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Addressing the Quiet Crisis:
Origins of the National Environmental Policy Act of 1969
The Natives are Restless
The FHWA published the Notice shortly before the presidential election on November 5, 1968. Former Vice President Richard M. Nixon defeated the Democratic candidate, Vice President Hubert H. Humphrey, and would take office on January 20, 1969. The outgoing Democratic Administration accelerated the remaining steps to implement the change in the 1968 Act before the Republican Administration took office.
With the transition looming, the Notice's twin hearings and appellate procedure became a symbol of the faultlines undermining the Federal-aid highway program in an era of change. Author A. Q. Mowbray, in his 1969 book Road to Ruin, pointed out that conservationists and city planners welcomed the dual hearing proposal as "an opportunity for the ordinary citizen to gain some leverage." Mayors, represented by the U.S. Conference of Mayors and the National League of Cities, favored the rulemaking because Washington, they thought, offered help "denied them by the rural- or lobby-dominated state legislatures."
The "highway lobby" attacked the proposal "as an attempt by the federal government to dominate highway planning and to burden the process with so much red tape that construction would be all but impossible." The Governors' Conference (forerunner of the National Governors Association) opposed the regulation because it would remove decisionmaking from the officials closest to the people and place it in the Federal bureaucracy. "In the governors' eyes, the level of government closest to the people is the statehouse." The State highway agencies, Mowbray said, saw the proposal as an attempt by the new DOT "to curb the rampaging bulldozer and gain support for other modes of transportation." He added that some States talked of mutiny. "If the proposed new federal regulations are adopted, Texas has threatened to pull out of the Federal-aid highway program entirely." [Mowbray, A. Q., Road to Ruin, J. B. Lippincott Company, 1969, p 234]
Better Roads magazine reflected the State viewpoint. An editorial titled "The Natives are Restless," published in the November 1968 issue, referred to "a growing unrest in intergovernmental relationships" as State and local highway officials "are becoming increasingly vocal about directives and procedures emanating from the direction of the Department of Transportation." The editorial feared "a breakdown of a long-standing partnership." To illustrate the point, the editorial quoted a speech by A. E. "Alf" Johnson, executive secretary of the American Association of State Highway Officials (AASHO) to highway officials in the Southeast:
It is evident that there are fewer and fewer people in Washington who believe that the federal-aid highway program should be a partnership operation. There is a tendency on the part of the new people who are essentially "federalists" and advocate the so-called "federal creativism," which is subject to a broad range of interpretation, to consider the highway program a federal program with the role of the state being subservient, or acting as an agent of the federal government. They want to tell us how to do everything, even to the point of detailing how to handle debris or clean up after an accident. ["The Natives are Restless," An Editorial Viewpoint, Better Roads, November 1968, p. 7]
Johnson's concerns about the future of the partnership stemmed from a lifelong involvement in it. He had been a State highway official in Arkansas, rising to the position of Chief Engineer of the Arkansas State Highway Department before joining AASHO full time as executive secretary in 1955 after a year as its part-time president. He was a staunch supporter of the Federal-aid highway program who had played a key role behind the scenes during development of the Federal-Aid Highway Act of 1956.
Because of the Notice on public hearings, Better Roads stated in a December 1968 editorial, "the air is charged with tension and emotion." It stated that, "The welkin has not ceased to ring since the proposed regulations were published in the Federal Register." The editorial quoted several State highway officials, including Johnson, who said:
"This is a radical departure in the 50-year administration of the federal-state highway program," he said. "This marks the first time they've gone through the Federal Register."
Garrett Morris of the Texas Highway Commission said the proposal would "destroy the orderly process" of highway development and "usurp for the federal highway administrator the policy-making responsibilities of the Texas Highway Commission."
The editorial speculated that the proposal might "be left to boil and bubble until the next administration takes over," but hoped "everyone concerned in this matter [would] back off a bit and take a cooler, considerate look at the problem." ["The Relationship Gap Widens," An Editorial Viewpoint, Better Roads, December 1968, p. 6-7]
When AASHO gathered in Minneapolis, Minnesota, for its annual meeting the first week of December 1968, the proposal was a major concern for many speakers. It unleashed all their frustrations. AASHO president John O. Morton, commissioner of the New Hampshire Department of Public Works, addressed the concerns of many highway officials when he said:
Our new interstate highways are anything but the atrocities the voices of opposition would have the public believe them to be.
