Thursday, October 21, 2010

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?

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