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

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22    NCHRP LRD 89 Congress has also sought to encourage PEL by allaying ­ btain judicial review under the APA, the federal agency ac- o concerns of added litigation risk. For example, beginning with tion must be “final.”187 For an agency’s action to be considered MAP-21, 23 U.S.C. § 168(f)(1) makes clear that the transpor- final, two conditions must be satisfied: First, the action “must tation planning process itself is not subject to NEPA or other mark the ‘consummation’ of the agency’s decision-making environmental review. Moreover, 23 U.S.C. § 168(f)(2) pro- process—it must not be of a merely tentative or interlocutory vides that “[i]nitiation of the environmental review process as nature”188; and second, the action “must be one by which ‘rights a part of, or concurrently with, transportation planning activi- or obligations have been determined,’ or from which ‘legal con- ties does not subject transportation plans and programs to the sequences will flow.’”189 Frequently, NEPA-based challenges to environmental review process.” Accordingly, plaintiffs cannot plans in various contexts have been rejected by courts as es- directly challenge MPO or state planning products developed sentially premature because the subject agency has not taken under 23 U.S.C. §§ 134 or 135, simply because they are subse- any specific, final action at the planning stage that results in an quently incorporated in a NEPA analysis for a given project that ­irreversible and ­irretrievable commitment of resources. For ex- utilizes statutory PEL. Moreover, 23 U.S.C. § 168(f)(3) speci- ample, in W ­ yoming Outdoor Council v. U.S. Forest Service,190 the fies that it does not limit the use of planning products under Court held that plaintiff ’s claim that the procedure by which the other ­authorities or “restrict the initiation of the environ­mental Forest Service would allocate oil and gas leases did not comply review process during planning.” Thus, a planning agency with NEPA was not ripe for review because the leases had not counter­mands no law via early consideration of environmental yet been issued.191 Likewise, in Center for Biological Diversity v. factors in transportation planning. While courts may examine U.S. Dep’t of Interior,192 plaintiffs unsuccessfully alleged that the the reasonableness of federal agencies’ reliance on planning agency violated NEPA by failing to properly take account of cli- products as part of the administrative record in a challenge to mate change and failing to establish the baseline conditions of a derivative project’s NEPA review, the already-deferential “rule program areas when it approved a five-year program to expand of reason” judicial standard of review under NEPA and the APA offshore areas available for oil and gas leasing. But the claims applies with ­double the force for underlying planning products were unripe because the agency had only approved the program of expert states and MPOs. at issue, no lease sale had yet occurred, and no final ­action thus Nor has PEL to date provided an avenue for transportation had been taken.193 And in Fisheries Survival Fund v. Haaland, plan or project opponents to gain entry into courts on alleged plaintiffs could not even challenge an issued federal wind ­energy NEPA grounds to essentially challenge plans otherwise immune lease because it “does not, by itself, authorize any activity.”194 from judicial review as policy decisions. The Supreme Court and Similarly, plans and reports developed during the PEL process, other courts have routinely rejected attempts to judicially effec- even if deemed to be “federal” actions, do not constitute inde­ tuate broad policy changes by facially litigating federal agency pendently operational or final agency actions challengeable programs. E.g., Lujan v. National Wildlife Federation, 497 U.S. under NEPA. 871, 890-93 (1990) (“flaws in the entire ‘program’—consisting principally of the many individual actions referenced in the com- V. PEL GOING FORWARD plaint and presumably actions yet to be taken as well—­cannot be Following the above extensive and broad history and legal laid before the courts for wholesale correction under the APA”); basis for PEL, this final section distills key themes and take- Whitewater Draw Nat. Res. Conservation Dist. v. Mayorkas, 5 aways for transportation planning bodies, project proponents, F.4th 997, 1011 (9th Cir. 2021) (plaintiffs “may think that the and federal agencies to consider in applying PEL going forward. third branch is more convenient or accessible, but the APA—­ Overall, opponents of transportation plans and projects likely consistent with Article III—will not permit such forays outside will continue to challenge various agency actions. Yet the utili- the ‘­traditional, . . . normal[ ] mode of operation of the courts,’ which remains limited to ‘controvers[ies]’ . . . reduced to more 187   5 U.S.C. § 704. manageable proportions”).186 Because transportation plans are 188   Bennett v. Spear, 520 U.S. 154, 178 (1997) (quoting Chicago & the product of state, regional, and local policy decisions, it is not Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 113 the place of courts to second-guess them or their incorporation (1948)). into a federal agency’s NEPA analysis via PEL. 189   Id. (quoting Port of Boston Marine Terminal Assn. v. Furthermore, PEL does not alter the jurisdictional require- ­Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). ment for a final federal agency action. Before plaintiffs may 190   165 F.3d 43 (D.C. Cir. 1999). 191   Id. at 50. 186   See also Norton v. S. Utah Wilderness All. (“SUWA”), 542 U.S. 192   563 F.3d 466 (D.C. Cir. 2009). 55, 64, 124 S. Ct. 2373, 2379–80, 159 L. Ed. 2d 137 (2004) (“The limita- 193   Id. at 480; see also New York v. U.S. Army Corps of Engineers, tion to discrete agency action precludes the kind of broad program- 896 F. Supp. 2d 180 (E.D.N.Y. 2012) (NEPA challenge to drafts of pro- matic attack we rejected in [Lujan, supra].”); Zixiang Li v. Kerry, 710 posed regulations that would permit natural gas development in the F.3d 995, 1004 (9th Cir. 2013) (“We have no authority to compel agency Delaware River Basin was not prudentially ripe for judicial review; action merely because the agency is not doing something we may think harms that plaintiff state and nongovernmental organizations ulti- it should do.”); Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 877 mately were concerned about were speculative, and relied on a chain of (11th Cir. 2009) (“Systemic improvement and sweeping actions are for inferences that might never come to pass). the other branches, not for the courts under the APA.”). 194   858 Fed. App’x 371, 372 (D.C. Cir. 2021). 

