TESTIMONY OF THE
AMERICAN PUBLIC TRANSPORTATION ASSOCIATION
BEFORE THE
GROUND TRANSPORTATION SUBCOMMITTEE
OF THE
HOUSE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
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September 13, 2000
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Presented by
William W. Millar
President
American Public Transportation Association
1201 New York Avenue, N. W.
Washington, DC 20005
(202) 898-4000
APTA is a nonprofit international association of over 1,300 member organizations including transit systems; planning, design, construction and finance firms; product and service providers; academic institutions; transit associations and state departments of transportation. APTA members serve the public interest by providing safe, efficient and economical transit services and products. Over ninety percent of persons using public transportation in the United States and Canada are served by APTA members.
Introduction
The American Public Transportation Association (APTA) appreciates the
opportunity to testify before the Ground Transportation Subcommittee of the House
Committee on Transportation and Infrastructure on the Department of Transportation’s
proposed planning regulations.
We want to make clear, at the outset, that our comments on the Notice
of Proposed Rulemaking (NPRM) that are the basis for this hearing are currently under
review by APTA’s member organizations. Therefore, the statements included in our
testimony are necessarily preliminary and may be modified. We will of course provide this
committee with our comments on the NPRM when they are finalized and submitted to the
Department of Transportation.
I must add that there is a genuine diversity of opinions among our
membership on these issues. While we want to complete major capital projects as quickly as
possible, many also believe that a good clear planning process can prevent later problems
and add value to a project without inhibiting progress. Consideration of environmental
concerns can be done in conjunction with the project development process without undue
delay. We strongly believe that clarity in the planning regulations is critical and that
uncertainty of requirements is the bigger problem in the project development process.
Although our membership review process is as yet incomplete, the
following six principles reflect the general comments that our membership has submitted
thus far:
- The regulations should ensure multimodal planning (and a full consideration of transit
in a multimodal process);
- The planning process should serve decision-making at all levels;
- The regulations should promote a balance of economic, mobility, environmental, and other
objectives;
- APTA supports environmental streamlining, so long as it does not create a bias against
any particular mode or eliminate viable options prematurely;
- The regulations should ensure early and continuous collaboration among all planning and
modal implementing agencies;
- APTA supports early and continuing stakeholder participation, particularly by those
stakeholders named in Title VI of the Civil Rights Act.
About APTA
APTA’s more than 1,300 member organizations serve the public
interest by providing safe, efficient, and economical public transportation service, and
by working to ensure that those services and products support national energy,
environmental, community, and economic goals. APTA member organizations include transit
systems, design, construction, and finance firms; product and service providers; academic
institutions, and state associations and departments of transportation. More than ninety
percent of the people who use transit in the U.S. are served by APTA member systems.
TEA 21 and Public Transportation
The Transportation Equity Act for the 21st Century (TEA 21)
has, with its policy changes and guaranteed funding, greatly helped the public
transportation industry to more effectively address mobility needs around the country. The
legislation has clearly and significantly improved our industry’s ability to meet
service demands in urban, suburban, and rural America.
Mr. Chairman, we take every opportunity to thank you and the
Transportation and Infrastructure Committee for crafting legislation that has so
effectively improved the transit industry’s ability to meet demands for capital
investment and service. The predictability of annual federal funding under the guarantees
established in TEA 21 has been extremely helpful to transit agencies as they develop and
annually update long-term capital investment programs. The approximately 200 new start
projects authorized by TEA 21 are indicative of Congress’ commitment to upgrading our
nation's public transportation infrastructure.
Most importantly, both the predictability and increased investment at
the federal level has paid off! Public transportation ridership is up more than 15% over
the past four years. Average daily ridership is up another 4.8% the first quarter of 2000.
Indeed, ridership now exceeds 9 billion annual trips, the highest level in nearly 40
years. Again, we in the transit industry thank you for your leadership and support, and
are pleased to report to you on these very positive results of your legislative efforts.
