever. Like impact statements, negative declarations may "provide a focal point for judicial review, giving the court the benefit of the agency's expertise and helping to clarify whether the agency has correctly interpreted relevant agency standards."⁶⁰

The one point in the process at which a negative declaration would be patently unacceptable is the location hearing. While CA has rendered this an unwise time for a single impact statement embracing the entire project or system, it remains a critical last-chance stage for assessment. The location hearing is still a proper time for one of the tiers of statements, and it is the logical choice for the most detailed and exhaustive study. As the last pre-construction input opportunity, location hearings still remain an essential tier.

While the tiers of § 134 planning, program approval, and location hearings seem important steps in the direction to comprehensive environmental assessment, courts should not tie themselves to this rigid framework. Just as a judicial willingness to allow negative declarations if warranted is important, so is it also essential that courts keep open the option of earlier or later EIS timing. If a plaintiff can demonstrate a valid impact statement need after the location hearing or (as is more likely) early in the system planning stage, then the court should not deny such additional tiers solely on the ground that an established structure does not admit of the possibility. The success of tiering depends just as strongly on flexibility in timing as it does on flexibility in depth and detail of analysis.

Conclusion

Prior to 1974 the federal-aid highway construction process was characterized by step-by-step cooperation between the states and the FHWA, and the adequacy of state highway construction was subjected to a complex federal approval structure. Certification Acceptance sharply reduces federal involvement and blurs the already confusing construction procedures; as states receive Certification Acceptance, the established timing of highway impact statements will become less sensible than under the pre-1974 procedures. Although the impact statements will still be reviewed by the FHWA and other federal agencies, the federal agency will be less familiar with the projects, and so will not be able to render an informed judgment [4 ELR 50031] on the adequacy of the statement. Unless the impact statement format is adapted to meet the demands of Certification Acceptance, presentation of impact statements will come at a stage when the FHWA is no longer in a position to exert its influence over the state highway construction in question, and when the advanced stage of the project will effectively have foreclosed the meaningful evaluation of alternatives.

Judicial intervention has closed some of the loopholes by which states attempted to escape the rigors of NEPA, and Action Plans seem on paper to be aimed at forcing state responsibility in assessment of economic, social, and environmental factors, but it remains obvious that the expectations of NEPA can only be met by earlier, broader and more continuous environmental evaluation.

The evolution of judicial attitudes toward impact statements has brought new emphasis to the concepts of tiered statements and umbrella statements. The federal-aid highway construction process lends itself well to these concepts, particularly since the coming of Certification Acceptance. If courts will approach the problem of highway impact assessment with flexibility, allowing variations in timing, depth, and detail of impact statements, but at the same time remaining vigilant against unjustified superficiality, then the tiering of impact statements will bring a much-needed degree of maturity to federal-aid highway environmental law.

1. 42 U.S.C. § 4321 et seq. (1970).

2. Fed. Reg., Vol. 39, No. 95 (May 15, 1974) at 17309.

3. This task is difficult at best, since the FHWA regulation is typically vague. ELR will offer an in-depth study in a future issue.

4. 23 U.S.C. § 134, (1970) requires that any project in an urban area of more than fifty thousand persons be based on continuing, comprehensive, and cooperative transportation planning; this is alternatively referred to by some as "section 134" planning or "systems" planning.

5. Indian Lookout Alliance v. Volpe, 3 ELR 20051, 20052, 345 F. Supp. 1167 (S.D. Iowa 1972).

6. For a detailed and understandable explanation of the existing federal-aid highway program, see R. Peterson and R. Kennan, Jr., "The Federal-Aid Highway Program: Administrative Procedures and Judicial Interpretation." 2 ELR 50001. The process delineated in this comment is largely taken from that article.

7. See Peterson and Kennan, supra, at 50008.

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

9. 23 U.S.C. § 106 (a) (1970).

10. FHWA PPM 20-8 par. 10d.(1) (Jan. 14, 1969)) ELR 46505.

11. Peterson and Kennan, supra, at 50009-11.

12. 5 U.S.C. § 553 (1970) exempts grant programs such as the federal-aid highway program from the strictures of the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1970), thus FHWA regulations may be promulgated without notice of proposed rulemaking, opportunity of public participation, or delay in effective date.

13. "Part 640 — Certification Acceptance," Fed. Reg., Vol. 39, No. 95 (May 15, 1974) at 17309, to be codified as 23 CFR 640.

