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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
×
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
×
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
×
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
×
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
×
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
×
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
×
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
×
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Suggested Citation:"II. PEL LEGAL AUTHORITIES." National Academies of Sciences, Engineering, and Medicine. 2023. Planning and Environment Linkages: Review of Statutory Authority and Case Law. Washington, DC: The National Academies Press. doi: 10.17226/26891.
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Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

4    NCHRP LRD 89 B. Objectives of this Digest e­ffects included significantly altering the pattern of behavior for a species or interfering with important breeding, nesting, or This digest begins by presenting the origins of NEPA envi­ feeding grounds; significantly increasing air or water pollution; ronmental review and its early effects on transportation disturbing the ecological balance of a land or water area; or in- ­planning regulations. It then provides a broad overview of PEL, volving a reasonable possibility of contaminating a public water including its various legal authorities. The digest then addresses supply source, treatment facility, or distribution system.9 the evolution of the PEL program and increasing adoption and FHWA, the federal agency responsible for supporting state incorporation of planning work in the environmental review and local governments in the design, construction, and main- process for projects. Next, the digest highlights key statutory tenance of the nation’s highway system under the U.S. Depart- and regulatory authorities for PEL in transportation decisions, ment of Transportation (DOT), implemented the CEQ guide- as well as corresponding agency guidance and policy. lines by issuing Policy and Procedure Memorandum 90-1 (PPM The digest then proceeds to describe and compare the vari- 90-1), titled Environmental Impact and Related Statements, on ous approaches to PEL at federal and state levels. It also analyzes August 24, 1971. In accordance with PPM 90-1, an environmen- litigation surrounding PEL and the planning process. Though tal statement would be prepared to assess the “anticipated ben- to date litigation directly implicating PEL is very limited, this eficial and detrimental effects which the agency decision may digest also covers relevant NEPA litigation history, including have upon the quality of the human environment.” On A ­ ugust 1, ­judicial review of purpose and need statements. Finally, the 1973, CEQ promulgated revised guidelines for preparing envi- ­digest distills key considerations for PEL going forward. ronmental impact statements.10 The updated CEQ guidelines encouraged operating administrations such as FHWA to II. PEL LEGAL AUTHORITIES ­develop implementing procedures consistent with their operat- A. Early Environmental Review and Transportation ing procedures. CEQ’s 1973 guidelines remained in effect until Planning revised CEQ regulations were adopted effective July 30, 1979.11 The F ­ ederal Register notice stated: When NEPA became law in 1970, it established the Council Although the Council conceived of the [1973] Guidelines as non- on Environmental Quality (CEQ), which issues guidance and discretionary standards for agency decisionmaking, some agencies regulations that implement NEPA’s procedural requirements.3 viewed them as advisory only. Similarly, courts differed over the These procedures were initially promulgated in 1970 as guide- weight which should be accorded the Guidelines in evaluating agency lines and explained how reviews should be conducted, includ- compliance with the statute. ing descriptions of the desired content for environmental impact The result has been an evolution of inconsistent agency practices and statements.4 In these guidelines, CEQ clarified the NEPA phrase interpretations of the law. The lack of a uniform, government-wide “major Federal actions significantly affecting the quality of the approach to implementing NEPA has impeded Federal coordination human environment.”5 and made it more difficult for those outside government to under- stand and participate in the environmental review process. It has also Likewise, the phrase “significantly affecting” meant “any ac- caused unnecessary duplication, delay and paperwork.12 tion that is likely to be highly controversial on environ­mental grounds”6 and any matter falling under Section 4(f) of the The new CEQ regulations emerged from these concerns, as Depart­ment of Transportation Act (“Section 4(f)”).7 Effects that well as from the need to provide guidance on other elements of would likely be considered significant included increasing ambi- NEPA involving agency planning and decision-making. Despite ent noise levels; displacing large numbers of people; disrupting some early trepidation, NEPA began to provide FHWA and state an established community; or affecting aesthetic or v­ isual effects departments of transportation with a consistent, nationwide or areas of unique interest or scenic beauty.8 Other pertinent framework, accepted by transportation project proponents and opponents, for resolving controversies about individual ­projects. 3   40 C.F.R. §§ 1500-1508. Particularly noteworthy, the new CEQ regulations introduced 4   Statements on Proposed Federal Actions Affecting the Environ- the concepts of “adoption” and “incorporation by reference” of ment, 35 Fed. Reg. 7,390 (May 12, 1970). prior analyses in lieu of starting from scratch each time. (See 5   “The statutory clause ... is to be construed by agencies with a view 40 C.F.R. §§ 1506.3, 1501.12.) As discussed further below, these to the overall, cumulative impact of the action proposed (and of further means to incorporate planning products into NEPA documen- actions contemplated). Such actions may be localized in their impact, tation served as a harbinger for the PEL concept. Also as further but if there is potential that the environment may be significantly affected, the statement is to be prepared. Proposed actions the environ- discussed below, Congress directly incorporated NEPA into mental impact of which is likely to be highly controversial should be covered in all cases. In considering what constitutes major action sig- nificantly affecting the environment, agencies should bear in mind that the effect of many Federal decisions about a project or complex of proj- 9   Id. ects can be individually limited but cumulatively considerable.”  35 Fed. 10   Preparation of Environmental Impact Statements: Guidelines, 38 Reg. at 7,391. Fed. Reg. 20,550 (Aug. 1, 1973). 6   Department of Transportation Order 5610.1 (Oct. 7, 1970). 11   National Environmental Policy Act – Regulations, 43 Fed. Reg. 7   49 U.S.C. § 303. 55,978 (Nov. 29, 1978). 8   Department of Transportation Order 5610.1 (Oct. 7, 1970). 12   Id.

