May Issue of ELR Features Federal Highway Law

This month ELR is publishing three sets of materials of interest to ELR users concerned with federal transportation programs.

The first is a definitive article by Ronald C. Peterson and Robert M. Kennan, Jr., entitled "The Federal-Aid Highway Program: Administrative Procedures and Judicial Interpretation" (2 ELR 50001), which describes and analyzes the various requirements which the Federal Highway Administration imposes upon the states before reimbursing them for some of the costs of constructing highways on the Interstate, primary, and urban systems. Although the federal-aid highway program is the nation's largest public works program, the complexity of its administration — in part due to the obscurity of the governing procedures — often has frustrated those who seek to balance the program's goals against environmental and social values. In their article Kennan and Peterson explain FHWA's procedures for approving highways and explore how these procedures can prejudice the process against effective consideration of environmental and social values. As examples of how their analysis can affect the consideration of these values in the administration of the program, they consider two questions which have repeatedly troubled the courts. Which ongoing highway undertakings are subject to recently enacted social and environmental legislation? When is a highway undertaking a federal-aid highway for the purposes of social and environmental legislation? Peterson and Kennan clarify the conflicting policies inherent in federal-aid highway legislation and provide invaluable assistance [2 ELR 10049] to attorneys and administrators who participate in the resolution of these conflicts.

Second, ELR is publishing important FHWA policy directives governing the administration of the federal-aid highway program in the Statutory and Administrative Materials section (ELR 46501). ELR is publishing the full texts of these directives because they are crucial to an understanding of the federal-aid highway program and because most of them are virtually inaccessible to the public. The FHWA directives published this month, together with the Federal-Aid Highway Act, provide the basic statutory and administrative materials necessary for understanding federal highway law. They thus provide the basic materials for the Peterson and Kennan article and are thoroughly cited throughout the text.

Third, also in the Statutory and Administrative Materials section, ELR is publishing selected federal statutes on the environmental impact of transportation programs (ELR 51601).

Already available in ELR are 50 federal court decisions in cases involving the impact of federal transportation programs and policies on the environment. These include the five most recent judicial decisions in the Three Sisters Bridge controversy: D.C. Federation of Civic Associations v. Volpe, 1 ELR 20539 (D.C. Cir. 1970); 1 ELR 20552 (D.D.C. 1970); 1 ELR 20574 (D.C. Cir. Oct. 12, 1971); 2 ELR 20092 (D.C. Cir. March 2, 1972); cert. denied, 2 ELR 20096 (March 27, 1972). Also included are two important decisions holding that the environmental and relocation provisions of federal law must be applied to federal-aid highways early in the planning process: Lathan v. Volpe, 1 ELR 20602 (9th Cir. Nov. 15, 1971), 2 ELR 20090 (9th Cir. Feb. 8, 1972), and La Raza Unida v. Volpe, 1 ELR 20642 (N.D. Calif. Nov. 8, 1971). Finally, ELR has also published four recent decisions in the Overton Park litigation which interpret the provision of federal highway law designed to protect parklands: Citizens to Preserve Overton Park, Inc. v. Volpe, 1 ELR 20053 (6th Cir. 1970); 1 ELR 20110 (U.S. March 2, 1971); 1 ELR 20447 (W.D. Tenn. Sept. 7, 1971); 2 ELR 20061 (W.D. Tenn. Jan. 5, 1972). Comments on these cases and other important developments in environmental law relating to highways appear at 1 ELR 10001, 10035, 10062, 10103, 10154, and at 2 ELR 10011, 10019.