Recent Developments Regarding The Public Hearing Requirements of Federal Highway Law -- D.C. Federation of Civic Assn. v. Volpe, and Federal Highway Administration Policy and Procedure Memorandum 90-1.

Recent Developments Regarding The Public Hearing Requirements of Federal Highway Law — D.C. Federation of Civic Assn. v. Volpe, and Federal Highway Administration Policy and Procedure Memorandum 90-1.

The July, 1971 issue of ELR included an extensive comment on the highway design public hearing requirments of federal highway law including an analysis of several judicial decisions interpreting those requirements. See 1 ELR 10103. Recent Judicial and administrative activity has affected the law discussed in that comment and perhaps affected the continuing viability of some of that comment's conclusions. The judicial activity is the most recent decision of the D.C. Circuit in D.C. Federation of Civic Associations v. Volpe, No. 24,838 (D.C. Cir. Oct. 12, 1971). * The administrative activity involved is the promulgation by the Federal Highway Administration (FHWA) on August 24, 1971 of Policy and Procedure Memorandum (PPM) 90-1, "Guidelines for Implementing Section 1653(f) of 49 U.S.C., Section 309 of the Clean Air Act of 1970," __ ELR __.

The previous discussion of the design hearing requirements of federal highway law, particularly 23 U.S.C. § 128 and PPM 20-8, 23 C.F.R. Ch I, pt. 1, app. A (1970) focused on the applicability of those requirements to highway projects which had been initiated prior to the promulgation of PPM 20-8 on January 14, 1969. The issue was which of these on-going projects did the drafters of PPM 20-8 intend to exclude from the newly promulgated design public hearing requirements. The law on this point was not certain because of two conflicting district court opinions and uncertainty at the appellate level. However, the better reasoned view apparently was that of the district court in D.C. Federation of Civic Associations v. Volpe, 316 F. Supp. 754 (D.D.C. 1970). That court held that PPM 20-8 excuses from public design hearing requirements only those projects which had received final design approval before PPM 20-8 was promulgated, and that existing law defined final design approval as approval of plans, specifications and estimates under 23 U.S.C. § 106. See discussion at 1 ELR 10106. Since the court found that such approval of the design of the Three Sisters Bridge project had not occurred, it remanded the case to the Secretary of Transportation for full compliance with the design hearing requirements of PPM 20-8. The government never admitted error on this point, but did hold design hearings. Therefore, the issue had been mooted by the time the Court of Appeals was presented with the case on appeal. The court of appeals expressed no opinion on the district court's conclusion. Slip Op. at p. 19, 1 ELR __.

As is evident from the earlier discussion of design hearing requirements (See 1 ELR 10104-105), the source of these requirements is not so much the federal statutes governing the administration of the federal highway program as it is the administratively promulgated rules implementing these statutes. Specifically, 23 U.S.C. § 128, which calls for public hearings in the highway planning process, does not expressly demand a separate public hearing for the design of a highway project. But in implementing the public hearing requirements of the statute FHWA (formerly the Bureau of Public Roads) established a two-hearing procedure. In determining which on-going projects were governed by this new procedure and, therefore, needed a design hearing as well as a location hearing before they could be approved, the courts have looked to the administrative rule, PPM 20-8, which established the procedure. Paragraph 6.d. of PPM 20-8 attempts to describe which on-going projects would, and which would not, be required to meet the design hearing requirements. (See previous discussion, 1 ELR 10104, for text of this paragraph of PPM 20-8) Under 6.d. a design hearing is required whenever design approval has not been granted, and (1) design approval has not been requested within three years from the holding of the location (corridor) hearing, or (2) even if design approval was requested within the three year period, unless the appropriate federal administrator finds that the hearing adequately dealt with design issues relating to major design features.¹

A problem presented by the language of 6.d. is that the [1 ELR 10155] term "design approval" is nowhere specifically defined in PPM 20-8. Since that definition is crucial to an interpretation of 6.d., reviewing courts have been forced to supply that definition through an interpretation of the rule and, more broadly, the legislative policy it was designed to implement. The inconsistency of various courts' interpretations of the rule on this point, and an analysis of those interpretations was the focus of the previous discussion.

