Friday, October 22, 2010

environmental impact assessments

Nice article by Anne Steinemann on how alternatives get selected and analyzed in environmental impact assessments under NEPA.

I was just thinking about related issues - why do we have so much resistance to innovative transportation planning? Could the problem lie with environmental assessment?

Steinemann confirms (somewhat anecdotally) that alternative projects are often boxed out by the project objectives as stated by the agency, or are eliminated later as not being "cost effective" where the costs are defined narrowly (in terms of agency or construction costs - benefits don't seem to be a factor).

Other problems involve difficulties integrating agencies. I chuckled when I read this: As a federal highway agency official said, "Why would we want to pursue transit alternatives, and give some of our money to them?"

Right, so FHWA/FTA are competing for the same funds, FHWA is the lead agency, why would they want money to go towards a transit project?

This type of initial foreclosure is even happening with the bit of innovative planning that's going on in California in response to SB 375. It's even a little more insidious. SACOG is conducting a series of workshops presenting the pubic with (four?) alternative futures for transportation. Two are extreme and one is status quo. The other is a reasonable middle ground. Obviously folks are choosing that one. What good is a public process if the outcomes are determined in advance?

A related article by Michael Smith reviews appellate court decisions involving NEPA alternatives analysis. He finds that the "purpose and need" statement can be circumscribed by an agency who is conducting an environmental assessment in response to an application by a private party. So, if I want to build an oil pipeline through a wetland, I need only apply to the relevant agency who can then compare the project to a "no-build" scenario. No other alternatives need be assessed so long as the agency provides some justification. This is the primary lesson from the paper - that if an agency gives some justification for the exclusion of an alternative, it will likely be successful in court should the environmental review be challenged.

Smith's article leaves me feeling a little more pessimistic than Steinemann's. His conclusion that
if federal agencies construct a solid and legitimate statement of purpose and need, analyze [a] reasonable range of alternatives in detail that stems directly from that purpose and need, and explain clearly and with rational reasoning [?] why they are dismissing other alternatives to their project that may appear reasonable, they will nearly always be successful if they face future litigation...
So, he's basically laid out a roadmap for agencies to follow if they want to avoid being defeated in litigation whereas Steinemann has an eye toward improving the process (conducting assessments earlier, involving the public in deciding alternatives). Clearly the extant alternatives assessment is broken. Why would we keep it as is?

Thursday, October 21, 2010

oakland airport connector

Streetsblog has a post about the Oakland Airport Connector that finally appears to be going through. I was interested to see that the opposition to the project was cast only in "cost to the taxpayer" terms:
[BART General Manager Dorothy] Dugger said the only thing the delay in the project over civil rights and funding had accomplished was to increase construction costs. “I think one of the sad realities is that these kinds of major infrastructure projects take a long time to get to the starting block. It’s a truth that goes along with any large project: delay is generally not helpful. Delay only adds cost to the taxpayer.”
Does Dugger mean to imply that we should not oppose or question transportation projects at the risk that we might increase costs to the taxpayer? What about making the project more suitable for the individuals who will be using it?

This kind of opposition to opposition comes up often with transportation projects. It happened with the US 95 project and also with the Century Freeway. It's interesting to note that transportation officials feel comfortable short-circuiting the democratic process in favor of getting their favored projects built.

If they instead allowed genuine public participation, perhaps they would see fewer of their projects delayed?

US 95

Construction completed on US highway 95 in Northwest Las Vegas in 2005. The highway was expanded from six lanes to 10, ostensibly to deal with the specter of existing congestion and increasing congestion expected to result from population increases.

As part of an initial scoping study, three alternatives were reviewed. One was the expansion of the highway, one was the expansion of several arterials combined with travel demand management, and the third was a transit alternative. The last two were rejected as either too expensive or as not meeting the project requirements.

[Q1: How extensive were evaluation of these alternatives? Were they evaluated on the same terms as the others? Were only costs considered? or was there a cost/benefit analysis? Did the benefits include things like improved land use from non-expansion alternatives?]

Sierra Club filed a complaint (Sierra Club v. US Department of Transportation et al.) in the United States District Court for the District of Nevada (310 F. Supp. 2d 1168). This case was decided in March, 2004, was appealed and then settled in 2005. The initial decision touches on issues of air quality, induced demand, data, modeling, analysis of alternatives, and public participation.

