National Academies Press: OpenBook
« Previous: II. PEL LEGAL AUTHORITIES
Page 17
Suggested Citation:"III. VARIOUS APPROACHES TO PEL." 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.
×
Page 17
Page 18
Suggested Citation:"III. VARIOUS APPROACHES TO PEL." 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.
×
Page 18
Page 19
Suggested Citation:"III. VARIOUS APPROACHES TO PEL." 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.
×
Page 19

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.

NCHRP LRD 89   17 tation and other infrastructure projects.134 The plan affirms: The other PEL authorities set forth under 23 C.F.R. §§ 450.212 “Where applicable, environmental issues should be studied dur- and 450.318 require involvement of interested federal, state, ing the planning stage of project development and incorporated local, and tribal agencies; public review; a reasonable opportu- into the environmental review process.”135 It also directs the for- nity to comment during the statewide transportation planning mation of “sector-specific teams of experts,” including a team process or the metropolitan transportation planning process for “Transportation.”136 The plan calls for issuance of further and development of any corridor or subarea planning study; guidance and details in the coming months for implementing documentation of the relevant decisions in a form suitable for the Plan. review during NEPA scoping; and FHWA review, as appropri- Additional PEL-related guidance can be expected going for- ate.140 These requirements for public involvement are normally ward as well, particularly as the Biden administration has also satisfied through generally applicable public involvement re- rescinded Executive Orders that placed general limitations on quirements of the transportation planning process. Overall, guidance without prior public notice and comment. FHWA and FTA aim to promote PEL irrespective of the par- ticular authority invoked. D. Comparison of Different PEL Authorities and Conditions III. VARIOUS APPROACHES TO PEL Federal, state, and local agencies continually recognize the Following a brief synopsis of the direction and guidance pro- various PEL authorities described in this section during the vided by the federal agencies regarding PEL implementation, ­decision-making process. However, only the statutory and regu- this section discusses the various approaches states and plan- latory provisions detailed in Section B (e.g., MAP-21, the FAST ning organizations have taken to implement PEL by highlight- Act, and FHWA/FTA planning regulations) have the force of law. ing commonalities and differences. As discussed in the previous The guidance and policy statements outlined in Section C (e.g., sections, there are a range of statutory and regulatory authorities Appendix A) clarify agency understanding of existing laws and that support the use of PEL. When practitioners are considering regulations and provide suggested or recommended actions, but developing planning information and planning products with they do not include mandatory requirements and are not legally the intention of using the planning products and decisions in binding. subsequent environmental reviews under NEPA, the approach Even among the binding statutory and regulatory require- selected will be driven largely by the desired outcome. ments, each PEL authority has its own conditions that vary by Regardless of which statutory or regulatory authority is used, source. For example, under 23 U.S.C. § 168, the planning pro- FHWA and FTA have identified a few common considerations cess must include public notice that the planning products may that guide states and planning organizations as they initiate be adopted during a subsequent environmental review pro- planning work for later use in environmental reviews conducted cess.137 During the environmental review process, the relevant under NEPA.141 Specifically, these “General Considerations” are: agency must make the planning documents available for public • Development of planning products through a statewide or review and comment to members of the general public in addi- metropolitan transportation planning process conducted tion to federal, state, local, and tribal governments that might in compliance with FHWA or FTA planning laws and have an interest in the proposed project.138 These requirements regulations; are in addition to public involvement requirements generally applicable to transportation planning and the environmental • Participation by federal and state resource agencies and review process. tribes; Significantly, PEL under 23 U.S.C. § 168 is not subject to the • An opportunity for stakeholders and the general public to conditions listed in 23 C.F.R. §§ 450.212 (Statewide and Non- review the planning information and understand the link- metropolitan Transportation Planning and Programming) or age between planning and environmental review; 450.318 (Metropolitan Transportation Planning and Program- • Use of reliable and reasonably current data and scientifi- ming), which both refer to 23 U.S.C. § 168 (Integration of Plan- cally acceptable methodologies; ning and Environmental Review) as “additional” authority.139 • Consultation with and involvement from FHWA or FTA during the development of planning analyses or planning 134   FACT SHEET: Biden-Harris Administration Releases Permitting products intended for use in environmental review; and Action Plan to Accelerate and Deliver Infrastructure Projects On Time, On Task, and On Budget, The White House, https://www.­whitehouse. •  A comprehensive and well-documented record for the gov/briefing-room/statements-releases/2022/05/11/fact-sheet-biden- develop­ment of planning products for subsequent use in harris-administration-releases-permitting-action-plan-to-­accelerate- the NEPA process. and-deliver-infrastructure-projects-on-time-on-task-and-on-budget/. 135   Id. at 5. 136   Id. at 3. 137   23 U.S.C. § 168(d)(4).   23 C.F.R. §§ 450.212(b), 450.318(b). 140 138   23 U.S.C. § 168(d)(5)(A).   Federal Highway Administration, “Planning and Environment 141 139   23 C.F.R. §§ 450.212(d), 450.318(e). Linkages Desk Reference (PEL Desk Reference),” Section 3.2 (2019).

