Highway History

Addressing the Quiet Crisis:

Origins of the National Environmental Policy Act of 1969

Adapting to NEPA

As reflected in Kessler's presentation, the transition to the new requirements was gradual, reflecting a wearing down of early resistance. In June 1973, the Center for Science in the Public Interest released its analysis of environmental impact statements issued by highway departments and found that they exaggerated the importance of the projects, minimized harmful effects, and neglected consideration of alternatives. "The impact statements surveyed contain arguments rather than findings, opinions rather than studies, and generalities rather than facts." They also contained standard language to assess impacts in widely divergent parts of the country.

Of the 76 statements reviewed, the center found that 13 percent did not mention air pollution, 18 percent did not discuss noise pollution, 34 percent did not consider community disruption, and 86 percent did not consider mass transit alternatives. The report also cited frequent use of stereotyped assertions on subjects "that require careful analysis." For example, the statements often claimed the project would reduce congestion in cities by speeding up traffic flow. The center countered that:

In the long run, they induce a larger number of people to buy and use automobiles as their major mode of travel. This increases congestion and stop-and-go traffic.

The center also disputed stereotyped safety claims included in the documents, as well as claims of increased tax revenue and economic benefits stemming for building highways. [Dilts, James D., "Reports on highway impact less than complete, group finds," The Baltimore Sun, June 11, 1973]

Despite the early resistance within the highway community, the 1970's would be a transition decade as early resistance was overcome and environmental stewardship became ingrained in the FHWA and the State highway agencies as they evolved into State departments of transportation. NEPA would help by finally providing a consistent nationwide framework, accepted by pro- and anti-highway forces, for resolving controversies about individual projects.

Another consequence of NEPA and other environmental laws was litigation. However, NEPA, Section 4(f), the public hearing requirements, and many other laws do not contain judicial review provisions of their own. The basis for legal challenges to Federal-aid highway projects is the Administrative Procedure Act (APA) of 1948. As Deputy Chief Counsel Edward V.A. Kussy of the FHWA explained:

Much of the APA's power lies in the fact that it establishes the standards for the manner in which the federal government makes decisions and for the judicial review of those decisions. The APA applies to both formal and informal decision making. Formal decision making is found in the quasijudicial decision making of government comments, such as the ICC [Interstate Commerce Commission], that before making many of their decisions must seek input from many sources...All of the federal decisions involving the administration of the Federal-Aid Highway Program are "informal."

For informal decisions, the APA sets a baseline for decisions that requires that they may not be "arbitrary and capricious," an "abuse of discretion," or "contrary to law." Courts have consistently held that this means that to make decisions properly, a federal decision maker must be able to demonstrate in the written record supporting his or her decision that (a) he or she understood the legal standard that applied to the decision, (b) he or she applied that standard to the decision, and (c) the decision was reasonable in light of the record before the decision maker. APA makes clear that courts are to apply a deferential standard when reviewing agency decisions. That is, if there is any reasonable basis on which to uphold a particular decision, a court must do so. If the decision is procedurally flawed, then it will often be overturned.

Kussy said of NEPA litigation:

The entire body of more than 6,000 NEPA cases [government-wide] is based on the proposition that a procedurally imperfect environmental review record cannot support a decision sustainable under the APA. Thus, if NEPA procedures are not followed correctly in supporting a particular federal action, the approval of that action is "arbitrary and capricious" and "contrary to law" and can, therefore, be set aside. The agency decision maker remains free under the APA to go back and remake the decision once the procedural error is corrected. [Kussy, Edward V.A., "Surface Transportation and Administrative Law: Growing Up Together in the 20th Century," TRB Distinguished Lecture, Transportation Law Issues, Transportation Research Record 1527, Transportation Research Board, 1996, p. 8.]

