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Appendix A: Key Observations from Initial Interviews As part of the initial phase of this study, we interviewed a number of established NEPA practitioners from across the United States, including individuals from federal and state transportation agencies, public interest groups, and private consultants. Appendix A to this research is a list of the questions posed to each interviewee and a summary of their responses. The primary purpose of these interviews was to help identify projects that might be good candidates for more detailed examination as case studies. However, the individuals we talked to had much to offer by way of additional insight, and we therefore decided to devote this Appendix to those observations. Rather than simply summarize what we heard, we have attempted to extract the most salient observations. The questions we posed to each interviewee focused on early warning signs that might alert project officials to possible controversies ahead. What are the early warning signs? What risk factors result from the type of project involved, and what factors are attributable to the kinds of environmental resources possibly impacted by the project? We also gathered information on the techniques used to identify and address risks both leading up to and during the course of the NEPA process. Finally, we asked interviewees to share any general observations they might have for our consideration. The answers we received were quite consistent across our interviews, both as to the factors that predicted potential issues in the NEPA process ahead and, especially, the measures that should be taken to ameliorate the problems that could result from such issues. This is particularly telling, as all of our first round interviewees were experienced NEPA practitioners. We should note that none of our interviewees viewed the risks we describe below as a reason not to proceed with the project. Indeed, most of the projects we discussed were under construction or already open to traffic. Early Risk Identification and Risk Factors The first series of questions focused on the early warning signs and risk factors that project officials should look for at the start of the NEPA process. This presence of these signs and factors might indicate that actions to address them would be appropriate at the outset of the NEPA process. Type of Project Sometimes, the nature of a project itself constitutes a warning of future controversies. Indeed, one interviewee noted that the very fact that an EIS is needed should, by itself, be considered a sign of potential difficulties. Larger projects naturally draw more attention than smaller ones. Large projects affect more people, communities, and resources. All of those are risk factors in and of themselves. However, quite apart from the impacts they cause, large projects pose questions as to whether they are an appropriate use of resources. Those opposed to highway developments in general will examine large projects much more thoroughly and will pose questions about the need for the project and the reason for its large scale. Large projects will also attract more attention from the press, and thus will potentially be debated in a wider public forum, beyond those directly affected by the project. Large projects also take longer to plan, design, and construct. They will be in the public eye longer and cause greater disruption than a smaller project. A-1
Another interviewee noted that projects that cause a good deal of impact or result in many relocations of people and businesses often create controversy. It should be remembered that some of the early Interstate Highway System construction projects literally moved thousands of people, especially in urban areas. Historic preservation laws, Section 4(f), public hearing requirements, the Uniform Relocation Assistance and Real Property Acquisition Policies Act (the âUniform Actâ),127 and NEPA itself all grew out of that early time period. These laws still provide a measure of protection because they force transportation agencies to focus on projects with significant impacts. Also, it should be apparent that if many people and businesses are forced to move, albeit with compensation, at least some of them will object vehemently, up to and including commencing legal actions aimed at stopping or altering the project to prevent it. Whether large or small, toll projects also seem to attract particular attention. Although the number of toll projects has increased in response to reduced public transportation funding and improved toll collection technology, toll projects still receive close scrutiny from future users of the project. Toll projects raise transportation equity issues, especially for low-income motorists. Many elected officials oppose or have significant reservations about toll projects in general. Also, tolling can affect traffic patterns in a way that may result in environmental impacts that need to be considered. However, for purposes of this study, rather than the specific concerns that people may have about tolling, it is the controversy associated with toll projects themselves that gives a warning signal of possible controversy in the NEPA process. At least one respondent noted that an unconventional or complex purpose and need for the project may be an indicator of possible controversy. The statement of purpose and need effectively sets the parameters of the environmental analysis, and it is an important factor in determining the range of alternatives. A complex or multi-faceted statement of purpose and need can lead to a wider array of alternatives that must be examined. For example, if a statement of purpose and need is heavily focused on encouraging economic development as well as transportation