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Environmental Assessment of Air and High-Speed Rail Corridors (2013)

Chapter: Chapter Four - National Environmental Policy Act Process

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Suggested Citation:"Chapter Four - National Environmental Policy Act Process ." National Academies of Sciences, Engineering, and Medicine. 2013. Environmental Assessment of Air and High-Speed Rail Corridors. Washington, DC: The National Academies Press. doi: 10.17226/22520.
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Suggested Citation:"Chapter Four - National Environmental Policy Act Process ." National Academies of Sciences, Engineering, and Medicine. 2013. Environmental Assessment of Air and High-Speed Rail Corridors. Washington, DC: The National Academies Press. doi: 10.17226/22520.
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Suggested Citation:"Chapter Four - National Environmental Policy Act Process ." National Academies of Sciences, Engineering, and Medicine. 2013. Environmental Assessment of Air and High-Speed Rail Corridors. Washington, DC: The National Academies Press. doi: 10.17226/22520.
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Suggested Citation:"Chapter Four - National Environmental Policy Act Process ." National Academies of Sciences, Engineering, and Medicine. 2013. Environmental Assessment of Air and High-Speed Rail Corridors. Washington, DC: The National Academies Press. doi: 10.17226/22520.
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Suggested Citation:"Chapter Four - National Environmental Policy Act Process ." National Academies of Sciences, Engineering, and Medicine. 2013. Environmental Assessment of Air and High-Speed Rail Corridors. Washington, DC: The National Academies Press. doi: 10.17226/22520.
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Suggested Citation:"Chapter Four - National Environmental Policy Act Process ." National Academies of Sciences, Engineering, and Medicine. 2013. Environmental Assessment of Air and High-Speed Rail Corridors. Washington, DC: The National Academies Press. doi: 10.17226/22520.
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Suggested Citation:"Chapter Four - National Environmental Policy Act Process ." National Academies of Sciences, Engineering, and Medicine. 2013. Environmental Assessment of Air and High-Speed Rail Corridors. Washington, DC: The National Academies Press. doi: 10.17226/22520.
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Suggested Citation:"Chapter Four - National Environmental Policy Act Process ." National Academies of Sciences, Engineering, and Medicine. 2013. Environmental Assessment of Air and High-Speed Rail Corridors. Washington, DC: The National Academies Press. doi: 10.17226/22520.
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Suggested Citation:"Chapter Four - National Environmental Policy Act Process ." National Academies of Sciences, Engineering, and Medicine. 2013. Environmental Assessment of Air and High-Speed Rail Corridors. Washington, DC: The National Academies Press. doi: 10.17226/22520.
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13 chapter four NATIONAL ENVIRONMENTAL POLICY ACT PROCESS In the following section, government-driven environmental comparisons from National Environmental Policy Act (NEPA) studies are explored. The role of NEPA in environmental assess- ments is explored and how the spatial incompatibilities of air and HSR systems and the scope of purpose and need state- ments complicate the full consideration of air and HSR travel as alternatives. As a result, few detailed modal assessments are found in Environmental Impact Statement (EIS) documents. Those that are present are consequential assessments that focus on a full range of pollutants consistent with the NEPA process. NATIONAL ENVIRONMENTAL POLICY ACT OVERVIEW The keystone piece of environmental assessment legisla- tion is NEPA, which became law on January 1, 1970. This national policy, which is supplemented by case law, mandates environmental review of all proposed major federal actions significantly affecting the quality of the human environment. This chapter provides context for NEPA procedural analysis by highlighting the key components of the NEPA environ- mental review process, relevant case law, and resulting fed- eral agency NEPA guidance documents. This will facilitate a synthesis of environmental review documents for airport and HSR systems to provide insight into the role of the environ- mental review process in performing environmental assess- ments of the two modes. In general, the NEPA process investigates the extent of the environmental impacts of the proposed federal action and evaluates the environmental impacts of feasible and prudent alternatives to the proposed action. When environmental impacts are deemed to be potentially significant, an EIS is prepared in accordance with the NEPA process to document the extent of those impacts. Only alternatives that are deemed feasible and prudent move forward for full environmental impact review. There are cases for which federal actions do not necessitate an EIS. If impacts of the proposed project are not deemed to be significant, the NEPA process may culmi- nate in a categorical exclusion or finding of no significant impact, and no further environmental review is required. If impacts are unknown, an environmental assessment will be prepared to determine whether the proposed project requires the in-depth review of an EIS. Because of the larger scope and detail of environmental review, we focus on EIS docu- ments rather than categorical exclusion, finding of no signifi- cant impact, or environmental assessment documentation to illustrate how HSR and aviation alternatives are historically considered. All EISs must include a discussion of the purpose and need for the action, a description of the proposed action and alternatives to the proposed action, analysis of the affected environment and environmental consequences, and mitiga- tion measures. The alternatives to the proposed action may include alignment alternatives or modal options but must sat- isfy the objectives presented in the purpose and need state- ment. In addition, an “EIS must be prepared early enough so that it can serve as an important contribution to the decision- making process rather than be used to rationalize or justify decisions already made” (Bass et al. 2001). Four Purposes of an Environmental Impact Statement Bass et al. (2001) explain four main purposes of an EIS. The first is to inform federal agencies of a proposed action’s poten- tial environmental effects and disclose these potential effects to the public. Second, the EIS presents methods to mitigate the environmental problems caused by the proposed actions. This may include identifying mitigation measures and proposing project alternatives that will meet the original purpose and need of the proposed action. Third, the EIS serves as a procedural framework that allows persons who would be affected by the federal action to participate in the environmental review pro- cess leading to a decision. The fourth purpose is to be an infor- mation source on environmental resources used by state, local, and tribal government officials. Three Types of Environmental Impact Statements If the federal action necessitates an EIS, there are three gen- eral categories of EIS documents that can be prepared: project specific, programmatic, and legislative. Legislative is the least common; it pertains to legislation that is “developed by or with the significant cooperation and support of a federal agency, but does not include requests for appropriations” [40 (CFR) 1508.17]. The project-specific EIS is the most common type of review; it covers the environmental impacts of a single pro- posed action limited to the geographic area where the action is taking place. The programmatic EIS (PEIS) is slightly different in scope and focus when compared with the project-specific