If Congress did not initially understand the importance of NEPA's action-forcing mechanism, the environmental community quickly made clear that it understood. Within a year, litigation had blocked construction of the Calvert Cliffs Nuclear Power Plant along the Chesapeake Bay in Calvert County, Maryland. In a 1971 decision, Judge J. Skelly Wright of the United States Court of Appeals, District of Columbia Circuit, criticized the Atomic Energy Commission for its "crabbed interpretation" of the environmental review process as a set of hoops to jump through:

We conclude, then, that Section 102 of NEPA mandates a particular sort of careful and informed decisionmaking process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factors-conducted fully and in good faith-it is the responsibility of the courts to reverse.

Judge Wright added that, "Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy." [Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1112, 1 ELR 20346, 20349 (D.C. Cir. 1971)]

Hereafter, agencies would have to balance judgments on a case-by-case basis, for example by modifying projects, delaying them, or canceling them to protect the environment. (Following additional environmental review, the nuclear plant began operation in 1975.)

Highway opponents now had the APA and Federal environmental laws-NEPA, Section 4(f), and many others-they could use as the basis for lawsuits. The courts soon became arbiters of whether highway agencies had developed a project in accordance with Federal requirements and the process established to follow them. The individual citizens-the mom-and-pop business owners, the homeowners, the apartment dwellers-who had led the protests in the 1960's were soon replaced by national environmental organizations, law clinics, and law firms specializing in environmental law that launched a wave of litigation to block a wide range of Federal and federally funded projects, including highways. Individuals became the damaged parties cited as plaintiffs so the environmental organization had standing to file the suit.

What may have been the first court ruling on a highway project under NEPA occurred on April 8, 1971. It involved a plan for I-90 to bypass North Bend, Washington, a town that was platted in 1889 as a center for loggers and sawmill workers from nearby camps and mills in the bend where the South Fork of the Snoqualmie River swings north. The suit sought an injunction enjoining highway officials from proceeding with the project. The claim was that the Washington State Department of Highways (DOH) and FHWA had not complied with the interim guidelines the DOT had issued on October 7, 1970, for implementing NEPA. The project had been under development since the 1950's, with the first public corridor hearing in April 1957, a second hearing in December 1969, and a third in September 1970. In addition to meeting with and consulting local officials and other interested agencies, groups, and individual, the DOH had issued an environmental report on the Upper Snoqualmie Valley and an advanced planning study from West Snoqualmie to Tanner.

Following release of the interim DOT guidelines, the State had prepared a draft environmental statement, on the basis of which FHWA approved the location on November 30, 1970, shortly after FHWA issue the draft of its interim guidelines on November 24. The plaintiffs objected that because a draft environmental statement had not been prepared before the third corridor hearing, public comments on it were not part of the decisionmaking process as contemplated by NEPA. Further, the plaintiffs objected to approval of the location before a final environmental statement.

In George and Mary Daly et al., v. John A. Volpe et al., District Judge J. Beeks acknowledged that the project had not proceeded in strict compliance with the guidelines:

I am of the opinion, however, that there has been substantial compliance with the policies underlying NEPA and its implementing regulations. As applied to highway projects, the purpose of preparing an environmental statement and circulating it among interested agencies is to insure careful analysis of the effects the highway may have upon the environment. The extensive correspondence, consultations, meetings and hearings held with respect to this project, together with the two studies prepared analyzing the several proposed routes, convinces me that the objectives of NEPA have been achieved, and that any failure of exact compliance with the Interim Guidelines was non-prejudicial. Accordingly, I find that plaintiffs have not established a probability of eventual success on the merits, a prerequisite for issuance of a preliminary injunction.

In addition, I am of the opinion that injury to the community of North Bend and to the citizens of the State of Washington by further delaying construction of the highway, will far outweigh any injury plaintiffs might sustain by allowing defendants to continue with this long delayed project.