He said that AASHO's member agencies had conducted thousands of public hearings and knew "that certain objections will always be presented at a public hearing." Ultimately, State officials must decide how to carry out their program. Morton, in summarizing what State highway officials feared, stated that the proposed rule far exceeded the intent of the 1968 Act:
Contained in the regulations is a provision that would allow a single individual appearing in opposition to a highway project, to effectively tie up the project for an indefinite period of time. It is impossible to comprehend the adoption of a regulation which has been so devised that the desires and needs of an overwhelming majority of the people as presented at a public hearing, could be overridden by the action of a single individual, responsible or otherwise ... If this is permitted, domination of its (the nation's) economy will also rest in the hands of this same irresponsible minority group.
It was, Morton said, the first time in the 52-year history of the Federal-aid highway program that "a federal agency has taken over and flaunted [sic] the intent of a piece of highway legislation." He suspected that "people high in the Department of Transportation" were responsible because they "have in the past made reference to the fact that the mentality of the highway departments should be changed." He said that highway officials were "confused, shocked, and alarmed at such a power grab."
Senator Jennings Randolph (D-WV), Chairman of the Committee on Public Works, began his address to AASHO with a joke to illustrate that the country was in a period of transition:
I recall that a minister united in holy wedlock two hippies, and at the end of the ceremony he turned to them and said, "Will one of you please kiss the bride?"
These are, he added, "times often of misconceptions and misunderstandings."
Senator Randolph, a longtime road supporter who had once worked for the American Road Builders Association and advanced the Interstate System at every opportunity, recalled that when he addressed AASHO a year earlier, he told the members that "we were beginning to think in terms of the economic social and environmental development of our country, particularly as highways are involved." He discussed the origins and implementation of the provision:
I announced that we would initiate a series of hearings which would deal particularly with the problems of urban highway development in all of its phases in this country. At that time I stated, "We are all aware of the outspoken opposition to highway locations which has been encountered in connection with various urban segments of the interstate system. The Senate Committee on Public Works is very much concerned that such opposition, much of which may well be justified, will create an intolerable situation and cause the failure of this important public works program ..."
These hearings began in November 1967 and were concluded in May 1968 ... The witnesses who appeared before us represented almost every facet of interest, profession and concern with highways and our urban areas ...
The testimony presented in our urban impact hearings was most impressive and as a result, a number of provisions were added to our basic highway law by the Federal-aid [sic] Highway Act of 1968 ...
That Act ... includes a number of important changes which will enable the Highway Program to meet our expanding concern for social, cultural and environmental values ... a full fledged relocation assistance program for those who suffer private injury through disruption and dislocation as a result of highway construction ... equal employment opportunity ... all public hearings (must) consider the social and environmental, as well as the economic, impact of a proposed highway location ...
He shared the concern about the appellate procedure in FHWA's Notice of Proposed Rulemaking. He quoted from a letter that he and Ranking Member John Sherman Cooper (R-KY) had sent to Federal Highway Administrator Lowell K. Bridwell (1967-1969) in response to a request for the committee's views. The letter stated:
It is our strong belief that such procedure will invite unnecessary appeals to the Federal Highway Administration and to the Courts. Highway location decisions are really legislative in nature. This authority has been delegated by the Congress and the Legislatures of the respective States to the United States Department of Transportation and the State Highway Departments. Other than to assure that the rules have been fairly applied, there is no contribution which any Federal Court could make to the decisions relating to location and design.
The two Senators urged removal of the appellate procedures from the final version. "We believe the decision of the Federal Highway Administration should be final in all respects unless there is, in fact, a violation of law, in which case normal legal procedures would still pertain."
Bridwell, in his address, acknowledged the "problems of antagonism between highway professionals and professionals from other disciplines." Change was coming "too fast, too disordered, and too little anticipated," but like it or not, the program was facing "the same social and community forces that today confront every other basic national undertaking, whether in transportation, conservation, education, or the art of government." He said:
One option not available is to disassociate and insulate our activities from the sweep of events in America today. To pretend otherwise would be the depth of self-delusion. Nor, in many cases, are we masters of these events. Our decisions must reflect our realistic awareness of this.