14 Purpose and Need The purpose and need statement in the EIS is intended to define the objectives to be achieved by the proposed project (purpose) and the overarching problems that motivated the project (need). The framing of the purpose and need statement is a primary factor in determining the feasibility of alternatives in an EIS. Bass et al. (2001) list key principles for developing a range of reasonable alternatives, one of which states “the range of alternatives must achieve the proposed action’s objec- tives as stated in the statement of purpose and need.” This principle is derived from the NEPA case law Citizens Against Burlington, Inc. v. Busey (Bass et al. 2001). Federal and state case law has further defined the expectations for determining scope in the purpose and need statement, particularly with respect to how narrow the purpose and need may be defined and restricted. For example, in 2010, the U.S. District Court in Florida upheld the purpose and need statement, which the plaintiff considered to be impermissive. This case, Citizens for Smart Growth v. Peters, resulted in the courts arguing in favor of the defendant, citing NEPA “does not require that agencies state the goals of the action in the broadest possible terms” nor does it “require that agencies disregard the needs and goals of the parties applying for the agency action. Rather, the agency should take into account the needs and goals of the parties involved in the application.” In this case, the metropolitan planning organization (MPO) had included a particular four- lane bridge project as part of the agency’s long-range planning, and the court found that “NEPA does not confer the power or responsibility for long range local planning on federal or state agencies. Rather, the relationship of FDOT and FHWA to the Martin County MPO should be one that is premised on the idea that the representatives of the community are best situated to make the decisions regarding transportation planning for their community, with FDOT and FHWA demonstrating the proper respect for the sovereignty of local authorities” (Citi- zens for Smart Growth v. Peters 2010). Environmental Impact Categories and Significance Thresholds The passage of NEPA resulted in the creation of the Coun- cil on Environmental Quality (CEQ) to administer NEPA. The CEQ issued regulations for implementing NEPA, which serves as the procedural provisions of NEPA in the Code of Federal Regulations (CFR 2012). All federal agencies legally must comply with the CEQ NEPA regulations. In addition, all federal agencies must legally comply with federal statutes passed by the legislature and executive orders from the execu- tive office. These orders and statutes, such as the 1990 Clean Air Act Amendments, typically provide greater specificity of the resource impacts to be reviewed in the NEPA process. The orders, statutes, and regulations set the legal precedent for environmental review, but each federal agency may pub- lish its own procedural guidance pursuant to the unique needs of the agency-specific programs and operating procedures EIS. The PEIS is structured to “address a broad federal action such as the adoption of a regulation, policy, plan, or program” and usually there are “no defined facilities or specific sites to be evaluated.” In Kleppe v. Sierra Club, the Supreme Court ruled that a PEIS “is required only when there is a proposed formal agency program” (Bass et al. 2001). PEISs also can be implemented as a tiered process, where broader policies and programs initially are evaluated by an EIS, which may be called Tier 1, and then supplemented with subsequent narrower EISs or environmental assessments, which may be called Tier 2. The Tier 2 documents reference the general discussions from the Tier 1 PEIS and concentrate solely on the issues specific to the action items in Tier 2 [40 (CFR) 1502.4(b), 1508.28]. Environmental Impact Statement Content Preparation of an EIS includes certain key content and involves multiple agencies and the general public. Early in the process, the lead agency and cooperating agencies must be identified to determine agency roles and responsibilities. The EIS is prepared to document the anticipated environ- mental impacts of the proposed action as well as the envi- ronmental impacts of feasible alternatives to the proposed action. Multiple project alternatives are considered in the EIS, along with a “no action” alternative. However, the alternatives must prove to be feasible and prudent alterna- tives to undergo full environmental review. In the event that a considered project alternative is designated infeasible, and thus excluded from further environmental review, the EIS must explain why it is infeasible. In addition, the EIS must describe specific actions that will be taken to mitigate adverse environmental impacts and list the necessary per- mit requirements to implement the proposed project. As air and HSR environmental assessments are considered in the EIS process, it is important to remember that the compari- son of modal alternatives may be different from the first pre- mitigation result. A preferred alternative will be suggested at the end of the analysis based on the results of the environ- mental review. The completed analysis is submitted for public review and commenting in the form of a draft EIS (DEIS). This allows the general public and public agencies the opportu- nity to comment on the alternatives and the content of the environmental analysis. Once the commenting period ends, a final EIS (FEIS) is prepared. The FEIS includes a “Response to Comments” section that addresses all substantive com- ments received. This is to document that all comments were reviewed and considered. The FEIS may be used in court in the event that the project is contested, so it is imperative that the proposed action in the FEIS has a clearly documented consideration of environmental impacts such that it has adequate justification for the preferred alternative. Once the FEIS is complete, a record of decision is prepared, which includes discussion of the preferred alternative, and the proj- ect can move forward for implementation.