Overview
Let me comment on the Department of Transportation’s proposed
regulations that would implement the planning provisions of TEA 21. At the start, let me
commend DOT for its extensive public outreach effort earlier this year on this rulemaking
-- they held numerous meetings around the country and did an excellent job getting the
word out on their regulatory process. Regarding our testimony today, allow me to repeat,
Mr. Chairman, that our comments are still being finalized for the comment due date of
September 23, 2000. Again, we will share our final comments with the Committee when
completed. Those comments will be specific and detailed, representing a range of
perspectives of our member organizations.
Mr. Chairman, I think we all agree that planning is a critical element
of infrastructure project development that goes hand in hand with the assured and
predictable funding from TEA 21's guarantees. We strongly supported ISTEA’s
comprehensive, intermodal, flexible, locally responsive and transit-friendly approach to
transportation planning. In general, we support the TEA 21 planning provisions,
particularly those that encourage greater cooperation among all levels of government and
the private sector, emphasize fiscal constraint, and increase public involvement.
Transportation investment should be used to promote a variety of
purposes – economic growth and development, congestion mitigation, mobility and
accessibility, environmental protection and other goals. Transportation decision-makers
need to give serious consideration to alternative multi-modal solutions by providing for
the early and continuous participation of all interested parties. All of these objectives
should be integrated into the FTA/FHWA planning and environmental regulations to promote a
seamless and efficient planning and project development process. Frankly, this is how
Americans who use public transportation can be assured their interests get fair
consideration at the local level. We appreciate the fact that the proposed regulations
continue to make transit systems key partners in the planning process.
Moreover, the importance of participatory public planning in developing
transportation plans, programs, and projects cannot be overemphasized. Effective
transportation planning does not take place without meaningful public involvement programs
tailored to the particular local circumstances. APTA supports the TEA 21 provision that
adds users of public transportation to the list of persons given the opportunity to
comment on long-range plans and transportation implementation plans (TIP).
We strongly support the concept under TEA 21 of fiscal constraint, but
the procedures in that regard should provide consistent criteria or guidance for
predicting what funds can be considered "reasonably available."
While strongly supportive of the planning process, APTA at the same
time remains concerned about the length of time it takes to develop federally funded
transportation projects from early planning through actual construction. We support
efforts to streamline the process. In streamlining the planning and project development
process, however, care should be exercised to avoid creating a bias against any particular
modal or multi-modal transportation solution. The process should be comprehensive, as
swift as possible, but resolutely mode-neutral.
Mr. Chairman, let me now discuss in turn three areas in the regulations
of particular interest to us: major investment study requirements; environmental
streamlining; and environmental justice and equity.
Elimination of Major Investment Study as Separate Requirement
APTA believes that FHWA and FTA have been overzealous in their
interpretation of what is required by Section 1308 of TEA 21. Because the interpretation
of the language is at issue, another look at the statutory language is instructive:
The Secretary shall eliminate the major investment study set forth in
section 450.318 of title 23, Code of Federal Regulations, as a separate requirement, and
promulgate regulations to integrate such requirement, as appropriate, as part of the
analyses required to be undertaken pursuant to the planning provisions of title 23, United
States Code, and chapter 53 of title 49, United States Code, and the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for Federal-aid highway and
transit projects.
As can be seen, the language requires elimination of the Major
Investment Study (MIS) as a separate requirement, but it directs DOT to retain and
integrate the concept into the planning and NEPA processes. The law does not attack the
underlying validity of the MIS process, but rather mandates its integration into both the
planning and NEPA analyses.
APTA contends that consideration of multimodal alternatives must
continue to be one of the "basic remaining requirements" of the planning
process. Furthermore, by making application of the planning components optional, as is
stated repeatedly in the preamble of the proposed regulations, FHWA and FTA have
effectively removed MISs, or corridor planning which includes a strong multimodal approach
as a required part of the planning process and instead shifts all focus to project
development. In doing so, FHWA and FTA have turned the statutory language on its head.