As for the city of North Bend, it rebounded from being bypassed. Thanks to I-90, it has become an upscale bedroom community for Seattle. From a population of about 1,000 in 1970, it has grown to nearly 5,000 residents today. The city's Web site emphasizes its link to I-90 and the recreational opportunities that drivers will find if they travel the Interstate:

North Bend is located just 30 miles east of Seattle on Interstate-90. The City sits at the heart of an impressive array of year-round recreational opportunities including hiking, bicycling, kayaking, fishing, climbing and skiing. Surrounded by stunning vistas of Mount Si, Rattlesnake Ridge and the Cascade Mountains, North Bend charms with its Historic Downtown and offers an eclectic mix of dining and shopping, including the Factory Outlet Mall and its breathtaking views.

(The city also was one of the locations (along with nearby Snoqualmie) used for the filming of the ABC television drama Twin Peaks, director David Lynch's cult classic about attempts to unravel the mystery behind the death of a popular teenager, Laura Palmer. The show was one of the top shows its first season (beginning April 8, 1990), but after the mystery was resolved in the middle of the second season, the show became more obscure and convoluted, leading to declining viewership and greater cult potential. The show was canceled at the end of its second season, with the last episode airing on June 10, 1991.)

Although this early ruling favored the road builders, the highway community soon learned that litigation could delay, if not block, highway projects. In a case involving the Texas proposal to build U.S. 281 through Brackenridge-Olmos Parklands in San Antonio, the United States Court of Appeals, Fifth Circuit, ruled on September 21, 1971, regarding several State claims, including a claim that NEPA did not apply to Federal-aid highway projects. The court's ruling in Named Individual Members of the San Antonio Conservation Society, et al., v. The Texas Highway Department et al., and the United States Department of Transportation, et al, summarized one aspect of the State's rationale:

The State argues [an environmental statement was not] required because (a) federal authorization of a federal-aid highway is not a ‘recommendation' within the meaning of section 102(2); (b) there is no one for the Secretary to make his report or recommendation to; and (c) ‘approval of a section of a roadway in Texas' is not a major federal action within the meaning of the statute.

The court dismissed each of these arguments based on the legislative history of NEPA and the statutory language. "That federal-aid highways were among the federal actions affecting the human environment, and therefore covered by the Act" could be seen from the hearings and debates. In particular, he cited the reference to "superhighways" in the footnote that Senator Jackson had included in his report on the legislative history of NEPA. Moreover, the court added, DOT had testified at hearings on the bill. Regarding recommendations, DOT was required to make environmental statements available to CEQ. The fact that the project was estimated to cost $18 million left the court with "no difficulty in characterizing a project of this size as ‘major.'"

The court declined to "de-federalize" the project so the State could proceed with its own funding, free of NEPA, Section 4(f), and other Federal requirements. "If we were to accept [this argument]," the ruling stated, "we would be giving approval to the circumvention of an Act of Congress."

(Despite this ruling, Senator Lloyd Bentsen (D-Tx.) succeeded in adding Section 154 ("Termination of Federal-Aid Relationship") to the Federal-Aid Highway Act of 1973. Section 154 stated that "the contractual relationship" with the Federal Government for the San Antonio North Expressway between I-35 and Interstate Loop 410 "shall be ended," with Texas returning Federal-aid funds to the United States Treasury. To be absolutely clear, Section 154 continued: "the expressway shall cease to be a Federal-aid project." This provision allowed Texas to complete U.S. 281 without Federal-aid funding and the Section 4(f) and NEPA strings that came with it. The Walter McAllister Freeway, named after a former Mayor, opened on February 7, 1978. )

As this ruling would suggest, highway officials learned that the best defense was to follow the procedures put in place in the wake of NEPA and the other Federal and State environmental laws that had been enacted since Silent Spring. The highway agencies that had once considered themselves premiere engineering organizations soon found their transportation departments staffed with ecologists, biologists, planners, and a wide range of other specialists who could help work through the thickets of environmental law. Gradually, the specialists would play a growing role in agencies that would no longer see themselves as engineering organizations. (In 1974, FHWA changed the title of its top State officials from Division Engineers to Division Administrators, reflecting their changed role.)