15 (CFR 2012). For example, the U.S. Department of Transpor- tation participates in delivering railway and airport infrastruc- ture projects through the FRA and FAA. The FRA agency guidance is published as Notice 51 (FRA 2012a), with further elaboration available for the High-Speed Intercity Passen- ger Rail Program. FAA NEPA policy is published as Order 1050.1E with further elaboration in FAA Order 5050.4b (Federal Register 2006). These FRA and FAA guidance doc- uments list the resource impact categories to be considered during a NEPA process environmental analysis. Although the language between agencies is different, the impacts addressed are the same for both agencies because they are subject to the same federal legislation. The difference in agency language further challenges the direct comparison of environmental impacts between modes. In an effort to visualize the differ- ences, Table 1 is formatted such that agency impact catego- ries are grouped under the effects defined in the original CEQ regulations. Agency impacts are listed only once and matched with the most appropriate CEQ effect. A major component of an EIS is the determination of sig- nificant impacts by the proposed action and the alternatives to the proposed action. Significance of an impact is consid- ered in terms of context and intensity, where context is evalu- ated with respect to “society as a whole (human, national), the affected region, the affected interests, and the locality” and intensity “refers to the severity of impact” (CFR 2012). An infrastructure project may have impacts in a specific resource category, but the “significance threshold” identi- fies the point at which the impact becomes significant. The “significance threshold” may be a quantifiable metric for measuring pollutants, a score to label severity, or more loose interpretations of terminology such as “adverse” or “exten- sive” (Federal Register 2006). FAA Order 1050.1E lists cor- responding statutes, regulations, and oversight agencies for each impact category to assist in determining the significance of environmental impacts. However, the significance thresh- old is listed as “none established” for coastal resources, solid waste, and wild and scenic rivers (Federal Register 2006). FRA agency guidance at a similarly detailed level could not be located. One challenge to comparing significant impacts across modes is related to the interpretations of significance and methodologies used to measure significance, which can vary between modes. Another challenge is related to the idea that impacts are not ranked in importance. Even if impacts can be compared within the same category with a similar metric and methodology, there is no clear indication of which categories warrant more concern. Federal legislation is not the only source for environmen- tal impact analysis requirements and significance thresholds. States may have their own legislation for state activities. For example, the California Environmental Quality Act (CEQA) is statewide legislation with guidelines for implementation published in the California Code of Regulations regarding development of environmental impact reports (EIRs). Appen- dix G of CEQA Guidance includes an environmental check- list form that lists environmental factors to be evaluated in an EIR. This requires the lead agency to check which factors “would be potentially affected” by the project and serves as the basis for further analysis (CCR 2012). The environmental factors are also listed in Table 1. It is important to note that CEQA and NEPA both apply to federal actions taken in the state of California; therefore, the EIS may be combined with the EIR to provide one document that satisfies the relevant fed- eral and state statutes. California public infrastructure projects must also consider Assembly Bill 32: Global Warming Solu- tions Act and its “scoping plan” goals, including Senate Bill 375, the Sustainable Communities and Climate Protection Act of 2008 (California Air Resources Board 2008). Cali- fornia’s Assembly Bill 32 seeks to reduce statewide GHG emissions to 80% of 1990 levels by 2020 through a port- folio of improvements, including regional reductions, HSR deployment, and energy efficiency measures (California Air Resources Board 2008). If an impact is deemed significant, there are multiple ways the issue can be addressed. NEPA does not prevent an agency from implementing a project with significant impacts. In rare occasions, the project may be halted. More commonly, the project will experience design modifications or incorporate mitigation measures in an attempt to offset the impact caused by the proposed action or project. Mitigation Significant environmental impacts in an EIS are further eval- uated in the context of mitigation. Mitigation measures are actions that can be taken to minimize adverse environmental impacts, often perceived as a resolution to the environmental impacts caused by the project. The CEQ (CFR 2012) defines mitigation actions as those that achieve (a) Avoiding the impact altogether by not taking a certain action or parts of an action; (b) Minimizing impacts by limiting the degree or magni- tude of the action and its implementation; (c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment; (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; or (e) Compensating for the impact by replacing or provid- ing substitute resources or environments. Although mitigation measures must be discussed for all impacts, “even those that by themselves would not be consid- ered significant,” federal agencies are not required to imple- ment mitigation measures identified in the EIS. Generally, agencies are legally held to implement only those recorded in the record of decision. This may vary at the state and local level as a result of other agency requirements beyond federal NEPA statutes. In Robertson v. Methow Valley Citizens, the

