In a note published in the August ELR (On the Road Again: Certification Acceptance Forces NEPA to Adapt, 4 ELR 50023), Jeff Morgenthaler of ELR was sharply critical of the Federal Highway Administration for its recently promulgated "certification acceptance" procedures. In the following article, David E. Wells, Chief Counsel of the FHWA, and Stanley Abramson, Attorney Advisor in the Office of the Chief Counsel, analyze the purposes and potential of certification acceptance in a strongly positive light. This article should not be construed as a rebuttal to Mr. Morgenthaler, as the authors did not have the opportunity to read his Note at the time they were preparing their article.

"It is clear that hundreds of Federal categorical grants burdened by red tape have weakened State and local capacity to govern, have blunted the effectiveness of programs and increased the cost and time of response to the public needs." Caspar W. Weinberger, Director, Federal Assistance Review, Report to the President, January, 1973

Among the fundamental reforms chosen to improve the responsiveness of the federal government was the Federal Assitance Review program. In a January, 1973 Report to the President, Review Director Weinberger cited the program's key areas of concentration including:

increased reliance on state and local government, reduction of processing time, and cutting red tape.

In August, 1973, Congress responded to similar public disenchantment with federal grant-in-aid programs by including provisions in the Federal-Aid Highway Act of 1973¹ (the 1973 Highway Act) to deal with the problem as it affected the enormous federal-aid highway program.

Section 108 of that act declared as a matter of national policy that to the maximum extent possible the procedures utilized by the Secretary of Transportation (the Secretary), the Federal Highway Administrator (the Administrator) and all other federal officials concerned "shall encourage the substantial minimization of paperwork and interagency decision procedures and the best use of available manpower and funds so as to prevent needless duplication and unnecessary delays at all levels of government."²

Section 123³ of the same act was designed to remove any doubts about the true nature of the federal-aid highway program by providing that the authorization of the appropriation of federal funds or their availability for expenditure under chapter 1 of-title 23 of the United States Code⁴ shall in no way infringe on the sovereign rights of the states to determine which projects shall be federally financed. The section went on to characterize the federal-aid highway program, one of the largest of all grant-in-aid programs, as a federally assisted state program.

Finally, the 1973 Act provided an optional procedure for processing non-Interstate federal-aid highway projects to be known as "Certification Acceptance."⁵ The provision was part of the original bill presented to Congress by the Administration and was designed, inter alia, to reduce delays and excessive paperwork by permitting the states to provide their own procedures for implementing federal laws and guidelines so as to eliminate federal involvement at each step of every project. A brief review of the highway program and the nature of the federal-state relationship will help to place the certification acceptance procedure in the proper context.

The Federal-Aid Highway Program

The cornerstone of the federal-aid highway program is delicately balanced and oft misunderstood relationship between the federal and state governments. The present federal-state relationship was shaped to a large degree by legislation enacted by Congress in 1916 and 1921.⁶ This legislation established the federal-aid highway program and since that time additional legislation has greatly expanded the program's capability to deal with current needs and developments.

The 1916 Federal-Aid Road Act required the specific assent of the legislature of a state in order for the state to obtain the funds apportioned to it. Since the federal-aid program is based upon the voluntary cooperation of the states with the federal government, in assenting to the provisions of the federal law the state legislatures declared the willingness of the states to accept federal funds and to comply with the terms of the federal law.

The legislatures of all the states enacted assent provisions [4 ELR 50060] following passage of the 1916 Act. The requirement for specific assent statutes appeared only in that act and is not contained in the 1958 codification of federal highway law (i.e. title 23, U.S.C.), although 23 U.S.C. § 302 does require each state to have a highway department capable of discharging the requirements of title 23. Once having given its assent, a state legislature's intention that the state continue to participate can be found in various other provisions such as those conferring sufficient power to comply with § 302⁷ and those providing for matching funds.

The states select the highways which they wish to include on the federal-aid system subject to approval by the Secretary under 23 U.S.C. § 103(f). The federal-aid system of highways has four categories — Interstate, Rural Primary, Rural Secondary and Urban. Of the total highway mileage in the United States about 25 percent is on a federal-aid system. The federal government does not own any roads except those on federal lands, such as in national parks. The roads and streets belong to the state and local governments.