Instead of eliminating a separate requirement, they have effectively eliminated the entire
requirement for a multi-modal process. This is done in spite of the fact that even the
preamble of the proposed regulations continues to endorse the need to study alternatives,
either in the planning process or in the NEPA process.
We believe MIS-type analyses should be made mandatory, and should apply
only to those improvements that have been deemed significant by the U.S. DOT, State, MPO,
and Transit Operators. Criteria for determining whether a project is
"significant" may include cost, length of a project, the physical character of a
project and whether the project is expected to have a significant environmental, land use,
or social impact.
The planning and environment NPRM should additionally provide a
mechanism that would allow the outcome of a planning study to serve as the starting point
of the NEPA analysis, under certain conditions: 1) if the planning study evaluated
multi-modal alternatives; 2) if there is appropriate public participation; and, 3) if
invitations to participate were extended to federal, state and local resource agencies
that are involved in the NEPA process. If these conditions are satisfied alternatives
eliminated during the planning study would not need to be revisited during the NEPA
process.
APTA is particularly concerned about the proposed regulatory approach
because we feel it is imperative for the regulations to maintain and foster multi-modal
corridor planning, preserving as many of the benefits and concepts of the existing MIS
process as possible. APTA strongly believes that the MIS process brings more stakeholders
to the table and gets them involved earlier in the planning process. This in turn
expedites the environmental process and produces better decisions.
Environmental Streamlining
One of the requirements of TEA 21 was to streamline the environmental
process for the delivery of transportation projects. APTA believes that the changes in the
proposed regulations are minimal and do not make substantive improvements in streamlining
the environmental process for transportation projects. The proposed rules "clean
up" a few areas but do not do much to facilitate good transportation decisions or to
shorten the project delivery schedule.
By proposing to "…implement the environmental streamlining
requirements largely outside the regulatory process..." the U.S. DOT is missing an
opportunity for regulatory reform. This is especially unfortunate since such opportunities
occur so infrequently; it has been 13 years since the last such opportunity.
We have several comments we would like to make in this regard. Many of
the opportunities for streamlining are based upon enhanced cooperation among federal
agencies. However, the proposed rules need to be stronger in order to move this
cooperation beyond mere aspiration. U.S. DOT should work diligently to develop MOUs with
other departments to speed coordination and reviews. This is especially important in the
areas of Section 106 compliance and Environmental Justice.
It is also important that local agencies cooperate in the planning and
environmental processes. This can occur in the consideration and evaluation of
alternatives in the planning process, but also needs to be incorporated into the
environmental process. Scoping should focus on the stakeholders’ concerns regarding
the alternatives to be considered, revisiting elements of the planning process only as
necessary. Scoping also should address the environmental components of the project at hand
that are most important to local decision-making.
Substantial project delays are often associated with the issuance of
the Record of Decision (ROD) at the completion of the environmental process. For example,
regulations allow the ROD to be issued any time after the 30-day circulation period for
the Final EIS is completed. In the past, the modal agencies, for a variety of reasons,
have frequently delayed projects by not issuing a ROD in a timely manner. APTA recommends
that the regulations require that a ROD be issued no later than 60 days after the close of
the Final EIS circulation period. This would streamline the environmental process and aid
in the decision-making process for advancing projects.
APTA would encourage the development of purpose and need in the
planning process. While we support inclusion of the purpose and need in the planning
process, it is not a substitute for corridor planning. A solid understanding of the
problems in a corridor or sub-area and an avowed intent to address the problems as
understood, should lead to a breadth of potential solutions that should be considered in
planning and carried into or documented in the NEPA process.
Environmental Justice and Equity
APTA strongly supports the goal of ensuring environmental justice in
transportation decision-making and generally supports the FHWA/FTA’s proposals,
although we do have concerns about increased potential of lawsuits due to general
definitions and mixed requirements. Indeed, APTA and its member organizations support and
actively work to advance the principles and intent of Title VI, ADA, and the Executive
Order on Environmental Justice. Many of our members have taken the lead to develop and
implement innovative techniques and best practices to incorporate the spirit of these
three documents into their planning and project development process.