18    NCHRP LRD 89 Given the various statutory and regulatory authorities avail- Highway Institute course and desk reference,148 issued guidance, able to support the use of PEL, these General Considerations are and produced numerous webinars.149 FTA directs practitioners intended to help practitioners determine how best to use a PEL to the FHWA PEL Program page for information on implement- approach. As practitioners decide on the outcomes they want to ing a PEL approach, including guidance materials, case studies, achieve by using PEL, they should keep these General Consid- and webinars.150 In contrast, FRA does not yet actively promote erations in mind to identify which PEL authority best supports the use of PEL. The development of state rail plans is governed accelerated project delivery. Given FHWA’s and FTA’s emphasis by the Passenger Rail Investment and Improvement Act of 2008 on the application of these General Considerations early in the (PRIIA)151 and therefore transportation planning for rail has not planning process, states and planning organizations have imple- been included in the evolution of the PEL authorities. None- mented PEL in a way that generally addresses these six consid- theless, FRA does have the legal authority to use PEL pursuant erations. Additionally, although not a required practice, states to its NEPA implementing regulations152 and has acknowledged also use FHWA’s 2011 PEL Questionnaire as a method for sum- that state rail plans may be included as an element of a state’s marizing their PEL process for a given project.142 Because this long-range transportation plan.153 Moreover, FRA encourages practice has become commonplace, the responses to the PEL early integration of environmental reviews into the overall plan- Questionnaire provide a ready avenue for comparison of state ning process, conducting early and well-defined scoping activi- practices.143 ties, and the use of adoption and incorporation by reference to Although an increasing number of states have begun to use a coordinate NEPA with reviews and documents prepared under PEL approach to accelerate transportation project delivery, not other applicable laws. all states have yet done so. This section presents an overview of Although there are a growing number of PEL studies and PEL implementation in the states that have been identified by PEL products for highway projects (as discussed below), there FHWA as having “effective practices”144 or “tools” to strengthen are not yet many transit and rail examples of PEL. A likely rea- the linkage between planning and environmental review.145 The son for the discrepancy is the legacy Capital Investments Grants research to support the following discussion was conducted via Program project development process, particularly the New desktop reviews of the publicly available information on the Starts Program, that functionally supplanted PEL by requiring websites of the federal agencies and states. an Alternatives Analysis before initiating project development. Regardless, the tides appear to be turning as FTA is more accept- A. Federal PEL Program ing of PEL as an approach to help define projects and ­narrow The U.S. DOT modal administrations (FHWA, FTA, and alternatives before starting project development. FRA) share the same statutory and regulatory authorities dis- cussed in Sections I and II of this paper.146 However, FWHA has B. Selected Examples of PEL Implementation established itself as the most active proponent for the use of PEL. As FHWA and FTA continue to endorse and encourage the To encourage the use of PEL, FHWA has established a dedicated use of PEL as a tool for accelerating project delivery, the use of website for PEL,147 spearheaded the development of a National PEL is growing. Among the many nascent PEL initiatives, a handful of states stand out for having long-standing, robust PEL programs, notwithstanding the monikers these states have ap- 142   Planning and Environmental Linkages Questionnaire, Federal plied to their processes. These states include Colorado, Florida, Highway Administration (Apr. 5, 2011), PEL Questionnaire | ­Planning and Environment Linkages | Environmental Review Toolkit | North Carolina, Oregon, Montana, and Michigan. FHWA (dot.gov). Colorado has a robust PEL program. The Colorado Depart­ 143   See, e.g., Questionnaire for Transportation Planners, MAG_ ment of Transportation (CDOT) has incorporated PEL Spine_NAR_Appendices (azmag.gov); Microsoft Word - NDOT_PEL_ ­guidelines and planning processes into its procedures for trans- Questionnaire_and_Checklist_2012 12 17.docx (https://www.dot.nv. gov/home/showdocument?id=4962); and Planning and Environmental Linkage Questionnaire (wa.gov). 148   National Highway Institute, https://www.nhi.fhwa.dot.gov/ 144   Initiatives to Accelerate Project Delivery – Effective Practices, course-search?tab=0&key=PEL&cat=11&res=1. ­Federal Highway Administration, https://www.environment.fhwa. 149   Initiatives to Accelerate Project Delivery – Training and Work- dot.gov/env_initiatives/pel/practices.aspx. shops, Federal Highway Administration, https://www.­ 145   Initiatives to Accelerate Project Delivery – How to Implement PEL, environment.fhwa.dot.gov/env_initiatives/pel/training.aspx and Initia- Federal Highway Administration https://www.environment.fhwa. tives to Accelerate Project Delivery – On-Demand Webinar: PEL Today, dot.gov/env_initiatives/pel/implementation.aspx. Federal Highway Administration, https://www.environment.fhwa. dot.gov/env_­initiatives/PEL/Webinar_PEL_Today.aspx. 146   The joint FHWA, FTA and FRA NEPA implementing regula- tions provide “The information and results produced by or in support 150   Preparing Environmental Documents, Federal Transit of the transportation planning process may be incorporated into envi- A ­ dministration, https://www.transit.dot.gov/regulations-and-programs/­ ronmental review documents in accordance with 40 C.F.R. parts 1500 environmental-programs/preparing-environmental-documents. through 1508, 23 C.F.R. part 450, 23 C.F.R. part 450 Appendix A, or 23 151   Pub. L. 110-432 (October 16, 2008). U.S.C. 139(f), 168, or 169, as applicable.”  23 C.F.R. § 771.111(a)(2)(i). 152   23 C.F.R. § 771.111(a)(2)(i). 147   Initiatives to Accelerate Project Delivery – Planning and Environ- 153   State Rail Plan Guidance, Federal Railroad Administra- ment Linkages, Federal Highway Administration, https://www. tion, Final_State_Rail_Plan_Guidance_September_2013.pdf (dot. environment.fhwa.dot.gov/env_initiatives/pel.aspx. gov). See also 23 U.S.C. § 135 and 49 U.S.C. § 5304.

