Environmental Review of Highway Projects Using Planning and Environmental Linkages
Publication: Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 13, Issue 3
Abstract
In addition to statutory requirements for long-range transportation planning, transportation projects funded in part by USDOT are required to undergo environmental review pursuant to the National Environmental Policy Act (NEPA). NEPA requirements include a statement of the project’s purpose and need and an analysis of alternatives to the proposed project. USDOT adopted federal regulations and guidance in 2007 that would allow these NEPA requirements, including the elimination of potential alternatives, to be conducted as part of the earlier transportation planning process, a concept known as planning and environmental linkage (PEL). Congress has authorized a form of PEL since 2012, albeit with a somewhat stricter standard for public involvement than reflected in the USDOT PEL regulations and guidance. This paper examines legal challenges to environmental review of transportation projects using the PEL approach. The PEL approach has the potential to be abused, because a statement of purpose and need adopted prior to NEPA could be drafted so narrowly as to effectively preclude public participation and detailed environmental review of alternative transportation modes, routes, or strategies. However, courts generally approve the PEL approach, providing legal protection for the elimination of alternatives during transportation planning, even when public participation and environmental impact analysis at the transportation planning stage does not satisfy NEPA requirements.
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References
List of Cases
Buckingham Township v. Wykle, 157 F. Supp. 2d 457 (E.D. Pa. 2001), aff’d, 27 Fed. App’x 87 (3d Cir. 2002), cert. denied, 537 US 826, 123 S. Ct. 120 (2002).
Building a Better Bellevue v. US Department of Transportation, No. 12-CV–01019, 2013 WL 865843 (W.D. Wash. March 7, 2013) (unpublished).
HonoluluTraffic.com v. Federal Transit Administration, 742 F.3d 1222 (9th Cir. 2014).
Our Money Our Transit v. Federal Transit Administration, 689 Fed. App’x 504 (9th Cir. 2017).
Protecting Arizona’s Resources & Children v. Federal Highway Administration, 718 Fed. App’x 495 (9th Cir. 2017).
Sierra Club v. US Department of Transportation, 310 F. Supp. 2d 1168 (D. Nev. 2004).
List of Statutes
Department of Transportation Act, Pub. L. No. 89–670, § 4(f), 80 Stat. 931, 934 (October 15, 1966) (codified at 23 U.S.C. § 138).
Fixing America’s Surface Transportation Act, Pub. L. No. 114–94, § 1305, 129 Stat. 1312, 1386–89 (December 4, 2015) (codified at 23 U.S.C. § 168).
Intermodal Surface Transportation Efficiency Act (ISTEA), Pub. L. No. 102–240, §§ 1024–25, 105 Stat. 1914 (December 18, 1991) (codified at 23 U.S.C. §§ 134–135).
Moving Ahead for Progress in the 21st Century Act, Pub. L. No. 112–141, § 1310, 126 Stat. 405, 540–43 (July 6, 2012) (codified at 23 U.S.C. § 168).
National Environmental Policy Act, Pub. L. No. 91-190, 83 Stat. 852 (January 1, 1970) (codified at 42 U.S.C. §§ 4321 to 4395).
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. No. 109–59, § 6002, 119 Stat. 1144, 1857–67 (August 10, 2005) (codified at 23 U.S.C. § 139).
Transportation Equity Act for the 21st Century, Pub. L. No. 105–178, §§ 1203–04, 1308–09, 112 Stat. 107, 170–184, 231–234 (June 9, 1998).
Works Cited
USDOT. 1999. “TEA-21 planning and environmental provisions: Options for discussion.” Accessed February 10, 1999. https://web.archive.org/web/20010416004705/http://www.fhwa.dot.gov/environment/tea21opt.htm.
Information & Authors
Information
Published In
Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 13 • Issue 3 • August 2021
Copyright
© 2021 American Society of Civil Engineers.
History
Received: Aug 5, 2020
Accepted: Mar 10, 2021
Published online: May 3, 2021
Published in print: Aug 1, 2021
Discussion open until: Oct 3, 2021
ASCE Technical Topics:
- Business management
- Construction engineering
- Construction management
- Federal government
- Government
- Highway and road management
- Highway transportation
- Highways and roads
- Infrastructure
- Laws and regulations
- Legal affairs
- Organizations
- Political factors
- Practice and Profession
- Project management
- Public administration
- Public opinion and participation
- Public transportation
- Transportation engineering
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