improvements, it might be reasonable to consider alternative ways of achieving economic development, rather than those limited to achieving economic development through transportation improvements exclusively. Also, the scope of the project that needs to be analyzed in the NEPA document must reflect the complexity of the projectâs purpose and need. Finally, a complex or atypical statement of purpose and need may be viewed with suspicion by reviewers who have become used to one that is more typical.128 Projects adding or modifying access points into established neighborhoods can be a source of concern to local residents and a source of potential controversy. The development that may be supported by a particular project may be the source of controversy, whether or not the highway project itself causes adverse environmental impacts. Indeed, the development can be of more concern than the highway project itself. Cumulative and secondary impacts, if not carefully addressed in the NEPA process, can cause serious delay and significant legal problems. The location of the project can also be a risk indicator, quite apart from any specific environmental impacts. Thus, projects that pass though relatively wealthy or well-established neighborhoods may result in greater controversy simply because those most affected by the project have the means and sophistication to challenge the proposed action. Projects located in areas that are particularly litigious, such as university towns, might warrant extra attention. Also, projects that impact close-knit communities or impact low-income or minority populations can be controversial. This is particularly the case if large public works projects in the same general area have run into difficulties previously. 127 42 U.S.C.§ 4601, et. seq. 128 On the other hand, in the authorâs experience, an overly generalized statement of purpose and need can be so broad that a large number of alternatives would meet the purpose and need; in that situation, additional criteria and screening may be required in order to narrow alternatives for a final determination of a locally preferred alternative or the âleast environmentally damaging practicable alternativeâ under CWA section 404. A-2
Resources Affected All of those interviewed noted that a key indicator of potential future controversy was the involvement of particularly sensitive resources or protected areas. Those mentioned repeatedly included areas protected by Section 4(f) , wetlands, national forests and national parks, endangered species habitats, historic sites that are on or eligible for inclusion on the National Register of Historic Places (even when not giving rise to a use under Section 4(f)), and environmental justice communities. Many of these resources are protected by specific environmental laws that have their own procedural and substantive requirements that must be addressed, usually as part of or concurrently with the NEPA process. Quite apart from the additional legal requirements, there are often local or national groups concerned about protecting these resources, which could clearly make the NEPA process more challenging. Other Indicators There are other indicators, more specific to the particular project, which are worth paying attention to. Are local officials supportive of the project? Opposition by one or more of the jurisdictions affected by the project can be a strong warning of potential difficulties. Local government opposition is often reflective of broader public sentiment about the project. Are those opposed to or raising questions about the project sophisticated in their understanding of the process? Are written submissions prepared by an attorney or someone else who is obviously familiar with the requirements at issue? Have there been extensive Freedom of Information Act or Public Records Act requests even through early phases of project development? These are signs of a group or individual who has invested the time and resources to pursue the issues being raised about the project. A state transportation agency would be well-advised to take these groups or individuals seriously. Are national or regional public interest groups involved from the outset? These groups tend to select targets for their most intense efforts, and their active involvement can be a signal that they see larger issues at stake in the project. What is the press saying about the project? Highly critical coverage can be an indicator of larger problems and could encourage opposition to the project. The press can also be reflective of public opinion about the project. Significant public opposition, or opposition from one segment of the public or one area impacted by the project, can be another indicator. How concerned are resource agencies about the project? Are officials from these agencies raising serious, substantive issues with the alternatives or scope of analysis or expressing opposition? Are concerns being raised from the outset, rather than awaiting the normal agency review process? One interviewee cited a study done by FHWA in the mid-1990s that showed that unresolved issues with resource agencies radically reduced the likelihood of FHWA prevailing in NEPA litigation about the project. Strategies for Managing Risk The experts whom we interviewed were remarkably consistent in how to manage risk. This is particularly the case where risk of possible future problems has been identified. However, most of the interviewees apply these techniques for virtually any large project, as well as those that have other markers for future controversy. The responses focused on the following five points: Identify Issues Early There should be no surprises as the environmental review process develops. Early issue identification comes from careful planning and environmental studies leading up to the start of the NEPA process, but also from the other measures listed in this discussion. A-3
