Planning and Environment Linkages: Review of Statutory Authority and Case Law (2023) / Chapter Skim
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II. PEL LEGAL AUTHORITIES
II. PEL LEGAL AUTHORITIES
Pages 4-16
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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.
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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 transor 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.
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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.
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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)
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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 recomments 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.
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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.
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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 proImprovement" 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 transreview 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.
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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.
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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.
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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 transfor PEL and expresses the agencies' views regarding appropriate portation projects as "a continuum of sequential study, refinepractices for planning and environmental reviews.
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Why or why not? Project Delivery Program to conduct environmental reviews for covered transportation projects, those states will decide whether (c)
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? 117 Guidance on Using Corridor and Subarea Planning to Inform NEPA, Federal Highway Administration (Apr.
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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 transporNEPA, Federal Highway Administration (Apr.
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