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1、Legal Research Digest 54 national Cooperative highway researCh program December 2010 TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES praCtiCe UnDer the environmental provisions oF saFetea-lU This report was prepared under NCHRP Project 20-6, “Legal Problems Arising Out of Highway Programs,”
2、for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Larry W. Thomas, Attorney-at- Law, Washington, DC. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. the problem and its soluti
3、on State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- ing practices and legal elements of specific problems in highway law. This report continues NCHRPs practice of keeping departments up-to-date on laws that will af- fect their operations. appl
4、ications The Safe, Accountable, Flexible, Efficient Transporta- tion Equity Act: A Legacy for Users (SAFETEA-LU) adjusted the federal environmental statutes that control the development of highway and transit projects that are eligible for federal funding or need some form of federal approval. The s
5、tatutes are the National Environmental Policy Act (NEPA) and Section 4f of the Department of Transportation Act (4f). Under NEPA, SAFETEA-LU prescribes an approach that combines the planning and project development process. SAFETEA-LU also pre- scribed new requirements for major projects that includ
6、e a structured approach to participation by other agen- cies. Under Section 4f, Congress ordered rulemaking to standardize practice and codify a process for de mini- mis findings where the impacts to protected resources (e.g., parks, wildlife refuges, historic sites) are minor. Congress also shorten
7、ed the statute of limitations to 180 days for challenges to NEPA decisions, and four states are allowed to pursue delegation of authority to make the decisions to authorize projects as categorical exclusions under NEPA. The Federal Highway Administration and the Fed- eral Transit Administration have
8、 responded with guid- ance and rulemakings. Litigation has already been initiated on how to in- terpret the new statute of limitations. One state has pursued the delegation of authority to make categorical exclusion decisions. There have been variances on how to interpret these provisions. This lega
9、l research digest summarizes the amendato- ry statutory provisions, guidance, and rulemakings and the judicial decisions that have interpreted them. The research reviews legislative history intended to explain why these provisions were enacted. The digest provides a convenient source for deter- mini
10、ng how these provisions are being administered by the appropriate federal agencies and state departments of transportation. It should be useful to department of transportation administrators, attorneys, planners, con- tractors, financial officials, environmental specialists, community activists, and
11、 policy makers. CONTENTS Introduction, 3 I. SAFETEA-LU and the Streamlining of Environmental Review, 3 II. The Responsible Agencies Involved in Streamlining, 4 A. The Lead Agency, 4 B. Joint Lead Agencies, 5 C. Participating Agencies, 6 D. Cooperating Agencies, 6 III. Specific Features of the Stream
12、lined Environmental Review Process, 7 A. Early Identification of a Projects Purpose and Need, Objectives, Range of Alternatives, Methodology, and Preferred Alternative, 7 B. Coordination Plan and Scheduling, 8 C. Deadlines for Comment, 9 D. Involvement of the Public, 9 E. Funding to Expedite the Env
13、ironmental Review, 9 IV. Identification and Resolution of Issues of Concern, 10 V. State Assumption of Responsibility for Categorical Exclusions, 10 VI. Timing and Limitation on Judicial Review, 11 VII. State Pilot Program, 12 VIII. SAFETEA-LU and De Minimis Findings Under Section 4(f), 12 IX. Judic
14、ial Decisions Relating to SAFETEA-LU, 14 A. Introduction, 14 B. Shenandoah Valley Network v. Capka, 14 C. Highland Village Parents Group v. Federal Highway Administration, 15 D. Sierra Club North Star Chapter v. Peters, 16 E. Audubon Naturalist Society of Central Atlantic States, Inc. v. United Stat
15、es Department of Transportation, 16 X. State Transportation Departments Responses to Survey Questions, 16 A. Overall Experience with SAFETEA-LU, 16 B. Preventing or Reducing Delay, 17 C. Staffing and Funding, 17 D. Training, 18 E. Consistency in Interpretation of SAFETEA-LU, 18 F. Effect of SAFETEA-
16、LU on State DOT Practices, 18 G. Documentation of Decisions and Actions, 19 H. Effect on Public Involvement, 19 I. State Assumption of Federal Duties, 19 J. Effect of 180-Day Statute of Limitation, 20 K. SAFETEA-LU and Unresolved Problems or Issues, 20 Conclusion, 21 Appendix ASurvey Questions, 22 A
17、ppendix BTransportation Departments Responding to the Survey, 26 3 PRACTICE UNDER THE ENVIRONMENTAL PROVISIONS OF SAFETEA-LU By Larry W. Thomas, Esq. INTRODUCTION Because of concerns that the environmental review process for large, complex highway and transit projects is inefficient, leading to dela
