Planning and Environment Linkages: Review of Statutory Authority and Case Law (2023)

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NCHRP LRD 89   3 PLANNING AND ENVIRONMENT LINKAGES: REVIEW OF STATUTORY AUTHORITY AND CASE LAW James Auslander, Meghan Morgan, Brooklyn Hildebrandt, and Ashley Campfield, Beveridge & Diamond PC, Washington, DC; Paul Heberling, WSP, Denver, CO; and Manisha Patel, WSP, St. Louis, MO I. INTRODUCTION Acceleration of project delivery timeframes:  The PEL approach im- proves process efficiencies by minimizing potential duplication of plan- A. Overview of Planning and Environment Linkages ning and NEPA processes, creating one cohesive flow of informa­tion. In addition, improvements to inter-agency relationships may help to The Federal Highway Administration’s (FHWA) Planning more quickly resolve differences on key issues as transportation pro- and Environment Linkages (PEL) program seeks to bridge the grams and projects move from planning to design and implementation. gap between the transportation planning process and the envi- On-the-ground outcome benefits: When transportation agencies ronmental review process by using the information and analy- are equipped with information about resource considerations and in ses developed during planning to inform environmental ­studies coordination with resource agencies and the public, they are better conducted in accordance with the National Environmental able to design transportation programs and projects that serve the community’s transportation needs more effectively. The PEL ap- ­Policy Act (NEPA).1 Both transportation planning and the envi- proach provides agencies with tools to design better projects while ronmental review process under NEPA generate decisions and avoiding and minimizing impacts on natural resources. analyses that can inform the purpose and need for a proposed transportation project, identify alternatives to the ­project as Federal, state, and municipal transportation agencies have well as corresponding environmental effects, and support inter­ taken steps to advance the integration of transportation plan- agency collaboration and public involvement. ning and NEPA to create more unified decision-making Despite these similar and often complementary attributes, ­processes, reduce duplication of efforts, and support better in- practitioners and decision makers often treat transportation formed project-level decisions. These efforts to advance PEL planning and NEPA as separate and independent processes car- and similar procedures are reflected in various regulations and ried out sequentially by different agencies, or by different depart- guidance and have produced positive results for those who have ments or offices within the same agency. Further, environmental taken advantage of the opportunities to implement a more col- resource and regulatory agencies are often reluctant to engage in laborative, coordinated approach. project planning until a project is selected for implementation, However, developments in NEPA and PEL are also driven by diminishing the potential benefit of early consultation and col- litigation. With increasing frequency, NEPA has been invoked laboration among stakeholder offices within the same agency. as a vehicle to oppose or delay project approvals, rulemakings, Often, therefore, transportation planning does not take envi- and other proposed federal agency actions by demanding addi- ronmental factors into account and environmental agencies, as tional time-consuming and resource-intensive analyses of pur- well as the public, have little influence on transportation plans pose and need statements, alternative evaluations, and potential and programs. This also results in transportation planning deci­ environmental impacts for transportation decisions. Though sions being revisited or duplicated during the NEPA process. courts typically employ a highly deferential standard of review When utilized efficiently, PEL provides project sponsors of NEPA analyses based on a rule of reasonableness, there are with the opportunity to front-load the environmental review numerous recent examples of courts applying greater scrutiny process by leveraging the statewide or municipal planning pro- to administrative records, scientific conclusions, and agency cess to produce durable decisions that can be used in subsequent ­rationales to enjoin or remand agency approval of projects. ­studies under NEPA. PEL also allows agencies and practitioners These risks and case law precedents create an inherent incen- to consider the environmental, community, and economic goals tive for federal agencies to add layers of time and complexity to of their projects early in the transportation planning process, NEPA reviews to create lengthier, less accessible environmental and use the analysis developed during planning to inform the documents that fail to meaningfully inform agency decision- required environmental reviews under NEPA. FHWA has out- making, the public, or judicial review. These dynamics, in turn, lined several significant benefits of the PEL program,2 including: threaten to stifle the substantial efficiencies and benefits of PEL approaches and NEPA streamlining. Relationship-building benefits: The PEL approach enables non- transportation agencies to engage more effectively in the trans- Accordingly, it is incumbent on project proponents and agen- portation decision-making process through its focus on building cies to recognize and draw on successful approaches to PEL, as interagency relationships. By encouraging resource agencies to get well as adequately plan upfront to ensure wise and defensible involved in the early stages of planning, the PEL approach affords decision-making and robust public engagement while avoiding those agencies an opportunity to help shape transportation projects. unnecessary and duplicative analyses. Overall, engaging in PEL or utilizing its planning products should improve processes and 1   42 U.S.C. § 4321 et seq. outcomes and reduce, rather than increase, litigation risks for 2   Planning and Environment Linkages, Federal Highway Administra- project proponents. tion, https://www.environment.fhwa.dot.gov/env_initiatives/pel.aspx.