The federal-aid provisions of title 23 are issued under the congressionsl power to collect taxes and provide for the general welfare found in article I, § 8, clause 1 of the Constitution, and provide for a federally assisted state program.⁸ Accordingly, while the federal-aid program is a cooperative effort, the states develop their own programs, choose the routes to be developed, select and plan the individual projects to be undertaken each year, acquire the necessary right-of-way, and award and supervise the construction contracts.

The federal government through the U.S. Department of Transportation's Federal Highway Administration (FHWA) provides guidance to the states in developing their highway facilities. States initiate the projects but the FHWA is responsible for review and approval at key stages of all federal-aid highway projects.

The states pay for the work as it progresses and then claim reimbursement for the federal-aid share of the cost. Federal-aid grants to the states may be used for the building of new roads or the betterment of existing ones, including the cost of planning, engineering and right-of-way as well as actual construction. The states bear the entire burden of highway maintenance, operation, administration and regulation. All do additional road-building with their own funds.

As previously stated, the traditional FHWA function is that of guidance, control and approval in each succeeding step of the highway process. The FHWA's advice and research, its unifying and coordinating influence and its leadership have played a vital role in the highway progress of the United States.

From its inception the federal-aid highway program has, in the public interest and to protect the federal dollar, fostered the development and growth of state highway departments by requiring them to have adequate powers and to be suitably equipped and organized to discharge the duties imposed upon them by title 23. The federal-aid highway system is now more than fifty years old and the state highway departments have reached a degree of maturity where they no longer need careful and detailed scrutiny by the FHWA. This is evidenced by the fact that with the help of the federal grant-in-aid program they have provided this Nation with the world's most efficient highway system for the transportation of the people, goods and services.

Over the years the volume of individual federal-aid projects has increased dramatically. Approximately 18,000 highway projects are under way at any given time. The 42,500-mile National System of Interstate and Defense Highways — due to be completed in the early 1980's — consists of the most important highway routes in America. Equally important as the Interstate System to the Nation's overall transportation network are the federal-aid Rural Primary and Rural Secondary Highway Systems and their urban extensions, and the Urban System. Commonly called the ABCD systems, they comprise some 850,000 miles of highways, and together with the Interstate, they carry over two-thirds of all traffic.

Certification Acceptance

The state highway departments have acquired the needed statutory powers, regulations and procedures, professional staffs, and expertise and experience in decision-making; therefore, a more efficient way of processing projects can now be adopted. There is also a need to eliminate federal supervision and controls over the states which are both duplicative and unnecessary and to reduce the proliferation of detailed and technical FHWA procedures. This federal "red tape" has begun to impair the orderly and efficient execution of the entire highway program. There are too many badly needed highway improvements which have taken ten, fifteen or even twenty years to work their way from planning stage to completion. In the interim, shifts in population and changing conditions may make a highway facility obsolete before construction begins! Left unchecked, the proliferation of red tape could easily gain a strangle-hold on the entire federal-aid program.

The time is ripe to rely upon the states to provide their own procedures for implementing federal laws and guidelines so as to eliminate the federal involvement currently required at each step of every project. The hearings before the Subcommittee on Investigations and Oversight of the Committee on Public Works, House of Representatives, Ninety-Second Congress, First Session (1971), inquiring into delays and excessive paperwork in the administration of public works programs confirm these conclusions.⁹

Certification acceptance provides a new alternative [4 ELR 50061] procedure for processing highway projects by extending and broadening the principle of the secondary road plan established by Congress in the Federal-Aid Highway Act of 1954.¹⁰ As so aptly stated by a congressional supporter of that plan in 1954:¹¹

The delegation of responsibility to the State highway departments, which are fully responsible to the people for their actions, will do much to expedite both the Federal and State highway programs.

Indeed the secondary road plan further strengthened state programs so that nearly twenty years later Representative Hammerschmidt, speaking in support of the Federal-Aid Highway Act of 1973, would say:¹²

[T]he time has come to remove the "Federal red-tape" which has begun to impair the efficiency of the entire [highway] program. State highway departments have "grown up" since 1916 …. They now possess expertise, professionalism and experience which calls for a better way of processing projects than the present [FHWA] technical procedure.

Under § 117 of title 23, as amended by the 1973 Highway Act, certification acceptance makes the principle of the old plan applicable to all federal-aid systems except the Interstate. The secondary road plan was based upon the concept of delegation and flexibility for state and local governments in carrying out the technical aspects of highway construction. The advantage of expanding this particular concept is that it has proven that it is workable and effective in twenty years of successfully administered federal-aid projects.

