LEGAL TOOLS FOR STOPPING FREEWAY EXPANSION

Michael J. Vandeman

July 19, 1988

INTRODUCTION

First, we have to establish that freeway expansion is an environmental issue: while common sense, or a trip to Los Angeles, would seem to indicate that expanding the freeway system leads to worse air pollution, highway planners unanimously assert that freeways either reduce pollution, or have no effect on it. For example, Caltrans (California Department of Transportation) and SCCTA (Santa Clara County Traffic Authority) on 6/10/88 approved a Negative Declaration (CEQA) stating that doubling the size of Route 101 in San Jose (from 4 to 8 lanes) between Bernal Road and the I280/I680 junction would decrease CO and "not have a significant effect upon the environment". Similarly, the Bay Conservation and Development Commission (BCDC) on 4/21/88 found that widening the Benecia Bridge from 4 to 6 lanes "would have no significant adverse impact on the environment", and (according to Joan Lundstrum of BCDC) filed neither an EIR nor a Negative Declaration nor a Notice of Exemption!

Their reasoning is based on (1) only analyzing CO and (2) assuming that the widening will have no effect on traffic volume, even long term (to the year 2010). While it is true that CO emissions decrease with increasing speed, this is not true for NOx and possibly for other pollutants. Also, many experts have noted that an uncongested freeway has a way of attracting more development, more traffic, and longer trips: trips are determined not by distance, but by convenience. When it takes 2 hours to commute from somewhere, few people will live there; but when a freeway is built there, it suddenly becomes a much more attractive place to live. In other words, freeway expansion is GROWTH INDUCING (in more ways than one, since many auto emissions are carcinogenic!). Doubling the capacity of a freeway, IN THE LONG RUN, will double the amount of pollution. Or, conversely, not widening the freeway will discourage driving, inhibit "urban sprawl", and consequently put an upper limit on VMT (vehicle miles travelled) induced air pollution.

Evidence of this includes the fact that the Clean Air Act under certain conditions provides for a ban on highway construction in nonattainment areas, and the fact that the Bay Area Air Quality Plan's Contingency Plan for a lack of "reasonable further progress" contains a list of highway expansion projects than can be delayed (beginning with "Freeway Congestion Relief Projects"). Neither document categorically asserts that such projects degrade the air, but why else would they single out highway expansion projects when air quality standards aren't being met?

This point is CRUCIAL to the use of all of the legal tools that I will describe: if freeway widening improves the air, then it cannot be stopped on air quality grounds. But why focus on the law? Isn't that the last resort? PRECISELY! My experience with fighting freeways over the past year is that there is NO ONE and NO AGENCY, in government or out, that is both willing and able to stop them, at least within the stringent time limits available. While it is very clear from the greenhouse effect, the effects of toxic and other pollutants, and the sheer limitations of available space that highway expansion must soon come to a COMPLETE HALT, almost no one is ready to do it or even SUGGEST it. Caltrans, for example, appears to decide what it wants to do first (e.g. widen a freeway with a Negative Declaration), and then work backwards to produce the documentation that will support that conclusion. Comments on that documentation that suggest a different conclusion (e.g. "don't widen the freeway", or "you must do an EIR"), NO MATTER WHO THEY COME FROM (EPA, ARB, MTC, BAAQMD, citizens, etc.), are ignored. Conclusion: the law is the only tool that might be able to do the job.

NEPA (NATIONAL ENVIRONMENTAL POLICY ACT)

NEPA, as it can be applied to stopping freeway expansion, is mostly a procedural, rather than a substantive, law: it determines the hoops that you must jump through prior to polluting the air. It requires the writing of a detailed environmental analysis (EA - Environmental Assessment, EIS - Environmental Impact Statement, or FONSI - Finding Of No Significant Impacts) and "hopes" that that analysis will induce the decision-maker to choose the environmentally safe alternative. It requires for all "major Federal actions significantly affecting the quality of the human environment a detailed statement ... on the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, alternatives to the proposed action, the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved in the proposed action". It prohibits "piecemealing" projects (breaking them up into small pieces for environmental analysis purposes, so that the effect of each piece project seems insignificant) (23 CFR 771). It requires a discussion of "all reasonable alternatives to the proposed action". A final EIS (FEIS) requires "prior concurrence by the [FHWA] Washington Headquarters and the Office of the Secretary of Transportation [for] ... any new controlled access freeway". (The FEIS for Route 85 in San Jose, e.g., contains no mention of any such concurrence, nor even an indication of a copy being sent to FHWA in Washington.) There are special reporting requirements when parks and wildlife refuges ("4(f) lands") are affected, in which case one must say that "there is no feasible and prudent alternative". In the end, NEPA may provide just a delay, but this delay could be very useful.