14. Id., § 640.11(a).

15. Id., § 640.7(c) (9).

16. Although PPM 20-8, n. 10, supra, required two public hearings, Certification Acceptance proposals need only comply with the statutory mandate of 23 U.S.C. § 128(a) (1970), which speaks of only a single design and location public hearing. The FHWA is reported to be encouraging the single hearing process.

17. Under 42 U.S.C. § 4332(2) (C) (1970), impact statements need only be prepared for legislative proposals or actions and "major Federal actions significantly affecting the quality of the human environment."

18. 42 U.S.C. § 4332(2) (C) (iii) (1970) mandates that an impact statement consider alternatives to the proposed action.

19. See La Raza Unida v. Volpe, 337 F. Supp. 221, 1 ELR 20642 (N.D. Cal. 1971).

20. See Named Individuals of the San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013, 1 ELR 20379 (5th Cir. 1971); Thompson v. Fugate, 347 F. Supp. 120, 1 ELR 20369 (E.D. Va. 1971).

21. See Environmental Defense Fund v. Brinegar, __ F. Supp. __, 4 ELR 20534 (1974).

22. See Named Individuals of the San Antonio Conservation Society v. Texas Highway Department, n. 20, supra; Citizens to Preserve Overton Park v. Volpe, 309 F. Supp. 1189 (W.D. Tenn.), aff'd, 432 F.2d 1307, 1 ELR 20053 (6th Cir. 1970), rev'd, 401 U.S. 402, 1 ELR 20110 (U.S. 1971).

23. See Citizens v. Brinegar, 357 F. Supp. 1269 (D. Ariz. 1973).

24. See Citizens for Balanced Environment and Transportation v. Volpe, __ F. Supp. __, 4 ELR 20428 (D. Conn. 1974); James River and Kanawha Canal Parks, Inc. v. Richmond Metropolitan Authority, 359 F. Supp. 611, 3 ELR 20556 (E.D. Va. 1973); Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731, 2 ELR 20610 (D. Conn. 1972).

25. "Part 640 — Certification Acceptance," n. 13, supra, § 640.5(i).

26. FHWA internal memoranda, dated Sept. 20, 1973, and Sept. 26, 1973.

27. Speech by David E. Wells, Chief Counsel of the FHWA, before the Western Conference of the Council of State Governments, Denver, Colorado, Oct. 19, 1973.

28. See S. McCracken, "The Application of Federal Environmental Standards to the General Revenue Sharing Program: NEPA and Unrestricted Federal Grants," 60 Va. L. R. 114 (1974).

29. "James B. Sullivan, Ph.D., and Paul A. Montgomery, Ph.D., of the Center for Science in the Public Interest (CSPI) found in a study of impact statements that most do not satisfy the requirements of NEPA, yet the roads in question are still being built.

"According to Sullivan and Montgomery, one-third of the 76 statements they studied 'asserted without qualification that all highways increase the health and safety of the general public.' About 30percent of the impact statements also denied 'any adverse effect whatsoever,' and while 91 percent affirmed long-term benefits from highway construction, only 4 percent provided data to substantiate that claim.

"Sullivan and Montgomery also observed that 13 percent of the statements failed to mention air pollution, 34 percent did not consider the issue of community disruption, 44 percent failed to discuss the disposition of citizen comments, 67 percent did not mention the impact on taxes or tax bases, 86 percent failed to consider mass transit alternatives, 54 percent did not consider the impact on nearby property values and 33 percent did not look into the alternative of not building the project." Environment Action Bulletin, Vol. 4, No. 3, (August 18, 1973).

30. DOT Order 5610.1, par. 8(f), October 4, 1971, "Procedures for Considering Environmental Impacts," 2 ELR 46089; also, see Environmental Defense Fund v. Brinegar, n. 21, supra; Lathan v. Volpe, 455 F.2d 1111, 1 ELR 20602 (9th Cir. 1971); CEQ "Guidelines for Preparation of Environmental Impact Statements," 40 C.F.R. Chapt. V., pt. 1500 et seq., § 1500.2(a), 4 ELR 46005.

