4. DISPUTES THAT ARISE DURING NEPA REVIEWS OF TRANSPORTATION PROJECTS
4.1 Issues that Can Lead to Disputes during the NEPA Process
As a project moves from planning through the phases of project development, conflicts may arise at any phase. Many states have established particular points of concurrence to be reached between state transportation agencies and various Federal and state agencies before moving on to the next phase of the project review process. Each phase has its set of issues that must be satisfactorily addressed to manage the potential for disagreements. Broad project development phases under NEPA, regardless of the action classification, include:
- Establishing purpose and need,
- Interagency coordination or scoping3,
- Alternatives analysis, and
- Selection of an alternative in the decision document.
Final design and implementation stages can also be problematic; however, this topic is beyond the scope of this guidance. Success in resolving disputes up to the Record of Decision, will allow for (but not guarantee) fewer problems through the project implementation phase.
The following issues typically emerge during key phases of the NEPA process. Each issue can be the focus of disagreements among agencies. However, some of the broader issues can be addressed at the planning level.
Purpose and Need
Transportation problems are defined and the reasons for addressing them are proposed in a purpose and need statement. This establishes the basis for any proposed action to correct the problems and therefore, is critical to the evaluation of all reasonable alternatives. It is the responsibility of the transportation agencies to provide a clear and comprehensive justification of why the action is needed, and re-examine or update information throughout the project development process.
Key questions that may lead to disputes in this area pertain to:
- How was the transportation need defined?
- What are the underlying causes of the need?
- How were the traffic demands determined and what analyses were used?
- Does the purpose and need statement exclude any alternatives that should be evaluated?
The purpose of scoping activities is to identify issues early in the NEPA process that will need to be considered throughout project development. Scoping helps to determine:
- Study boundaries,
- Roles and expectations of agencies,
- Project schedule and review timeframes,
- Sensitive environmental factors to be considered for analyses, and
- Technical studies that may be required, including appropriate methodological approaches.
Each of these issues may lead to conflict or disputes and often involve questions concerning:
- Appropriate time requirements,
- Each agency's level of effort and how it will be accomplished,
- Environmental resources or evaluation of impacts that will be important factors in the decision-making,
- The extent or methodology for data collection or environmental analyses, and
- The appropriate classification level of documentation [Environmental Impact Statement (EIS), Environmental Assessment (EA) or Categorical Exclusion (CE)] for the proposed action.
This analysis presents the rationale for which transportation alternatives are evaluated to meet the purpose and need established for the project. It also provides a comparison of environmental impacts associated with each alternative and other potential mitigation (avoidance, minimization, compensation). The issues tend to fall under the following categories:
- Number and type of alternatives (e.g., What is a reasonable number of alternatives? Is there sufficient rationale for elimination of an alternative? Are the alternatives consistent with local land-use plans? How are indirect effects to be addressed?
- Data requirements for environmental studies and analysis of effects (e.g., How much data is sufficient? What data is credible? What data needs to be developed through new studies and what methodology should be used? What are the cumulative effects?)
- Proposed mitigation (e.g., What is the appropriate ratio for wetlands replacement? How are potential mitigation strategies identified, and at what level of detail? How to best quantify impacts and potential mitigation strategies to ensure a balanced decision?)
Identification of Selected Alternative Through the Final Decision Document
The lead agency makes a final decision on the selection of an alternative. This decision is based on the transportation purpose and need, the views and comments of the public, the environmental impacts, and the input of resource agencies and other regulatory requirements.
Issues may arise over the evaluation of the no-build alternative, alternatives considered under other legal standards (e.g., Section 4(f) of USDOT Act, Section 404 of Clean Water Act) or acceptance of the conceptual mitigation package for the selected alternative.
The goal of the dispute resolution guidance is to provide strategies for resolving issues, so that the project can progress through the decision-making phases in a timely manner and toward an appropriate outcome.
4.2 The Nature of These Disputes
Disputes that may arise at various junctures in the NEPA process include the following.
Strategies for Preventing Disputes Concerning Interpretation of Terms
- Share copies of guidance documents that define the terms.
- Hold joint education sessions conducted by specialists or policy makers.
- Develop jointly derived definitions that can apply across projects.
Strategies for Preventing Disputes Concerning Information
- Jointly identify the key questions that the information must address (such as anticipated impacts), prior to gathering the information.
- Agree on a methodology to be used for data collection and analysis.
- Respect each other's expertise.
- Accept the validation of information by the agency having jurisdictional authority.
Strategies for Preventing Disputes Related to Insufficient Agency Resources
- Jointly problem solve on how to make the review process easier and more efficient.
- Prioritize projects so agencies can focus attention where needed.
- Adjust meeting times and venues to accommodate limited staff resources. Use teleconferencing when travel funds are not available.
- Define resources needed (staffing, GIS mapping) to streamline transportation projects.
