The cut to TPP funding was only the latest in a series of battle losses for environmentalists as they fought to expand their turf. As the first anniversary of the Transportation Equity Act for the 21st Century (TEA-21) passed June 9, environmentalists were licking their wounds after suffering serious setbacks in their attempts to rein in road construction.

On June 21, a pivotal Sierra Club lawsuit which attempted to use federal transportation law to stop some $700 million in highway projects in Atlanta was settled out of court.

The suit had been heralded as a turning-of-the-tide by environmental interests against what they perceive as a juggernaut of new highway construction to be launched under the higher funding levels of TEA-21. Success would have established a precedent for blocking needed highway construction elsewhere.

And the failure of the environmental lobby to block new highway construction in Atlanta came only weeks after the Environmental Protection Agency (EPA) was hit with stunning setbacks related to road construction in federal courts.

On May 14, a three-judge federal appellate panel in Washington, D.C., invalidated the agency's 1997, hyperstrict air quality standards as unconstitutional in overruling states' rights, and chastised the EPA for exceeding its regulatory authority.

Because of the direct linkages between the Clean Air Act, TEA-21, and its predecessor, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), the highway construction industry may be the most exposed of all industrial sectors to negative impacts caused by the 1997 ozone and PM standards that were overturned.

"Considerations of requirements for transportation plans, programs and projects to be consistent with emissions budgets underlying State Implementation Plans [SIPs], in light of the dramatically tightened 1997 standards, could [have] shut down all highway projects in hundreds of counties across the nation," said the American Road & Transportation Builders Association (ARTBA) in an analysis this summer.

Then -- suffering a second major setback in as many weeks -- the EPA was ordered May 25 by a U.S. Court of Appeals to slow down its implementation of a rule to substantially reduce nitrogen oxide (NOx) emissions from sources in the midwest and southeast that are thought to contribute to ozone pollution to Northeastern states.

Also, in June it appeared that EPA would miss its early summer deadline for release of practical rules to implement its "Environmental Justice" policy. Environmental Justice is a policy by which minorities could oppose siting of pollution-generating facilities using federal civil rights legislation.
 

End to TPP funding

EPA's notification of withdrawal of support for the Transportation Partners Program came in a letters to legislators from EPA administrator Carol Browner. Browner said an internal investigation revealed that the program was unaccountable, unbalanced, exclusive and ineffective at harmonizing environment and transportation policy.

Browner's July 13 letter came after Rep. David McIntosh (R-Ind.) announced his House Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs would hold a hearing on the program.

McIntosh demanded to know "Since the overwhelming majority of commuters drive to work, please explain why a program called Transportation Partners Program appears to include no organizations promoting road and highway construction?" McIntosh also asked for an accounting of EPA grantees or contractors that have participated in litigation to halt or restrict highway improvements or expansion.

McIntosh instigated his inquiry as the result of prodding by the National Asphalt Pavement Association and the Asphalt Pavement Association of Indiana (APAI), NAPA said.

"The TPP was an obscure program that had the effect of negating Congress' intent when it enacted the Transportation Equity Act for the 21st Century," said NAPA president Mike Acott. "All we did was to shine a Congressional spotlight on a program that had too little oversight."

The purpose of TPP was to reduce driving by U.S. citizens. "Nine national environmental groups worked with a network of 340 organizations, all committed to aggressively promoting lifestyle changes," said the Associated General Contractors (AGC). "Over the last five years, EPA provided the TPP with $7 million in federal funds to reduce vehicle miles traveled and disseminate information via their website that opposed the construction of vital safety improvements on highway projects."

NAPA said EPA plans to replace the TPP with a new program, the Transportation and Environment Network, which is intended to embrace the broadest possible spectrum of organizations to help improve the environmental performance of the U.S. transportation system.

In the meantime, the website, http://www.transact.org/, was functioning intermittently when this article was posted July 23, 1999.
 

