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

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20    NCHRP LRD 89 preliminary screening of alternatives. MDT’s Business Process number of states.164 As more states embrace PEL, they are gener- also aids MDT in determining whether a project is financially ally following FHWA guidance, applying the General Consider- feasible. One notable component of MDT’s Business Process is ations and using the PEL Questionnaire throughout the process. a “transition form” that is completed at the end of a planning study. The form documents key issues for project develop- IV. PEL-RELATED LITIGATION ment team awareness and consideration during a NEPA review. While there is very little litigation to date specifically address- ­Finally, MDT uses its Business Process to emphasize early coor- ing PEL, courts throughout the country have considered—and dination with resource agencies. consistently upheld—agencies’ incorporation of and reliance The Michigan Department of Transportation (MDOT) has on prior transportation planning products and decisions, par- used PEL since 2013. MDOT applies its own decision-making ticularly for environmental impact statements and alternatives tool to determine when PEL efforts are appropriate, and has analyses. Thus, courts have at least indirectly endorsed the PEL also developed a “How to Guide” for practitioners.160 N ­ otably, process for major federal actions.165 MDOT has used PEL as a key tool for accelerating projects In the seminal case Honolulutraffic.com v. FTA,166 the United that may have been studied previously, but lack agreement States Court of Appeals for the Ninth Circuit upheld a purpose from stakeholders on a preferred outcome.161 MDOT has used and need statement based on objectives previously identified PEL for operational analyses, including complete streets plans, in a transportation plan. Plaintiffs in the case were a consor- road safety audits, and pedestrian considerations.162 Like MDT, tium of interest groups and individuals opposing a high-speed MDOT uses a checklist to help determine when the PEL pro- rail ­project that asserted challenges under NEPA, Section 4(f), cess is appropriate. The checklist asks practitioners to consider and Section 106 of the National Historic Preservation Act. questions such as whether the problem or need for the project ­Defendants included the FTA, DOT, and various federal and has been identified; alternative solutions will need to be devel- local administrators. The court ruled that the statement of pur- oped; a project is operational or capacity building; the affected pose and need in the final environmental impact statement community is engaged; and a project is in the state’s five-year did not unreasonably restrict the agency’s analysis. The envi- transportation plan. ronmental impact statement described the project’s purpose in The examples cited here demonstrate well how PEL can be accordance with the preexisting, statutorily-mandated formula- applied flexibly to meet varying transportation planning needs tion of a regional transportation plan, and the statement of pur- and project specific NEPA requirements from state-to-state pose and need was broad enough to allow the agency to assess and region-to-region. Indeed, it is this flexibility in approach various routing options and technologies for the high-capacity, that makes it difficult to conclude that any one PEL approach high-speed transit project.167 is more effective or more efficient than another. The efficacy of Likewise, in Sierra Club v. U.S. DOT,168 plaintiffs presented using the PEL approach can depend on a number of factors, in- several challenges to the environmental impact statement for a cluding what the objectives of the agencies are; how much time proposed federal highway widening project. One of these chal- and budget an agency allots for PEL; what the underlying engi- lenges alleged that FHWA relied on understated population and neering, environmental, and socioeconomic issues are; and how traffic forecasts.169 However, the district court found that FHWA’s successfully an agency is able to identify, analyze, and address reliance on the forecasts and modeling efforts of the designated project specific NEPA requirements during the transportation metropolitan planning organization responsible for develop- planning process. Nonetheless, use of the PEL Questionnaire as ing transportation plans and programs for the area was rea- a tool for planning the PEL approach, as well as a template for sonable.170 In addition, plaintiffs argued that the environmental documenting the PEL approach, appears to be emerging as a impact statement had improperly rejected a fixed guideway as a standard practice among all states. While it may be challeng- ing to identify one state’s PEL approach as somehow better than 164   See, e.g., Planning and Environmental Linkage, Indiana Depart- another’s, taken as a whole, these state PEL programs provide ment of Transportation, https://www.in.gov/indot/resources/­ strong evidence to support the benefits of PEL identified by planning-studies/technical-planning/planning-and-environmental- FHWA.163 Finally, in addition to these established programs, linkage-pel/; Route 17 Planning and Environmental Linkage Study, New PEL is moving to a more established format in an increasing York State Department of Transportation, https://www.dot.ny. gov/rt17pelstudy; and Second community meeting scheduled for the Waimea Regional Safety Study on Hawaii Island, Hawaii Department of Transportation, https://hidot.hawaii.gov/administration/second-­ community-meeting-scheduled-for-the-waimea-regional-safety-study- 160   MDOT - Planning and Environmental Linkages (PEL) (­michigan. on-hawaii-island/. gov). 165  However, NEPA does not apply to state and MPO planning 161   US-31/M-37 Division Street, Michigan Department of products because those are not major federal actions. Transportation, MDOT - US-31/M-37 Division Street PEL Process (­michigan.gov). 166   742 F.3d 1222 (9th Cir. 2014). 162   MDOT - Studies (michigan.gov). 167   Id. at 1230-1234. 163   How to Implement PEL, Federal Highway Administration, 168   310 F. Supp. 2d 1168 (D. Nevada 2004). https://www.environment.fhwa.dot.gov/env_initiatives/pel/­ 169   Id. at 1189. implementation.aspx. 170   Id. at 1189-1190. 