Thus in his statement of February 7, 1973, the Senate Committee on Public Works during hearings on the Senate version of the 1973 Highway Act (S. 502), Secretary of Transportation Claude S. Brinegar stated that the certification acceptance procedure "could eliminate unnecessary engineering and construction supervision and still retain the cooperative Federal-State relationship that has existed over the past 50 years."

Although certification acceptance does indeed represent an expansion of the concept of the old secondary road program it is not merely an extension of that program. The secondary road program provided for a shortened federal procedure with respect to individual projects. Certification acceptance provides for the substitution of state laws and procedures for any and all types of projects on an entire federal-aid system or systems. The differences in the two programs cannot be overemphasized. Under either program, however, the question of whether a given state has sufficient authority to construct highways to standards comparable to those found in, or promulgated under, title 23 depends upon the entire highway law of that state.

The one provision which can be valuable to every state with respect to federal-aid highways is the assent provision required by the original federal-aid highway act.¹³ A declaration by the state legislature — that it assents to the provisions of all present and future federal-aid highway acts and accepts the conditions and benefits of any act of Congress providing federal funds for the construction and improvement of highways, that its purpose and intent is to insure receipt by the state of any federal-aid highway funds that may be allotted to the state, and for that purpose it authorizes the state highway department to cooperate with the federal government and to do all things necessary to secure the full benefits of all present and future federal allotments in aid of highways in the state — serves as a directive to the state highway department as well as an aid to the courts in determining the validity of actions taken by those departments.

Such assent statutes would provide the states with all the authority necessary to promulgate rules, regulations and directives in compliance with the new certification acceptance alternative. Indeed it may be argued that, from the very beginning, Congress intended for the states to assert a more influential and independent role in the federal-state relationship. Such an opportunity has now clearly been made available.

The new certification procedure would permit the Federal Highway Administrator to discharge many of his title 23 duties, particularly those in the project development, right-of-way acquisition and construction stages, by approving a plan submitted by the state highway department setting forth the procedure and standards to be used in the administration of projects under the plan.¹⁴ Acceptance of a state's certification by the Administrator would require a finding that projects will be carried out in accordance with state laws, regulations, directives, and standards establishing requirements "at least equivalent to" those contained in, or issued pursuant to, the federal-aid highway laws found in title 23.¹⁵

Certification acceptance would not affect or discharge any responsibility or obligation of the Secretary or the Administrator under any other federal law including the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.), § 4(f) of the Department of Transportation Act (49 U.S.C. 1653 (f)), title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000 (d), et seq.), the Uniform Relocation Assistance and Land Acquisition Policies Act of 1970 (42 U.S.C. 4601, et seq.), and the Clean Air Act, as amended (42 U.S.C. 1857, et seq.).

The intent of certification acceptance is to give a state [4 ELR 50062] the right to use an alternative procedure provided it has laws, regulations and directives establishing requirements which meet or exceed those contained in, or issued pursuant to, title 23. A state's certification acceptance program must, of course, meet the standards and regulations¹⁶ promulgated by the Administrator pursuant to subsection (c) of section 117 which will apply in lieu of many existing FHWA regulations and directives.

The basic federal directive will be the certification acceptance directive itself. It will be the state's responsibility to develop and implement further directives as needed. The proliferation of red tape is thus stopped at the fountainhead. Call it new federalism, good business or just plain common sense — the label is irrelevant but the fact remains that the best method for designing and building a highway in Idaho may not be the same as in Arkansas, New York or Hawaii. Although this is admittedly an oversimplification, nevertheless, under the certification acceptance option each state would be free to utilize the methodology best suited to its own unique circumstances as long as the final result meets the "at least equivalent to" test of § 117(a).

Certainly a state is free to adopt existing federal directives but in so doing it may achieve nothing but the adoption of existing red tape which it might very well be able to eliminate on its own initiative. Under certification acceptance a state is not to be measured and approved because it has directives and procedures that are identical to those of the FHWA. The federal government does not profess to have a monopoly on the correct techniques and procedures for building highways.

