Federal Highway Administration Launches New Effort to Win Congressional Reduction of Its NEPA Obligations

The National Environmental Policy Act of 1969 (NEPA), now approaching its sixth year as the cornerstone of legal efforts to protect the environment, is still under attack by federal agencies seeking to limit, transfer, or avoid their NEPA workload. In August 1974, the Department of Housing and Urban Development won congressional authorization to transfer the responsibility for impact statement preparation to local and regional applicants for HUD funds under its community development block grant program.¹ A year later, an effort initiated by the Federal Highway Administration (FHWA) led to the passage of Public Law 94-83, which amended NEPA to allow statewide agencies receiving federal funds to play a part in preparing NEPA statements previously required in some judicial circuits to be solely the product of the responsible federal officials.² Both of these acts, however, incorporated elaborate statutory safeguards to protect the effectiveness of NEPA's operative provisions.

Now, other less cautious proposals to reduce direct agency involvement in NEPA statement preparation are emerging. A number of energy bills have proposed exemptions or moratoria on NEPA requirements as they apply to energy resource development projects. The Office of Management and Budget, responding to a recent district court decision ordering it to promulgate NEPA regulations covering its own actions,³ has not ruled out asking Congress to exempt it and the whole budget process from NEPA. Several other like proposals, some of which are quite dubious, have also been advanced in congressional bills.⁴

The latest in this series of attempts to transfer NEPA responsibilities comes yet again from the Federal Highway Administration, which apparently has not been satisfied with the outcome of its previous efforts. FHWA has produced more impact statements over the last six years than any other agency, but at the same time has shouldered its NEPA obligations grudgingly, complying primarily under the pressure of citizen suits against the agency.

FHWA's present attempt to seek an amendment to NEPA is contained in the Administration's proposed Federal-Aid Highway Act of 1975, currently the subject [5 ELR 10178] of lengthy hearings in both houses of the Congress.⁵ Section 113 of the bill would permit the states to assume the responsibilities of the Department of Transportation (of which FHWA is a part) under NEPA, under § 4(f) of the Department of Transportation Act of 1966,⁶ and under "any other Federal law or Executive Order (including implementing regulations and procedures)," on all federally aided highway projects, except those in the Interstate System.⁷ A state would initiate a request to assume these responsibilities by presenting to the Secretary a certification that the performance of such duties "will be carried out in accordance … with State laws, regulations, directives, and standards which will accomplish the policies and objectives contained in, or issued by the Secretary or other appropriate Federal officials pursuant to Federal laws." If the Secretary accepts this certification, and if he finds further that the applying state has an agency suitably equipped and organized to carry out his duties under these federal statutes, he would then be able to transfer to state officials the duty to prepare environmental impact statements and a range of other tasks. Also, where the Secretary accepts a state's certification, its governor is deemed to be the "responsible federal official" under NEPA and the "Secretary" under § 4(f) and is thus subject to the same judicial remedies and federal court jurisdiction with regard to such laws as were formerly applicable to the Secretary.

FHWA calls the arrangement its "certification acceptance" program. Its stated objective is to eliminate the burden imposed on the states by repetitive federal review procedures built into federal funding of highway projects, and to cut down on the mountain of paper work these procedures generate. These features are the program's prime selling points to state highway officials, and most states are likely to opt for it, despite their having to shoulder additional responsibilities.

Certification acceptance was first authorized under the Federal-Aid Highway Act of 1973.⁸ As currently in effect, the 1973 provision allows the states to assume responsibilities for design and approval decisions on highway projects and for certain other project duties, but does not provide for assumption by state officials of federal duties under NEPA, § 4(f), or other federal laws. Few states have been certified to date; the program's implementation has been stalled by public interest litigation challenging FHWA's assumption that the states are able to carry out congressionally-mandated federal responsibilities in the safety aspects of highway design.⁹

Should the 1975 bill, including § 113, pass Congress as proposed, FHWA will have won for itself a number of concessions relating to its duties under NEPA which the agency failed to achieve in earlier efforts to shape the provisions of Public Law 94-83 during its progress through the Congress. While Public Law 94-83 permits state officials to take the initiative in preparing impact statements, it leaves the ultimate responsibility for NEPA statements prepared by state officials where it has always been, with the responsible federal officials, in this case, officials in DOT. Indeed, the recent act etched into statutory language a more detailed listing of continuing federal responsibilities than existed before, causing some observers to predict a net increase in FHWA's NEPA workload. Under § 113, FHWA could excuse itself from the entire NEPA process, including determining and weighing impacts and alternatives, reviewing impact statements, and considering and deciding on project modifications, for most projects. It would, in addition, allow a similar evasion of FHWA responsibilities under § 4(f) and all other federal acts and executive orders, as described above. Included, for example, would be the Secretary's minimum wage enforcement responsibilities under the Davis-Bacon Act.¹⁰ The only responsibilities of the Secretary unaffected would be those under federal laws and executive orders respecting civil rights or equal employment opportunity.