NCHRP LRD 89   5 subsequent legislation specifically governing DOT agencies’ through the Brackenridge-Olmos Parklands in San ­Antonio, envi­ronmental reviews, particularly 23 U.S.C. § 139. Texas, the United States Court of Appeals for the Fifth Circuit Another consequence of NEPA was litigation. Before NEPA’s ruled against the defendant state’s claims that, among other passage, courts tended to view the decision to proceed with a things, an environmental impact statement was not required transportation improvement project as a political decision not because “‘approval of a section of a roadway in Texas’ is not a subject to judicial review. As a result, project opponents were major federal action within the meaning of the statute.”16 The typically unsuccessful in stopping transportation improvements court ­dismissed the state’s arguments based on the legisla- from proceeding or proposing alternatives to these projects, as tive history of NEPA and the statutory language. It concluded borne out by the dearth of pre-NEPA judicial decisions examin- that “federal-aid highways were among the federal actions af- ing the adequacy of transportation projects’ environmental re- fecting the human environment, and therefore covered by the views. While NEPA, Section 4(f), and many other laws do not Act.” Moreover, the fact that the project was estimated to cost contain judicial review provisions of their own, the Administra- $18 million left the court with “no difficulty in characterizing a tive Procedure Act (APA) enacted in 1946 provided the basis project of this size as ‘major.’” Ultimately, the court declined to for early legal challenges to federally funded transportation im- “de-federalize” the project so that Texas could proceed with its provement projects. Then coupling the APA and NEPA, project own funding, free from NEPA, Section 4(f), and other federal opponents could obtain judicial review of the environmental requirements. “If we were to accept [this argument],” the ruling documents and justifications for federally approved projects. If stated, “we would be giving approval to the circumvention of an NEPA procedures were not followed correctly in supporting a Act of Congress.”17 particular federal action, the approval of that action could be Despite examples of judicial review in NEPA’s early years, deemed “arbitrary, capricious, an abuse of discretion, or other­ NEPA-based claims were less frequent in the context of transpor- wise not in accordance with law,” or “without observance of tation projects than they are today. Section IV below d ­ escribes procedure required by law,” and could, therefore, be set aside.13 in greater detail how modern court decisions have supported For example, in 1971, litigation blocked construction of reliance in the NEPA process based on work performed during the Calvert Cliffs Nuclear Power Plant along the Chesapeake the planning process. Bay in Calvert County, Maryland. The United States Court While NEPA’s passage and implementation raised the of ­Appeals for the District of Columbia Circuit criticized the prominence of environmental considerations in transporta- Atomic ­Energy Commission for its “crabbed interpretation” of tion ­projects, no formal nexus existed between front-end trans- the envi­ronmental review process as a set of hoops to jump portation planning and subsequent environmental review. The through: ­result commonly was deferral of environmental analysis. In We conclude, then, that Section 102 of NEPA mandates a particu- turn, siloed planning yielded plans insensitive to environ­mental lar sort of careful and informed decisionmaking process and creates resources, foregone upfront measures to more easily avoid im- judicially enforceable duties. The reviewing courts probably cannot pacts, longer overall project review timeframes, and missed reverse a substantive decision on its merits, under Section 101, u­ nless oppor­tunities to reduce overall litigation risk. it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environ- B. Evolution of Planning and Environment Linkages: mental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factors- Key Statutory and Regulatory Authorities conducted fully and in good faith-it is the responsibility of the courts to reverse.14 1. Principal Features of PEL The court added: “Our duty, in short, is to see that important leg- As described above, PEL is an umbrella term that covers a islative purposes, heralded in the halls of Congress, are not lost variety of activities, strategies, and authorities that link trans- or misdirected in the vast hallways of the federal bureaucracy.”15 portation planning and the environmental review process. The In certain instances, NEPA noncompliance was utilized as goal of PEL is to develop a more seamless decision-making a means to block, or at least delay, transportation projects. In a process that minimizes duplication of effort, promotes environ- 1971 case involving the proposal to build U.S. Highway No. 281 16   Named Individual Members of the San Antonio Conservation 13  5 U.S.C. § 706(2)(A). The agency decision maker typically Soc’y v. Tex. Highway Dep’t. and U.S. Dep’t of Transportation, 446 F.2d remains free under the APA to go back and make a new decision once 1013, 1024 (1971). the procedural error is corrected. Courts invalidating agency actions on 17   Despite this ruling, Senator Lloyd Bentsen succeeded in adding NEPA grounds usually will remand to the agency for this purpose, Section 154 (“Termination of Federal-Aid Relationship”) to the rather than making permitting determinations which is not courts’ role. ­Federal-Aid Highway Act of 1973. Section 154 stated that “the contrac- See, e.g., Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) tual relationship” with the federal government for the San Antonio (the APA “empowers a court to compel an agency ... to take action upon North Expressway between I-35 and Interstate Loop 410 “shall be a matter, without directing how it shall act”) (emphasis in original, cita- ended,” with Texas returning Federal-aid funds to the United States tion omitted). Treasury. Section 154 continued: “the expressway shall cease to be a 14  Calvert Cliffs’ Coordinating Comm. v. U.S. Atomic Energy Federal-aid ­project.”  This provision allowed Texas to complete U.S. 281 Comm’n, 449 F.2d 1109, 1112 (D.C. Cir. 1971). without federal-aid funding and the Section 4(f) and NEPA require- 15   Id. ments that otherwise came with it.

6    NCHRP LRD 89 mental stewardship, and reduces delays in project implementa- Coordination and communication are additional activities tion. While the use of PEL is not strictly required, it is strongly that transportation and resource agencies may undertake to encouraged by FHWA and the Federal Transit Administration ­better link transportation planning and the environ­mental review (FTA) for federal highway and transit projects. In recent years, process. Transportation and resource agencies can communicate the PEL program has promoted a more integrated and collab- with stakeholders by developing relationships with environ­mental orative approach to the transportation decision-making pro- resource and regulatory agencies, regional planning agencies, cess, from planning through project development, design, and tribal governments, interest groups, and the g­ reater community. construction.18 State DOTs, metropolitan planning organiza- Transportation and resource agencies can also establish inter- tions (MPO), and local municipalities employ a variety of PEL and intra-agency working groups, task forces, or committees that strategies.19 FHWA has also included PEL as a tool in its Every meet on an ongoing basis to coordinate information exchange Day Counts initiative to shorten project delivery timeframes.20 and perform collaborative decision-making. Another approach FHWA has identified four main areas where agencies can to coordination and communication is through the develop- benefit from PEL: (1)  institutional changes; (2) planning and ment of memoranda of understanding (MOUs) which clearly environmental process enhancements; (3) coordination and define how partners can link processes. For example, MOUs may communication; and (4) data and analysis tools.21 stipulate arrangements regarding operat­ing procedures, fund- Institutional changes employed by transportation and re- ing, programmatic approaches, dispute resolution procedures, source agencies assist with the strengthening of PEL processes. and other aspects of planning, project development, and reviews. Transportation and resource agencies can create intra-agency Transportation agencies also can fund staff positions in resource or interagency working groups, provide internal trainings or and regulatory agencies to support environmental considerations peer exchanges, and develop new procedures and guidelines re- during planning, rather than limiting these concerns strictly to garding linking transportation planning and the environ­mental environmental review activities.22 review process. Another approach to creating institutional Lastly, data and analysis tools, such as checklists, data­bases, ­changes is through organizational structuring, such as altering and GIS, can provide planners and environmental ­scientists staff allocations to support linkages, creating interdisciplinary with more detailed information upfront about proposed teams, or swapping positions between one or more disciplines ­projects, thereby enhancing the linkage between transportation within the agency. Agencies can also support PEL processes planning and the environmental review process. Transportation through internal memoranda, management directives, or policy and resource agencies can document existing geographic data, statements from executive management to staff level that ex- develop protocols and tools for sharing data and analysis among press the agency’s commitment to strengthening planning and and within agencies, and collect and maintain data regularly. environment linkages. Institutional changes in the form of per- Agencies can also provide planning and environmental staff formance measures, such as detailed indicators of progress in with access to data for use in planning and project development strengthening planning and environment linkages, are essential functions and employ the data to conduct analysis and inform for the successful development and utilization of PEL. decision-making. These tools can facilitate data sharing within Planning and environmental process enhancements are organizations and among agencies, enhance understanding of ­another critical aspect of PEL promotion. Transportation agen- projects, minimize miscommunication among partners, and cies can develop long-range transportation plans in consultation support more informed decision-making.23 with resource and regulatory agencies. In addition, transportation In short, PEL represents a collaborative and cohesive ap- agencies can utilize planning processes that feature components proach to transportation planning and reduces duplication with of NEPA principles and methods, such as NEPA tiering, purpose state planning processes. Transportation agencies have adopted and need statements, scoping and alternatives identification, anal- regulations24 and guidance to encourage the practice.25 Years ysis or baselining of environmental conditions or impacts, evalu- later, PEL practice and conditions have further been reflected ation and/or elimination of alternatives, indirect and cumulative and codified in subsequent legislation. Today, federal transpor- impacts assessment, and preparatory analyses for permitting. tation agencies continue to recognize multiple PEL authorities. As a practical matter, states and MPOs have substantial flexibil- ity in utilizing various regulatory or statutory PEL authorities 18   Annual Report Fiscal Year 2015, Federal Highway Adminis- tration, https://www.environment.fhwa.dot.gov/env_initiatives/pel/­ where applicable, as the conditions are substantially similar. An annualreport_2015.aspx. at-a-glance chronology of the evolution of PEL is depicted in 19   PEL Benefits: Measuring the Benefits of Planning and Environmen- Table 1, and these PEL authorities and their respective condi- tal Linkages (PEL), Federal Highway Administration (Oct. 2015), tions of use are more fully discussed in the ensuing sections. https://www.environment.fhwa.dot.gov/env_initiatives/pel/PEL_­ Benefits_report.aspx. 20   Center for Accelerating Innovation, Federal Highway 22   23 U.S.C. 139(j); Gina Barberio et al., PEL – A Path to Streamlining Administration, https://www.fhwa.dot.gov/innovation/everydaycounts/ and Stewardship, Federal Highway Administration (Mar. 2008), edc-1/pel.cfm. https://www.fhwa.dot.gov/publications/publicroads/08mar/01.cfm. 21   How to Implement PEL, Federal Highway Administration, 23   Id. https://www.environment.fhwa.dot.gov/env_initiatives/pel/­ 24   23 C.F.R. §§ 450.212, 450.318. implementation.aspx. 25   23 C.F.R. § 450, Appendix A.