16 Federal Regulations Under NEPA CEQ (from 40 CFR, Sec. 1508.8) Ecological Health Economic and Social Aesthetic, Historic, and Cultural [Direct, Indirect, and Cumulative] Federal Agency Guidance Under NEPA FAA (from FAA Order 1050.1(e) Appendix A) Air quality Coastal resources Fish, wildlife, and plants Floodplains Natural resources and energy supply Wetlands Wild and scenic rivers Hazardous materials, pollution prevention, and solid waste Water quality Compatible land use Farmlands Light emissions and visual impacts Noise Socioeconomic impacts, environmental justice, and children’s environmental health and safety risks Department of Transportation Section 4(f) Historical, architectural, archeological, and cultural resources Construction impacts Secondary impacts FRA (from FRA Notice 51) Air quality Coastal zone management Ecological systems Flood hazards and floodplain management Impacts on endangered species or wildlife Impacts on wetlands areas Use of energy resources Use of other natural resources, such as water, minerals, or timber Public health Public safety Solid waste disposal Water quality Environmental justice Impacts on the socioeconomic environment Impacts on transportation: of both passengers and freight; by all modes, including the bicycle and pedestrian modes; in local, regional, national, and international perspectives; and including impacts on traffic congestion Land use, existing and planned Noise and vibration Possible barriers to the elderly and handicapped Aesthetic and design quality impacts Locations of historic, archeological, architectural, or cultural significance Recreational opportunities Use of 4(f)-protected properties Construction period impacts State of California Regulations Under CEQA CEQA (from CEQA Guidelines Appendix G) Agriculture and forestry resources, Air quality Biological resources Geology/Soils Mineral resources GHG emissions Hazards and hazardous materials Hydrology/ water quality Land use/Planning Noise Population/ Housing Public services Transportation/ Traffic Utilities/Service systems Aesthetics Cultural resources Recreation Mandatory findings of significance TABLE 1 ENvIRONMENTAL IMPACT CATEGORIES LISTED IN AGENCy GUIDANCE DOCUMENTS

17 ity. Although prior case law had acknowledged the federal agency’s “discretion to set priorities and allocate resources,” the Supreme Court ruled that the EPA’s denials of rule- making petitions are reviewable documents, therefore the agency must be able to firmly justify its decision-making priorities if there is further decision deferment, and denials may be made “only on technocratic and scientific grounds, not political ones” (Freeman and vermeule 2007). The rulings left the EPA with the responsibility to make an endangerment finding and conclude, once and for all, whether GHGs endanger public health and welfare. Ulti- mately, in December 2009, the EPA made a positive endan- germent finding for GHG emission from new motor vehicles (Meltz 2012). Regulatory implementation of the court case findings is ongoing. After the initial court case ruling, but before the positive endangerment finding, Freeman and ver- meule (2007) noted the existing lawsuits from previous years that alleged “federal agency violations of NEPA’s environ- mental impact disclosure requirements because of a failure to consider greenhouse gas impacts for proposed federal projects.” This issue was of significance at the time of the ruling because MA v. EPA did not specifically address NEPA. Complications were expected to follow given the lack of “established protocols for how to assess the environmen- tal impacts of greenhouse gases, which may be emitted (or reduced) depending on the nature of the proposed develop- ment project” (Freeman and vermeule 2007). In a Congres- sional brief prepared by the Congressional Research Service, federal agency actions since the ruling are documented to the summer of 2012. Most of these actions pertain to regulations for tailpipe emissions and stationary sources of pollutants. Notably, the CEQ issued draft guidance in February 2010 to address “ways in which Federal agencies can improve their consideration of [GHG] emissions and climate change in their evaluation of proposals for Federal actions under [NEPA]” (CEQ 2010). In addition, the FAA issued FAA Order 1050.1E, Change 1, Guidance Memo #3. This document includes conversion fac- tors to obtain the difference in CO2 for a project and guid- ance on which sources to include when evaluating different types of airport development or operation actions. For airport actions, the FAA continues to evaluate GHGs in a way that is consistent with “the current approach and EPA guidance with regard to local air quality evaluations.” This refers to the local mixing height, which does not account for the duration of the flight (FAA 2012b). For airport actions, the GHG evaluation should include the same emissions sources that would typically be included in the air quality analysis. The maximum altitude for any analyses for an airport NEPA action would be the landing take-off cycle emis- sions up to the local mixing height, which is consistent with the current approach and EPA guidance with regard to local air quality evaluations. For non-aircraft emissions, GHG emissions should be determined from projections of fuel burn and con- verted to CO2e. Supreme Court held that, with respect to mitigation measures presented in the EIS, NEPA “does not require their adoption” (Bass et al. 2001). Mitigation measures can be placed in the record of decision such that they are legally required. According to Bass et al. (2001), in practice there are those who argue that items included as mitigation measures in EISs do not actually meet the definitions provided by NEPA and CEQA. Such “paper mitigation” measures are not adequate (Bass et al. 2001). In addition, some studies have found that compensatory techniques are inadequate as environmental solutions as a result of factors such as poor implementation. Robb (2002), who specifically investigated compensatory wetland sites in Indiana, cites studies from 1985 to 2000 