Accompanying the Administration's 1975 highway bill when it was introduced was a 54-page document entitled "Environmental Impact Statement on the Proposed Federal-Aid Highway Act of 1975," which discusses in general terms the proposed legislation's probable impact on the environment and the steps DOT has taken to minimize unavoidable adverse effects. Not surprisingly, the document omits any discussion of the potential consequences of the bill's NEPA-related provisions, thus giving the impression that delegation of environmental responsibilities to state officials in all but one category of federally aided highway programs will have little or no significant impact on the environment.

Quite the opposite is clearly the case, however. Most notably, the scheme fails to take into account the special difficulties of assessing federal-aid projects with impacts that cross state lines. Such spillover effects occur frequently, even on routes not included in the Interstate System, such as the various federal-aid projects along [5 ELR 10179] Route 7 in Vermont, Massachusetts, and Connecticut. These effects are obviously not well managed by a system leaving states to their own devices. In contrast to FHWA's proposal, Public Law 94-83, allowing state officials to assist in preparing NEPA statements, contains an elaborate provision triggering additional federal responsibilities whenever such spillovers are identified. Proposed § 113 has no such provision. States participating in certification acceptance would thus be free to disregard impacts crossing over state borders into neighboring states, including land use and secondary air pollution effects.

The failings of § 113 can largely be traced to FHWA's ill-advised attempt to track § 104(h) of the Housing and Community Development Act of 1974.¹¹ This section allows the Secretary of HUD to release funds for particular projects to local applicants under HUD's block grant program if these applicants assume all NEPA responsibilities for environmental review that would apply to the Secretary were he to undertake such projects as federal actions.

However, significant differences exist between HUD's new authority and the FHWA proposal.HUD's decentralized system for impact statement preparation rests on an important conceptual base not fully recognized in the FHWA proposal. HUD's delegation of NEPA responsibilities goes hand in hand with a complete statutory delegation of program authority to local block grant recipients. Under Title I of the Housing and Community Development Act of 1974, local grant applicants select their own projects, design them, and then package them into a program for block funding by HUD. While the projects selected must generally serve to advance the goals of the 1974 Act, the permissible range is broad. Discretion as to shape, size and impact of such projects lies entirely with local officials.

By contrast, this critical element is left unclear in the proposed FHWA scheme. The transfer of program discretion to state highway officials under § 113 of the bill is not complete. Highway funds will continue to be distributed to states in categories, rather than on a block grant basis, in ways which restrict the discretion of recipients. In addition, FHWA retains the option to inspect, evaluate, and review state efforts to make certain that federal standards are attained. As one FHWA official explained in Senate hearings on the provision: "We would not be proposing a procedure that would totally divorce FHWA from a project as it develops. There will be federal review."¹² Review under the HUD plan, on the other hand, is limited to checking program performance annually against the applicant's initial plan, rather than against federal directives and standards.

The differences between the two programs, at first glance perhaps inconsequential, are extremely important in assessing the appropriateness of proposals to delegate or transfer NEPA responsibilities. The crucial question is whether responsibility for planning and executing federally aided projects is lodged completely with the local, regional or state officials or is shared between them and federal officials. If the delegation is complete, then transfer of NEPA responsibilities is appropriate, since the locus of responsibility for environmental review should be where the project decisions are actually made. If responsibility for program planning and execution is shared, or if any doubts exist as to ultimate responsibility for any aspects of the program, however, then complete delegation of NEPA responsibility to state or local officials is inappropriate. Since, under § 113, programs for federally aided highway projects will continue to be shared between FHWA and state agencies, ultimate NEPA responsibilities must remain with FHWA, within the cooperative federal-state NEPA framework permitted by Public Law 94-83.

A further distinction between the respective records of NEPA implementation at HUD and FHWA is worth noting. It has generally been FHWA's practice to assume final responsibility for the content of impact statements on federally aided highways, even though state officials often perform the work on them. FHWA has, as a result, had to process a large number of impact statements. The agency thus has invested significant time and manpower in environmental matters. The system at HUD prior to 1974 was to divide the responsibilities for impact statements with local officials; HUD's NEPA implementation was weak and in some areas nonexistent. Thus, less in the way of existing federal environmental expertise is lost through a complete NEPA delegation plan within HUD-funded programs than would be the case at FHWA. In fact, HUD has found it necessary to increase its staffing in the environmental area, particularly at the regional level, to enable it to provide local applicants with technical guidance in impact statement preparation. No such gains are likely at FHWA, which is seeking to reduce its NEPA workload and manpower commitment.

Apart from the inapplicability of the HUD block grant program as a model for FHWA's delegation of NEPA responsibilities. FHWA-proposed § 113 has substantial problems of its own. First, FHWA's proposed delegation of its responsibilities under § 4(f) of the Department of Transportation Act of 1966¹³ presents a special problem. Section 4(f) requires DOT to avoid locating highways in publicly owned parkland, recreation areas, wildlife refuges or historically significant sites, unless no feasible and prudent alternative exists. The pressure is high on local and state officials to opt for highway corridors through these areas. The intent of § 4(f) was to negate as much of this pressure as possible by making the decision to use parklands and other [5 ELR 10180] preserves for highways a federal determination. To leave these decisions to local officials would frustrate that intent.