Kussy estimated that of the 6,000 NEPA cases filed government-wide as of 1996, 10 percent involved the Federal-aid highway program. One of those cases resulted in an amendment to NEPA. Conservation Society of Southern Vermont v. Secretary of Transportation (531 F.2d 637 (2nd Cir.1976) involved a 20-mile segment of U.S. 7 between Bennington and Manchester, Vermont, and a related case involving construction of the Sleepers River Interchange on I-91 in St. Johnsbury, Vermont. On December 11, 1974, the U.S. Court of Appeals for the Second Circuit ruled that only Federal officials could prepare an environmental impact statement. States could not do so under NEPA because the law specified that Federal Agencies must do so. According to Kussy, "This ruling led to a shutdown of all federal-aid highway projects in the Second Circuit" (Connecticut, New York, and Vermont). [Kussy, p. 12]

In developing the action-forcing mechanism in NEPA, Professor Caldwell and Senator Jackson had contemplated Federal projects, such as river projects and locks constructed by the U.S. Army Corps of Engineers, not the Federal-aid concept of Federal assistance to help States develop projects. The correction, included in Public Law 94-52, approved July 3, 1975, modified Section 102(2)(D), which originally read:

[all agencies of the Federal Government shall--] study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.

As amended, the provision now provided that:

Any detailed statement required under subparagraph (c) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or officials, if...

It continued established conditions for State preparation of the statement if, for example, the "State agency or official has statewide jurisdiction and has the responsibility for such action," "the responsible Federal official furnishes guidance and participates in such preparation," and "the responsible Federal official independently evaluates such statement prior to its approval and adoption." After reaffirming the Federal officials' responsibility "for the scope, objectivity, and content of the entire statement," the amendment concluded that "this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction."

A Competing Requirement

Despite enactment of NEPA on January 1, 1970, with its action-forcing mechanism, the Senate Committee on Public Works decided to address review of highway projects. Even before the DOT had issued guidance on implementing NEPA, the committee's version of the 2-year Federal-Aid Highway Act of 1970 contained a provision on "Economic, Social, Environmental, and Other Impacts." Discussing the provision contained in Section 9 of the bill, Senate Report No. 1254, September 30, 1970, stated:

Although progress has been made by the Department of Transportation in identifying areas of environmental and social concern and in establishing planning and design guidelines to meet these needs, it is clear that there remain many hidden costs to communities and individuals in the construction of a highway. In order to be more responsive to the public welfare, it is essential to define the objectives of highway planning and construction and insure that action is taken to accomplish these objectives...

The bill directs the Secretary to issue guidelines for reducing such community burdens and requires that future plans, specifications, and estimates for any proposed project include measures to overcome, avoid or minimize these adverse effects.

(Plans, specifications, and estimates, known as PS&E, are the detailed construction plans that are used to advertise projects for bids.)

The committee appeared to see its provision as an alternative to NEPA:

Provisions of the Environmental Policy Act concerning highways will remain in effect until the provisions of the Federal-Aid Highway Act of 1970 become effective.

During discussion of the bill on the Senate floor on October 2, 1970, Senator Nelson asked Chairman Randolph about this sentence. "Will the Senator tell me what that means?" The Chairman replied:

While guidelines governing the ways and means to avoid, overcome, or minimize adverse impact are being developed, we intend that the Environmental Policy Act apply fully, the sentence was included to stay any premature application of section 105 of the Environmental Policy Act.

Section 105 of NEPA stated that: "The policies and goals set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies." This sentence was intended to recognize that NEPA is in addition to, but does not modify existing law. Federal Agencies were to conduct their activities in accordance with NEPA unless doing so would violate their existing statutory authorizations. FHWA's Kessler, in his Wisconsin speech, indicated the guidelines required by the 1970 Act would he helpful. Congress, he said, had recognized the deficiency in NEPA by requiring FHWA to promulgate environmental guidelines. "When finally adopted, these guidelines should assist in achieving a comprehensive evaluation of environmental factors."