Certification acceptance substitutes monitoring on a spot-check basis for the present FHWA step-by-step review and approval for each individual project action. However, the program would continue to come under the close scrutiny of the FHWA in comprehensive planning, system designation and programming stages. The continued role of the federal government in this aspect of the highway program is entirely justified when one considers its preeminence in the field of coordinated transportation planning.

Social, Economic and Environmental Policy

Since the establishment of the U.S. Department of Transportation (DOT) in 1966 it has been the Department's goal "to develop national transportation policies and programs conductive to the provision of fast, safe, efficient, and convenient transportation at the lowest cost consistent therewith and with other national objectives, including the efficient utilization and conservation of the Nation's resources."¹⁷ In establishing the DOT, it was also Congress' purpose to facilitate the development and improvement of coordinated transportation service; to encourage cooperation of federal, state, and local governments, carriers, labor, and other interested parties; to stimulate technological advances in transportation; to provide general leadership in the identification and solution of transportation problems; and to assure full and appropriate consideration of the needs of the public, users, carriers, industry, labor, and the national defense in the development of policies and programs.¹⁸

Under 23 U.S.C. § 134 (a), the Secretary is charged with the responsibility to assure that projects in urban areas of more than fifty thousand population are based on a continuing comprehensive transportation planning process carried on cooperatively by states and local communities; and, under 23 U.S.C. 109 (h), he must assure that:

… possible adverse economic, social, and environmental effects relating to any proposed project on any Federal-aid system have been fully considered in developing such project, and that the final decisions on the project are made in the best overall public interest, taking into consideration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing such adverse effects and the following:

(1) air, noise, and water pollution;

(2) destruction or disruption of man-made and natural resources, aesthetic values, community cohesion and the availability of public facilities and services;

(3) adverse employment effects, and tax and property values losses;

(4) injurious displacement of people, businesses and farms; and

(5) disruption of desirable community and regional growth.

Finally, in the National Environmental Policy Act of 1969 (NEPA), Congress directed that, to the fullest extent possible, all agencies of the federal government are to utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and decision-making which may have an impact on man's environment.¹⁹

Acting on behalf of the Secretary in the enforcement and implementation of these statutes, the Federal Highway Administrator has assumed an aggressive but well-reasoned approach to the often conflicting goals of improving transportation facilities, coordinating federal, state and local interests, and protecting the environment.

Regulations promulgated under section 109 (h) call upon each highway agency to develop an "Action Plan" which describes the organization to be utilized and the processes to be followed in the development of federal-aid highway projects from initial system planning through design.²⁰ The Action Plans effectuate the [4 ELR 50063] "systematic, interdisciplinary approach" called for by NEPA and, where applicable, they incorporate the urban transportation planning procedures required by § 134.As of May, 1974, some forty Action Plans had been approved by the FHWA including thirty-nine state plans and one covering direct federal projects. It is fully expected that a state's Action Plan will beome an integral part of its certification acceptance procedure.

The Changing Federal-State Relationship

Although, as stated, the DOT and FHWA are interested in the coordination of federal, state and local interests as they relate to transportation in general and highway projects in particular, this does not mean that these federal agencies are prepared to "lead" the states and cities or to intercede in local disputes.Situations will undoubtedly arise in which a city may want to use federal-aid funds for mass transit,²¹ possibly cutting out a programmed highway, while the state might be in complete disagreement and want the highway. Although the governments involved would like the federal government to act as final arbiter or at least as a mediator of sorts in such a dispute, the Secretary and the Administrator have made it clear that they will not assume such a role. Their position has been, and will continue to be, that the governments involved simply have to learn to resolve the matter between themselves.

In many cases such matters could be easily resolved if the state legislatures would develop a comprehensive transportation policy. Most states do not have such a policy at the present time. The DOT is currently in the process of developing a useful statement on national transportation policy, an initiative which may spark similar programs at the state level in much the same way as the establishment of the DOT itself has prompted the states to consolidate their transportation-related agencies.

The federal agencies are determined to resist attempts to embroil them in matters which, in many cases, are the result of longstanding and purely localized political issues. Over the years the DOT or FHWA or both have also been named as defendants in suits which center around essentially local issues. Not only is it illogical for the United States to be a party to such litigation, but it is a major cause of the delay and frustration which have beset the federal-aid highway program.

