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Addressing the Quiet Crisis:
Origins of the National Environmental Policy Act of 1969
FHWA Goes on the Offense
Throughout the 1960's, the highway community believed it was being unfairly targeted by critics who were delaying the important work for short-sighted, even selfish, reasons. In late 1969, FHWA launched an extensive counter-initiative of speeches, editorials, letters to the editor, and press releases to rebut what Director of Public Roads Ralph R. Bartelsmeyer called "the often repeated canard that the highway builder has but one mission - to bulldoze everything in sight," as he put it during a "public information workshop" at Hotel Utah in Salt Lake City on May 6, 1970. [Brunsman, Frank, "U.S. Highway Chief Attacks Negative Image of Builders," Salt Lake City Tribune, May 7, 1970]
While top level officials fanned out across the country for speeches, FHWA issued a series of press releases touting environmental initiatives. One of the earliest releases, dated December 16, 1969, described how construction of a four-lane bridge across the Tennessee River near Decatur, Alabama, had been halted until March 1 because 65,000 ducks and geese from the northland had settled in for the winter at Wheeler National Wildlife Refuge. The release added, "the bridge builders have put their pile drivers and jackhammers into hibernation."
Secretary Volpe contributed to the campaign on December 28, 1969, in a press release citing construction of I-80 through Nebraska and I-94 in North Dakota as examples of highway construction offered opportunities "for improving the quality of our lives . . . out in the great open spaces of rural America." By impounding water along the Interstates, officials had created camping and fishing sites for recreational use. Volpe summed it up:
In these days when the public is more interested than ever before in ecology and environment, the highway program, as demonstrated in North Dakota and Nebraska, can play an important role in making our country a better and more attractive place in which to live.
A sampling of FHWA press releases from the campaign includes:
- The "basketball star of tomorrow" could practice how to dribble, pass, and shoot "because an Interstate highway came through his neighborhood" in the form of an elevated freeway with a basketball court laid out underneath. [February 16, 1970]
- Approximately 100 acres of swamp land were set aside as a bird sanctuary in the median of the Southern Tier Expressway in Tioga County, New York. [March 9, 1970]
- A freeway link between I-91 and I-95 in Connecticut was to run through Round Meadow Swamp, "one of the few remaining breeding grounds for migratory wild fowl in the State." Instead, the Connecticut Highway Department, "heeding the pleas of naturalists and bird lovers," located the road around the edges of the swamp. [April 26, 1970]
- I-75 "will take an unplanned swerve as it rolls out of Tampa, Florida . . . to avoid disturbing an eagles nest in the top of a 50-foot pine tree." [April 29, 1970]
- Motorists on I-66 through historic Thoroughfare Gap in Virginia will pass Beverley's Mill, dating to 1749 (rebuilt in 1858) "only because of a cooperative effort on the part of conservationists and Federal and State highway officials" to preserve it. [May 24, 1970]
- As in Nebraska and North Dakota, highway officials in Minnesota were using "borrow pits," created when material was removed for highway construction, to create ponds or marshes for wildlife, including ducks, geese, shorebirds, great blue herons, and mink and muskrat. [May 31, 1970]
- Construction of I-70 just west of Denver resulted in a monumental art work while cutting through the prominent terrain feature called the Hogback. [June 14, 1970]
- While relocating State Route 10 near the Ohio River, Kentucky highway officials shifted about 5,000 feet of the new roadway to avoid one of the largest pin oak trees in the State (58 feet high). [August 17, 1970]
One of the centerpieces of the campaign was a report on Benefits of Interstate Highways released in June 1970. It began:
Interstate and other highways influence the growth of the economy by improving mobility for economic and social activities. Benefits of the Interstate System include those received by people while using highways and benefits accruing to people and communities indirectly, as a consequence of highway use.