that found that U.S. federal agencies “often permitted a net loss of wetland area . . . , that the compensation was often not constructed . . . , and that, when constructed, the mitigation failed to compensate for what was lost.” A more recent study of Chicago area wetlands by Bendor (2007) found that small developments were more likely to use off-site mitigation wetlands banking than were large developments, but “lack the scale economies necessary for feasible permittee respon- sible mitigation.” These studies indicate that including miti- gation practices in a comparative environmental assessment will be a challenge because mitigation measures may not directly equal the impacts they are mitigating. Massachusetts v. Environmental Protection Agency, 2007 The 2007 Supreme Court case, Massachusetts v. Environmen- tal Protection Agency (MA v. EPA), resulted in the classifica- tion of GHGs as criteria pollutants to be regulated by the EPA (MA v. EPA 2007). The case was filed by a “coalition of states and private plaintiffs” who argued that the EPA could not con- tinue to defer judgment on whether the agency would regulate GHG emissions from tailpipes in the new automobile fleet of the United States. The EPA had previously “decided not to decide,” refusing to take a stance on regulation of GHGs (Freeman and vermeule 2007). The Supreme Court decision addressed three key legal points: standing, statutory authority, and an agency’s dis- cretionary rule-making authority. The court determined that the plaintiffs had legal standing to move forward with the case. One basis for the standing determination was the find- ing that the state of Massachusetts, one of the plaintiffs in the case, had coastal property threatened by sea level changes believed to be caused by GHGs. The court also determined that the EPA had statutory authority to make the ruling; pre- viously the EPA had argued that the definition of “pollutants” was ambiguous and their current statutory scheme focused on localized pollutant impacts, rather than global incremen- tal pollutant impacts. The Supreme Court ruled that GHGs would fit within the “pollutant” definition. Finally, the court established constraints on the agency’s rule-making author-

18 High-Speed Rail Alternative Consideration Within Aviation Environmental Impact Statement Aviation project EISs are reviewed to evaluate how HSR is considered as an alternative to proposed aviation infrastruc- ture. EIS documents for capacity-enhancing airport infra- structure are more likely to consider HSR because capacity enhancements are driven by the need to accommodate addi- tional passengers, which could be carried by another mode. The focus is on FEISs that support records of decision pub- licly listed on the FAA website dating to 1996 (FAA 2012a). From these, airport runway development FEISs at airports located along a federally designated HSR corridor are chosen (see Table 2). In determining potential alternative modes for the avia- tion capacity enhancements, there is no strict definition for feasibility, leaving financial and time constraints as accept- able reasons to reject possible modal alternatives from the alternatives assessment. This often precludes full compara- tive environmental assessments of air and HSR in an airport EIS. Legislative allocation of transportation funding histori- cally is mode specific because the collection of taxes into the aviation and highway trust funds are mode-specific “user fees.” HSR lacks a trust fund and fluidity of funds; as a result, an airport EIS can reject HSR project alternatives as infea- sible based on lack of funding support. As demonstrated by the American Recovery and Reinvestment Act HSR funding allocations, political will can elevate discussion of a previ- ously underfunded mode. Aviation FEIS documents do not consider enhancements for a specific airport corridor, which is best explained by the node-based planning approach to airport infrastructure improvements and legal constraints. In aviation, airports that accept public funds from the FAA agree to conditions of grant assurances such that all aircraft that can safely land at that airport must be accommodated with no discrimina- tion (USC 2012). Airports have little to no influence on the airlines that operate at their airport, how often the airlines operate, and what type of aircraft they use for each operation. Consequently, aviation improvements focus on capacity and delay, not on serving specific destinations or individual cor- ridors. The airport EIS purpose and need statements listed in Table 2 focus on specific capacity enhancements that are intended to reduce delay in the NAS, address the gap between good and bad weather capacity, or increase safety. The first example is the Chicago O’Hare International Airport Modernization 2005 FEIS (FAA 2005b). This airport is located in the Chicago Hub Network HSR corridor. The FEIS makes note of Congress’ goals for HSR corridor development and acknowledges, “ . . . new HSR service could theoretically reduce aviation demand at O’Hare” but pro- vides multiple reasons to exclude HSR from alternatives assessment (see pages 3 to 18 of the Chicago O’Hare Interna- tional Airport Modernization 2005 FEIS). At the time of the When evaluating criteria pollutants, emissions that occur above 3,000 feet, the local mixing height, are considered to be beyond the purview of the airport (Schrooten et al. 2006; yang et al. 2007). The inclusion of GHG emissions may necessitate a new paradigm as their impact occurs regardless of the location of their emission. One such paradigm is pre- sented in the Guidebook on Preparing Airport Greenhouse Gas Emissions Inventories, a state-of-the-art in airport GHG inventorying (Kim et al. 2009). The Guidebook suggests that GHGs from an entire flight should be estimated and attrib- uted to a set of emissions owners, including the airport, the airlines, and the traveling public. The allocation of GHGs as such is reminiscent of the analytical system