NCHRP LRD 89   19 portation planning. CDOT has developed its own PEL Hand- has consistently improved the IPD process with experience over book, Decision Matrix, Alternatives Evaluation Guidance Tool, time. The IPD process has led to institutional changes to sup- Partnering Agreement, and training webinars.154 CDOT’s PEL port PEL implementation, such as the organizational integra- Handbook provides practitioners with step-by-step guide- tion of planning staff and project delivery environmental review lines for how to conduct a PEL study,155 including examples of staff. The PEL approach is now part of NCDOT’s organizational ­projects, processes, and scopes of work. It also outlines relevant culture. federal and state policy, requirements, and guidance that apply Oregon has also been implementing PEL for over a decade, to the PEL approach. CDOT has institutionalized a process that underscoring that the PEL concept has been in successful use is used to determine if a PEL study should be undertaken, who for some time. Like Colorado, Florida, and North Carolina, should be involved, and when to coordinate with FHWA. For Oregon has engaged in a robust PEL implementation process157 developing the PEL study, CDOT has identified four key steps: and has issued programmatic guidance for PEL implemen- tation.158 Indeed, Oregon has gained the benefits of PEL for 1. Draft a purpose and need; some marquee projects, such as the Earthquake-ready Burnside 2. Understand the existing and future transportation systems; Bridge improvement.159 Multnomah County and FHWA imple- 3. Identify a reasonable range of alternatives; and mented a PEL strategy that included conducting “early scoping” 4. Conduct an environmental evaluation. activities prior to the formal scoping process after the issuance of the Notice of Intent pursuant to NEPA. This strategy included CDOT has successfully used PEL to identify priorities, justify engaging the public and agencies in developing the draft pur- funding for projects, and accelerate project delivery. pose and need statement, identifying and screening alternatives, Similarly, Florida’s Efficient Transportation Decision-­ and identifying topics to be studied in the Draft EIS. The formal Making (ETDM) process is composed of project screening ac- scoping process provided a final opportunity for input on these tivities that lead into Florida’s established Project Development topics before drafting the EIS. Process.156 Even though Florida’s process is not called “PEL,” the Montana has a formalized PEL business process that uses the ETDM process is consistent with the PEL authorities and objec- following questions to determine whether a Corridor Planning tives established by MAP-21 and the FAST Act. It allows for the Study will be conducted using a PEL approach: development of information to support the NEPA process such as the purpose and need with input from agency stakeholders. • Is the proposed project regionally significant? Florida uses the ETDM process for all major improvements (i.e., • Are there environmental constraints and a strong potential roadway widening, new alignments, new bridges/replacements, for an EIS or EA? interchanges, intersections requiring rights of way, complete •  Will the proposed project be costly and is funding streets, transit, and projects anticipated to use state or federal questionable? funds). • Is the proposed project likely to generate substantial public The North Carolina Department of Transportation controversy? (NCDOT) uses an “Integrated Project Delivery” (IPD) process that promotes transparency and efficient processes. As with • Is the proposed project likely to generate many alternatives? Florida’s ETDM process, NCDOT’s IPD process accomplishes • Is there substantial ambiguity about the alternatives? the intent of the PEL authorities. NCDOT initiated this process • Is there a need to preserve the corridor for future transpor- prior to SAFETEA-LU. The NCDOT IPD process uses a ­Problem tation improvements? Statement to inform a project’s purpose and need. Within the Problem Statement, or as a separate document, alter­natives are Like NCDOT, the Montana Department of Transportation’s identified and considered during the transportation planning (MDT) PEL process also leads to the development of specific phase. This initial consideration of alternatives is intended to products that can be used in the environmental review process. inform the alternatives to be considered in NEPA. Addi­tionally, Corridor Planning Studies developed per MDT’s process have NCDOT uses a Merger Process to accelerate p ­ roject delivery by been used to identify project purpose and need, define modal reaching concurrence with both NEPA and permitting agencies choice and describe the environmental setting, and conduct at specific points in the process. IPD is now a part of the agency’s routine planning and environmental review processes. NCDOT 157   Planning and Environmental Linkages: Phase I Survey Summary, Oregon Department of Transportation, https://www.oregon.gov/ ODOT/GeoEnvironmental/Docs_NEPA/AppendixA_PhaseI_­ 154   Planning & Environmental Linkages, Colorado Department Summary.pdf. of Transportation, https://www.codot.gov/programs/environmental/­ 158   ODOT Planning and Environmental Linkages Guidance, ­Oregon planning-env-link-program. Department of Transportation, https://www.oregon.gov/ODOT/ 155   CDOT’s process defines PEL as a study process which identifies GeoEnvironmental/Docs_NEPA/Planning_Environmental_Linkages_ transportation needs, priorities, and environmental concerns. CDOT’s Guidance.pdf. nomenclature refers to the resulting planning product as a “PEL study.” 159   Earthquake Ready Burnside Bridge: Draft Environmental Impact https://www.codot.gov/projects/co52-pel-acp/pelprocess. Statement, https://multco-web7-psh-files-usw2.s3-us-west-2.­amazonaws. 156   ETDM Process, Office of Environmental Management, com/s3fs-public/Attachment%20N%20-%20Planning%20and%20 http://www.fdot.gov/environment/etdm.shtm. Environmental%20Linkages%20Strategy%20Technical%20Memo_0.pdf.