The report documented savings in travel time, operating costs, accident reduction, and goods movement. It also described general economic and community benefits, such as increase land use and value, industrial and commercial effects, opportunities for community change, and new towns and economic growth. The report documented what Administrator Turner and other officials had said many times: that the motorist on the Interstate Highway System is "probably the only taxpayer who gets his dollar back, with interest."
Despite FHWA's year-long campaign, the canard cited by Bartelsmeyer would remain the prevailing view.
NEPA and the Transition to Environmental Stewardship
According to Train, the first Chairman of CEQ, implementation of the NEPA requirement that agencies prepare environmental impact statements left many executive branch agencies confused:
A number of agencies, such as the Federal Highway Administration, did their best to avoid compliance. Others argued that the environmental impact analysis should be conducted not by the agency in question but by CEQ itself. We maintained successfully and, after all, with the support of the statute, that the environmental impact analysis process had to be an integral part of the agencies' own decision making and not something imposed from outside. [Train, p. 90, emphasis in original]
On January 22, 1970, Administrator Frank Turner (1969-1972), the only career BPR/FHWA employee to rise to the top of the organization, addressed the 25th annual meeting of the National Limestone Institute in Washington. NEPA was the first topic he raised. "It was significant," he said, that "President Nixon took the first day of this decade, New Year's Day, to sign the National Environmental Policy Act." The concern and urgency the President expressed "are shared these days not only by environmental experts but by a majority of our citizens." He added:
We in the highway program are, and have been, well aware of this concern and the implications it has for our future.
Our Nation-whether in its cities or its rural areas-cannot live without transportation, and highways provide the overwhelming proportion of that transportation. But highways can and must be made compatible with and enhance the environment, at the same time that they provide essential transportation services.
Furthermore, we must be concerned not only with problems of the physical environment, but also with what might be called the social environment-with the interaction of highways and people, with a highway's impact on individuals and communities.
He acknowledged that these sentiments "may sound to you like an unusual way to introduce a discussion of highway needs." He explained:
But it is obvious that our future highway needs and the ways to meet them cannot be considered in a void, insulated from the rest of our society. Highway transportation, more than any other form of transportation, provides the facilities and the services that will enable the American society of the 1970's to function. And highway planning, highway decision-making, and highway construction must be done in the midst of that society, in the real world where people live and work and spend their leisure...It is not a challenge to be viewed with dismay nor timidity, for we have built up many resources over the years in the highway program and are far better equipped to meet the situation than some people would have you believe.
He did not want anyone to think this concern was new. He cited the continuing, comprehensive, cooperative transportation planning process required by the Federal-Aid Highway Act of 1962 ("For the first time all municipalities were forced to face up to and do something about the need for areawide urban land use planning-since transportation is based on land use planning.") Serious effort had been devoted in recent years to "the problem of identifying community goals in order to make highway planning, location and design more responsive to the social and environmental as well as the economic values of the community." A long-list of socio-economic concerns had been identified for consideration while locating highways:
To refer to only some of these as illustrations for example, we insist upon early consultation with interested agencies, such as those responsible for fish and wildlife, historic preservation, and parks and recreation. Early consultation offers the best promise for accommodating other public interests and for satisfactory resolution of differences that too often become polarized when confronted at a later date.
Public hearings on highway projects, he said, had been underway for 20 years "to obtain citizen acceptance through early and active involvement and participation of local communities in the highway location and design process." Turner also cited joint development (using the space above or below highways for other facilities, such as playgrounds under elevated freeways, or buildings constructed over a highway) and improvements in housing for those displaced by highway projects. He continued:
I want to make it clear that we in the highway program recognize our social responsibilities and are doing something about them. We are as concerned with the social impact of our program as we are with its economic impact. We know that we must discharge our social responsibilities if we are to meet our fundamental responsibilities of serving the transportation needs of the Nation.
In this presentation, soon after NEPA became law, Turner did not mention environmental review of individual projects. He implied that FHWA was already addressing the concerns NEPA was designed to correct-almost as if no change would be needed.