Strategies for Preventing Disputes Caused by Failure to Fulfill a Commitment
- Clarify each agency representative's level of authority. Seek as much delegation of authority as is practical and appropriate.
- Clarify the level and specific elements of the commitment up front and document, as appropriate. Examine assumptions when a commitment appears to be broken.
- Establish parameters/conditions for revisiting issues, and avoid revisiting unless those conditions are present.
- Keep higher levels of authority informed of progress on a project and the rationale for decisions made.
- Use technology as appropriate to expedite reviews (e.g., electronic submissions, teleconferencing, etc.)
- Circulate meeting minutes signed by all participants and signed written agreements upon completing the negotiations.
Strategies for Preventing Disputes Due to Differing Missions and Mandates
- Conduct joint training to build mutual understanding of each agency's mission, mandates, and procedures.
- Consider and accommodate each agency's procedural requirements.
- Create opportunities for management-level discussions or reviews to distinguish between personal interpretations and agency policies.
- Respect each agency's mission and mandate to serve the public interest and, as appropriate, accept joint responsibility to help the other agency fulfill its mandate.
- Create a partnership or team approach to work together to address all aspects of the public interest.
Strategies for Preventing Disagreements due to Other Differences
- Participate in training to understand different communication styles, issue-processing approaches, and motivational strengths. Apply this understanding by becoming more tolerant of the differences.
- Become more effective by modifying one's own behavior to be more accommodating of others' styles.
- Build relationships through opportunities for informal conversation and interaction.
- Avoid making assumptions about the motives of others. Examine assumptions before reacting.
- Learn — through training and conversation - about other agencies' cultures and operating styles.
Disputes over Interpretations of Terms: These involve questions such as: "What is an indirect/cumulative effect?" "What does ‘practicable’ mean (in relation to project alternatives)?" and "What is the ‘public interest’?" (e.g., in relation to the USACE mandate under Section 404 of the Clean Water Act).
Questions that only pertain to the immediate project could be addressed within the context of the project. If the terms are associated with multiple projects, the dispute could be addressed by a specially designated group of representatives from the affected agencies.
However, the examples cited above involve terms found in authorizing legislation and agency rules, and their interpretation represents agency policy. Resolution is thus likely to require negotiation by higher-level decision makers in the relevant agencies.
Disputes over Information: These can take the form of insufficient information, or disagreeing with the data analysis or the methods employed, or adopting a different interpretation of the analysis.
Most of these disputes involve larger debates about agency jurisdiction and domains of expertise. Sometimes the agencies cannot agree on who has primacy for defining natural resource methodologies.
Disagreements between EPA and transportation agencies often involve the underlying planning assumptions used to arrive at vehicle miles of travel as inputs into travel demand models or for establishing mobile source emissions budgets. These disagreements may evolve into disputes about the interpretation of terms or overlapping legal mandates.
Disputes Associated with Insufficient Resources: Sometimes the cause of missed deadlines is due to the lack of staff or other agency resources. It is best to refer these issues to higher levels within the affected agencies; or they may be resolved through funding agreements for staff positions. Resource problems are appropriately addressed as part of an interagency agreement. Nevertheless, resource issues may also emerge during the project review stage.
Disputes Caused by Failure to Deliver or Fulfill a Commitment: Unrealized expectations can lead to serious disputes. The inability of an agency representative to honor a commitment (e.g., "That certainly is not my understanding of what we agreed") or to deliver the signature of a higher agency authority on a negotiated agreement, can erode gains made on the current project, and can have a significant effect on future negotiations.
If the cause of the problem is a failure to persuade higher authorities to sign off on a negotiated agreement rather than bad faith bargaining by the negotiator, the problem could be a lack of understanding of the issues by the higher-level decision maker. In this case, resubmitting the agreement with a more complete explanation is appropriate. This underscores the importance of keeping decision makers informed throughout the negotiating process. Unsigned agreements may also indicate the emergence of a substantive dispute and it may be a candidate for upward referral for negotiation among the affected agencies.
Fundamental Disagreements Based on Missions and Mandates: Sometimes agencies differ on the interpretation of their disparate mandates. These types of disputes often arise over the purpose and need for the project, the failure of the project sponsor to consider a full range of alternatives, or the selection of a preferred alternative.
Appealing to the mutual respect for each agency's mandate and making specific reference to commitments made in the National MOU (and perhaps complementary region- or state-level MOUs) may help move the agencies toward compromise or creative solutions. However, where project redesign or mitigation measures are not successful in reaching an accord, upward referral of the dispute should be considered.
Other Types of Disagreements: Some disputes are due to personalities, attitudes, or differences in agency cultures. Deeply embedded behavioral patterns and attitudes are difficult to change during relatively brief attempts at dispute resolution within the context of a project review process, thus leading to impasse.
Agency cultures are also difficult to remold and may require assessment and intervention by organizational development specialists. Interagency training sessions where participants become more familiar with the mission and operating style of their counterparts may prove to be useful.