They were living in a time "of difficult choices ... matched, and possibly outweighed by the opportunities available to us today to select ... directions which will produce ... beneficial results for the future." The Urban Impact Amendment of the 1968 Act was "a clear indication" of the future, but its mandate for consideration of social, economic, and environmental impacts "can only be fulfilled by a fundamental reshaping of attitudes toward highway development in relationship to urban goals." He rejected the "cold war" option of "conflict-of fighting the program's opponents with every means at hand." Instead, he urged each highway official to "reshape his product and his way of doing business to reflect the new demands of the public."
To illustrate his point, he referred to a sign that he said the inventor Thomas Edison kept on his desk. "‘Pioneer or Perish' for the Federal-aid highway program in America today, there can be no more fitting watchword."
Covering the meeting, Better Roads said that AASHO officials "had themselves a brawl . . . [and] found plenty to complain about." The editorial quoted the welcoming speech by Governor Harold LeVander, who referred to the "difficult and delicate balance of federal-state authority in the highway program." He continued:
To put it mildly, the experience that Minnesota has endured with the executive branch of the federal government has been less than appealing.
While highway officials were speaking "brave words," the editorial stated, they "were looking over their shoulders to see what exactly it was that was chasing them." Public criticism "hit a sensitive nerve" and prompted many State highway officials to renew their interest in public relations:
If we heard correctly, the word from above . . . included such profound advice as to "sell" the integrity and ability of the highway engineer and the antediluvian suggestion that arrangements be made for periodic appearances before groups such as the Rotary, Lions, and other civic clubs to tell them the wonders of the highway program.
Sarcasm aside, the editorial urged officials not to expect their public relations staff "to help pull some rabbit out of the hat after a bad situation has arisen." A better idea was to make the public-relations staff "an integral part of the team-not just an appendage." ["Hurdles in the Highway Program," Better Roads, January 1969, p. 6-7]
On November 23, 1968, FHWA announced that it would hold a hearing on December 16, 1968, to give interested parties the opportunity to present their views on the proposed regulation. [33 FR 17364] FHWA received over 200 requests from agencies, organizations, and individuals wishing to be heard. The hearing, held in the auditorium of the Federal Aviation Administration Building from December 16 through 20, heard from over 150 people. Their comments were among the more than 4,000 comments received on the proposed regulation. Mowbray cited one of those comments:
Former Governor John A. Volpe of Massachusetts, the new Secretary of Transportation [under President Nixon], was a multimillionaire contractor and builder before he became the first Federal Highway Administrator [1956-1957] under President Eisenhower. One of his last acts as governor was to send a 200-word telegram to Secretary Boyd asking him to "withdraw" the proposal. The regulations, he said, were "a slight to the dedication, sincerity, and integrity of our state highway officials and the career employees of the Bureau of Public Roads." Planning of highways, he said, should be left in the hands of "professional highway planners," and the proof of their all-around competence is best seen in the quality of the highway system completed to date. Adoption of the proposed regulations, said Volpe, "is not in the best interests of our highway program." [Mowbray, p. 234-236]
On January 14, 1969, with just 6 days left in the Johnson Administration, Administrator Bridwell and Director of Public Roads Francis C. "Frank" Turner approved a Policy and Procedure Memorandum (PPM) as appendix A of Title 23, Code of Federal Regulations, Section 1.32. The change appeared in the Federal Register on January 17, 1969 [34 FR 727], along with an explanation of how the PPM was developed. The discussion acknowledged the controversy over the appellate provision:
A large number of comments objected to the proposal on the grounds that it would destroy the present State-Federal relationship with respect to the Federal-Aid Highway Program. In particular, it was argued that by providing an appellate review by the Administrator, final highway decisionmaking would be transferred from the States to the Administrator. However, under the laws governing the Federal-Aid Highway Program, final approval authority concerning Federal participation is, and has always been, reserved to the Secretary of Transportation and this authority has consistently been exercised by the Administrator pursuant to a delegation of authority from the Secretary ...
The goal was to strengthen the State's role by increasing dialogue with those affected by proposed projects:
It was designed to help resolve controversies at the State and local level where they can be best dealt with. In recent years, more and more highway controversies have required the personal attention of the Administrator and the Secretary because the present coordination and hearing procedures did not provide for adequate public participation in the development of highway decisions. Appeals to the Administrator have become commonplace, many relating to highway decision approvals rendered over 10 years ago.