Battle of Atlanta, 1999

In January, the Sierra Club and two local organizations filed suit against the U.S. Department of Transportation, the Georgia Department of Transportation and the Atlanta metropolitan planning organization, seeking a court injunction to stop the projects.

The groups charged that government agencies failed to comply with the transportation conformity requirements of the federal Clean Air Act, TEA-21, and other provisions of federal law in approving highway improvement projects in Atlanta and surrounding counties.

Environmentalists had been emboldened by a March 2 U.S. Court of Appeals ruling in Washington that prohibited state and regional governments from funding, or "grandfathering", highway capacity improvements if their plans to meet federal air quality standards had not been approved by the EPA.

The ruling struck down EPA regulations that permitted projects that had previously met conformity standards to proceed without continuing demonstrations of compliance. The regulations had been challenged by the Environmental Defense Fund.

The demise of project grandfathering was assured in April when the Clinton administration announced it would not appeal that federal court decision overturning grandfathering. There is telling irony in the fact that the otherwise-defensive Clinton administration chose not to defend its own agency's regulations under attack by the Judiciary branch. On July 14 Congress held a hearing on grandfathering and its impact on highway construction.

Under the June Atlanta settlement, 17 projects already under way will continue to receive federal funding. State and local governments can also fund design work and move ahead with right-of-way acquisition of most of the other projects using non-federal funds. But federal funding will be delayed for 44 projects until an EPA-approved Clean Air Act transportation conformity plan is in place. A conformity plan for the region is expected to be proposed by the Atlanta Regional Commission in March 2000.

"We believe the threat of our intervention in the case helped move the settlement forward and helped result in continued funding for the projects that were already under contract," said ARTBA's president Pete Ruane. "The tragedy of the settlement is that the Sierra Club once again used the legal system to delay almost four dozen needed transportation improvement projects."

Playing the safety card that is the industry's trump against environmental constraints, Ruane said "Delaying projects hurts and kills people."
 

EPA actions 'unconstitutional'

On May 14, 1999, the U.S. Court of Appeals for the District of Columbia Circuit handed down the landmark decision invalidating much of EPA's recent regulations tightening national air quality standards for ozone and fine particulate matter.

This will have a big impact on states' ability to increase highway capacity in urban clean air nonattainment areas.

The EPA's regulations, promulgated in 1997, changed air quality attainment rules in mid-game for state and local governments that had worked hard to develop plans to meet the existing 1990 Clean Air Act standards.

In one swoop, governments faced greatly tightened ultrafine and coarse particulate emission standards, and new ozone emission standards. The tighter standards constituted a betrayal of lower governments, which then were faced with scrapping the 1990-law state implementation plans they had developed in partnership with the private sector.

EPA's 1997 "power grab", as it was described impolitely by some in industry, was condemned as a worst-case example of agency "mission creep", in which government agencies sustain themselves by changing their targets and issuing new regulations.

Although the PM 2.5 and NOx rules didn't attack highway construction directly because they're principally aimed at low-cost, coal-fired power generation, and some manufacturing, the court decision nonetheless is a big legal victory for transportation construction because the Clean Air Act (CAA) and TEA-21 link state and regional transportation planning and project approval processes to the attainment of federal air quality standards.

Tougher standards mean greater barriers to overcome for state DOT's despite what the public might want, or the need to alleviate traffic congestion.

"In light of the March 2, 1999 decision of the D.C. Circuit Court invalidating EPA's grandfather clause, rapidly escalating attacks on the highway construction industry by members of EPA's Transportation Partners Program, increasing aggressiveness on the part of EPA in implementing or threatening to implement highway funding sanctions, and similar considerations, the May 14 decision could become the most important environmental action in which ARTBA has ever become involved," ARTBA said in its analysis.

Industry associations such as the National Stone Association, National Asphalt Pavement Association and the American Concrete Pavement Association joined ARTBA in a motion filed in early May.