boundary drawn around air and HSR corridors for comparison. When passen- ger trips are considered, door-to-door and line-haul trips are considered; when aircraft operations are considered, airport- based operations and the en-route portion are considered. Although such a classification does not, in essence, preclude an environmental comparison, it does introduce complica- tions. Environmental comparisons are initiated by an organi- zation with an inherent scope; as a result, comparisons likely are driven by the needs of an organization with jurisdiction over particular pollutants, which likely influences the orga- nization’s actions. CHALLENGES TO ENVIRONMENTAL IMPACT STATEMENT MODAL ALTERNATIVES ASSESSMENTS There are few alternatives assessments that compare air and HSR corridors in government environmental review docu- ments. Multimodal alternative assessments are within the purview of the NEPA process, yet the framing of purpose and need statements for intercity transport seems to reduce opportunities for comparative assessments of air and HSR. Because airport projects require specific airport capacity improvements as related to the NAS, the purpose and need statements are framed to address mobility at the national level. In contrast to the airport EIS documents, the HSR EIS purpose and needs statements focus on specific regional mobility issues, generally with the intent to enhance and expand reliable passenger mobility options. Consequently, the purpose and need statement is framed according to the service region of the proposed segment of HSR corridor. In essence, it becomes a matter of scope of the intended ser- vice area. There is a conflicting focus of regional and national mobility, where air “purpose and need” tends to focus on national airspace needs and rail “purpose and need” tends to focus on regional mobility in a specific corridor. See Table 1 for excerpts from examples of air and HSR purpose and need statements. In the following sections, we identify how the framing of the project objectives and scope of ser- vice can limit a full comparative environmental assessment of other modes. We find that in general, when the need is based on national issues, a regional response is rejected and vice versa.

19 airport EIS performed a detailed environmental assessment of HSR as an alternative mode, citing insufficient capacity issues. For IAD, the preparers explain “the proposed proj- ect objectives relate to capacity enhancement measures to accommodate existing and future aviation activity. There- fore, other modes of transportation were eliminated because they do not provide the same service as aviation and would not affect IAD’s ability to safely and efficiently accommo- date existing and future levels of aviation activity” (FAA 2005c). The PHL FEIS did not consider HSR as an alterna- tive because the preparers “found that the rail alternatives did not reduce demand sufficient to match capacity and did not enhance capacity under all weather conditions. Therefore, this alternative did not progress to the full-scale alternatives analysis” (FAA 2010). The fourth example is the Fort Lauderdale–Hollywood International Airport (FLL) 2008 FEIS (FAA 2008). This airport is located along the Florida HSR Corridor. The FLL FEIS, there was no federal funding for the implementation of Chicago HSR that would “significantly reduce total pas- senger demand at O’Hare.” Although there was a published FEIS in 2004 for HSR corridor improvements from St. Louis to Chicago, it is asserted in the airport EIS that the HSR line represents a “relatively small share of the total passenger demand” (FAA 2005b). In addition, it is stated that the time horizon over which improvements are needed at O’Hare is shorter than the time required for developing, financing, and constructing HSR. Therefore, the EIS did not include HSR as an alternative because “it does not appear reasonable to rely on this alternative to meet the purpose and need criterion of accommodating forecast aviation demand.” The next two examples occur along the Northeast Cor- ridor for HSR, which was federally designated in 2011. They include the 2005 EIS for Washington Dulles International Airport (IAD) (FAA 2005c) and the 2010 FEIS for the Phil- adelphia International Airport (PHL) (FAA 2010). Neither Airport EIS (EIS/year) Purpose and Need Excerpt Chicago O’Hare, ORD (FEIS 2005) “Address the projected needs of the Chicago region by reducing delays at O’Hare, and thereby enhancing capacity of the NAS. Ensure that existing and future terminal facilities and supporting infrastructure (access, landside, and related ancillary facilities) can efficiently accommodate airport users” (FAA 2005b). Washington Dulles, IAD (FEIS 2005) “The purpose of the project, from the Federal perspective, is to support the development of IAD such that it will safely accommodate the projected future aviation activity demand levels, without that aviation activity incurring unacceptable levels of aircraft operational delay, thereby causing resultant delays throughout the National Airspace System” (FAA 2005c). Ft. Lauderdale, FLL (FEIS 2008) “The purpose of the proposed action is to provide sufficient capacity for existing and forecast demand at FLL with an acceptable level of delay” (FAA 2008). Philadelphia, PHL (FEIS 2010) “The purpose of the Capacity Enhancement Program is to enhance airport capacity in order to accommodate current and future aviation demand in the Philadelphia Metropolitan Area during all weather conditions” (FAA 2012b). HSR EIS (EIS/year) Purpose and Need Excerpt Chicago HSR (DEIS 2012) “The purpose of the proposed Chicago to St. Louis HSR Corridor Program is to enhance the passenger transportation network in the Chicago to St. Louis HSR Corridor by improving high speed passenger rail service, resulting in a more balanced use of different corridor travel options by diverting trips made by automobile and air to rail” (FRA 2012b). Florida HSR (FEIS 2005) “The purpose of FHSR is to enhance intercity passenger mobility in Florida by expanding passenger transportation capacity and providing an alternative to highway and air travel” (FRA 2005b). California HSR (FEIS 2005) “The purpose of the proposed High Speed Train system is to provide a reliable mode of travel, which links the major metropolitan areas of the state, and delivers predictable and consistent travel times. A further objective is to provide an interface with commercial airports, mass transit and the highway network and relieve capacity constraints of the existing transportation system as increases in intercity travel demand in California occur, in a manner sensitive to and protective of California’s unique natural resources” (FRA 2005c). TABLE 2 ExCERPTS FROM EIS PURPOSE AND NEED STATEMENTS