While defending the proposed appellate procedures, Bridwell and Turner decided to withdraw it:
The appellate procedures were also objected to on the grounds that the term "interested person" was too broad and that since there was no time limit concerning the disposition of the appeal, highway construction could be delayed indefinitely. Objections were also raised concerning the automatic "stay" of highway projects upon the filing of an appeal. These objections do have merit and accordingly, the proposed appellate procedures are being withdrawn for further review and reconsideration.
Instead of the appellate procedures, the PPM stated that the State was to publish notice of the Division Engineer's approval of a highway location or design - and that was the final step in the review.
Other changes included the addition of "Fast, safe, and efficient transportation" as the first factor to be considered among the social, economic, and environmental factors. The PPM also clarified when two public hearings were required, namely for all Interstate and primary highway projects; secondary highway projects on larger roads; when the project is on new location or would have a different social, economic, and environmental effect; and projects where the function of connecting roads, including access limits, would be altered. Otherwise PPM 20-8 retained much of the notice.
In these and other ways, FHWA responded throughout the 1960's to the growing environmental movement, but these steps had not satisfied those who objected to highways in general and the Interstate System in particular. They also could not hold back the growing sense of urgency felt not only by environmentalists but politicians eager to satisfy them.
Images of Environmental Destruction
One person who had not embraced the environmental revolution was President Richard M. Nixon. Flippen quoted Nixon as saying in private:
I have no sympathy for environmentalists who are demanding equal time on the air for every reply to every issue. Some people want to go back in time when men lived primitively.
Environmentalists were "dippy" and the "Wacko fringe." [Conservative Conservationist, p. 111]
After defeating Vice President Humphrey in the 1968 election, President-elect Nixon asked Dr. Paul McCracken, an economist who would serve as chairman of the Council of Economic Advisors, to establish transitional task forces to plan for the new Administration. Dr. McCracken neglected to establish one on the environment. When his deputy, Henry Loomis, urged him to appoint a task force on the subject, McCracken asked for a recommendation on who should lead it. Loomis, a trustee of the Conservation Foundation, recommended Russell E. Train, a conservative Republican who served as the foundation's president.
Train put together a bipartisan task force that did not include avowed environmentalists but that recommended a strong environmental role for the new Administration:
We recommend that improved environmental management be made a principal objective of the new Administration. While time is running out rapidly on our ability to arrest and hopefully reverse these trends, we now possess the knowledge and technology to begin the job. Do we possess the will?
The task force also recommended:
We recommend that priority be given to improving the surroundings in which most of our people live their daily lives-in our growing urban regions.
The members recommended "that emphasis be placed on performance, on making existing programs work." [Conservative Conservationist, p. 61-62]
Train would join the Administration as Undersecretary of the Interior under Secretary Walter Hickel, a former Governor of Alaska known for pro-development attitudes. (Hickel, who had taken office as Governor in 1966, would serve as Governor of Alaska again from 1990 to 1994.)
Train shared Flippen's conclusion that Nixon did not have any interest in environmental matters:
I certainly never heard him express any. His reaction to these issues was that of a highly political animal. He read the polls and he had to be aware that concern for the environment was rapidly rising among the American people. His political instincts told him that he and the Republican Party could not afford to be seen as anti-environment. Moreover, with the 1972 presidential election rapidly approaching, it was understandable that he would want to seize the environmental high ground from the Democrats, particularly from one of the leading contenders for the Democratic nomination, Maine's senator, Ed Muskie. [Train, Russell E., Politics, Pollution, and Pandas: An Environmental Memoir, Island Press/Shearwater Books, 2003, p. 79]
Environmental crises would emerge during the period to add to the growing public concern as Congress searched for a response. One problem began in 1968 when oil was discovered on the North Slope of Alaska abutting Prudhoe Bay, an arm of Beaufort Sea. Transportation of the oil by ship was not practical because the sea was frozen most of the year, creating a demand for a pipeline to a year-round port at Valdez. The challenges of building and maintaining the pipeline created an environmental controversy about potential adverse impacts. [Train, p. 60-62] Another controversy involved the Miami Jetport, a proposal by Dade County, Florida, to build a mammoth Miami international airport west of Miami on 40 square miles of wetlands. [Train, p. 63] President Nixon's proposal to develop two prototype commercial supersonic transports raised additional environmental concerns. [Train, p. 85]
Broader problems were reaching a point where they could not be ignored, as summarized by Flippen:
Across the nation's fruited plains sprang miles of mass-produced and prefabricated suburban homes. The suburbs grew six times faster than established cities, and as early as 1960 one-quarter of Americans lived in such homes. Real estate developers, financial institutions, utility companies, and landowners pressed for more intensive use of land, and local governments, anticipating more tax revenue from higher land values, complied. Two-lane roads became four-lane roads and shopping centers grew in open fields. Because in many areas waste treatment facilities did not keep pace with greater population density, many communities dumped raw sewage into nearby rivers and lakes. This led to eutrophication, the overfertilization of water plants. The resulting algal growth blocked the sun from deeper plants, whose death and decay eliminated the remaining oxygen in the water. In time, the water would become devoid of all life, its ecosystem destroyed. With agricultural runoff, the dumping of industrial chemicals and municipal dredging augmenting the problem, the nation's waters appeared to be in a perilous state.