"This was a damage control operation," said ARTBA's Ruane. "Our goal was to influence the settlement negotiations or have a seat at the table if the case went to trial to get the best possible outcome for our members and prevent bad national legal precedents."

The best possible outcome to the highway construction industry was not what environmentalists had in mind as the EPA's new standards were struck down.

"The U.S. Court of Appeals has just declared chemical warfare on the lungs of our children," said Carl Pope, Sierra Club executive director. "We are confident that Americans will continue to fight to restore these standards and protect our children's health."

And fight they will. On June 28, EPA administrator Browner said the Justice Department will appeal the three-judge panel decision.

"I'm pleased that the Department of Justice will formally appeal one of the most bizarre and extreme decisions ever rendered in the annals of environmental jurisprudence," Browner said. "The [Clinton] administration ... will pursue all avenues available for meeting the public health needs of the public [sic], including the petition for rehearing before the full U.S. Court of Appeals."
 

Protecting 'grandfathered' projects

The highway and transportation community is working hard to overturn the "grandfathering" decision, and keep those highway projects in the pipeline.

On April 12, Sen. George Voinovich (R-Ohio), chairman of the Senate Subcommittee on Transportation and Infrastructure, and Sen. James Inhofe (R-Okla.), chairman of the Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety, urged EPA administrator Browner "to appeal this [grandfathering] decision as quickly and energetically as possible."

The court decision "may thwart this Congressional priority by stopping thousands of necessary highway projects around the country," the senators wrote. "In this decision, the court overturned a well-established EPA rule allowing states and metropolitan regions to `grandfather' approved highway projects into their transportation investment plans, even if a state's transportation plan subsequently fails to meet clean air goals. The effect of the ruling is that thousands of already approved highway improvement projects across the nation may no longer be eligible for federal funding. We can not let this happen."

An appeal could be made directly to the U.S. Supreme Court, or to the entire U.S. Circuit Court of Appeals for the District of Columbia, reported the American Association of State Highway & Transportation Officials (AASHTO). Should the ruling not be reversed, the EPA said it would turn to Congress to "ensure that these protections are preserved for the American people."

Absent action by the Congress, the loss of project grandfathering will impact many planned highway projects. On June 18 the Federal Highway Administration issued new guidance which has the effect of cutting off funding for engineering and right-of-way acquisition for projects in areas that don't conform to Clean Air Act standards.

Fortunately, Congress is moving ahead on the issue. A new bill, S. 1053, introduced by Sen. Kit Bond (R-Mo.), would resolve the "grandfathered" projects issue by amending the Clean Air Act to incorporate certain provisions of the EPA air quality conformity regulations that were in effect on March 1, 1999, thus incorporating provisions that were struck down in the March 2 decision, AASHTO reported. AASHTO executive director John Horsley sent a letter to Bond expressing support for his bill and his approach.
 

TEA-21: Anything but highways?

Meanwhile, TEA-21's June 9 first anniversary date was an opportunity for the Clinton administration to downplay the role of highways in the federal law.

Sidestepping the Clinton/Gore administration's continuing opposition to higher funding for highways, and its opposition to capacity improvements for road systems, U.S. Secretary of Transportation Rodney Slater placed TEA-21's funding successes at the feet of the president and the probable 2000 Democratic presidential candidate.

"The president's and vice president's leadership on the economy -- six years of economic expansion and the balanced budget -- allowed the record $200 billion of infrastructure investment in TEA-21," Slater said.

And above all, TEA-21 is about the environment, about social programs, about economic justice, but not necessarily about highways, Slater implied.

"TEA-21 is a safety act but it is also an environmental act, an act for balanced infrastructure investment, an opportunity act and, above all, an equity act," Slater said. "Equity means planning access to jobs, investing in liveable communities, and continuing to support small and disadvantaged businesses. Transportation is about more than concrete, asphalt and steel."