However, paragraph 6.d. of PPM 20-8 is not the only portion of that rule which could support a determination that an on-going highway project is subject to the design hearing requirements of PPM 20-8. The Three Sisters Bridge litigation has highlighted another portion of paragraph 6, i.e., 6.a., which could require design hearings to be held for a project even though design approval for that project was obtained prior to the effective date of PPM 20-8. Moreover, although PPM 20-8 does not expressly supply a definition of the term "design approval" it would appear that by the inclusion of such a definition in the recently promulgated PPM 90-1 the FHWA has attempted to implicitly amend PPM 20-8 without admitting that such an amendment was ever necessary. Such an admission by direct amendment of PPM 20-8 would be very useful to plaintiffs litigating cases governed by PPM 20-8 prior to the amendment. This is discussed, infra. It is these two related developments in the design hearing requirements of federal highway law that are discussed in this comment.

The Three Sisters Bridge litigation

PPM 20-8 paragraph 6.a. spells out the general conditions governing both location and design hearing requirements:

a. Both a corridor public hearing and a design public hearing must be held, or an opportunity afforded for those hearings, with respect to each Federal-aid highway project that:

(1) Is on a new location; or

(2) Would have a substantially different social, economic or environmental effect; or

(3) Would essentially change the layout or function of connecting roads or streets.

[Certain secondary road programs are excepted from the scope of the rule.]

The most extensive analysis of the relationship between paragraph 6.a. and paragraph 6.d. regarding hearing requirements for on-going projects has occurred in the Three Sisters Bridge litigation in the context of location hearing requirements. Nevertheless, as the word of paragraph 6.a. makes clear the guidance that analysis provides is fully applicable to the design hearing issue. The district court in this case cogently explained the interrelationship of paragraphs 6.a. and 6.d. in determining whether a hearing location or design need be held:

The criteria established in 6.d. should be the Court's primary guide since they apply specifically to projects upon which a hearing has been held. But the general standards of 6.a. can be interpreted consistently with 6.d. That is, this court must first determine if location approval was given prior to the effective date of the PPM or if location approval was requested within three years of the hearing. Then the Court must review that approval or request to determine if location approval was given prior to the effective date of the PPM or if location approval was requested within three years of the hearing. Then the Court must review that approval or request to determine if the location approved or requested to be approved is a new or different location from that considered of [the location hearings] or would have an essentially different effect on connecting streets from that considered at the [location hearings].²

The district court's recognition of the relevancy of both portions of the rule to the issue of hearing requirements for on-going projects was affirmed on appeal but its specific application of the rule thus interpreted was reversed.

The lower court had held that although the location of the Three Sisters Bridge, which had purportedly been approved for construction, was not the same as any of the proposed locations considered at the location hearing, nevertheless the "approved" location was not a "new location" within the meaning of paragraph 6.a.(1) nor would the project as "approved" change the layout or function of connecting roads so as to require a new location hearing.³ The thrust of the reasoning which led to this factual determination was that "the Court cannot conceive how any members of the public would be affected differently by the present location than by one of the three proposed [at the location hearings]. Id. The Court of Appeals disagreed with the ultimate holding:

We have no quarrel with the District Court's reasoning, but on the present record we are unable to accept its application to this case. … [I]t is entirely conceivable to us that differences in the plans would, in fact, have a substantially different impact on persons on both shores . … [t]here is no indication in the record before us that the District Court gathered evidence on this issue, and we have nothing to support the conclusion but the conclusion itself. Slip Op. at p. 20.

On this point the case was remanded to the district [1 ELR 10156] court for clarification.

If applied to the analogous design hearing issue, the result of the interpretation of PPM 20-8 affirmed by the court of appeals is that design hearings are necessary for any highway project which has had substantial design changes since design approval. Therefore, to the extent that the criteria of 6.a. define these substantial changes it is arguable that design approval is to that extent defined by PPM 20-8 itself; design approval is not final where substantial change in that design has occurred since approval.⁴ But this last logical linkup is not necessary to a proper analysis of the regulation's impact on federal highway law public hearing requirements.⁵ As Judge Sirica's analysis in the Three Sisters Bridge case indicates paragraph 6.a. requires an appraisal of a highway project to determine whether a design hearing is necessary which is separate from any appraisal done pursuant to paragraph 6.d. When substantial change in design has occurred since design approval a design hearing is necessary. And this is true regardless of whether the actual changes in design occurred before or after the effective date of PPM 20-8, unless of course design approval was again obtained before that effective date.

Policy and Procedure Memorandum 90-1

The definition of the term "design approval" as used in PPM 20-8 has perhaps been changed by the August 24, 1971 issuance by the FHWA of PPM 90-1, __ ELR __. The rule is not directly concerned with the public hearing requirements of federal highway law. Rather the purpose of this PPM is to establish FHWA procedures for complying with several statutes designed to protect environmental values, including those endangered by federal highway projects. Paragraph 5 of the rule describes in detail the applicability of the various procedural duties imposed by the PPM to existing, as well as not yet initiated, highway projects.