The language of proposed § 113 raises a further problem. By stating that the Secretary "may discharge any of his responsibilities under any Federal law … relative to projects under this title …" (emphasis added) the section would authorize the Secretary to delegate, for example, the responsibilities placed on him two years ago under § 7 of the Endangered Species Act.¹⁴ This section requires all federal departments to take "such action [as is] necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species or result in the destruction or modification of habitat of such species…" While the requirements of this section have yet to reach the stage of full implementation by FHWA and other federal agencies, their potential impact is far-reaching.¹⁵ As in the case of § 4(f), delegation to the states signifies abdication of a commitment defined by Congress as a national concern, to be implemented by federal agencies.

In short, even though the federal highway program has always delegated considerable responsibility to state officials, Congress wisely saw that certain abuses could be corrected only by means of federal controls, administered by officials not subject to local pressures. Thus, full delegation of environmental responsibilites remains inappropriate, even when state officials assume a large share of responsibility for highway construction. This conclusion is not inconsistent with the recently enacted Public Law 94-83, permitting state officials to prepare impact statements, since that law leaves ultimate responsibility for the scope and content of NEPA statements with federal officials. Nor is it inconsistent with delegating NEPA responsibilities to state and local officials also assigned, clearly and explicitly, complete decision-making authority in federally funded projects. If federal officials decide to take themselves entirely out of planning and executing such projects, then it makes little sense to continue to hold them responsible for environmental review. At that point it becomes sound to shift NEPA responsibilities to officials who can apply NEPA criteria at the earliest stage of project planning, and can continue to apply them through project execution, in the knowledge that they alone carry the full burden of defending the project against challenges on environmental grounds.

A basic purpose of NEPA is to promote the full disclosure of all known environmental impacts and to have them appropriately weighed in the decision-making process. Willy-nilly application of the HUD approach by FHWA under its proposed § 113 would mean that this and other goals of NEPA would not be achieved in the highway program.

1. Section 104(h) of the Housing and Community Development Act of 1974, Pub. L. 93-383, 42 U.S.C. § 5301 et seq.

2. Enacted August 9, 1975. See Comment: Two Amendments Leave NEPA Intact; Congress Confers Limited Authority on State Officials to Prepare NEPA Statements, 5 ELR 10173 (Oct. 1975).

3. Sierra Club v. Morton, 5 ELR 20383 (D.D.C. June 6, 1975). See Comment, United States District Court Extends Impact Statement to Annual Budget Requests, 5 ELR 10123 (Aug. 1975).

4. See, e.g., H.R. 4312, to amend the Airport and Airway Development Act of 1970, providing, inter alia, that "airport development projects outside of standard metropolitan statistical areas shall be deemed to have no significant impact on the environment" unless parks, wildlife refuges, recreation areas or historic sites are involved; and S. 2164, to prohibit retroactive application of regulations, guidelines, or policies promulgated under NEPA, and to establish a time limitation on the filing of suits to review NEPA impact statements.

5. The Administration's bill is designated S. 2078 in the Senate and H.R. 8430 in the House. The Senate completed nine days of hearings on the bill in July 1975; House hearings concluded September 25, 1975. Mark-up sessions on the bill's provisions are expected to begin in mid-October 1975.

6. ELR 41605, 49 U.S.C. § 1653(f).

7. The Interstate System constitutes only 5 percent of the federal-aid network in terms of mileage (42,500 miles when) completed, of more than 950,000 miles total). Total paved road mileage in the United States is 3.8 million. Though federally aided roads comprise only 25 percent of the total national road mileage, they carry 70 percent of the total traffic. Interstate highways alone carry 20 percent of the total.

8. 23 U.S.C. § 117. See also, Morgenthaler, On the Road Again: Certification Acceptance Forces NEPA to Adapt, 4 ELR 50023 (Aug. 1974). While certification acceptance was first authorized in 1973, it is based on procedures in effect for the federally aided secondary roads program since 1954.

9. Center for Auto Safety v. Tiemann, Civ. No. 74-1662 (D.D.C., filed Nov. 15, 1974).

10. 40 U.S.C. § 276a.

11. For an analysis of HUD's delegation of NEPA responsibilities under this section, see Comment, Controversial NEPA Implementation at HUD: Shifting Environmental Review Responsibilities to Local Grant Applicants, 4 ELR 10193 (Dec. 1974).

12. Lester Lamm, Executive Director, FHWA, in response to a question during testimony before the Transportation Subcommittee, Senate Committee on Public Works, July 29, 1975.

13. ELR 41605, 49 U.S.C. § 1653(f).

14. ELR 41827, 16 U.S.C. § 1536.

15. For an analysis of this potential impact, see Wood, Section 7 of the Endangered Species Act of 1973: A Significant Restriction for All Federal Activities, 5 ELR 50189 (Oct. 1975).