Environmental Consequences of Reducing the Federal Role in Transportation: Legal Framework

The Intermodal Surface Transportation Efficiency Act (ISTEA) currently provides transportation grants to states financed by the Highway and Mass Transit Trust Funds and establishes a variety of requirements that seek to make environment a key factor in transportation planning and implementation. Devolution of the federal role would make states responsible for financing highway and transit improvements and for making related policy and program decisions. Although ISTEA is not primarily an environmental law, it contains numerous provisions that take into account the environmental implications of authorized activities. In addition, federal funding can trigger requirements for “major investment study” and National Environmental Policy Act (NEPA) processes that consider environmental impacts of proposed projects and allow for public comment. Devolution could affect the number of transportation projects subject to such scrutiny, where federal funding is the sole element that “federalizes” a project enough to make major investment study or NEPA requirements apply. And, although many other federal and state laws provide environmental protection, they typically do not focus on achieving an environmentally friendly transportation system. The impacts that devolution could have on environmental protection are explored here. The environmental provisions currently in ISTEA are reviewed and the potential role of NEPA and the Unfunded Mandates Reform Act in a devolution environment is identified. Other federal or state laws that may be available to “stand in” for environmental provisions eliminated or weakened by devolution are explored, and the potential environmental impacts of a reduced federal role in transportation oversight are discussed.