On land the problem was trash. Municipal waste-residential, institutional, and commercial refuse-constituted millions of tons a year, the elimination of which created a municipal expense that only transportation and education surpassed. Many communities simply relied on open dumps, the least expensive alternative but one that contributed to disease and contaminated the nearby water tables. [Conservative Conservationist, p. 56]
These trends were hard to visualize, but the public was increasingly introduced to images that were hard to forget. On January 29, 1969, a Union Oil Company platform 6 miles off the coast of Santa Barbara, California, experienced a blowout that lasted 11 days and unleashed oil and natural gas. Crude oil created an 800-square mile oil slick that flowed onto 35 miles of coastline. Hundreds of birds, clams, dolphin, fish, lobsters, and other sea creatures became trapped in the oil slick and died. Television viewers and magazine and newspaper readers saw images of workers trying to save birds so coated in oil they could not follow their instinct to fly away from their rescuers. An editorial in The Washington Post on February 14, 1969, stated:
It is often man's crass indifference to the consequences of technological advance in exploiting nature which is leading to the despoiling of nature. That is to say, the gains from technology seem to run only one way – to profits rather than to preservation of a planet on which man can comfortably live ...
Instead of deciding that we must exploit them because we are technically able to do so, we ought to postpone exploiting them until the need is great or our knowledge of what damage exploitation may do is substantially larger.
That summer, the public received another visible image when fire broke out on the Cuyahoga River in Cleveland on June 22, 1969. An oil slick and debris in the river erupted in flames, possibly caused by sparks from a passing train on a railroad bridge. The fire did not last long, only about 30 minutes, but the image brought the issue home. Time magazine used the fire to question what people did to the rivers that provided the original rationale for the location of most of the country's larger cities:
Almost every great city has a river. The poetic notion is that flowing water brings commerce, delights the eye, and cools the summer heat. But there is a more prosaic reason for the close affinity of cities and rivers. They serve as convenient, free sewers.
The Potomac reaches the nation's capital as a pleasant stream, and leaves it stinking from the 240 million gallons of wastes that are flushed into it daily. Among other horrors, while Omaha's meat packers fill the Missouri River with animal grease balls as big as oranges, St. Louis takes its drinking water from the muddy lower Missouri because the Mississippi is far filthier. Scores of U.S. rivers are severely polluted-the swift Chattahoochee, majestic Hudson and quiet Milwaukee, plus the Buffalo, Merrimack, Monongahela, Niagara, Delaware, Rouge, Escambia, and Havasupi. Among the worst of them all is the 80 mile-long Cuyahoga, which splits Cleveland as it reaches the shores of Lake Erie.
No Visible Life. Some river! Chocolate-brown, oily, bubbling with subsurface gases, it oozes rather than flows. "Anyone who falls into the Cuyahoga does not drown," Cleveland's citizens joke grimly. "He decays." The Federal Water Pollution Control Administration dryly notes: "The lower Cuyahoga has no visible life, not even low forms such as leeches and sludge worms that usually thrive on wastes." It is also-literally-a fire hazard. A few weeks ago, the oil-slicked river burst into flames and burned with such intensity that two railroad bridges spanning it were nearly destroyed. ["The Cities: The Price of Optimism," Time, August 1, 1969]
Fires had erupted in the river before (in 1868, 1883, 1887, 1912, 1922, 1936, 1941, 1948, and 1952) and in rivers through other cities, but coming as the Nation was beginning to understand how human actions affected the environment, the latest incident made the Cuyahoga River a symbol that everyone could visualize and understand.
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