The solution of the unavoidable dilemma of defining which existing highway projects will be, and which will not be subject to these new procedural requirements is attempted by establishing a date, February 1, 1971, and conditioning the applicability of the requirements on whether design approval has been received by a project before or after that date. The essential difference between PPM 20-8 and PPM 90-1 on this point is that the FHWA has included a definition of design approval in PPM 90-1:

e. Design approval may be regarded as having been obtained prior to February 1, 1971, if any one of the following conditins is satisfied.

(1) Prior to the issuance of revised PPM 20-8 dated January 14, 1969, procedures of the FHWA (then the Bureau of Public Roads) did not require a HA to receive a formally documented FHWA design approval before undertaking right-of-way acquisition and/or preparation of the plans, specifications and estimate (PS&E). Therefore, design approval was that action or series of actions by which the FHWA indicated to the HA that the essential elements of the highway as set out in paragraph 10⁶ of PPM 20-8 were satisfactory or [1 ELR 10157] acceptable for preparation of the PS&E. Such actions may have consisted of review and comments upon preliminary plans, schematic drawings, design studies, layouts of reports of unconditional approval to acquire all the right-of-way for a project. The HA shall identify those projects (both Federal-aid and non-Federal-aid) in the above category which it anticipates Federal-aid funds will be requested for a subsequent stage and furnish the FHWA division engineer for his concurrence a letter similar to Appendix B of this memorandum citing the document(s) or action(s) which it believes are equivalent to design approval. The FHWA division engineer's concurrence in the HA's determination will serve as verification that the previous actions or approvals were in effect design approval.

(2) Written approval by the FHWA of the design submitted in accordance with paragraph 10 of PPM 20-8 dated January 14, 1969.

(3) Similar type evidence that an official of the State highway department approved the design prior to February 1, 1971, for projects administered under an approved Secondary Road Plan. Such evidence need not be submitted to the FHWA division engineer for concurrence but shall be available in the State highway department's files. PPM 90-1, paragraph 5, __ ELR __.

Since the present dispute over the definition of the term design approval as used in PPM 20-8 is at base a dispute over the intent of the drafter of that rule, this latest reiteration by the drafter — FHWA — of its view, now somewhat formalized in a related PPM, may well mean that whatever meaning the term design had before (see previous discussion at 1 ELR 10106) it is now what PPM 90-1 paragraph 5.e. says it is. However, there are some problems with this conclusion.

The FHWA clearly has the authority prospectively to amend PPM 20-8 design hearing requirements as long as whatever procedure is established is consistent with the policy of public hearings contained in 23 U.S.C. § 128. Since that statute has never been construed as requiring separate design hearings FHWA would be on relatively safe ground if it amended PPM 20-8 to include a definition of design approval similar to the prospective elements of the definition of that term set forth in PPM 90-1. Of course this would leave FHWA wide open to the argument that because PPM 20-8 required amendment to define the term design approval as the FHWA has claimed it should be defined then prior to amendment that term meant what the district court in the Three Sisters Bridge case said it meant; i.e., that design approval is final approval and that means approval of plans, specifications and estimates. (See previous discussion at 1 ELR 10105-109). Many existing highway projects would be in this definitional gap.On the other hand retroactive amendment of PPM 20-8 would present a variety of questions regarding the validity of such amendment. Aside from the problem of the status of PPM 20-8 as an administrative regulation, there are several possible constitutional law barriers — equal protection and vested rights — and questions of statutory authority which could plague a forthright attempt to retroactively change the meaning of PPM 20-8. If the definition of design approval in PPM 90-1 may be taken as an indirect attempt by FHWA to achieve the desired result, while avoiding the uncertainties of direct amendment of PPM 20-8, then all concerned with the public hearing requirements of federal highway law should take notice that the FHWA has attempted to strengthen its argument that the design approval of a highway project is not the same thing as the final approval of a project which authorizes construction.

* Publication of this decision by ELR is postponed until the October issue because Judge MacKinnan, who dissented from the opinion of Chief Judge Bazelon (with whom Judge Fahy concurred), has reserved the right to file a dissenting opinion.

1. A related portion of paragraph 6. specifically 6.f. provides that where design approval is not requested within 3 years of the design hearing held for a project under PPM 20-8 a new hearing is necessary. This essentially is an application of the policy underlying 6.d. to projects initiated after the promulgation of PPM 20-8.