NCHRP LRD 89   7 Table 1. PEL Timeline 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) requires increased environmental considerations in statewide and metropolitan transportation planning Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) issue guidance encouraging stronger linkages between transportation planning and NEPA processes 2007 FHWA and FTA issue final transportation planning regulations and PEL guidance at 23 C.F.R. part 450 2011 FHWA promotes PEL through the PEL Questionnaire and Guidance on Using Corridor and Subarea Planning to Inform NEPA 2012 Moving Ahead for Progress in the 21st Century (MAP-21) adds new authority for carrying out PEL in 23 U.S.C. 168 2015 Fixing America’s Surface Transportation (FAST) Act amends 23 U.S.C. 168 and adds new PEL authority to 23 U.S.C. 139 2016 FHWA and FTA issue joint final rule at 23 C.F.R. part 450 and PEL Q&A 2017 Executive Order 13807 and One Federal Decision issued 2018 FHWA, FTA, and Federal Railroad Association (FRA) issue joint final rule at 23 C.F.R. part 771 2018-19 One Federal Decision Executive Order and Interagency MOU 2020 CEQ Final Rule amended government-wide NEPA regulations 2021 Infrastructure Investment and Jobs Act enacted 2. Safe, Accountable, Flexible, Efficient Transportation metropolitan long-range plans must now include a discussion Equity Act: A Legacy for Users of “potential environmental mitigation activities and potential areas to carry out these activities, including activities that may Multiple statutory authorities enable the integration of trans- have the greatest potential to restore and maintain the environ- portation planning information into the NEPA process. The Safe, mental functions affected by the plan.”29 This discussion must be Accountable, Flexible, Efficient Transportation Equity Act: A developed “in consultation with Federal, state, and tribal wild- Legacy for Users (SAFETEA-LU) of 2005 first required increased life, land management, and regulatory agencies.”30 consideration of the environment in statewide and metropolitan Whereas Section 6001 focuses on the transportation plan- planning.26 Prior to SAFETEA-LU, states and MPOs were re- ning process, Section 6002 focuses on the environmental review quired to provide “affected public agencies” and “other interested process, with the goal of streamlining it.31 Under Section 6002, parties” an opportunity to participate in developing long-range federal agencies are required to collaborate and cooperate dur- plans. Section 6001 of SAFETEA-LU established a more specific ing environmental reviews. consultation requirement with regard to certain environmental Section 6002 also specifically recognizes that the purpose and regulatory agencies. States must now develop their long- and need for a project can include carrying out a goal defined in range transportation plans in consultation with state, tribal, and a transportation plan.32 It states that the purpose and need state- local agencies responsible for land use management, natural re- ment “… shall include a clear statement of the objectives that the sources, environmental protection, conservation, and historic proposed action is intended to achieve, which may include … preservation. Part of that consultation involves “comparison of achieving a transportation objective identified in an applicable transportation plans with state and tribal conservation plans or statewide or metropolitan transportation plan.”33 maps, if available, and comparison of transportation plans to in- ventories of natural or historic resources, if available.”27 The same 3. Moving Ahead for Progress in the 21st Century Act requirements apply to MPOs.28 Under SAFETEA-LU, consulta- In 2012, Congress enacted a new authority for PEL, prin- tion with federal agencies is not required for states or MPOs, but cipally at 23 U.S.C. § 168. The Moving Ahead for Progress in it is advisable, especially with federal agencies that will have to be the 21st Century (MAP-21) Act, the first long-term highway involved during the NEPA process. authorization enacted since 2005, reinforced and expanded Another significant change brought by SAFETEA-LU was ­SAFETEA-LU’s authority.34 MAP-21 promotes accelerating the specific requirement to consider environmental mitigation in the planning process. Under Section 6001, statewide and 29   23 U.S.C. §§ 134(i)(2)(B), 135(f)(4). 30   Id. 26   Safe, Accountable, Flexible, Efficient Transportation Equity Act: 31   23 U.S.C. § 139. A Legacy for Users, Pub. L. 109–59, 119 Stat. 1144 (Aug. 10, 2005). 32   23 U.S.C. § 139(f)(3). 27   23 U.S.C. §§ 134, 135. 33   Id. 28   Except that MPOs are not required to consult with tribal agen- 34   MAP-21, Federal Highway Administration, https://www.­ cies. environment.fhwa.dot.gov/legislation/authorizations/map21.aspx.

8    NCHRP LRD 89 project delivery and encourages innovation through the in- and comment. However, the process created in MAP-21 does creased use of PEL.35 Section 1311 of MAP-21 allows states and not affect agencies’ ability, under other authorities, to use plan- MPOs to develop “programmatic mitigation plans” as part of ning products in the environmental review process.42 the statewide or metropolitan transportation planning pro- 4. Fixing America’s Surface Transportation Act cess.36 For instance, a federal agency may consider the program- matic mitigation plan in determining appropriate mitigation The Fixing America’s Surface Transportation (FAST) Act of measures when carrying out responsibilities under NEPA for 2015 further defined the statutory authority for PEL. The FAST individual projects. Programmatic mitigation is not mandatory Act builds on the authorities and requirements in S­ AFETEA-LU under the statute, but affords a major opportunity for early envi- and MAP-21 in an effort to expedite the environmental review ronmental considerations in transportation planning and sub- process for transportation projects by institutionalizing best sequent time savings in project-level NEPA reviews and envi­ practices and fast-tracking complex infrastructure projects ronmental permitting. without undermining critical environmental laws or opportuni- Section 1310 of MAP-21 creates a framework for adopting ties for public engagement.43 Specifically, the FAST Act a­ mended products of the statewide and metropolitan planning process the separate PEL authorities under 23 U.S.C. § 168 and 23 U.S.C. for use in the environmental review process of a project.37 It § 139(f)(4)(E). originally defined “planning product” broadly as “a detailed and In 23 U.S.C. § 168, the FAST Act simplified the definition timely decision, analysis, study, or other documented informa- of “planning product” to “a decision, analysis, study, or other tion that (A) is the result of an evaluation or decision-making documented information that is the result of an evaluation or process carried out during transportation planning, including a decision-making process carried out by a metropolitan plan- detailed corridor plan or a transportation plan developed under ning organization or a state, as appropriate, during metropoli- section 134 that fully analyzes impacts on mobility, adjacent tan or statewide transportation planning under section 134 or communities, and the environment; (B) is intended to be car- 135, respectively.”44 Section 1306 of the FAST Act requires that ried into the transportation project development process; and the federal agencies responsible for environmental reviews of (C) has been approved by the state, all local and tribal govern- transportation projects give “substantial weight” to the recom- ments where the project is located, and by any relevant metro- mendations in a programmatic mitigation plan when carrying politan planning organization.”38 MAP-21 allows complete or out the responsibilities under NEPA.45 This is in contrast to partial adoption of planning products in later NEPA processes.39 the prior language, which only provided that federal agencies Before the enactment of MAP-21, FHWA and FTA autho- “may use” the recommendations in a programmatic mitigation rized the use of PEL processes through their statewide and plan when carrying out their responsibilities under NEPA. This metropolitan planning regulations.40 The new framework set statutory amendment is a valuable tool for practitioners dealing forth in MAP-21 differs in some ways from the prior regulatory with resource agencies because it creates a presumption that the framework.41 For example, before planning-level decisions and pre-established mitigation is sound, and consequently expedites analyses can be adopted and used in the NEPA process under the planning process. MAP-21, the statute requires certain conditions to be met. To Furthermore, Section 1305 of the FAST Act includes two utilize this MAP-21 PEL authority, the federal lead agency dur- additional planning decisions that can be adopted or incor- ing the NEPA process must first determine that those condi- porated in the environmental review process under 23 U.S.C. tions for adoption are satisfied, with the “concurrence” by “par- § 168: (1) the purpose and the need for the proposed action; ticipating agencies with relevant expertise and project sponsors and (2) preliminary screening of alternatives and elimination as appropriate,” and after an “opportunity for public notice and of unreasonable alternatives.46 The FAST Act retains MAP-21’s comment” on adoption of the planning product. The conditions conditions for allowing a relevant agency in the environ­mental for adoption include, but are not limited to, that the planning review process to adopt or incorporate by reference certain product be not more than five years old, that no significant new deci­sions and analyses from a planning product.47 Namely, information exists affecting the planning product’s vitality, and the relevant agency in the environmental review process may that the planning product is the result of prior public notice adopt or incorporate by reference a planning product if it deter- mines—with the concurrence of the federal lead agency and any cooperating agency also relying on that planning product—that 35   Id. ten conditions all have been met: 36   23 U.S.C. § 169. 37   23 U.S.C. § 168. 38   23 U.S.C. § 168(a)(2) (2012). 42   23 U.S.C. § 168(f)(3). 39   23 U.S.C. § 168(b) (2012). 43   FAST Act, Federal Highway Administration, https://www. 40   23 C.F.R. §§ 450.212, 450.318. environment.fhwa.dot.gov/legislation/authorizations/FASTact.aspx. 41   MAP-21: Overview of Project Delivery Provisions, American 44   23 U.S.C. § 168(a)(3). Association of State Highway and Transportation Officials, http://map21.transportation.org/Documents/CEE%20MAP-21%20 45   23 U.S.C. § 169(f). Overview%20Section%20-%2007-19-2013%20-%20clean.updated%20 46   23 U.S.C. § 168(c). 8-15.pdf. 47   23 U.S.C. § 168(d).