While each of these has interesting components, the thing that struck me reading through the court documents was the complaint about public participation.

Sierra Club alleged that the FHWA violated 23 USC §128. This section addresses public hearing requirements for state DOTs proposing federal-aid highway projects. It states only that the state certify that it has had "public hearings, or has afforded the opportunity for such hearings" and that it submit a transcript of the hearing to the Secretary of Transportation. FHWA regulations stipulate that state programs for public hearings must follow guidelines somewhat stricter than those specified under section 128. They are still quite general, only requiring that the DOT
explain the project's purpose and need; alternatives to the project; the social, economic, environmental, and other impacts of the project; relocation assistance and right-of-way acquisition process; and procedures for receiving both oral and written statements from the public.
This is a legislatively and administratively guaranteed one-way flow of information, from the decision makers and the decisions already made to the public.

Pursuant to these regulations, the FHWA approved NDOT's proposal to hold "open house" style hearings where posters with project information are displayed and officials are on hand to speak with citizens. The transcript in the case of the open house includes precisely what interested individuals choose to say to a stenographer hired for the event.

Since FHWA administers the federal-aid highway program, it is charged with administering section 128. When it reviews the agency's interpretation of a statute (here it would be FHWA's implicit finding that open house-style "hearings" satisfy section 128), the court employs a two-part test established in Chevron v. NRDC (467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)). First, is the intent of Congress clear as to this precise issue? If yes, then deference is given to Congress. If no, then deference is given to the agency's interpretation of an ambiguous statute. Since section 128 provides no explicit definition of "public hearing" or "transcript" it is ambiguous.

Further, FHWA studied the open house process in 1987 and concluded that it had a number of benefits over the traditional (testimony-based) public hearing including the avoidance of "emotionally charged" testimony (hah!).

So, the court grants summary judgment in favor of the defendants (US DOT et al.), but, surprisingly (to me at least) feels compelled to address what it sees as "serious deficiencies" in the open house-style hearing.

The court argues that the "public" part of the public hearing is diminished since open house hearings result in a number of mini private meetings between citizens and officials. Citizens attending do not get to hear their fellow citizens' comments, nor do they get to influence and be influenced by them. The open house format appears fundamentally anti-democratic.

Imagine if hearings surrounding the adoption of the Scoping Plan had had an open house format. What would happen if a number of "emotionally charged" individuals showed up and disrupted the proceedings? Presumably there would be no record of what was said or what happened. Would the disruptive group be asked to leave?

I just did a quick search to see if the FHWA took the court's advice and stopped allowing/approving open house meetings. It seems that, no, they haven't. The single public meeting listed at the Caldecott Tunnel Fourth Bore Project page seems to have been open house-style.

Interestingly, I hadn't heard about these meeting types before. Maybe other (higher stakes?) policy folks know that they wouldn't fly in their communities?

Wednesday, October 6, 2010

AB 32 regional targets

California's Climate Change Scoping Plan requires a 5 MMT reduction from land use changes. The specific target is subject to revision based on the setting of regional targets. These are ostensibly GHG reduction goals that metropolitan planning organizations (MPOs) must meet through changing policies to promote compact development, increasing transit use, etc.

However, the committee established to advise CARB on target setting has chosen to suggest a per capita emissions metric to be used for targets. Their justification for this metric is dubious at best.
In addition, this form of metric has the advantage of directly addressing growth rate differences between MPO regions. Addressing growth rate differences between the MPO regions is important given that growth rates are expected to affect the magnitude of change that any given region can achieve with land use and transportation strategies. The relative characteristic of the metric ensures that both fast and slow growth regions take reasonable advantage of any established transit systems and infill opportunity sites to reduce their average regional greenhouse gas emissions. [Emphasis added, RTAC report p. 24]
Isn't this just saying that growing regions (with growing absolute GHG emissions and VMT) should be able to feel good about measures that they're taking even though they won't actually be making absolute progress towards the Scoping Plan's mandated target? With growing populations, per capita emissions have to drop quite a bit for there to be anything like an absolute reduction. How does this jive with the Scoping Plan's goals? Were they updated to reflect per capita targets?

[Update to come as I figure things out.]