The Senate included the provision in the approved bill. The House Committee on Public Works did not include a comparable provision in the bill approved by the House. The Conference Committee retained the Senate provision with some modifications as Section 136 of the Federal-Aid Highway Act of 1970, approved by President Nixon on December 31, 1970, without comment. Secretary Volpe called it "the most important federal highway legislation since that of 1956." He added:

It gives the Department of Transportation and the Federal Highway Administration many of the tools we need to tackle the growing social challenges of our nation, especially in our urban centers.

In a speech to the Mississippi Valley Conference of State Highway Officials in Chicago on March 12, 1971, Administrator Turner called the 1970 Act "benchmark legislation" because "it affirms in many practical ways the concerns and the priorities of our time." Turner told the officials:

We have been administering a program whose foundations were laid in the 1956 legislation. But we have not been constrained by blind adherence to a set of plans and specifications drawn up in 1956. On the contrary, we have approved some very significant change orders along the way. America has been changing these past 15 years and so have we. To use the broadest description, it is the quality of life that has increasingly concerned our fellow citizens. And I believe we in the highway program have been quick to respond to these emerging concerns-not just with agreeable rhetoric but with meaningful action.

As Turner pointed out, the 1970 Act reauthorized the Federal-aid highway program through FY 1973, including an increase in the Federal share of non-Interstate projects to 70 percent instead of 50 percent (the stated rationale was to free State funds for State priorities and maintenance). It also contained many other innovative provisions that "reflected the concerns-shared by highway officials and the public's representatives in the Congress-over the problems of urbanization, the environment, and human values." He cited provisions that:

• Called on FHWA to designate a Federal-aid urban highway system consisting of arterial routes other than those on the primary and secondary systems in urban areas containing populations of 50,000 and more;
• Authorized Federal-aid highway funds for highway-related improvements to serve bus transit;
• Made Federal-aid funds available for the construction of exclusive bus lanes on freeways, bus roadways, traffic signals and other control devices to give buses preferential treatment, bus passenger loading areas and facilities, including shelters, and fringe and transportation corridor parking facilities to serve bus and other public-mass transportation passengers;
• Established a funding program for economic growth center development highways to demonstrate, in the words of the law, "the role that highways can play to promote the desirable development of the Nation's natural resources, to revitalize and diversify the economy of rural areas and smaller communities, to enhance and disperse industrial growth, to encourage more balanced population patterns, to check, and, where possible, to reverse current migratory trends from rural areas and smaller communities, and to improve living conditions and the quality of the environment . . . .";
• Required development of standards for highway noise levels and guidelines to assure that projects are consistent with air quality standards, and
• Expanded relocation assistance benefits for those displaced by highway development.

Turner also cited the guidelines in Section 136, saying:

There has long been an awareness in the highway program of the potential impact of highway improvements on economic, social and environmental values. We have studied these impacts for years and shaped our procedures accordingly. We devote a substantial portion of highway resources to environmental improvement, and were doing so long before it became a popular issue. [Turner, Francis, "The 1970 Federal-aid Highway Act, Kansas Highway Highlights, March-April, 1971, p. 11]

Section 136 amended Section 109 ("Standards") by requiring the Secretary, after consulting with appropriate Federal and State officials, to promulgate guidelines "to 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 minimize such adverse effects . . . ." As examples of impacts, Section 136 cited air, noise, and water pollution; destruction of aesthetic values, community cohesion, and availability of public facilities and services; adverse effects on employment, taxes, and property values; disruption of "desirable" community and regional growth; and "injurious displacement of people, businesses and farms."

An August 1975 FHWA report on the provision summarized how FHWA implemented the provision:

The Federal Highway Administration initially attempted to respond to this mandate by developing detailed technical procedures covering broad areas of study which were applicable to Federal-aid projects. However, it soon became apparent that this so called "project approach" was not feasible. Possible social, economic, and environmental impacts were practically limitless, procedures for evaluating the impacts were often difficult to clearly define, and directives necessary to implement the "project approach" would have required an unprecedented Federal involvement. After consultations with State and Federal officials and environmental groups, this approach was abandoned and the "process approach", which was recommended by a Transportation Research Board Environmental Workshop, was adopted.