20 types of EISs affected the way different modal alternatives were considered for the projects. The California HSR EIS is an example of a tiered process, where the overall alignment for the state of California is evaluated in the first tier and sec- tional corridors are evaluated as multiple second tier EISs. This contrasts with the Florida HSR, which did not evaluate with a tiered approach. Instead, the project was phased into smaller segments, resulting in individual project EISs for each segment but lacking a PEIS for the overall Florida HSR line. Although there is a PEIS available for the Southeast HSR corridor, the PEIS does not address the Florida exten- sion, presumably because Florida was added to the Southeast corridor after development for the PEIS had begun. The Cali- fornia HSR Tier 1 EIS reviews alternative modes as feasible alternatives with complete environmental review. The length of the entire planned corridor has trips that can be completed via aircraft. In contrast, Florida’s project EISs reviewed smaller segments, which have fewer, if any, aviation alter- natives. However, if Florida’s HSR line were reviewed in its entirety, there may have been a case to consider aviation as an alternative, although it may have been found to be an infeasible alternative for other reasons. During the time of the 2005 FEIS development, the Flor- ida High Speed Rail Authority was acting under a constitu- tional amendment and the Florida High Speed Rail Authority Act of 2001 (which has since been overturned) (Anderson 2011). The Act charged the Florida High Speed Rail Author- ity with “planning, administering, and implementing a HSR system in Florida,” specifying the initial HSR segment must serve Tampa and Orlando, with future service to Miami (FRA 2005b). The Florida HSR FEIS analysis that was com- pleted in 2005 focuses on the Orlando–Tampa segment (FRA 2005b). Tampa and Orlando are separated by 84 miles on the Interstate system and lack direct commercial airline ser- vice; as a result, it is reasonable to omit air travel for this specific segment. However, the total Florida HSR corridor is proposed to serve travelers from Orlando to Miami, which is 230 miles of highway travel distance, and Tampa to Miami, which is 280 miles of highway travel distance. In the case of Florida, a fragmented HSR corridor analysis precludes con- sideration of the competitive and complementary nature of other modes, particularly in terms of ridership and environ- mental impacts. There was insufficient funding to continue HSR development in Florida, so it is not clear how additional segments of the corridor would be divided and assessed in the NEPA process. The California HSR project, planned to extend from Sac- ramento to San Diego, continues to gain momentum with the passage of California Senate Bill 1029 in July 2012. This legislation appropriated funding for the first phase of HSR construction. As work is expected to continue, California HSR may be the first federally designated corridor to be con- structed and operate at speeds in excess of 200 mph. This project’s 2005 EIS is unique because it includes expansion of highway and aviation modes as alternatives to the proposed FEIS was developed during the early 2000s, when Florida voters first supported state funding for HSR in the form of a constitutional amendment. By 2004, the amendment was repealed by voters and funding for the Tampa Orlando seg- ment was vetoed by the governor (Anderson 2011). FLL FEIS states that HSR is not a feasible alternative to new run- ways at FLL. It is noted in the purpose and needs section that for a modal alternative to be viable, it must be fiscally constrained; it is possibly for this reason that the FLL FEIS states that “while HSR may be potentially feasible at some undeterminable point in the future and continues to be delib- erated in the State of Florida, public support for this type of public transportation service seems to no longer exist” (FAA 2008). A second opportunity for HSR funding came with the passage of the American Recovery and Reinvestment Act of 2009 but was too late for consideration in the FLL FEIS; a subsequent Florida governor ultimately denied funding for this corridor in 2011 (Anderson 2011). Aviation Alternative Consideration Within High-Speed Rail Environmental Impact Statement This section reviews how aviation is considered in HSR EISs prepared in the United States. First, projects that sup- port ASCE technical definitions of HSR in the United States are considered. The ASCE (2010) describes intercity high speed passenger rail as having characteristics of “top speeds of at least 150 mph on dedicated, access controlled rights-of- way with grade separated crossings.” Florida and California are the only corridors to have completed EISs with planned speeds in excess of 125 mph (Cambridge Systematics 2008). As such, these are chosen for further discussion in the syn- thesis. In addition, the Chicago HSR is reviewed; the Chi- cago HSR does not have speeds in excess of 125 mph but is currently in the NEPA process, and major system improve- ments are funded through American Recovery and Reinvest- ment Act of 2009 legislation. The three studies considered are among the