Next: IV. PEL-RELATED LITIGATION »
Planning and Environment Linkages: Review of Statutory Authority and Case Law Get This Book
×
MyNAP members save 10% online.
Login or Register to save!
Download Free PDF

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.

  1. ×

    Welcome to OpenBook!

    You're looking at OpenBook, NAP.edu's online reading room since 1999. Based on feedback from you, our users, we've made some improvements that make it easier than ever to read thousands of publications on our website.

    Do you want to take a quick tour of the OpenBook's features?

    No Thanks Take a Tour »
  2. ×

    Show this book's table of contents, where you can jump to any chapter by name.

    « Back Next »
  3. ×

    ...or use these buttons to go back to the previous chapter or skip to the next one.

    « Back Next »
  4. ×

    Jump up to the previous page or down to the next one. Also, you can type in a page number and press Enter to go directly to that page in the book.

    « Back Next »
  5. ×

    To search the entire text of this book, type in your search term here and press Enter.

    « Back Next »
  6. ×

    Share a link to this book page on your preferred social network or via email.

    « Back Next »
  7. ×

    View our suggested citation for this chapter.

    « Back Next »
  8. ×

    Ready to take your reading offline? Click here to buy this book in print or download it as a free PDF, if available.

    « Back Next »
Stay Connected!