NCHRP LRD 89   9 (1) The planning product was developed through a planning process Separately, Section 1304 of the FAST Act amended 23 U.S.C. conducted pursuant to applicable Federal law. § 139(f)(4)(E) to create PEL authority specifically to reduce (2) The planning product was developed in consultation with appro- duplica­tion in consideration of alternatives between planning priate Federal and State resource agencies and Indian tribes. and NEPA. The FAST Act directs agencies to pursue “­reduction (3) The planning process included broad multidisciplinary con- of duplication” in alternatives analyses between federal agency sideration of systems-level or corridor-wide transportation needs NEPA reviews and MPO or state transportation planning pro- and potential effects, including effects on the human and natural cesses.51 Specifically, this provision allows a lead agency con- environment. ducting a project-level environmental impact statement to reject (4) The planning process included public notice that the planning alternatives previously rejected during a planning process. This products produced in the planning process may be adopted during authority is limited to where the federal lead agency finds each a subsequent environmental review process in accordance with this of six conditions satisfied.52 Specifically, those six conditions section. under Section 139(f)(4)(E)(ii)(I)-(VI) include: (1) MPO or state (5) During the environmental review process, the relevant agency has consideration of the alternative during the planning process (A) made the planning documents available for public review and or environmental review process; (2) lead agency guidance to comment by members of the general public and Federal, State, the MPO or state during that process, including on applicable local, and tribal governments that may have an interest in the pro- NEPA and other federal legal requirements; (3) opportunity for posed project; public review and comment during the MPO or state process; (B) provided notice of the intention of the relevant agency to (4) MPO or state rejection of the alternative after considering adopt or incorporate by reference the planning product; and public comments; (5) federal lead agency independent review (C) considered any resulting comments. of the MPO or state evaluation of the alternative; and (6) deter- mination by the federal lead agency and other federal agencies (6) There is no significant new information or new circumstance that with jurisdiction that the alternative is unnecessary for NEPA has a reasonable likelihood of affecting the continued validity or ap- propriateness of the planning product. or other statutory compliance. These conditions thereby col- lectively ensure that the rejected alternative previously received (7) The planning product has a rational basis and is based on reliable sufficient input from the lead agency, the state or MPO, and the and reasonably current data and reasonable and scientifically accept- able methodologies. public. While Section 139(f)(4)(E) only expressly encompasses (8) The planning product is documented in sufficient detail to sup- alter­natives analyses under NEPA, the thrust of the statute as port the decision or the results of the analysis and to meet require- ments for use of the information in the environmental review process. a whole, including provisions unchanged by the FAST Act, can be read as discouraging duplicative analyses more broadly. For (9) The planning product is appropriate for adoption or incorpora- example, as a precursor to NEPA alternatives analysis, Section tion by reference and use in the environmental review process for the project and is incorporated in accordance with, and is sufficient to 139 as discussed above allows derivation of a project’s defined meet the requirements of, the National Environmental Policy Act of NEPA purpose and need from a planning product.53 The s­ tatute 1969 (42 U.S.C. 4321 et seq.) and section 1502.21 of title 40, Code also generally directs the lead agency’s determined range of of Federal Regulations (as in effect on the date of enactment of the alter­natives to be used for all federal permits and reviews for FAST Act). that project to “the maximum extent practicable and consistent (10) The planning product was approved within the 5-year period with Federal law.”54 ending on the date on which the information is adopted or incorpo- rated by reference.48 5. Clean Air Act Transportation Conformity The types of transportation planning decisions and analy- The federal Clean Air Act and its implementing agency ses that may be adopted or incorporated by reference under 23 regulations also promote PEL through a transportation con- U.S.C. § 168 involve, for example, natural and built environmen- formity requirement. Under 42 U.S.C. § 7506, federal agen- tal conditions, environmental resources and environmentally cies and MPOs (including FHWA and FTA) cannot approve sensitive areas, and potential environmental effects, including any transportation plan or project that does not conform to a the identification of resources of concern and potential direct, state implementation plan (SIP) that has been approved by the indirect, and cumulative effects on those resources.49, 50 tiple federal agency NEPA reviews and approvals. Key FAST-41 benefits 48   Id. include early (normally within 60 days of coverage) establishment of a master schedule to complete all federal agency environmental reviews 49   23 U.S.C. § 168(c). and approvals, establishment of a public dashboard showing progress, 50   Title 41 of the FAST Act also improved the environmental review and dispute resolution procedures. Early agency interaction highlights and permitting process for covered infrastructure projects, but does not and maximizes opportunities to utilize existing planning and other apply to highway, public transportation, and multimodal projects sub- analyses with broad buy-in. ject to 23 U.S.C. § 139. FAST-41’s approach notably complements PEL, 51   23 U.S.C. § 139(f)(4)(E). however. Under FAST-41, proponents of other types of projects (e.g., aviation, ports) may seek coverage from the Federal Permitting 52   Id. Improvement Steering Council. Among other criteria, covered projects 53   23 U.S.C. § 139(f)(3). typically involve a total investment of more than $200 million and mul- 54   23 U.S.C. § 139(f)(4)(B).

