Before the passage of the National Environmental Policy Act (NEPA) (42 USC 4321 et seq.), citizens were frequently unsuccessful using the courts to stop transportation improvements from proceeding. Courts tended to rule that the decision to proceed with a transportation improvement was a political decision not subject to judicial review. When NEPA became law, it required the preparation of environmental impact statements for large transportation projects that required federal funding. Federal approval of the environmental impact statements was subject to judicial review under the Administrative Procedure Act. Since the environmental impact statements included explanations of project purpose and need, opponents could obtain judicial review of the justification for transportation improvements. In order to qualify for federal funding, transportation improvements needed to come from regional transportation plans.
Congress has responded to this development by exempting regional plans from judicial review (23 USC 134(h)(3)) and by allowing purpose and need statements in environmental impact statements to reflect objectives identified in regional transportation plans (23 USC 139 (f)(3)(A)).
For many years federal, state, and local transportation agencies have been promoting the concept of reliance on planning decisions and analyses undertaken during the transportation planning process for establishing the purpose and need portion and the reasonable range of alternatives in environmental documents prepared pursuant to NEPA. This approach, known as Planning and Environmental Linkages or PEL, is consistent with NEPA practices for incorporation by reference (40 CFR 1502.21) and reduction of duplication with state planning processes (40 CFR 1506.2). Federal transportation agencies have adopted regulations (23 CFR 450.212 and 23 CFR 450.318) and guidance to encourage the practice (23 CFR 450 Appendix A).
Reviewing courts have endorsed this practice (e.g., Honolulutraffic.com v. FTA, 742 F. 3rd 1242 (9th Cir. 2014)).
The objective of this research is to produce a digest that answers the following questions:
What is the litigation history behind judicial review of purpose and need statements and PEL?
How are the various approaches to PEL different from each other and what deference do courts provide for each?
What legal risks are associated with each approach?
Status: Research in Progress.