31. CEQ Guidelines, 40 C.F.R. § 1500.8(a) (14), 4 ELR 46007.

32. Sierra Club v. Volpe, 351 F.Supp.1002, 1007, 2 ELR 20761, 20762 (N.D. Cal. 1972).

33. See Environmental Defense Fund v. Brinegar, n. 21, supra.

34. James River v. Richmond Metropolitan Authority, n. 24, supra, at 20562.

35. See DOT Order 5610.1, par. 3(c) (1) (c), Oct. 4, 1971.

36. La Raza Unida v. Volpe, n. 19, supra, at 20644.

37. See San Antonio, n. 20, supra, at 1027; James River, n. 24, supra; Sierra Club v. Volpe, n. 32, supra.

38. Peterson and Kennan, supra, n. 6, point out a typical case of judicial misunderstanding of process which had been reinforced by the brief of the federal defendants. 2 ELR 50017.

39. PPM 90-1, par. 6(c), Aug. 24, 1971, 2 ELR 46106.

40. DOT Order 5610.1A, par. 8(o) (4), Oct. 4, 1971, 2 ELR 46091.

41. 23 U.S.C. § 109(h) (1970).

42. FHWA PPM 90-4, par. 1, June 1, 1973.

43. Id., par. 14a.

44. Indeed, Action Plans serve to satisfy Certification Acceptance requirements for such pre-construction activities as they cover. Certification Acceptance, § 640.5(e).

45. "Action Plan for the Consideration of Social, Economic, and Environmental Factors in the Development of Transportation Improvements," Ohio Department of Transportation, July, 1973.

46. FHWA PPM 90-4, par. 7a. states that Action Plans shall be reviewed at "appropriate intervals. The FHWA may withhold location approvals, or such other project approvals as it deems appropriate, if the Action Plan is not being followed." This provision is obviously weakened by the elimination of location approval and PS&E approval, the only points at which the FHWA had any real clout.

47. 481 F.2d 1079, 3 ELR 20525 (D.C. Cir. 1973).

48. Id. at 1091-92; also see J. Edmonds, "The National Environmental Policy Act Applied to Policy Level Decisionmaking" 3 Env. L.Q. 799 (Fall, 1973).

49. CEQ Guidelines, 40 C.F.R. § 1500.6(d) (1), 4 ELR 46005.

50. See In Re Federation of Western Outdoor Clubs et al. Before the Regional Forester, Region One U.S.F.S., Dep't of Ag., "Statement of Reasons" (March 18, 1974), citing specifically (1) Final EIS, Windy Pass Timber Sale, Gallatin Nat'l Forest, Dec. 19, 1973; (2) Draft EIS, West Fork Race Creek Timber Sale, Nezperce National Forest, Dec. 18, 1973; (3) Draft EIS, Big Tepee Creek Timber Sale, Gallatin Nat'l Forest, Feb. 20, 1974.

51. 353 F. Supp. 14, 2 ELR 20648 (D. Hawaii 1972); but see Daly v. Volpe, No. 9490, 4 ELR 20568 (W.D. Wash. May 20, 1974).

52. 42 U.S.C. § 4332 (1970).

53. See Environmental Defense Fund v. Corps of Engineers, 342 F. Supp. 1211, 1217, 1 ELR 20130 (E.D. Ark. 1971); Natural Resources Defense Council v. Morton, 458 F.2d 827, 834-37, 2 ELR 20029 (D.C. Cir. 1972); Environmental Defnese Fund v. Corps of Engineers, 348 F. Supp. 916, 2 ELR 20536 (N.D. Miss. 1972); Scientists' Institute for Public Information v. AEC, supra, n. 47.

54. "Comment, Environmental Analysis and Reporting in Highway System Planning," 171 U. Pa. L.R. 875 (April 1973).

55. 23 U.S.C. § 134.

56. DOT Order 5610.1, supra, n. 35 at par. 3(c) (1) (c).

57. See Billings v. Camp, 2 ELR 20687 (D.D.C. 1972); Conservation Society v. Volpe, 343 F. Supp. 761, 767, 2 ELR 20270 (D. Vt. 1972).

58. Scientists' Institute, supra, n. 47 at 1095; negative impact statements originated in Hanly v. Mitchell, 460 F.2d 640 (2nd Cir.), cert. denied, 409 U.S. 990 (1970).

59. Stop H-3 Assn. v. Volpe, supra, n. 51, at 2 ELR 20649, n. 3.

60. "Recent Cases, Scientists' Institute for Public Information v. AEC," 87 Harv. L.R. 1050, 1061, n. 47.