10    NCHRP LRD 89 U.S. Environmental Protection Agency (EPA). A SIP, in turn, years; establishment of a project review and decision schedule ­describes how each state intends to ensure compliance with the with project proponent input; a presumptive 200-page limit for federal national ambient air quality standards (NAAQS) within NEPA documents (minus appendices); joint NEPA documents the state for a given time period. A SIP commonly includes a for multiple federal agency approvals; expansion of NEPA cat- motor vehicle emissions budget. The transportation conformity egorical exclusions; borrowing of other agencies’ NEPA categori- requirement ensures that addition of one or more projects will cal exclusions; and all authorization decisions within 90 days of not create or worsen air violations of the SIP. EPA’s implement- a published Record of Decision. By codifying One Federal Deci- ing regulations are codified at 40 C.F.R. part 93. sion, the IIJ also operated to revive its existing implementation Conformity must be demonstrated both for a state’s or MPO’s by federal agencies, as more fully discussed below.64 long-range transportation plan and for individual ­projects.55 Also noteworthy are PEL-related proposals that did not However, once plan-level conformity has been demonstrated, make it into the final IIJ. On June 30, 2021, the House passed a project included in that plan is typically found to be in con- the Investing in a New Vision for the Environment and Surface formity as well without a separate conformity analysis.56 This Transportation (INVEST) in America Act of 2021 (H.R. 3684). is because the project’s anticipated air emissions have already Section 5203 of the INVEST Act would have codified Every Day been sufficiently analyzed at the planning stage. The exceptions Counts, which as noted above is a FHWA initiative designed are if the project has “changed significantly since the conformity to identify and deploy innovation aimed at reducing the time finding regarding the plan and program from which the project it takes to deliver highway projects, enhance safety, and protect derived,” or if its design concept and scope was inadequate to the environment.65 Under the House bill, the FHWA adminis- determine emissions at the time of plan-level conformity.57 This trator would continue the Every Day Counts initiative to work system provides a streamlining opportunity for a project’s air with states, local transportation agencies, all other recipients of emissions analysis during subsequent NEPA review.58 federal surface transportation funds, and industry stakeholders to identify and deploy proven innovative practices that acceler- 6. Infrastructure Investment and Jobs Act ate innovation deployment; expedite the project delivery pro- On November 15, 2021, the first comprehensive, bipartisan cess; improve environmental sustainability; enhance roadway infrastructure bill in several years, including transportation, safety; reduce congestion; and reduce greenhouse gas emis- was enacted (after several attempts).59 Like its predecessors, sions.66 Separately, the House bill would have required MPOs the Infra­structure Investment and Jobs Act (IIJ, also known as and states to consider carbon pollution and emissions reduc- the Bipartisan Infrastructure Law) encourages the integration tion, climate change, resilience, and hazard mitigation through- of planning information in the environmental review process. out the transportation planning process.67 Section 5111 of the The IIJ, particularly through its “Project Delivery and Process House bill would have established a new pilot program to pro- Improvement” provisions, promotes the prioritization of trans- vide awards to eligible entities to carry out activities to enhance portation projects that have already undergone environmental and improve metropolitan planning practices in surface trans- review and encourages the development of interagency teams to portation.68 One of the enumerated goals of the pilot program increase coordination and efficiency under NEPA.60 was improving environmental considerations in the metropoli- Most notably, the IIJ amends 23 U.S.C. § 139 to codify the tan planning process. “One Federal Decision” framework of more collaborative and These and similar concepts continue to percolate within timely federal permitting.61 One Federal Decision was first estab­ Congress and agencies. As one potential vehicle, Congress is lished by Executive Order 13807 in 2017,62 but had been (at least pursuing a budget reconciliation bill that may have implications nominally) revoked by Executive Order 13990 in 2021 prior to for PEL. On November 19, 2021, the House passed the Build the IIJ.63 Among other things, and subject to certain exceptions, the IIJ provides for completion of NEPA reviews within two 55   40 C.F.R. §§ 93.102. 64   The IIJ also included other measures to streamline environmen- 56   42 U.S.C. § 7506(c)(2)(C). tal reviews of transportation projects. For example, it aims to shorten the timeline for identifying transportation projects’ impacts to park- 57   42 U.S.C. § 7506(c)(2)(C)(ii)-(iii). land, historic sites, and certain other areas under Section 4(f) of the U.S. 58   The Clean Air Act’s transportation conformity program is sepa- Department of Transportation Act of 1966. Pub. L. 117–58, Section rately discussed here given its specific application to transportation 11316; 23 U.S.C. 138(a). And to further improve accountability, the IIJ planning and projects. To be clear, however, this discussion is not meant requires measurement and reporting to Congress on NEPA completion to imply that the ability to link data collected during planning to subse- timelines and specifically on federally funded transportation projects quently meet NEPA requirements is unique to the Clean Air Act. This that are either more than 5 years behind schedule or $1 billion above PEL-consistent concept is also available for planning-level analysis of budget. Id. Section 11319. other environmental resources. 65   Id.; see also Every Day Counts, Federal Highway Administra- 59   Pub. L. 117–58, 135 Stat. 430 (H.R. 3684) (Nov. 15, 2021). tion (Oct. 2020), https://highways.dot.gov/federal-lands/programs- 60   Id. Subtitle C. tribal/partners-resources/every-day-counts. 61   Id. Section 11301. 66   Id. 62   82 Fed. Reg. 40,463 (Aug. 24, 2017). 67   E.g., Id. Sections 1401, 1402. 63   86 Fed. Reg. 7,037 (Jan. 20, 2021). 68   Id.

NCHRP LRD 89   11 Back Better Act.69 As of the time of this writing, the bill has (2)  The systems-level, corridor, or subarea planning study is con- stalled in the Senate, and negotiations remain ongoing regard- ducted with: ing a single bill or multiple smaller bills. (i)  Involvement of interested State, local, Tribal, and Federal agencies; 7. Department of Transportation Planning Regulations (ii) Public review; The FHWA and FTA planning regulations at 23 C.F.R. part 450 also strongly support the integration of the transportation (iii) Reasonable opportunity to comment during the metropolitan transportation planning process and development of the corridor planning process with the NEPA environmental review process. or subarea planning study; Like statutes, federal regulations are legally binding. In 2007, FHWA and FTA jointly issued final transporta- (iv) Documentation of relevant decisions in a form that is identi- fiable and available for review during the NEPA scoping process tion planning regulations that specifically address the integra- and can be appended to or referenced in the NEPA document; tion of transportation planning and the environmental review and ­processes.70 The transportation planning regulations governing (v) The review of the FHWA and the FTA, as appropriate.74 the use of transportation planning materials to inform project development allow a state DOT, MPO, or public transporta- In 2016, FHWA and FTA jointly amended their transporta- tion operator to incorporate corridor or subarea planning study tion planning regulations, which updated the existing 23 C.F.R. products in the NEPA review process provided certain condi- part 450 regulations to reflect the passage of MAP-21 and the tions are met. The conditions are important because the infor- FAST Act.75 The regulations emphasize the flexibility of PEL, mation and products coming from the planning process must providing that separate statutory PEL authorities do not limit be sufficiently comprehensive and accurate so that the federal the use of other PEL approaches or limit the ability to subse- government may reasonably and defensibly rely upon them in quently use another PEL authority.76 its environmental review process.71 The regulations identify five The 2016 planning regulations also maintained the guid- items among the products that corridor or subarea planning ance in Appendix A to the part 450 regulations, which describes studies may yield for a proposed transportation project: (1) pur- flexibility for planning agencies pursuing PEL studies under 23 pose and need or goals and objective statement(s); (2) general U.S.C. §§ 134 and 135.77 As further described below, however, travel corridor and/or general mode(s) definition; (3) prelimi- Appendix A is “intended to be non-binding and should not be nary screening of alternatives and elimination of unreasonable construed as a rule of general applicability.”78 Furthermore, the alternatives; (4) basic description of the environmental setting; regulations describe a variety of PEL processes that may be used and (5) preliminary identification of environmental impacts to integrate planning with environmental reviews, effectively and environmental mitigation.72 allowing states and MPOs to use PEL authority. For example, The planning regulations also detail the requirements for FHWA and FTA may establish a project’s purpose and need by these products to be incorporated directly or by reference into relying on the objective developed during the planning process; subsequent NEPA documents. The majority of these require- eliminate the need to further consider alternatives deemed to ments are typically satisfied through generally applicable public be unreasonable by relying on analyses performed to evaluate involvement requirements of the transportation planning pro- the alternatives during planning; utilize future land use plans cess, e.g., notice and comment periods for the public. Further, as a source of information for the cumulative impacts analysis the NEPA lead agencies must agree that such incorporation required under NEPA; carry forward suitable mitigation mea- will aid in establishing or evaluating purpose and need, reason- sures identified during the planning process; and establish the able alternatives, or other impacts on the environment.73 More modal choice selections for the consideration of reasonable specifically, the regulations explain that publicly available docu- alternatives to address the identified need, provided that such ments or other source material produced by, or in support of, strategies are consistent with NEPA for the particular project.79 the transportation planning process may be incorporated into subsequent NEPA reviews as long as the following requirements 8. NEPA Implementing Regulations are met: As discussed above, CEQ issued implementing regulations for NEPA in 1978.80 These regulations provide a framework that (1)  The NEPA lead agencies agree that such incorporation will aid in establishing or evaluating the purpose and need for the Federal action, reasonable alternatives, cumulative or other impacts on the 74   Id. human and natural environment, or mitigation of these impacts; and 75  Statewide and Nonmetropolitan Transportation Planning; Metro­politan Transportation Planning, 81 Fed. Reg. 34,050 (May 27, 69   H.R. 5376 2016). 70   23 C.F.R. §§ 450.212, 450.318. 76   23 C.F.R. §§ 450.212(d), 450.318(e). 71   Guidance on Using Corridor and Subarea Planning to Inform 77   23 C.F.R. §§ 450.212(c), 450.318(d). NEPA, Federal Highway Administration (Apr. 2011), https://www. 78   23 C.F.R. part 450 Appendix A. environment.fhwa.dot.gov/env_initiatives/pel/corridor_nepa_­ 79  Statewide and Nonmetropolitan Transportation Planning; guidance.pdf. Metro­politan Transportation Planning, 81 Fed. Reg. 34,050, 34,053 72   23 C.F.R. §§ 450.212(a), 450.318(a). (May 27, 2016). 73   23 C.F.R. §§ 450.212(b)(1), 450.318(b)(1). 80   40 C.F.R. §§ 1500-1508.