Under the Action Plan concept, which provides for coordinated transportation planning and increased public participation, it is fully expected that the overall volume of highway litigation will decrease. In any event, as the state and local governments assume greater responsibility for individual highway projects under certification acceptance it is expected that, where litigation arises, federal officials will generally not be named as party defendants. Where named, a strong case will be made that federal involvement beyond the program approval stage is de minimis and accordingly we would move for dismissal as to the federal defendants. In addition, since the state highway departments will be operating under state laws and regulations, a strong argument can be made for settling many disputes within the framework of the state's own judicial system. In developing its certification acceptance program a state may even decide to make various administrative or judicial remedies available to its citizens. Compatibility with existing state remedies would be required.

Admittedly a great majority of suits involving the FHWA and DOT over the last five years have been brought by concerned environmentalists, conservationists, ecologists and others. And, under § 117 as amended by the 1973 Highway Act, certification acceptance does not apply to NEPA and § 4(f) of the DOT Act. This may be viewed as a rather substantial impediment to the overall certification concept in that both NEPA and § 4(f) require the Secretary to make the final decision on environmental matters arising out of federal-aid projects. In addition while certification would appear to do away with current FHWA procedures requiring federal approval of a highway's specific location, the ultimate federal responsibility for a project's environmental impact statement under NEPA would effectively maintain the status quo.

With this in mind the Administration has submitted the Unified Transportation Assistance Act of 1974,²² better-known as the UTAP (Unified Transportation Assistance Program) bill, containing a provision²³ which would amend § 117 of title 23 to permit the Secretary to discharge his responsibilities under NEPA and § 4(f) as well as under title 23. This discharge of responsibility would be subject to the proviso that the projects in question will be carried out in accordance with state laws, regulations, directives and standards establishing requirements at least equivalent to those contained in, or issued pursuant to, such acts.

The amendment would further require that, with respect to NEPA and § 4(f), the state has an agency suitably equipped and organized to carry out the duties under these acts to the satisfaction of the Secretary. Where the Secretary has accepted a certification submitted by the governor of a state, the governor would then be considered the "responsible official" for purposes of NEPA and the "Secretary" for purposes of § 4(f), and would be "subject to the same judicial remedies and Federal court jurisdiction with regard to such laws as the Secretary otherwise would be subject."

This proposed certification acceptance procedure would not, however, preclude the states from providing other judicial and administrative remedies.²⁴ Where they [4 ELR 50064] exist, such state administrative remedies would have to be exhausted before seeking the aid of federal courts.²⁵

The effective date of the amendment, July 1, 1977, would provide ample time for the states to prepare for their new responsibilities and to gain additional experience in environmental matters under their existing Action Plan procedures. Of course the NEPA and § 4(f) provisions of the certification procedure would be available as an alternative at the state's option just as with the current statute. Should a state choose to participate in this expanded procedure, the "major Federal action significantly affecting the quality of the numan environment" and requiring an environmental statement under § 102 (2) (C) of NEPA²⁶ might then become the Secretary's acceptance of the governor's certification, or the Administrator's program approval under 23 U.S.C. § 105, or both.

Once this provision of the UTAP bill is approved by Congress, the Department and the FHWA should consider contacting recognized environmental interest groups and soliciting comments from the general public and the governmental bodies involved via the notice of proposed rulemaking procedure. Only in this way would we be assured that the regulations designed to implement the expanded certification acceptance concept would be effective in combating red tape and delay and in furthering the Nation's transportation policies.

Regardless of the eventual disposition of these provisions of the UTAP bill, the procedure employed in acceptance of a state's certification under the 1973 Highway Act may follow the lead of existing agency procedures which povide the public with an opportunity to review and comment upon a state's Action Plan following publication of a notice in the Federal Register. This would serve a dual purpose by adding a public "quality-control" factor to assure that the state does in fact have the capability to meet or exceed federal standards and by avoiding challenges to the certification made by persons who may be dissatisfied with some aspect of a particular project at a later date. Persons allegedly aggrieved by an agency's action should not be permitted to question the validity of that action in court when they did not utilize opportunities to raise such questions before the agency.²⁷ Endless challenges to the original acceptance of a state's certification would defeat the very purpose of the certification acceptance procedure. Accordingly, disputes arising over specific projects would be resolved, more often than not, at the state level without the federal agencies being made parties thereto. By insulating themselves from citizen complaints the agencies would, in effect, compel the states to deal with their own citizens and resolve local conflicts at the most appropriate level.