CAA (CLEAN AIR ACT)

CAA, unlike NEPA, is substantive, rather than procedural, and thus is potentially much more powerful. Unfortunately, it is also full of industry-inspired (according to John C. Esposito in Vanishing Air) loopholes and pitfalls. It sets national ambient air quality standards (NAAQS), by pollutant, but leaves it up to the states to figure out how to meet them. In the case of the Bay Area, the State (ARB) has passed the buck to ABAG (Association of Bay Area Governments - the "Chamber of Commerce"), MTC (Metropolitan Transportation Commission), and BAAQMD (Bay Area Air Quality Management District). Their piece of the SIP (State Implementation Plan) -- the Bay Area Air Quality Plan -- very skillfully uses language to appear to be saying something, while actually committing to almost nothing (in the area of transportation controls). Theoretically, the SIP is binding; in a nonattainment area (where at least one standard hasn't been met) where transportation controls are necessary to meet the standard, the only transportation projects that may be approved are for safety, mass transit (that says it all!), or air quality improvement or maintenance (the latter projects, as I mentioned above, don't exist!); the Federal government must give priority to achieving and maintaining the NAAQS in programs affecting transportation; and the Federal government and local planning organizations cannot approve, engage in, or support in any way activities not conforming to the SIP (42 USC 7506). (However, Bruce E. Cannon, Administrator of the California Division of FHWA, told me in a 7/11/88 letter that "the role of FHWA ... is limited, with the [EPA] being the agency for Clean Air Act matters"!)

But just try to find out what "conforming to the SIP" means! Every agency and every lawyer will give you a different definition. 23 CFR 770 purports to answer this question, but muddies the waters considerably. The clearest part states "programs will be judged in conformance with the SIP if they do not adversely affect the TCM's [Transportation Control Measures] in the SIP, and they contribute to reasonable further progress in implementing [them]". Caltrans' favorite part says "A project conforms to a SIP if ... it comes from a conforming transportation improvement program [TIP]". They assume that the TIP conforms because FHWA says it does.

If EPA finds "that reasonable further progress [RFP] toward attainment of air quality standards is not being maintained", it can request a SIP revision. EPA has indeed requested a revision of the SIP for the Bay Area. I don't know whether it was due to lack of RFP, but WHY ELSE? If so, "for a 12-month period thereafter or until the SIP is formally revised, whichever is shorter, ... FHWA will not authorize construction of any project contained in a SIP contingency list ...". We shall see....

Since FHWA makes the "final conformance determination" and EPA submits "recommendations", it appears that the fox is guarding the chickens, and no application of CAA to highway expansion is likely. However, since "the prevention and control of air pollution ... is the primary responsibility of the states and local governments" (42 USC 7401), perhaps THEY should judge conformity. Indeed, ABAG promised in the 1982 Air Quality Plan to do conformity assessment, but apparently never did it.

A case could also be made that the Bay Area has not made reasonable efforts to produce an adequate plan. The 1984 update promised in the SIP was never produced, and the yearly RFP reports due from ABAG to EPA stopped after 1983, in spite of EPA protests. Lack of reasonable efforts to submit an adequate plan, together with failure to submit an adequate plan (how could our plan be adequate, if we failed to meet the NAAQS by the required date?), would call for highway expansion sanctions (a construction ban). There wasn't RFP (there was NO progress!) in 1983 & 1984 in ozone, so it could be argued that EPA should have revoked plan approval at that time, and applied sanctions.

A strange quirk in 23 CFR 770.9 is that it says "the conformity requirement applies in all nonattainment and maintenance areas requiring transportation control plans for transportation-related pollutants." This is not what the law says; 42 USC 7506(c) has no such restriction.

A new twist is contained in a 7/1/88 letter from Deanna M. Wieman of EPA to Caltrans: "since the regional Air Quality Management Plan (AQMP) does not demonstrate attainment of standards, the project proponent must [unusually strong language!] provide mitigation for any potential emissions increases."

What about the new CAA? Any extension of the deadline for clean air will allow more highway expansion and more VMT growth, and hence make it all the harder to eventually meet the standards. It is like getting an "extension" on having to remove the termites from your house -- they simply continue to eat your house and multiply. The only advantage to the extension is that a few people make money, at the expense of everyone's health. I also noticed "ensure traffic flow improvements" listed as a requirement for a TCM. As mentioned above, improving the flow of automobiles is not necessarily good. The same goes for the so-called "California CAA", or Sher Bill (AB2595): measures to reduce traffic congestion are included in TCMs. This is like trying to kill ants by drowning them in maple syrup -- you may kill a few ants immediately, but in the long run it's counterproductive.

CEQA (CALIFORNIA ENVIRONMENTAL QUALITY ACT)

Like its parent, NEPA, CEQA is procedural: in the end, it can only DELAY a project. By writing the right words (called "findings of overriding considerations"), an agency can go ahead and do whatever it wants. However, (1) that delay can be very important, and (2) some agencies either can't find the right words, are too impatient to take the time to write them, or possibly are afraid that the process will work as it is designed to, and that fully and honestly disclosed facts will somehow force them to choose a less environmentally damaging alternative. On the other hand, CEQA is one of the clearest, easiest-to-read, least ambiguous laws I have ever seen.