12    NCHRP LRD 89 supports the PEL process in several ways. The regulations direct enforceable standard, only final agency action is subject to judi- federal agencies to reduce delay by working collaboratively and cial review under the Administrative Procedure Act. integrating the NEPA process early in the planning process.81 Perhaps most importantly, the 2020 amendments did not CEQ’s regulations are “intended to encourage and enable private remove the available regulatory mechanisms to adopt or incor- and other non-federal entities to build environmental consider- porate by reference existing data or analysis to avoid duplica- ations into their own planning processes in a way that ­facilitates tion. Going further, the amended NEPA regulations expand the application of NEPA and avoids delay.”82 Additional ele- oppor­tunities for agencies to incorporate by reference or adopt ments of CEQ regulations that support PEL include allowing a broader range of prior analyses and data, including documents federal agencies, under certain conditions, to avoid duplicative prepared by others. (See 40 C.F.R. §§ 1501.12, 1506.3.) analysis and incorporate material into an environmental impact For incorporation by reference under the amended regula- statement by reference,83 to identify significant environmental tions, the reliability of prior work product is not dependent on issues early in the process, and to deemphasize insignificant its inclusion in a prior NEPA document. 40 C.F.R. § 1501.12. ­issues with an eye toward streamlining project review.84 ­Indeed, the types of information that agencies “shall” incorpo- To address the NEPA responsibilities established by CEQ, rate by reference now expressly include “planning studies.”91 The FTA and FHWA jointly issued environmental review regulations amended regulations also make plain that environmental docu- in 2018.85 The regulations recognize that early c­ oordination with ments other than environmental impact statements can utilize appropriate agencies and the public assists in determining the incorporation by reference.92 The conditions remain that the in- type of environmental review documents an action requires, the corporated material must be publicly and contemporaneously scope of the document, the level of analysis, and related envi- available with the NEPA document for review and comment. ronmental requirements.86 The regulations further support the Regarding adoption, whereas the prior CEQ regulations PEL process by recognizing that information and results pro- ­allowed adoption of environmental impact statements, the 2020 duced by, or in support of, the transportation planning process CEQ regulations additionally expand the option for all federal may be incorporated into environmental review documents in agencies to adopt environmental assessments and categorical accordance with statutes and regulations.87 Notably, these listed exclusions in certain circumstances.93 40 C.F.R. § 1506.3(a). authorities in the regulations include each of the various regu- The conditions for adopting a prior environmental assessment latory and statutory authorities for PEL.88 That feature under- ­mirror those for adopting an environmental impact statement— scores FHWA and FTA’s emphasis on PEL’s intended flexibility the prior and current subject actions must be “substantially the to employ transportation planning-generated information dur- same.” 40 C.F.R. § 1506.3(c). The “substantially the same” ac- ing subsequent NEPA review and avoid duplication of effort, tion condition likewise holds for adopting another agency’s even if all formal criteria are not met to directly adopt or incor- categorical exclusion determination, even where the adopting porate that information. agency does not itself list a parallel categorical exclusion under CEQ comprehensively updated its NEPA regulations in its own regulations. 40 C.F.R. § 1506.3(d). An agency also may 2020 principally to incorporate elements of the One Federal establish procedures to consult with another agency and adopt ­Decision policy, codify certain case law and CEQ guidance, and a listed categorical exclusion of that other agency where that revise the regulations to reflect current technologies and agency other agency has not yet applied that categorical exclusion to ­practices.89 The regulations amend 40 C.F.R. § 1501.2 and re­ substantially the same action at issue. 40 C.F.R. § 1507.3(f)(5). affirm the importance of providing agencies with “discretion to As under the prior CEQ regulations, agencies may also adopt structure the timing of their NEPA process to align with their a NEPA document that is not yet final, on referral to CEQ for decision-making processes.”90 The regulations also clarify that dispute resolution, or the subject of pending litigation, but must although some courts have viewed 40 C.F.R. § 1501.2 as a legally disclose that such a circumstance exists. 40 C.F.R. § 1506.3(e). As of the time of this writing, the 2020 CEQ regulatory amendments are being facially challenged in several federal court lawsuits. Moreover, the CEQ is reexamining those amend- 81   40 C.F.R. §§ 1501.2, 1500.2. ments, has delayed conforming amendments to individual 82   Council on Environmental Quality Memorandum to Agencies, ­agency NEPA regulations (like those of FHWA and FTA),94 and 46 Fed. Reg. 18,026, 18,029 (Mar. 23, 1981). may propose further regulatory changes. CEQ published a pro- 83   40 C.F.R. § 1502.21. posed rule to reinstate select provisions of the preexisting CEQ 84   40 C.F.R. § 1501.1(d). rules on October 7, 2021,95 and published a final rule adopt- 85  Environmental Impacts and Related Procedures, 83 Fed. Reg. 54,480 (Oct. 29, 2018). 86   23 C.F.R. § 771.111(a)(1). 91   84 Fed. Reg. 43,327 (“In response to comments, CEQ adds exam- 87   23 C.F.R. § 771.111(a)(2). ples to the types of material that agencies may incorporate, including 88   Id. planning studies and analyses.”). 89   Update to the Regulations Implementing the Procedural Provi- 92   Id. (“this provision is applicable generally, not just to EISs”). sions of the National Environmental Policy Act, 84 Fed. Reg. 43,304 93   84 Fed. Reg. at 43,336. (July 16, 2020). 94   86 Fed. Reg. 34,154 (June 29, 2021). 90   Id. 95   86 Fed. Reg. 55,757 (Oct. 7, 2021).

NCHRP LRD 89   13 ing that proposal on April 20, 2022.96 Those changes, however, process, noting that any work product from the planning pro- do not materially relate to PEL. CEQ intends to undertake a cess must be documented and available for public review.103 “Phase 2” proposed rule, and potentially other proposed rules, 2. Appendix A of 23 C.F.R. Part 450 to further amend the 2020 regulations in the near future.97 How- ever, based on current information, any such changes similarly Following the enactment of SAFETEA-LU, FHWA and FTA are not expected to deter PEL and upfront incorporation of in 2007 issued final transportation planning regulations at 23 envi­ronmental considerations in transportation planning. C.F.R. part 450. The regulations included an Appendix A to 23 C.F.R part 450, which contained an updated version of the C. Agency Guidance and Policy PEL guidance on linking transportation planning and NEPA. Though incorporated into the regulations, this guidance ex- FHWA and FTA have also formally issued guidance to im- pressly provides that it is not legally binding. Also, as noted plement the statutes and regulations related to PEL. Guidance above, Appendix A does not apply to separate PEL authority does not have the legally binding force and effect of the statutes under 23 U.S.C. § 168.104 and regulations detailed above, and the agencies do not take Appendix A clarifies the circumstances under which plan- enforcement actions based on guidance. However, the FHWA ning decisions and information can be relied upon in the and FTA guidance highlights their expectations and priorities NEPA process. It describes environmental review for trans- for PEL and expresses the agencies’ views regarding appropriate portation projects as “a continuum of sequential study, refine- practices for planning and environmental reviews. It also places ment, and expansion performed in transportation planning the onus on agencies to rationalize any contrary approaches that and during project development/NEPA, with information undercut the terms or aims of the PEL guidance. developed and conclusions drawn in early stages utilized in 1. Memorandum Regarding Integration of Planning and subsequent (and more detailed) review stages.”105 Importantly, NEPA Processes Appendix A approaches PEL by conditioning the use of plan- In their 2005 Memorandum Regarding Integration of Plan- ning products in the NEPA process based on how well they ning and NEPA Processes,98 FHWA and FTA jointly i­ssued meet NEPA standards. guidance encouraging the use of PEL. This guidance was ­ Several critical points are made in Appendix A, including ­issued by the Chief Counsels of FHWA and FTA and described that states and MPOs are not obligated to change their exist- the state of the law at that time. The guidance did not impose ing planning practices.106 The guidance makes clear that each new require­ments, and it emphasized that implementation was state and MPO can decide whether to modify its planning optional. However, the guidance also expressed concern that practices in order to provide a stronger basis for incorporating “the environmental analyses produced to meet the requirements planning-level analyses and decisions into the NEPA process for [of NEPA] have often been conducted de novo, disconnected indi­vidual projects.107 Appendix A also explains that there are from the analyses used to develop long-range transportation different types of analyses and decisions that can be incorpo- plans.”99 The guidance stated that its purpose was to “change this rated from planning studies into the NEPA process, including culture, by supporting congressional intent that statewide and those that can be used to support development of the statement metropolitan transportation planning should be the foundation of purpose and need, the range of alternatives, impact analy- for highway and transit project decisions.”100 The memorandum ses, and mitigation.108 Additionally, Appendix A highlights that outlines laws related to integrating the transportation plan- FHWA and FTA will not assure, in advance, that all planning ning and NEPA processes and describes which products from decisions can be adopted in the NEPA process for all projects. the transportation planning process can be used in the NEPA While the joint guidance defines factors that will be considered process.101 It also discusses the use of alternatives analyses and in deciding whether to carry planning analyses and/or deci- planning recommendations in an environmental impact state- sions into the NEPA process, it emphasizes that “there are no ment.102 Importantly, the memorandum states that interested guarantees.”109 stakeholders should be included in the transportation planning When it was issued, Appendix A provided the first compre- hensive framework of the agencies’ expectations for the actions and level of analysis to be completed in the planning process so that planning-level analyses and decisions could be ­adopted 96   87 Fed. Reg. 23,453 (Apr. 20, 2022). in the NEPA process.110 Appendix A gives the f­ollowing ex- 97   86 Fed. Reg. at 55,759. 98   Integration of Planning and NEPA Processes, Federal High- 103   Id. way Administration (Feb. 22, 2005), https://www.fhwa.dot.gov/ hep/­guidance/plannepalegal050222.cfm. 104   23 C.F.R. §§ 450.212(c)-(d) and 450.318(d)-(e). 99   Id. 105   23 C.F.R § 450, Appendix A. 100   23 C.F.R § 450, Appendix A. 106   Id. 101   Integration of Planning and NEPA Processes, Federal High- 107   Id. way Administration (Feb. 22, 2005), https://www.fhwa.dot.gov/ 108   Id. hep/­guidance/plannepalegal050222.cfm. 109   Id. 102   Id. 110   Id.