This is not to say that the federal government will turn a deaf ear to complaints concerning federal-aid projects. On the contrary, the Administrator is required to make a final inspection of each project and to receive a report of the estimated and actual cost of construction as well as such other information as he deems necessary.²⁸ Acceptance of a state's certification may be rescinded by the Secretary at any time if, in his opinion, it is necessary to do so.²⁹ These procedures would allow the disapproval of individual projects that fail to meet federal standards without disrupting the whole program and would retain overall fiscal direction by the DOT and FHWA. Accordingly the states have a strong incentive to comply with the letter of the law.

Along with the changes which certification acceptance will require in the federal-state relationship, there will inevitably be more tangible changes for the agencies involved. Understandably many FHWA employees may feel that certification acceptance will eliminate the need for their skills and have an adverse effect on employment.

While completion of the Interstate System remains the dominant federal-aid objective, FHWA's field staffs will continue to be occupied with traditional engineering functions. However, as of December 31, 1973, work was either completed or underway on 98.9 percent or 42,028 miles of the 42,500-mile Interstate System. Recognizing this fact, Congress has declared that increased emphasis be placed on the construction and reconstruction of the other federal-aid systems in order to bring all systems up to standards and to increase safety to the maximum extent. As the Interstate program phases down, we envision shifts in the responsibilities of field personnel.

Under certification acceptance the federal role will change from engineering supervisor to that of transportation program manager. Certification will require the review of state processes and mechanisms for achieving federal road-building objectives. State laws and regulations and the enforcement mechanisms accompanying same will require periodic review. The capabilities of the state highway departments will also require inspection. An intensive orientation period, some estimate three to five years, will be needed to change ingrained habits and thinking in each state which elects the certification alternative. There is little question that the most competent persons to perform these federal functions under certification acceptance would be trained FHWA personnel. We should not forget that just as the scope of the federal-aid highway program has grown to encompass the mass transit alternatives and social, economic and environmental factors, so the education, training and experience of our highway engineers and appraisal experts and others have been developed and broadened as well.

The transition in the responsibilities of FHWA personnel [4 ELR 50065] will, of course, entail retraining of some plus the addition of new talents. To prepare for this the Administrator has established a high-level Manpower Utilization Task Force composed of key FHWA personnel from both the Washington Headquarters Office and from the field. Specifically its assignment is to assess the impact of future highway program changes on 1) FHWA responsibilities, duties and workload in both the headquarters and field organizations; 2) FHWA staffing requirements; 3) personnel skills and multidisciplinary requirements; 4) training and retraining needs; and 5) organization structure at various levels.

In 1970 Congress passed the Intergovernmental Personnel ACT (IPA) to strengthen state and local personnel resources and to permit exchanges of local, state and federal employees. Under the administration of the Civil Service Commission over 200 grants were awarded in 1972 for personnel administration and training and more than 240 personnel exchanges were made. The recommendations of the Manpower Utilization Task Force combined with the program available under the IPA and existing FHWA training and manpower resources will serve to cushion any adverse impacts of certification acceptance on agency personnel.

Coming at a time when the traditional FHWA role is undergoing major changes on all levels (e.g. Action Plans; environmental impact statements; funding of mass transit projects) it is to be expected that many will view changes such as certification acceptance with increased skepticism. But a reassuring and dynamic tone has been set by Federal Highway Administrator Norbert T. Tiemann. In his address before the Association of Highway Officials of the North Atlantic States in Washington, D.C., on March 27, 1974, the Administrator stated that:

I think profound changes are coming to the highway programs as we know it — but I think they will be good changes. I think the roles of all of us will be expanded and enhanced — rather than diminished. I think that we are going to have more to do — rather than less to do. And I believe our responsibilities are going to increase — rather than lessen. So I think all of us should start planning now to meet these coming challenges.

* * *

Do not view the future with alarm or suspicion; view it with confidence and enthusiasm. Do not resist necessary changes, and accept the fact that while we may be in a new dimension, our service to the public is going to be needed as much, or more, than ever.

By providing the states the option of developing and relying upon their own laws and procedures to achieve mutual goals and objectives it is hoped that growing federal domination will be halted and the proper balance of power in the federal-state relationship will be restored. Title 23 sets forth a "federal-aid" program. The significance of the word "aid" has often been overlooked.