2. D.C. Federation of Civic Associations v. Volpe, 316 F. Supp. 754,777 (D.D.C. 1970). In a footnote omitted here the court explains its failure to discuss the third criteria of 6.a., i.e., plaintiffs made no allegation that the contested project would have substantially different social, economic or environmental effect than the project as considered in the location hearing that was held.

3. Id., at 779-780. Interestingly enough the court felt that to the extent that the project as approved had a substantially different impact on the existing roads than any of the proposals considered at the location hearing, these differences could be considered at the design hearings required for other reasons.

4. This was apparently the argument of plaintiffs in Wildlife Preserves, Inc. v. Volpe, 1 ELR 20316 (3rd Cir. June 7, 1971) and discussed at 1 ELR 10107-108. The 3rd Circuit found that the change in design which had occurred was not substantial enough to disturb the finality of design approval.

5. As a practical matter the relationship between the term design approval as used in paragraph 6.d. and the substantial change criteria of paragraph 6.a. is that if such changes occurred prior to design approval then obviously they do not trigger a new design hearing under 6.a. This consideration could lead to an interesting dilemma for attorneys defending highway projects. If they argue that design approval was final prior to PPM 20-8's effective date so as to avoid the requirement of design hearings under paragraph 6.d. they may well be faced with the argument that if design approval occurred "way back then" substantial changes in the highway's design have since occurred requiring a design hearing under paragraph 6.a.

6. The full text of paragraph 10 of PPM 20-8 is set forth. But apparently "the essential elements of the highway" are contained in 10.b.

10. LOCATION AND DESIGN APPROVAL

a.This section applies to all requests for location or design approval whether or not public hearings, or the opportunity for public hearings, are required by this PPM.

b. Each request by a State highway department for approval of a route location or highway design must include a study report containing the following:

(1) Descriptions of the alternatives considered and a discussion of the anticipated social, economic, and environmental effects of the alternatives, pointing out the significant differences and the reasons supporting the proposed location or design. In addition, the report must include an analysis of the relative consistency of the alternatives with the goals and objectives of any urban plan that has been adopted by the community concerned.

(a) Location study reports must descirbe the termini, the general type of facility, the nature of the service which the highway is intended to provide, and other major features of the alternatives.

(b) Design study reports must describe essential elements such as design standards, number of traffic lanes, access control features, general horizontal and vertical alignment, right-of-way requirements and location of bridges, interchanges, and other structures.

(2) Appropriate maps or drawings of the location or design for which approval is requested.

(3) A summary and analysis of the views received converning the proposed undertaking.

(4) A list of any prior studies relevant to the undertaking.

c. At the time it requests approval under this paragraph, each State highway department shall publish in a newspaper meeting the requirements of paragraph 8.a.(1), a notice describing the location or design, or both, for which it is requesting approval. The notice shall include a narrative description of the location or design. Where practicable, the inclusion of a map or sketch of that location or design is desirable. In any event, the publication shall state that such maps or sketches as well as all other information submitted in support of the request for approval is publicly available at a convenient location.

d. The following requirements apply to the processing of requests for highway location or highway design approval:

(1) Location approval. The division engineer may approve a route location and authorize design engineering only after the following requirements are met:

(a) The State highway department has requested route location approval.

(b) Corridor public hearings required by this PPM have been held, or the opportunity for hearings has been afforded.

(c) The State highway department has submitted public hearing transcripts and certificates required by section 128, title 23, United States Code.

(d) The requirements of this PPM and of other applicable laws and regulations.

(2) Design approval. The division engineer may approve the highway design and authorize right-of-way acquisition, approve right-of-way plans, approve construction plans, specifications, and estimates, or authorize construction, only after the following requirements have been met:

(a) The route location has been approved.

(b) The State highway department has requested highway design approval.

(c) Highway design public hearings required by this PPM have been held, or the opportunity for hearings has been afforded.

(d) The State highway department has submitted the public hearing transcripts and certificates required by Section 128, title 23, United States Code.

(e) The requirements of this PPM and of other applicable laws and regulations.

e. The division engineer, under criteria to be promulgated by the Federal Highway Administrator, may in other appropriate instances authorize the acquisition of right-of-way before a design hearing.

f. Secondary Road Plans shall be amended as necessary to incorporate procedures similar to those required for other projects. Secondary Road Plans shall include provisions requiring:

(1) route location and highway design approval.

(2) preparation of study reports as described in paragraph 10(b), and

(3) corridor and highway design public hearings in all cases where they would be required for Federal-aid projects not administered under the Secondary Road Plan. Project actions by the division engineer or submissions to the division engineer which are not now required should not be established for Secondary Road Plan projects as a result of this PPM.