14    NCHRP LRD 89 ample: If systems-level or other broad objectives or choices during the planning study can be used during NEPA; and (2) from the transportation plan are incorporated into the pur- it provides the NEPA project staff with guidance on how to pose and need statement for a NEPA document, FHWA and document the outcomes of the planning process, including the FTA should not revisit whether these are the best objectives history of decisions made, who was involved, and the level of or choices among other options. Rather, those agencies should detailed analysis undertaken. Because FHWA’s precise questions ensure those ­objectives or choices were (1) based on transpor- provide helpful content, and for the reader’s convenience, they tation planning factors established by federal law; (2) reflect a are provided below: credible and ­articulated planning rationale; (3) founded on 1. Background: reliable data; and (4)  developed through transportation plan- ning processes compliant with federal law.111 In addition, Ap- (a) Who is the sponsor of the PEL study? (state DOT, local agency, other) pendix A explains that the basis for the goals and choices must be documented and included in the NEPA document.112 FHWA (b) What is the name of the PEL study document and other iden- and FTA do not need to assess whether assumptions, analyti- tifying project information (e.g., sub-account or STIP numbers, long-range plan, or transportation improvement program years)? cal methods, or modeling techniques used in the studies are the best available, but only whether they are reasonable, scientifical- (c) Who was included on the study team (Name and title of agency ly acceptable, up-to-date, and consistent with goals, objectives, representatives, consultants, etc.)? and policies set forth in long-range transportation plans.113 (d) Provide a description of the existing transportation facility Finally, Appendix A makes clear that the decision about within the corridor, including project limits, modes, functional what level of work to perform in the planning process is a state classification, number of lanes, shoulder width, access control and type of surrounding environment (urban vs. rural, residential vs. and MPO decision, while the decision about what to incor- commercial, etc.) porate into a NEPA study is a federal agency decision.114 The planning process is the responsibility of a state or MPO, subject (e) Provide a brief chronology of the planning activities (PEL study) including the year(s) the studies were completed. to ­periodic federal review. States and MPOs have the authority to decide what work will be done in the planning process, but (f) Are there recent, current, or near future planning studies or NEPA is a federal obligation in connection with federal approv- projects in the vicinity? What is the relationship of this project to those studies/projects? als. Thus, federal agencies responsible for NEPA compliance ul- timately decide which, if any, of the products of the transporta- 2. Methodology used: tion planning process can be used in the NEPA process. (a) What was the scope of the PEL study and the reason for com- In states that have applied for and obtained “NEPA Assign- pleting it? ment” from FHWA or FTA under the Surface Transportation (b) Did you use NEPA-like language? Why or why not? Project Delivery Program to conduct environmental reviews for covered transportation projects, those states will decide whether (c) What were the actual terms used and how did you define them? (Provide examples or list) planning products can be used in the NEPA process.115 Under this program, state agencies may effectively step into the shoes (d) How do you see these terms being used in NEPA documents? of FHWA or FTA, with the goal of expediting project timelines, (e) What were the key steps and coordination points in the PEL including by utilizing the state’s or region’s own planning prod- decision-making process? Who were the decision makers and ucts. While eight states116 have assumed and maintained vari- who else participated in those key steps? For example, for the cor- ous degrees of environmental responsibilities via this program ridor vision, the decision was made by state DOT and the local agency, with buy-in from FHWA, the USACE, and USFWS and at the time of this writing, FHWA and FTA maintain oversight, other resource/regulatory agencies. and federal resource agencies retain their participation and responsibilities. (f) How should the PEL information be presented in NEPA? Consistent with Appendix A of 23 C.F.R. part 450, FHWA 3. Agency coordination: released a sample “Planning and Environment Linkages Ques- (a) Provide a synopsis of coordination with federal, tribal, state and tionnaire” in 2011, intended to illustrate how to ease the transi- local environmental, regulatory and resource agencies. D ­ escribe tion from a transportation planning study to a NEPA analysis. their level of participation and how you coordinated with them. While not mandatory, the questionnaire serves two purposes: (b) What transportation agencies (e.g. for adjacent jurisdictions) (1) it provides guidance to planning staff on the level of detail did you coordinate with or were involved during the PEL study? needed to ensure that information collected and decisions made (c) What steps will need to be taken with each agency during NEPA scoping? 111   Id. 4. Public coordination: 112   Id. 113   Id. (a) Provide a synopsis of your coordination efforts with the public 114   Id. and stakeholders. 115   23 U.S.C. §§ 326, 327. 116  Those states include Alaska, Arizona, California, Florida, Nebraska, Ohio, Texas, and Utah.