On April 30, 1970, CEQ issued interim guidelines on implementing NEPA's environmental review requirements. The guidelines, which appeared in the Federal Register on May 12, 1970, explained that Section 102 applied to all Federal Agencies and that the phrase "to the fullest extent possible" added by the House "is meant to make clear that each agency of the Federal Government shall comply with the requirement unless existing law applicable to the agency's operations expressly prohibits or makes compliance impossible." [35 FR 7391]
The interim guidelines explained how reviews should be conducted, including the content of environmental statements. CEQ also explained the phrase "major Federal actions significantly affecting the quality of the human environment" by saying:
The statutory clause...is to be construed by agencies with a view to the overall, cumulative impact of the action proposed (and of further actions contemplated). Such actions may be localized in their impact, but if there is potential that the environment may be significantly affected, the statement is to be prepared. Proposed actions the environmental impact of which is likely to be highly controversial should be covered in all cases. In considering what constitutes major action significantly affecting the environment, agencies should bear in mind that the effect of many Federal decisions about a project or complex of projects can be individually limited but cumulatively considerable.
DOT Order 5610.1, issued on October 7, 1970, outlined procedures for preparing environmental statements under "the NEP Act." It also set procedures for considering Section 4(f) issues during the environmental review. Consistent with CEQ's interim guidelines, the order distinguished among projects based on whether they were "major Federal actions significantly affecting the quality of the human environment."
The phrase "significantly affecting" meant "any action that is likely to be highly controversial on environmental grounds" and any matter falling under Section 4(f) of the DOT Act or Section 16 of the Airport Act. Effects that would likely be considered significant included increasing ambient noise levels; displacing large numbers of people; disrupting an established community or affecting aesthetic or visual effects or areas of unique interest or scenic beauty. In addition, effects included significantly altering the pattern of behavior for a species or interfering with important breeding, nesting, or feeding grounds; significantly increasing air or water pollution; disturbing the ecological balance of a land or water area; or involving a reasonable possibility of contaminating a public water supply source, treatment facility, or distribution system.
If these conditions did not apply to the Federal action, officials were to prepare a negative declaration:
Any proposal for an action to which this order is applicable...will include either a statement as required by Section 102(2)(C) of the NEP Act or a declaration that the proposed action will not have a significant impact on the environment. Negative declarations need not be coordinated outside the originating agency.
Because determining whether impacts would be significant could be subjective, officials were to keep this instruction in mind:
When there is doubt whether or not to prepare a statement it should be prepared. Where the environmental consequences of a proposed action are unclear but potentially significant, a statement should be prepared.
On November 30, 1970, FHWA's Associate Administrator for Right-of-Way and Environment, John A. Swanson, issued an FHWA Notice containing draft guidelines for implementing NEPA. Although he sought comments on the guidelines for consideration while drafting the final instructions, he stated that the State highway departments "should be requested to immediately begin implementation of the draft guidelines." He added that the final implementation guidelines would incorporate instructions for implementing Section 4(f) as part of the review process. The guidelines retained the concept of a Negative Declaration.
The FHWA implemented the guidelines by issuing Policy and Procedure Memorandum (PPM) 90-1, titled "Environmental Impact and Related Statements," on August 24, 1971. The NEPA evaluation would apply to an "Agency Decision," namely "approval of the location of a highway improvement." Additional reviews under NEPA would not be necessary for later stages, such as design or right-of-way acquisition. An environmental statement would be prepared to assess the "anticipated beneficial and detrimental effects which the agency decision may have upon the quality of the human environment," but a "Negative Declaration" could be prepared if "the anticipated effects upon the human environment will not be significant."
The PPM described the steps in the review and assigned responsibility to Regional Federal Highway Administrators, who oversaw several States, for approving the final environmental statements. Approval would occur only after concurrence by DOT's Office of Environmental and Urban Systems.