We support working to achieve the principles of environmental justice
through identifying and pro-actively engaging low-income and minority populations in
improved and expanded public involvement during the planning and decision-making
processes. We support the portions of the regulations that strengthen this connection.
We are concerned, however, with the current language in the NPRMs
requiring extensive data collection and complex analysis for environmental justice to
determine the economic, social, and environmental effects of transportation planning and
NEPA decisions.
Specific data collection and analysis requirements are not clearly
spelled out. We need a standard for what constitutes acceptable data collection and
analysis. Without any limits on how much research is enough to satisfy compliance,
research and analysis could be endless. States, MPOs and transit agencies are concerned
that they would need to become mini-census agencies. This requirement would become
especially burdensome to smaller agencies with limited staff and resources.
While the NPRMs discuss focusing on the "process" for
environmental justice analysis, we are concerned that States, MPOs and transit agencies
will be "judged" to comply with environmental justice standards based on the
outcomes of their analysis and not their process. APTA members believe that environmental
justice requirements must be process oriented and not outcome-oriented, and ask that data
collection and the scope of the research analysis be clearly spelled out and limited to
the best available data.
We also urge DOT to separate the issues and requirements for compliance
with the Environmental Justice Executive Order to those of Title VI of the Civil Rights
laws and ADA.
The Environmental Justice Executive Order, Title VI of the Civil Rights
laws and ADA provide different types of protection and rights to different groups. The
NPRMs, by intertwining these three rules and combining the compliance requirements for all
three, run the risk of creating a "legal confusion" for governmental agencies
trying to comply, as well as for groups and individuals considering litigation, and
potentially for the courts who will need to sort out lawsuits brought in any one of these
areas.
The three tiered "effects" test under Title VI is
significantly different and supported by 25 years of case law, from the subjective
"effects" to be analyzed under environmental justice, and different from the
mandatory protection and specific actions needed to comply with ADA. Attempting to
identify discrimination under Title VI is far different from attempting to identify
disparate outcomes and impacts as is proposed by the NPRMs for Environmental Justice.
Disparate impact tests are very different and more difficult to validate.
The regulations should adhere to the existing language used in the
Environmental Justice Executive Order and to those of Title VI of the Civil Rights laws
and not establish new terminology and requirements. For example, the use of
"reduction in benefits" does not show up in Title VI or environmental justice
and could give rise to new rights not afforded by statute. This may be subject to
differing interpretations and increase potential exposure to litigation by states, MPOs
and transit agencies.
Conclusion
Mr. Chairman, we again thank you for your commitment to adequately
investing in the nation’s transportation infrastructure and to improving the
transportation planning process. We appreciate the opportunity to testify on these
important matters. We hope that our general comments on these issues are helpful. As
previously noted, we will submit our final comments on the NPRM to this subcommittee when
we have completed the review process by our member organizations and prepared our final
comments for the docket.
INFORMATION PROVIDED PURSUANT TO HOUSE RULE XI, CLAUSE 2(g)(4)
Over the past three years, the American Public Transportation
Association has been the recipient of five cooperative agreements from the U.S. Department
of Transportation.
Three of the agreements are from the Federal Transit Administration:
- to develop standard guidelines for the procurement of transit buses with federal funds
($1.3 million, of which $75,000 has not yet been made available);
- to develop a transit performance monitoring system, which would identify new ways to
measure transit performance from the customer's perspective ($307,000); and
- to hold a series of workshops on innovative financing matters, including transit
oriented development ($520,000);
Two agreements are from the Federal Highway Administration:
- to disseminate to the transit community information on Intelligent Transportation
Systems ($25,000).
- to develop and conduct workshops on the regional implementation of Intelligent
Transportation Systems for the transit industry ($75,000).
We would be pleased to provide additional information on these matters,
if requested.
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