NCHRP LRD 89   15 5. Purpose and Need for the PEL study: 10. Were cumulative impacts considered in the PEL study? If yes, pro- vide the information or reference where the analysis can be found. (a) What was the scope of the PEL study and the reason for com- pleting it? 11. Describe any mitigation strategies discussed at the planning level that should be analyzed during NEPA. (b) Provide the purpose and need statement, or the corridor vision and transportation goals and objectives to realize that vision. 12. What needs to be done during NEPA to make information from the PEL study available to the agencies and the public? Are there PEL (c) What steps will need to be taken during the NEPA process to study products which can be used or provided to agencies or the pub- make this a project-level purpose and need statement? lic during the NEPA scoping process? 6. Range of alternatives: Planning teams need to be cautious during 13. Are there any other issues a future project team should be aware the alternative screen process; alternative screening should focus on of? purpose and need/corridor vision, fatal flaw analysis, and possibly mode selection. This may help minimize problems during discus- (a) Examples: Controversy, utility problems, access or ROW is- sions with resource agencies. Alternatives that have fatal flaws or do sues, encroachments into ROW, problematic landowners and/or not meet the purpose and need/corridor vision will not be considered groups, contact information for stakeholders, special or unique reasonable alternatives, even if they reduce impacts to a particular re- resources in the area, etc. source. Detail the range of alternatives considered, screening criteria, and screening process, including: When conducting a PEL Study, FHWA recommends that the project team consult a tool like the questionnaire from the be- (a) What types of alternatives were looked at? (Provide a one or two sentence summary and reference document.) ginning of the process and include it in the planning document as an executive summary, chapter, or appendix. (b) How did you select the screening criteria and screening process? 3. Corridor and Subarea Studies (c) For alternative(s) that were screened out, briefly summarize The February 2007 FHWA and FTA planning regulations the reasons for eliminating the alternative(s). (During the initial eliminated the requirement for a major investment study, which screenings, this generally will focus on fatal flaws.) had been in the regulations since 1993.117 In its place, the 2007 (d) Which alternatives should be brought forward into NEPA and regulations created a new optional procedure for linking trans- why? portation planning and NEPA studies. The procedures for state- (e) Did the public, stakeholders, and agencies have an opportunity wide planning118 and metropolitan planning119 now provide for to comment during this process? preparation of a “corridor or subarea study” as a tool for linking planning and NEPA. A corridor or subarea study is prepared (f) Were there unresolved issues with the public, stakeholders, and/or agencies? by a state DOT, MPO, and/or transit operator as part of the statewide or metropolitan planning process.120 The corridor or 7. Planning assumptions and analytical methods: subarea study itself is not a process for federal agency decision- (a) What is the forecast year used in the PEL study? making, and therefore does not itself require NEPA review. (b) What method was used for forecasting traffic volumes? Such a study can be used to produce a wide range of analyses or decisions for adoption in the NEPA process for an individual (c) Are the planning assumptions and the corridor vision/purpose project, such as purpose and need or goals and objective state- and need statement consistent with each other and with the long- range transportation plan? Are the assumptions still valid? ments, preliminary screening of alternatives and elimination of unreasonable alternatives, and preliminary identification of (d) What were the future year policy and/or data assumptions envi­ronmental impacts and environmental mitigation.121 used in the transportation planning process related to land use, economic development, transportation costs, and network FWHA’s 2011 “Guidance on Using Corridor and Subarea expansion? Planning to Inform NEPA” identifies the specific products from corridor and subarea planning that can be utilized in NEPA 8. Environmental resources (wetlands, cultural, etc.) reviewed. For each resource or group of resources reviewed, provide the following: docu­ ments. These include purpose and need or goals and ­objectives statements; general travel corridor and/or general (a) In the PEL study, at what level of detail was the resource re- modes definitions; preliminary screening of alternatives and viewed and what was the method of review? elimination of unreasonable alternatives; basic descriptions of (b) Is this resource present in the area and what is the existing environmental settings; and preliminary identification of envi- environmental condition for this resource? (c) What are the issues that need to be considered during NEPA, including potential resource impacts and potential mitigation require­ments (if known)? 117   Guidance on Using Corridor and Subarea Planning to Inform NEPA, Federal Highway Administration (Apr. 5, 2011), https:// (d) How will the planning data provided need to be supplemented www.environment.fhwa.dot.gov/env_initiatives/pel/corridor_nepa_­ during NEPA? guidance.aspx. 9. List environmental resources you are aware of that were not re- 118   23 C.F.R. § 450.212. viewed in the PEL study and why. Indicate whether or not they will 119   23 C.F.R. § 450.318. need to be reviewed in NEPA and explain why. 120   23 C.F.R. §§ 450.212(a), 450.318(a). 121   23 C.F.R. §§ 450.212(a), 450.318(a).

16    NCHRP LRD 89 ronmental impacts and environmental mitigation.122 The guid- to initiating a new environmental impact statement for major ance also describes the benefits of integrating the transporta- infrastructure projects subject to the OFD process, including: tion planning and NEPA processes. For instance, the guidance • Identify cooperating and participating agencies; advises that transportation planners at state DOTs and MPOs may consider conducting a corridor or subarea study when • Develop a draft purpose and need; there are limited resources (e.g., funding, staff resources) that • Develop a draft Coordination Plan that includes a permit- make a full-scale NEPA evaluation problematic.123 Likewise, for ting timetable; NEPA practitioners, corridor and subarea planning can lead to • Identify community and stakeholders affected and develop improved environmental documentation, maximize avoidance a public involvement plan; of impacts, and result in improved relationships with planning • Identify preliminary range of alternatives; staffs.124 Corridor and subarea studies can also help agencies identify meaningful issues that should be carried over to NEPA; • Determine the extent of analysis needed for each resource; they enhance flexibility, build understanding between agencies, • Initiate applicable resource surveys/studies; and respond to fiscal challenges. The guidance clarifies that there • Identify potentially significant environmental issues; is no guarantee that what is decided by state and local entities in • Identify potential mitigation strategies; and corridor and subarea planning will be accepted by the lead fed- eral agency and stakeholders during NEPA, but the opportunity • Initiate permit activities as soon as possible, such as pre- exists that identified problems can be addressed early and initial application processes. project expectations understood throughout the transportation In 2018, FHWA entered into a Working Agreement with planning and project development process.125 the Coast Guard, the Army Corps of Engineers, the Environ- 4. One Federal Decision mental Protection Agency, the Fish and Wildlife Service, and the ­National Marine Fisheries Services, committing to work to- As noted above, in 2017, Executive Order (E.O.) 13807: gether to achieve the OFD goals.130 The agencies collaboratively Establish­ ing Discipline and Accountability in the Environ­ developed a chart that outlines agencies’ processes, both with mental Review and Permitting Process for Infrastructure and without using PEL.131 FHWA also issued guidance regard- Projects was issued, directing federal agencies to process envi- ing the pre-NEPA activities that should be completed for major ronmental reviews and authorization decisions for “major infra- infrastructure projects subject to the OFD process, in alignment structure projects” as One Federal Decision (OFD).126 The E.O. with the OFD MOU and FHWA’s Working Agreement. As de- set a government-wide goal of reducing, to two years, the aver- tailed above, CEQ also updated its NEPA regulations in 2020, age time for each agency to complete the required environmen- including to incorporate elements of the OFD policy.132 tal reviews and authorization decisions for major infrastructure projects.127 As a result of the 2021 IIJ, the One Federal Decision 5. Additional Guidance framework is now permanent and statutory. In the 2016 document titled PEL Questions and Answers, In 2018, multiple agencies, including DOT, signed an MOU FHWA developed a list of questions and answers to provide a implementing OFD.128 CEQ was tasked with “develop[ing] general explanation of PEL, as well as additional guidance on guidance for applying One Federal Decision whenever the lead implementation of PEL in conjunction with additional provi- agency is a State, tribal, or local agency exercising an assign- sions in the FAST Act.133 This guidance outlines specific require- ment or delegation of an agency’s NEPA responsibilities.”129 This ments, conditions, and examples, and its Appendix provides a ­policy sets forth a list of activities that should be completed prior useful list of public participation strategies and techniques. On May 11, 2022, the Biden administration released a “­Permitting Action Plan” to advance the IIJ’s goals to improve 122   Guidance on Using Corridor and Subarea Planning to Inform environmental reviews and permitting processes for transpor- NEPA, Federal Highway Administration (Apr. 5, 2011), https:// www.environment.fhwa.dot.gov/env_initiatives/pel/corridor_nepa_­ guidance.aspx. 123   Id. 130   Working Agreement to Coordinate and Improve Planning, ­Project 124   Id. Development, and the National Environmental Policy Act Review and Permitting for major Infrastructure Projects Requiring the Preparation of 125   Id. an Environmental Impact Statement, Federal Highway Administra- 126   Exec. Order. No. 13807, 82 Fed. Reg. 40,463 (Aug. 24, 2017). tion (Jan. 26, 2018), https://www.environment.fhwa.dot.gov/nepa/ 127   Id. documents/working_agreement_2-22-18.pdf. 128   Memorandum of Understanding Implementing One Federal Deci- 131   Id. sion Under Executive Order 13807, U.S. Department of Transporta- 132   Update to the Regulations Implementing the Procedural Provi- tion (Apr. 9, 2018), https://www.transportation.gov/sites/dot.gov/files/ sions of the National Environmental Policy Act, 84 Fed. Reg. 43,304 docs/policy-initiatives/320416/mou-one-federal-decision-m- (July 16, 2020). 18-13-part-2-1.pdf. 133   Planning and Environmental Linkages – Questions and Answers, 129   Exec. Order. No. 13807, 82 Fed. Reg. 40,463, 40,467 (Aug. 24, Federal Highway Administration (Nov. 2, 2016), https://www. 2017). fhwa.dot.gov/hep/guidance/pel/pelqa2016.pdf.

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Planning and Environment Linkages: Review of Statutory Authority and Case Law Get This Book
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Federal, state, and municipal transportation agencies have taken steps to advance the integration of transportation planning and the National Environmental Policy Act (NEPA) to create more unified decision-making processes, reduce duplication of efforts, and support better informed project-level decisions.

The TRB National Cooperative Highway Research Program's NCHRP Legal Research Digest 89: Planning and Environment Linkages: Review of Statutory Authority and Case Law details the origins and evolution of NEPA and the Federal Highway Administration’s Planning and Environment Linkages program.

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