18、ys in the completion of pro- jects, 1 Congress has acted to streamline the environ- mental review process and improve interagency coop- eration. 2 Although Congress added “environmental streamlining” provisions to the Transportation Equity Act for the 21st Century (TEA-21), in 2005 Congress took ano
19、ther step toward streamlining with the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). 3 The Act “established a new environmental review process for transportation projects developed as envi- ronmental impact statements.” 4 SAFETEA-LU seeks to avoid
20、 delay by addressing environmental issues at the planning stage of a project and by promoting increased interaction and cooperation among the Federal High- way Administration (FHWA) (or the Federal Transit Administration (FTA) 5 and its state and local counter- parts. The Act requires that agencies
21、responsible for gaining environmental approval invite resource agen- cies that have an interest in the project to participate in defining the purpose and need for the project, the range of alternatives to be considered, the methodology to be used, and the level of detail required in the analysis of
22、each alternative. 6 The principal sections of SAFETEA-LU discussed herein are as follows: 1 See SAFETEA-LU Environmental Review Process Final Guidance (Nov. 15, 2006), available at http:/www.fhwa.dot. gov/hep/section6002/index.htm, hereinafter cited as “FHWA Final Guidance.” 2 Congressional Research
23、 Service, CRS Report for Congress, Safe, Accountable, Flexible, Efficient Transportation Equity ActA Legacy for Users (SAFETEA-LU or SAFETEA): Se- lected Major Provisions (Oct. 18, 2005), at 28, available at: http:/www.policyarchive.org/handle/10207/bitstreams/2597. pdf , last accessed on Feb. 11, 2
24、010. 3 Pub. L. No. 109-59 (Aug. 10, 2005). 4 FHWA Final Guidance, supra note 1, at 9 (page numbers refer to the PDF version). 5 Although SAFETEA-LU is applicable to the Federal Tran- sit Administration, the report only addresses the issues from the perspective of state highway projects. 6 General Ac
25、counting Office Reports regulations, including the amendments effective in April 2009; and FHWAs Final Guidance on SAFETEA-LU, 9 as well as the few judicial decisions to date interpreting the environmental provisions of the Act. The digest discusses the responses of 27 state transportation departmen
26、ts (state DOT) to a survey conducted for the digest regarding the states experi- ence with SAFETEA-LU. I. SAFETEA-LU AND THE STREAMLINING OF ENVIRONMENTAL REVIEW A critical objective of SAFETEA-LU is to provide for increased coordination between federal and state agen- cies in statewide and metropol
27、itan transportation plan- ning and environmental review. Although there is lim- ited legislative history for Section 6001, 10 the section 7 Pub. L. No. 89-574 15(a) (Sept. 13, 1966), 80 Stat. 771. 8 23 U.S.C. 138 (West 2002, 2010 Supp.) (originally en- acted as 4(f) of the Department of Transportati
28、on Act of 1966). 9 Supra note 1. 10 Conference Report of the Committee of Conference on H.R. 3, H.R. REP. NO. 109-203, at 1039 (2005), hereinafter 4 modifies requirements for statewide and transportation planning and requires that transportation agencies consult with resource agencies having respons
29、ibility for such planning. 11 SAFETEA-LU strengthens the link between the planning of transportation projects and the review of a projects environmental impacts. The Act establishes a new process for environmental review through new statutory provisions and regulations. The Act empha- sizes early co
30、nsideration of environmental issues during the planning of projects and improved communication among the involved agencies. Although the legislative history also is limited in re- gard to Section 6002, 12 the section provides for more efficient environmental reviews for project decision- making. 13
31、Under SAFETEA-LU there is a modified en- vironmental review process for environmental impact statements (EIS) involving highway projects, public transportation projects, and multimodal projects requir- ing federal approval. 14 The modifications are necessary for a more streamlined process to handle
32、environmental concerns with major transportation projects. SAFETEA- LU introduced a new entitythe participating agencyin the environmental review process. 15 The environmental review process in Section 6002 is mandated for EIS projects. 16 Section 6002 may be ap- plied to a “project, class of projec
33、ts, or program of pro- jects.” 17 In addition, the Secretary has the discretion to cited as the “Conference Committee Report.” According to the report, changes were made to the “existing planning provisions for the highwayand transit programsto form a unified planning title.” Id. Additionally, there