On August 1, 1973, CEQ promulgated revised guidelines for preparing environmental impact statements. [38 FR 20550] The guidelines required Federal Agencies to revise their NEPA procedures to incorporate the changes and publish drafts of their new procedures in the Federal Register for comment before October 30, 1973. FHWA issued a Notice of Proposed Rulemaking in the Federal Register on November 1, 1973, advising that it proposed to codify PPM 90-1 as Part 771 of Title 23, Code of Federal Regulations (CFR), titled "Environmental Impact and Related Statements." [38 FR 30192] The Final Rule establishing 23 CFR 771 was published on December 2, 1974. [39 FR 41801].
CEQ's 1973 guidelines remained in effect until revised regulations were approved effective July 30, 1979. The Federal Register notice stated:
Although the Council conceived of the  Guidelines as non-discretionary standards for agency decisionmaking, some agencies viewed them as advisory only. Similarly, courts differed over the weight which should be accorded the Guidelines in evaluating agency compliance with the statute.
The result has been an evolution of inconsistent agency practices and interpretations of the law. The lack of a uniform, government-wide approach to implementing NEPA has impeded Federal coordination and made it more difficult for those outside government to understand and participate in the environmental review process. It has also caused unnecessary duplication, delay and paperwork. [43 FR 55978]
The new guidelines emerged from these concerns, as well as the need to provide guidance on other elements of Section 102 of NEPA involving agency planning and decisionmaking.
After CEQ issued its new NEPA regulations, DOT issued DOT Order 5610.C for comment on May 31, 1979 [44 FR 31341] and in final form on October 1, 1979 [44 FR 56420]. The CEQ regulations and DOT Order encouraged operating administrations such as FHWA and the Urban Mass Transportation Administration (UMTA) to develop implementing procedures consistent with their operating procedures. FHWA and UMTA began developing separate regulations covering their programs. However, the two Agencies decided to develop a single coordinated regulation to reduce red tape for applicants and enhance consideration of alternatives developed as part of the environmental review process. The final rule was published in the Federal Register on October 30, 1980. [45 FR 71966] (The current version of the regulation was published in the Federal Register on August 28, 1987. [52 FR 32660]).
A Field Perspective
On January 4-5, 1972, about 2 years after President Nixon signed NEPA, FHWA participated in a Conference on Environmental Impact Analysis in Green Bay, Wisconsin. John J. Kessler, FHWA's Assistant Division Engineer in Madison, Wisconsin, represented the agency. He described the Federal-aid highway program, including construction of the Interstate System, explaining:
To relate the immensity of this public works program to the Environmental Policy Act, more than half of all the environmental statements that have been submitted to the Council on Environmental Quality from all the Federal agencies have come from FHWA.
He explained that DOT, like other Departments, faced several problems with NEPA, such as the broad language of the law ("major Federal actions significantly affecting the quality of the human environment")-"What is major? What is a significant effect upon the environment?"
Another problem was what to do with projects nearly at the end of the pipeline:
It may surprise some of you to learn that for major projects in urban areas, the time from the beginning of project planning to the time of construction often covers a period of ten years or more. While that may defy rational explanation, it is nevertheless factual. So on January 1, 1970 when NEPA became law, there were projects nearing the end of the pipeline which for all practical purposes represented an irreversible commitment of resources.
In PPM 90-1, FHWA had established a cut-off date of February 1, 1971:
If on that date a project had advanced to the point of having received design approval...preparation of an environmental statement would not be required. Nevertheless such projects had to be re-evaluated to assure that the projects were developed in a manner that would minimize adverse environmental consequences.
He outlined the approval authority for FHWA projects, pointing out that the Secretary had delegated all operational authority to FHWA except for NEPA and Section 4(f):
Since these exceptions are the only exceptions to the Administrator's authority, I believe they bear witness to the importance placed upon environmental consideration by Secretary Volpe.