well-developed planning efforts. The 2003 DEIS for the Chicago, Illinois, to St. Louis, Missouri, HSR Corridor Program follows a tiered environ- mental process, as suggested in the FRA’s guidance for NEPA compliance (FRA 2009a). Tier 1 chooses an alternative by considering “broad, corridor-level issues and alternatives,” and Tier 2 addresses the “individual component projects” of the selected Tier 1 alternative (FRA 2009b). Although the Tier 1 DEIS intends to review broad, corridor issues, the DEIS’s mode-specific project objective precludes other modes from alternatives selection, even if they can contribute to improved corridor mobility. Therefore, the discussion of aviation occurs in the no-build alternative, which consists of planned “intercity highway and aviation services and facili- ties in the Chicago to St. Louis corridor” along with commit- ted HSR track improvements from 2004 (FRA 2012b). California and Florida are two states that used different types of EISs for their proposed HSR projects. The different

21 agement in general—are much more daunting challenges than they originally appeared. Environmental problems are complex, interrelated, and often only partially understood. The more we learn, the more we come to appreciate the complexities and rec- ognize the gaps and uncertainties in our present knowledge— and the more the EIS production process comes to resemble a quagmire. For the NEPA process to play a role in producing detailed air and HSR environmental assessments, the modes must be considered true modal alternatives, but understanding if the modes are truly alternatives is a highly complex issue that may be outside the scope of NEPA. Although NEPA processes are inherently consequential, such that they consider the change in impacts as a result of a system change, the quality of a conse- quential analysis depends on a detailed understanding of mode shifts related to competition and complementarity and airline and HSR operator behavior. An HSR system might meet the purpose and need of an air project by alleviating airspace con- gestion; this will be known only if detailed modeling regarding passenger demand and airline response can be performed. The estimation of this entire process is a highly complex endeavor (Airport Cooperative Research Program 2013). Guidance related to the bounds of a NEPA process as it relates to air and HSR environmental assessments has yet to be provided. The NEPA process has immense value, particularly because it is rooted in law. The NEPA process performs assessments that are consequential, such that the impact of an investment or system change is evaluated. This provides key insight into the decision-making process because the impact of a deci- sion or system change is evaluated. The NEPA process pro- vides information on comparative environmental assessments before a project commences and before formal decisions are made, informing the decision-making process. Opportuni- ties exist for environmental assessments outside of the NEPA process, most notably at the master planning or Interstate agency level (for example, the Oregon–Washington Bi-State Commission or the I-95 Corridor Coalition). These studies could provide great insight into environmental comparisons by allowing modes that are not fiscally constrained to be com- pared. However, such studies will not have the legal backing of a NEPA process and thus may have less impact than would a NEPA document. HSR project (FRA 2005c). The no-action alternative repre- sents the state’s highway, air, and conventional rail system as it would be “after implementation of programs or proj- ects that are currently in regional transportation plans and have identified funds for implementation by 2020.” The “modal alternative” includes a combination of potentially feasible capacity enhancements to both highway and avia- tion infrastructure beyond that which is already planned in the no-action alternative. This primarily includes additional through lanes, passenger terminal gates, and runways that would be required to meet the projected intercity travel needs in 2020. As such, this is a consequential assessment because the impact of the implementation of HSR on the related intercity transportation systems of air and rail are incorporated into the assessment. The modal alternative was found to increase energy usage, increase suburban sprawl, and be less safe and reliable than the proposed HSR. For these reasons and others, the modal alternative was rejected in favor of HSR (FRA 2005c). Currently, HSR is present in the United States in the form of the Acela, which serves the Northeast Corridor (NEC). The most recent PEIS for the NEC was in 1978. In 2012, a PEIS began: the NEC FUTURE—Passenger Rail Corridor Investment Plan (PRCIP). This document will consider rail services and corridor improvements going forward for the NEC. Because it is a PEIS, such that the corridors are not broken down into smaller pieces, it is likely to include air as an alternative mode (Amtrak 2012). NATIONAL ENVIRONMENTAL POLICY ACT CONCLUSIONS What does this mean for comparative environmental assess- ments of air and HSR in the context of NEPA? A seminal work in the legal field on the future of NEPA by Karkkainen (2002) discusses that perhaps some environmental chal- lenges are too complex to fit in the framework of NEPA: NEPA’s demand for comprehensive evaluation of environmental impacts, alternatives, and mitigation measures prior to an agency decision might have seemed straightforward and unproblematic at the time of its enactment. But we have subsequently learned that environmental impact assessment—and environmental man-

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TRB’s Airport Cooperative Research Program (ACRP) Synthesis 43: Environmental Assessment of Air and High-Speed Rail Corridors explores where additional research can improve the ability to assess the environmental outcomes of these two systems.

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