The "process approach" aims at developing broad guidelines which have universal applicability, and achieve the objectives of Section 109(h) [the amendment by the 1970 Act] by influencing the procedures and methods by which projects are developed.

FHWA issued the process guidelines as PPM 90-4 on September 21, 1972. [37 FR 21430] It directed State highway agencies to develop environmental Action Plans that designated areas of responsibility and procedures for achieving the following objectives at each stage of project development:

1. Identification of social, economic, and environmental (SEE) effects;
2. Consideration of alternative courses of action;
3. Involvement of other agencies and the public; and
4. Utilization of a systematic, interdisciplinary approach.

Details were left to the States, which could exercise considerable freedom based on their unique needs and conditions. All the Action Plans had been approved by the time of the report (50 States, the District of Columbia, Puerto Rico, and the FHWA Office of Federal Highway Projects). [Action Plans: A Summary Report, Environmental Action Plan Report, FHWA, August 1975, p. 1-2] An FHWA report to Congress in 1974 commented on the plans approved as of that date, "It is impossible to read the Action Plans so far approved without being struck by their thoroughness and sincerity." [America's Highways 1776-1976, p. 375]

On June 20, 1973, FHWA published a notice in the Federal Register advising that it was codifying PPM 90-4 by adding Part 795 to Title 23, Code of Federal Regulations. [38 FR 16056] FHWA published a Notice of Proposed Rulemaking on November 1, 1973, to consolidate its environmental regulations and reduce duplication. [38 FR 30192] For Part 795, the primary change involved public hearings. It gave highway agencies "sufficient flexibility so that they can use hearings more effectively as elements of a broader and more comprehensive program for involving the public in the planning and design of highway projects." Each State would develop a public involvement program subject to FHWA evaluation. The Final Rule was published on December 2, 1974 [39 FR 41804]

President Ronald Reagan took office on January 20, 1981, having defeated President Jimmy Carter in his bid for reelection in November 1980. One of President Reagan's campaign promises was to achieve regulatory reform and reduction of red tape. Consistent with this promise, FHWA published notice in the Federal Register on April 13, 1981, advising that it was reviewing program requirements "which are considered to be costly and/or controversial." The notice, which invited public comment, stated:

The items to be reviewed by the FHWA include regulations and related requirements in the following program areas: Civil Rights, Design Standards for Highways, Buy America, Air Quality, Environmental Impact Procedures, Environmental Action Plans, Hours of Service of Commercial Vehicle Drivers, and Commercial Vehicle Inspection, Repair and Maintenance. [46 FR 21620]

One outcome of this notice was elimination of 23 CFR 795, as explained in a notice published in the Federal Register on May 20, 1982:

The Process Guidelines/Action Plan approach, implemented during a period when State highway departments were gaining familiarity with the environmental analysis process, has accomplished its objective. The National Environmental Policy Act (NEPA) process, as recently revised by FHWA to incorporate the Council on Environmental Quality (CEQ) regulations (45 FR 71968, October 30, 1980), perpetuates the fundamentals of the Process Guidelines. Only in the area of public hearings and public involvement do the Process Guidelines/Action Plan provide significant additional elements to the highway decisionmaking process not presently included in the NEPA process. Therefore, the FHWA is rescinding its present regulation on Process Guidelines/Action Plans...At the same time, the regulation on environmental impact and related procedures (23 CFR 771) is being amended to preserve the substance of the provisions now contained in Part 795 regarding the approval of alternative public involvement procedures.

Although FHWA was rescinding the Process Guidelines/Action Plan, it wanted to make one point clear:

Further, rescission of Part 795 does not represent a deemphasis of the identification, evaluation, consideration and mitigation of SEE effects of highway projects. It does not eliminate the Section 109(h) requirements, but rather recognizes NEPA as the core of Federal environmental requirements and acknowledges the experience gained under NEPA, its uniform application by Federal Agencies and its embodiment of the principles and spirit of 23 U.S.C. 109(h). [47 FR 21780]