Environmental Review of Highway Projects Using Planning and Environmental Linkages

Abstract

In addition to statutory requirements for long-range transportation planning, transportation projects funded in part by USDOT are required to undergo environmental review pursuant to the National Environmental Policy Act (NEPA). NEPA requirements include a statement of the project’s purpose and need and an analysis of alternatives to the proposed project. USDOT adopted federal regulations and guidance in 2007 that would allow these NEPA requirements, including the elimination of potential alternatives, to be conducted as part of the earlier transportation planning process, a concept known as planning and environmental linkage (PEL). Congress has authorized a form of PEL since 2012, albeit with a somewhat stricter standard for public involvement than reflected in the USDOT PEL regulations and guidance. This paper examines legal challenges to environmental review of transportation projects using the PEL approach. The PEL approach has the potential to be abused, because a statement of purpose and need adopted prior to NEPA could be drafted so narrowly as to effectively preclude public participation and detailed environmental review of alternative transportation modes, routes, or strategies. However, courts generally approve the PEL approach, providing legal protection for the elimination of alternatives during transportation planning, even when public participation and environmental impact analysis at the transportation planning stage does not satisfy NEPA requirements.