NCHRP LRD 89   23 zation of PEL—in any form or under any available a­ uthority— First, agencies, states, and MPOs should adopt PEL inten- should not introduce additional litigation risks or pitfalls. To tionally from the outset with a holistic view from transportation the contrary, PEL presents the opportunity to anticipate and planning through transportation project construction. To that potentially obviate sources of conflict, and ultimately result in end, it is critical that PEL users clearly identify the source of PEL superior outcomes both for transportation systems and for the authority on which they will rely, as well as fully comprehend environment. and demonstrate satisfaction of the corresponding conditions of use. The benefits of PEL may be compromised if it is employed A. PEL Here to Stay as an afterthought, or if insufficiently understood by all relevant PEL has experienced a steady uptick in use and is now in- stakeholders. For example, following a specific ­project proposal, grained in transportation culture. Congress has enacted mul- it may be too late to bolster a planning product to incorporate tiple statutes encapsulating key features of PEL. At the federal critical environmental information bearing on that project, level, FHWA has pioneered a robust PEL program supported by or circulate that planning product to ensure sufficient public regulations and guidance for highway projects. In turn, FTA and feedback. FRA are increasingly embracing PEL concepts for projects with- Second, PEL users should ensure early, meaningful engage- in their jurisdiction. A growing number of states and MPOs are ment with other agencies and the public, rather than just setting also featuring PEL in their transportation planning and envi- out to check a box. Among other things, states and MPOs dur- ronmental reviews. Though the trend toward PEL has not been ing the planning process should seek and obtain concurrences uniform, the trend plainly exists and is expanding. As agencies, from key resource agencies and FHWA for steps like alterna- states, MPOs, and project proponents gain more experience tives elimination and development of the statement of purpose with PEL, the benefits should continue to crystallize and per- and need. Critical comments offered during the NEPA process colate. And despite the comings and goings of different political should carry less weight when not raised during early opportu- administrations, or consequent changes in NEPA regulations or nities for public comment at the transportation planning stage. guidance, PEL has endured as a widely-recognized sensible and Finally, PEL users should ensure diligent and contemporane- economical approach to reduce delays and duplications without ous documentation for the administrative record. The judicial sacrificing environmental outcomes. standard of review in transportation project challenges remains whether the federal agency decision was arbitrary and capri- B. Reduced Risks of Litigation and Rulings Adverse cious based on the administrative record before the agency at to Projects the time it acted, as lodged with the court. 5 U.S.C. § 706(2)(A). When incorporating planning products into NEPA analyses, To date, the case law does not reflect any increased risk in federal agencies should ensure they can trace the development using PEL. Courts have not invalidated a transportation plan and adoption of those products and should coordinate with the because it was subsequently incorporated into a NEPA analysis. state or MPO as necessary to obtain such documentation for the Nor have courts invalidated a NEPA analysis because it relied record. Doing so should reduce scrambling to compile a record on a transportation planning product. Given the numerous and after litigation has been filed, as well as necessary instances of long-standing authorities for PEL, it is reasonable to expect that administrative record motions practice and supplementation in this trend will continue. court. At the same time, use of PEL should actually reduce litigation risk. By directly including environmental considerations in the D. Barriers to Implementation transportation planning process, PEL substantially reduces the Despite its considerable advantages, and lack of tangible potential for undiagnosed issues or eleventh-hour concerns that downsides, PEL likely remains underutilized today. It requires could derail a project schedule. PEL also affords a greater num- coordinated and sustained effort at federal, state, and regional ber of stakeholders more meaningful input at an earlier junc- levels to stand up a PEL program, establish a PEL culture, and ture, which in turn provides opportunities to resolve flashpoints ensure PEL’s routine utilization. Thus, continued education without litigation. And when project opponents insist on liti- and promotion of PEL nationwide remain important, includ- gating final project approvals, the foundational strength of the ing via case studies and success stories. Agencies should look incorporated planning products and the NEPA reviews stem- for ways to institutionally improve their environmental review ming from PEL should result in robust administrative records processes, such as changes to organizational structures. Federal ultimately supporting those projects. Moreover, while there are agencies may want to consider continuing to foster relationships a variety of PEL authorities and approaches as discussed above, with state and MPO transportation planners to anticipate and to date they have not yielded discernable distinctions in judicial utilize PEL throughout the planning and environmental review deference. processes. A better understanding of how PEL can be used well C. Best Practices to “set up” a smooth NEPA process will likely come with prac- tice as more states start to use PEL. PEL stakeholders share a goal to minimize risk in using PEL. Certain strategies help facilitate this outcome and avoid pitfalls.