NCHRP LRD 89   21 reasonable alternative under NEPA. The Court disagreed, find- In Utahns for Better Transportation v. U.S. DOT,181 the Tenth ing that FHWA reasonably relied on a “major investment study” Circuit similarly credited local planning for proper rejection conducted as part of the planning process to establish that such of an alternative to the proposed project during NEPA review. an alternative (1) would not meet the project’s purpose and need, Plaintiffs contended that the final environmental impact state- even when considered as part of a transportation strategy, (2) was ment was inadequate because it failed to consider reducing travel too costly, and (3) depended on connections to other portions of demand through alternative land use scenarios in combination such a system for which construction was uncertain.171 with mass transit. The court stated that “[l]and use is a local and In North Buckhead Civic Association v. Skinner,172 plaintiffs regional matter,” and that the corridor at issue would involve the challenged the purpose and need articulated in the environ- jurisdiction of several local and regional governmental entities mental impact statement for a multi-lane limited access high- whose cooperation would be necessary to make an alternative way connecting two existing highways. The purpose and need land use scenario a reality. The fact that these local bodies had was derived from a series of planning studies conducted by the clearly declined to alter their land use plans in such a way was Atlanta Regional Commission. Plaintiffs argued that the pur- adequate justification for not considering this alternative. pose and need was crafted in a way that the proposed highway Where courts have found NEPA or other environmental was “conclusively presumed to be required” and a rail alterna- violations, they have not been predicated on perceived flaws tive perfunctorily dismissed for its failure to fully satisfy the in planning products. As discussed above, before NEPA, chal­ objectives of the project.173 The court disagreed with plaintiffs, lenges to transportation plans and projects were less frequent stating that their objections reflected “a fundamental misappre- and rarely successful. More recently, courts do not uniformly up- hension of the role of federal and state agencies in the commu- hold federal agency decisions and accompanying NEPA reviews nity planning process established by the Federal-Aid Highway when challenged in litigation, but typically base any adverse Act.”174 The court went on to explain that the Federal-Aid High- rulings on a lack of any analysis in the administrative record. way Act contemplated “a relationship of cooperation between For example, the district court in Senville v. Peters182 found the federal and local authorities; each governmental entity plays a environmental impact statement, before it was supplemented by specific role in the development and execution of a local trans- FHWA, to be inadequate because it contained only a “sketchy” portation project.”175 The court emphasized that federal agencies discussion of induced growth and failed to support its assump- did not have responsibility for long-range local planning, and tions with any analysis.183 And in Simmons v. U.S. Army Corps found that the “federal, state and local officials complied with of Engineers,184 the Army Corps of Engineers failed to question federally mandated regional planning procedures in develop- the city’s insistence on one approach for supplying water and ing the need and purpose section of the [environmental impact gave no independent thought to the feasibility of alternatives, statement].”176 both single source and separate source supply options.185 On More generally, courts have repeatedly supported the envi- this basis, the environmental impact statement was found to be ronmental review process based on other work performed dur- inadequate. Simmons remains the only published court deci- ing a project’s transportation planning process. For instance, sion striking down the purpose and need statement in a NEPA in Carmel-by-the-Sea v. U.S. DOT,177 plaintiffs challenged the document. ­sufficiency of an environmental impact statement for failing By contrast, purpose and need statements and analyses sup- to adequately consider the proposed project’s growth-inducing ported by planning studies are typically undisturbed by courts. ­effects. The Ninth Circuit disagreed, finding that the environ- In fact, courts afford the highest deference to technical determi- mental impact statement satisfied this requirement by refer- nations made by agencies within their areas of expertise. (See, encing several local planning documents that specifically in- e.g., Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, cluded construction of the highway in their growth plans and 1077 (7th Cir. 2016)) (defendants did not violate the Clean Air which discussed overall growth targets and limits.178 Similarly, Act when they decided to use specific vehicle fleet data because in ­Laguna G ­ reenbelt, Inc. v. U.S. DOT,179 the court held that the “[w]hen examining this kind of scientific determination, as op- absence of a more thorough discussion in an environmental im- posed to simple findings of fact, a reviewing court must gen- pact statement of induced growth, an issue that was sufficiently erally be at its most deferential” (quoting Balt. Gas & Electric analyzed in referenced state materials, did not violate NEPA.180 Co. v. NRDC, 462 U.S. 87, 103 (1983))); Fla. Keys Citizens Coal., Inc. v. U.S. Army Corps of Engineers, 374 F. Supp. 2d 1116, 1161 171   Id. at 1190-1194. (S.D. Fla. 2005) (the final environmental impact statement con- 172   903 F.2d 1533 (11th Cir. 1990). sidered by FHWA adequately considered viable alternatives and 173   Id. at 1541. thus the court deferred to the agency’s expertise and discretion). 174   Id. 175   Id. 181   305 F.3d 1152 (10th Cir. 2002), as modified on rehearing, 319 F.3d 176   Id. at 1542. 1207 (10th Cir. 2003). 177   123 F.3d 1142 (9th Cir. 1997). 182   327 F. Supp. 2d 335 (D. Vt. 2004). 178   Id. at 1162-1163. 183   Id. at 348-350. 179   42 F.3d 517 (9th Cir. 1994). 184   120 F.3d 664 (7th Cir. 1997). 180   Id. at 523-524. 185   Id. at 669-670.