In the initial reaction to NEPA among the States, Kessler said "there was initially some inertia to overcome." He also found a feeling in those early months "that FHWA didn't really mean it when we indicated that we could not give project approvals until the environmental requirements had been satisfied, or, even if we did mean it, a feeling that FHWA was being unnecessarily bureaucratic in its implementation of the law."
As for the impact statements, Kessler summarized several deficiencies that were common among the States. One was "a tendency...to emphasize the beneficial effects of highways and to minimize describing the adverse effects" as a way "to justify prior decisions." Kessler believed that States were increasingly "telling it like it is" in accordance with "the adage that you can't make an omelet without breaking an egg."
Another problem was that the State highway departments were, like FHWA, basically engineering organizations. The result was that "the language of statements has been that of one engineer talking to another" even though they would be reviewed "by others in disciplines normally not exposed to engineering terminology." He added that "the quality of statements has already shown signs of improvement" in this area.
One problem that "will continue to plague us" is that other agencies, the public, and "even the courts" did not understand the project development process. At the point of corridor approval, they expected to review "project details [that] are as yet undeveloped at this stage." If such details were available, Kessler said, "FHWA and the States [would] run the risk of being accused of having already irreversibly committed ourselves to a project.
The States also had been criticized for piece-mealing, "that is, the submission of short project segments rather than submission of a statement covering a longer segment of highway" that was controlled by the shorter segment and "may have significant environmental impact." Because this issue was related mainly to projects late in the pipeline, "the cause should vanish with the passage of time."
Moreover, FHWA, like other Federal Agencies, was subject to "the Office of Management and Budget's directive to not only reduce manpower but to concurrently lower personnel grade levels. He did not elaborate on this point, but said that under such conditions, "the full spirit and intent of NEPA" can be achieved only "at the expense of other desirable programs."
Recent court rulings were causing concern as well. "In effect, the courts are saying FHWA does not have the authority to exempt from application those projects which received design approval prior to February, 1971." Kessler considered this ruling unrealistic "or if it is not, then the legislation is in need of revision." Another worrisome ruling had been issued by the U.S. District Court for the Western District of Wisconsin just a month earlier. The court had ordered a project under construction to be halted "on the basis that an environmental statement was required and had not been prepared." While the cost of delay was estimated to be several thousand dollars a day, the plaintiffs were "five individual citizens who were not required to post bond by the court." He continued:
Not only have the recent court decisions been disturbing, but the number of court cases in which Federal highway officials have been named as defendants is increasing at an alarming rate. Last year no less than twenty-four court suits were initiated. Moreover, we believe that we are seeing only the first phase of legal actions-those which are based upon non-compliance with Federal law or procedures. We anticipate that the second phase will consist of legal challenges to the procedures themselves, or to the adequacy of environmental statements.
In short, "it behooves us to prepare statements that will withstand any such challenge." The challenge of doing so was reflected in the fact that "FHWA has been processing statements at a rate of approximately 1,800 per year nationwide," although he expected the total to drop to 500 a year.
In summary, after two years of labor and learning, we are a little torn and tattered and in some cases perhaps a little bloodied, but we have survived. It is unfortunate that in some instances individuals, for totally selfish reasons, have used NEPA solely as a vehicle by which to stop projects with which they disagreed. But on balance, and once the projects now in the pipeline are completed, I believe that NEPA will help us to produce an even better product for the public. At the very least, fulfilling the requirements of NEPA should help to convince the public that what we are doing is in the best public interest or, failing that, it should at least establish that full consideration was given to environmental factors...
Our only hope is that we will be permitted to pursue that noble goal [of preserving and enhancing the environment] as reasonable men. We have none but the public interest at stake. [Kessler, John J., "The Federal Highway Administration," Environmental Impact Analysis: Philosophy and Methods, Ditton, Robert b. and Goodale, Thomas I, editors, University of Wisconsin Sea Grant Program, 1972, p. 45-52]
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