CEQA's environmental documents are the IS (Initial Study), ND (Negative Declaration) and EIR (Environmental Impact Report). An EIR is required for any project that may have a significant adverse impact on the environment. An IS is used to determine whether an EIR will be necessary. After the review and comment period, a final document and preferred alternative will be approved. This will either be an ND or EIR, unless the project is determined to be Exempt. In the former cases, a Notice of Determination is filed (with the County Clerk and, in the case of a state agency, OPR (Office of Planning and Research)). In the case of an Exempt project, a Notice of Exemption is filed. All of these Notices are published weekly in OPR's Permit Assistance Clearinghouse Newsletter -- a free and VERY USEFUL item!

The aim of CEQA is to ensure that decision-makers are provided with a complete and honest evaluation of the environmental consequences of a project and a list of all feasible alternatives for accomplishing the project's goals. However, it deals only with the "completeness" part. (Presumably the "honesty" part is dealt with in other laws, or in the next election!) It provides a LONG list of "hints" indicating when one could expect adverse impacts and when, therefore, an EIR is required. But EIRs are expensive and time-consuming to produce and must be reviewed by more agencies, so, for example, Caltrans has often found an ND or even an IS to be sufficient. (Environmental analysis is a real nuisance, isn't it?) Typical weaknesses of freeway-expansion documentation are: (1) lack of non-freeway alternatives, e.g. mass transit; (2) faulty air pollution modeling, due to "the assumption that the trip table is totally unchanged by what, if anything, would be built" ("Caltrans' Transportation Modeling Bias", Mike Bullock, California Transit, Oct-Dec 1986, p.8) and due to ignoring non-CO pollutants; (3) denying growth-inducement (but the FEISs for Route 85 & the I680/SR24 junction DO admit it); (4) ignoring cumulative effects ("piecemealing" projects, as described earlier); (5) proposing "solutions" which may have short-term benefits (speeding up traffic), but which long-term are devastating; (6) ignoring "adverse effects on human beings" ("automobiles are not only the major criteria [sic] source, but a very significant source too of air toxics", Michael H. Brown, The Toxic Cloud, p. 192; "Researchers at the University of California estimate that the use of gasoline and diesel fuel in the United States alone may cause up to 30,000 deaths every year", Worldwatch Paper 84: Rethinking the Role of the Automobile, Michael Renner, June, 1988, p.35); (7) ignoring the "disagreement among experts"; and (8) wasting fuel ("When fully used, [public transit systems] are considerably more energy-efficient and generally less polluting", ibid, p.49). With all of these violations, there are probably grounds under CEQA for "abuse of discretion", and for transferring the lead agency position to a less biased (toward road-building) agency. Either Caltrans's name should be changed back to the Department of Highways (which is all that it does), or it should be revamped to provide the kind of transportation planning that will allow us to survive the "greenhouse effect" and all the other "effects".

MISCELLANEOUS

Art Weber has proposed the sensible notion that REVOKING THE DRIVER'S LICENCES of the worst drivers would reduce congestion at very little cost, provide more patrons for public transit, and increase highway safety, all without rousing significant opposition. After all, as the driver's manual clearly states, DRIVING IS A PRIVILEGE, NOT A RIGHT.

23 CFR 630.106 promotes "rigorous energy conservation" and requires that "the planning, design, construction, management, and operation of the Federal-aid highway system shall be conducted in a manner that conserves fuel ...." Surely this could be applied to many things, from revoking drivers' licenses to putting mass transit (rather than more traffic lanes) down the medians of to-be-widened freeways. 630.110 states "the SHA [Caltrans] shall give consideration to projects identified as energy conserving, such as ... public transportation". I doubt that failing to mention transit as a feasible alternative falls under "giving consideration".

23 CFR 790.5(b) apparently requires a public hearing on a freeway widening project such as I680 from Willow Pass to Marina Vista (through Concord). Although I requested one in writing on 1/20/88, Clarence Yee of Caltrans in a 3/10/88 letter to me refused to hold one because "we ... do not feel that a public hearing would serve any useful purpose". 790.5(d) states: "The opportunity for a public hearing shall be afforded in each case in which either the State highway department or the Division Administrator is in doubt as to whether a public hearing is required." 790.9(e)(1) does not allow FHWA to approve a project location until the hearing has been held. There and in 790.9(e)(2), is specified that they must also assure that "other applicable laws and regulations" (presumably including CEQA and CAA) are obeyed. They cannot pass the buck by saying that EPA is "the agency for Clean Air Act matters".

Local (county and city) TSM (Transportation System Management) ordinances can be very effective in reducing congestion. Perhaps they could also be applied in freeway-related issues, e.g. in refusing (as did Los Gatos in regard to Route 85) to approve a freeway agreement with Caltrans.

CONCLUSION

EVEN IN CALIFORNIA it is uncertain whether there exists enough simultaneous wisdom and guts (courage) to put a halt to the freeway juggernaut. We cannot wait for a slow process of enlightenment, as advantageous and enjoyable as that is. I would rather bet on a smart lawyer, and a judge with his eye on the "prize": "to provide a high-quality environment that at all times is healthful and pleasing to the senses and intellect" (CEQA); "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare" (CAA).2