Engage Expert Legal and Technical Advisors Early On Several of the more successful state environmental officials noted that enlisting a team of experts to advise the state officials and those preparing the environmental documentation was very useful in both ensuring the completeness of the record and in anticipating issues during the early stages of the NEPA process. All emphasized that these experts should have considerable hands-on experience. One state official even noted that he often tries to hire attorneys for this role who opposed the state on other projects. His theory is that he can learn from their point of view. These experts are typically not the same consultants who actually prepare the environmental documents or undertake the necessary technical studies. Rather, they offer higher level strategic advice regarding the scope of the necessary documentation and procedural measures that should be considered. They may also assist in reviewing the documentation prepared to provide âanother set of eyesâ to ensure the adequacy of the documentation. Engage the Public Early On Public hearings and the opportunity to comment are routinely part of most environmental processes. However, it may be advisable to engage in less formal listening sessions, make it easy to get to officials who can address peopleâs questions before they become problems, and develop strategies to address concerns wherever possible. Listening to and incorporating the ideas of the public can build a lot of goodwill for a project. One interviewee noted that state transportation officials are sometimes perceived as unwilling to listen or being inflexible in the face of public concern. That can result in unintentionally encouraging opposition or suspicion about the project and the motives of public officials. Coordinate with Resource Agencies and FHWA Particularly for large and complex projects, or those with potential adverse effects on significant resources, it is important to engage resources agencies early on. This will help anticipate their concerns and allow them to be incorporated into the NEPA documentation. It will also provide for an opportunity to develop design modifications and mitigation measures at an early stage, when it is easier and cheaper to accommodate them. The outreach should also include FHWA, both so that FHWA can assist the state and to facilitate and expedite the federal legal and technical review process. Engaging resource agencies early is not always easy because these agencies typically have only limited resources and other priorities. Thus, it may take considerable effort over an extended period of time to achieve an effective relationship. Prepare for Litigation from the Outset Where there is a substantial possibility that a project will face litigation, prepare for that litigation from the outset. This means that actions are well explained in the project files or ârecord.â Both comments from outside the state transportation department and by agency staff or consultants, whether hand written or via email, should be carefully considered. If the state transportation department receives an adverse comment or observation, as inevitably will be the case, make sure that the record contains a response or a resolution of the issue. Files, studies, documents, etc., should be kept in good order. In extreme cases, it may be advisable to prepare the Administrative Record as the project proceeds through the NEPA process.129 It should not be assumed that agency or consultant staff know what it means to develop and 129 An Administrative Record requires that documents be placed on electronic media, that decisions are made about whether a document is relevant or privileged on a continuing basis and stored accordingly, that the general organization of documents within the Administrative Record is made from the perspective of the issues likely to A-4
maintain a proper agency record. Thus, adequate training and oversight has to be a key part of the effort. All of this will make the litigation, if it comes, proceed much more smoothly and expeditiously. General Observations A key observation stemming from our interviews was that there is âno substitute for experience.â Experienced advisors can help the state take the right steps in the face of a myriad of facts, assertions, and pressures. Clearly, every potential âproblemâ noted above does not always cut against the project. Resource agencies may not have significant issues, the public may love a particular project, and environmental impacts can be large or small. Making sense of all this and steering the appropriate course for a particular project comes from having done it before. For difficult projects with a good deal of disagreement among the various agencies, it may be advisable to establish a dispute-resolution mechanism. That has worked on a number of controversial projects. One can use the services of dispute-resolution entities or rely on less formal means, such as engaging more senior agency officials, who can address issues as they arise. Remember that public involvement is not designed just to sell the project to the public, but also to enlist their aid in the project development process. Even adverse comments from committed project foes can help an agency prepare a better agency record. The best result is not a litigation-proof record, but a project that serves an important transportation need and that the public accepts and appreciates. appear in litigation, etc. If this step is taken, it will be necessary to coordinate closely with FHWA and, potentially, with lawyers from the U.S. Justice Department who are likely to be responsible for the lawsuit if it is filed. A-5