As long as the provisions of chapter 1 of title 23 provide for a federally-assisted state program the emphasis should be upon compliance with state laws and procedures and the solution of problems at the local and state levels. For this reason compliance with § 302 of title 23 is reemphasized. Section 302 requires any state desiring to avail itself of federal-aid provisions to have a highway department "which shall have adequate powers, and be suitably equipped and organized" to discharge to the satisfaction of the Administrator the duties required by title 23. A fortiori the evaluation of a state's certification program, both the initial evaluation and subsequent monitoring, will focus on the ability of the state highway or transportation agency to implement the requirements of title 23, the most recent amendments thereto, and all applicable court decisions interpreting same.

In making his decision regarding a state's certification request the Administrator must measure the state highway department's resources and performance record to determine if acceptance is in the public interest and will achieve the social, environmental, economic and transportation objectives of the Nation as a whole. Once certified, if a state does not make a bona fide effort to achieve national as well as local and state objectives through its federal-aid projects, the Administrator has been given broad discretion to take corrective action. If it is, in his opinion, necessary to do so, he may rescind a state's certification and require that each federal-aid project meet all the specific requirements that must now be met under normal federal-aid procedures.

Conclusion

The acceptance of a state's certification is permissive and is not intended to be used as a subterfuge to evade the responsibility of carrying out the broad social, environmental and economic objectives of the Congress or the qualitative standards for highway construction developed and proven by the federal-aid program through the years.It is intended to provide a new approach giving greater flexibility to the states and local communities consistent with the principles of responsive federalism and sound public administration.

We are convinced that to the extent that authority, accountability and initiative can be delegated without endangering levels of performance, the effectiveness and efficiency of the federal-aid highway program will be increased. This will leave the Secretary and the Highway Administrator free to give greater attention to national transportation goals and the accomplishment of broad program objectives and to formulate and propose new policies to meet the dynamic transportation needs of the Nation.

1. Pub. L. No. 93-87, 87 Stat. 250.

2. 23 U.S.C. § 101(e). Emphasis supplied.

3. 23 U.S.C. § 145.

4. Federal highway law is codified in title 23 of the U.S.C. Those sections which deal exclusively with the federal-aid highway program are found in chapter 1 of title 23.

5. Section 116 of the 1973 Act, 23 U.S.C. § 117.

6. Federal-Aid Road Act of July 11, 1916, ch. 241, 39 Stat. 355; Federal Highway Act of Nov. 9, 1921, ch. 119, 42 Stat. 212.

7. Unless otherwise noted, sections cited refer to title 23 of the U.S.C.

8. See text at note 3 supra.

9. See also H.R. Rep. No. 118, 93d Cong., 1st Sess. 13 (1973).

10. Federal-Aid Highway Act of May 6, 1954, ch. 181, § 1, 68 Stat. 70.

11. 100 Cong. Rec. 2841 (1954) (remarks of Representative Perkins).

12. 119 Cong. Rec. H2910 (daily ed. April 18, 1973).

13. Act of 1916, supra note 6.

14. The Federal Highway Administrator has been delegated authority to administer chapters 1 (except § 134 (b) and § 138), 2 and 3 of title 23 by 49 C.F.R. § 1.48 (b)(1).

15. 23 U.S.C. § 117.

16. These regulations were published at 39 Fed. Reg. 17309 on May 15, 1974, adding Part 640 to title 23 of the Code of Federal Regulations.

17. 49 U.S.C. § 1651 (a).

18. 49 U.S.C. § 1651 (b) (1).

19. 42 U.S.C. § 4332 (2) (A).

20. 23 C.F.R. Part 795.

21. Transit project approvals under 23 U.S.C. §§ 103 (e)(4) and 142 (c) are not covered by the certification acceptance regulations.

22. H.R. 12859, 93d Cong., 2d Sess. (1974).

23. Id. § 307.

24. Id.

25. Illinois Commerce Commission v. Thompson, 318 U.S. 675 (1943).

26. 42 U.S.C. § 4332 (2) (C).

27. Davis, Administrative Law, § 20.01 (1960); Jaffe, Judicial Control of Administrative Action 424 (1965).

28. 23 U.S.C. § 117 (b).

29. 23 U.S.C. § 117 (d).

4 ELR 50059 | Environmental Law Reporter | copyright © 1974 | All rights reserved