34、 were “minor adjust- mentsto eliminate inconsistencies and to reflect updated terminologies and practices.” Id. Section 6001 “extends the update cycle of transportation plans” and requires that a “state transportation improvement programreflect the priorities for congestion relief activities that ar
35、e included in the metropoli- tan TIPs.” Id. 11 23 U.S.C. 134. (All references to Title 23 U.S. Code Sec- tions are to West 2002 U.S.C.A., 2010 Supplement unless stated otherwise). 12 Conference Committee Report, supra note 10, at 1046. For example, the report states that the Conference Substitute pr
36、o- vides for notice to the United States Senate Committee on En- vironment and Public Works and the United States House Committee on Transportation and Infrastructure of a failure of a federal agency to make decisions in the environmental review process; preserves current regulations under NEPA rega
37、rding agencies acting as Joint Lead Agencies under 139(c)(2); and provides for a program to measure and report on progress toward improving and expediting the environ- mental review process. Id. at 1052. The Conference Substitute includes the Senate provisions on repeal of 1309 of TEA-21 and the pre
38、servation of existing state environmental review processes, programs, agreements, or funding arrangements approved by the Secretary under 1309 of TEA21. Id. 13 Codified in 23 U.S.C. 139. 14 23 U.S.C. 139(a)(3), (a)(6). 15 Id. 139(d). 16 Id. 139(b)(1). 17 Id. 139(b)(2). apply Section 6002 procedures
39、“to other projects for which an environmental document is prepared.” 18 FHWA advises that USDOT may apply the require- ments of Section 6002 to projects developed as envi- ronmental assessments (EA), but the department “does not intend to exercise the authority to apply the Section 6002 process to C
40、Es through this guidance.” 19 With the exception of those states that streamlined their deci- sion-making under TEA-21 and timely requested to continue their program, 20 “all transportation projects requiring an EIS for which the original Notice of Intent was published in the Federal Register after
41、August 10, 2005, must follow the procedures outlined in Section 6002.” 21 II. THE RESPONSIBLE AGENCIES INVOLVED IN STREAMLINING SAFETEA-LU designates the responsible agencies for project-development procedures and efficient envi- ronmental reviews for decision-making. There are “lead agencies,” 22 “
42、joint lead agencies,”23 “participating agen- cies,” 24 and “cooperating agencies.”25 The Act imposes obligations on all of the foregoing agencies participating in the environmental process, but the lead agency is the one having the principal responsibilities under the Act. A. The Lead Agency Althoug
43、h the USDOT is the “Federal lead agency” in the environmental review process, 26 “one or more of the USDOT modal agencies will always be the Federal lead agency on a Federal transportation project” 27 A pro- ject is defined as any “highway project, public transpor- tation capital project, or multimo
44、dal project that re- quires the approval of the Secretary” of USDOT. 28 As provided in Section 6002, the term “lead agency” in- cludes any state or local governmental entity serving as a joint lead agency. 29 FHWA may assign certain envi- ronmental responsibilities to a state under Section 6005 of S
45、AFETEA-LU. In such instances, the term “USDOT” means the state DOT “to the extent the State has been delegated FHWA environmental responsibilities and authorities.” 30 The term “Administration” also means a state when it “is functioning as the FHWA or FTA in carrying out responsibilities delegated t
46、o the State in 18 Id. 19 FHWA Final Guidance, supra note 1, at 12. 20 Id. at 13. 21 Id. at 12. 22 23 U.S.C. 139(c)(1). 23 Id. 139(c)(2). 24 Id. 139(d). 25 Id. 139(d)(5). 26 Id. 139(c)(1). 27 FHWA Final Guidance, supra note 1, at 9. 28 23 U.S.C. 139(a)(6). 29 Id. 139(a)(4). 30 FHWA Final Guidance, su
47、pra note 1, at 10. 5 accordance with 23 U.S.C. 325, 326, or 327, or other applicable law.” 31 The lead agency by far has the most enumerated, and usually mandatory, duties and re- sponsibilities. Although there may be joint lead agencies, discussed below, the lead agency, first, has the “authority a
48、nd responsibilityto take such actions as are necessary and proper, within the authority of the lead agency, to facilitate the expeditious resolution of the environ- mental review process for the project” 32 and “to prepare or ensure that any required environmental impact statement or other document
49、required to be completed under the National Environmental Policy Act of 1969 is completed in accordance with this section and applica- ble Federal law.” 33 Second, the lead agency must “identify, as early as practicable in the environmental review process for a project, any other Federal and non-Federal agencies that have an interest in the project” and invite them to become participating agencies. 34 The lead agency must set a deadline for the prospective participating agencies to respond to the invitati