"The 91st Congress enacted the National Environmental Policy Act of 1969 (NEPA), considered by many to be the most important law of the 20th century. ...In tandem with NEPA, the 91st Congress also added a new subsection ...focusing on design criteria relating to social, economic, and environmental effects." During the debate, Senator Randolph explained that provisions were expanded to implement the "belief that highways should enhance communities rather than degrade them."

National Environmental Policy Act of 1969

The same 91st Congress enacted the National Environmental Policy Act of 1969 (NEPA), considered by many to be the most important law of the 20th century. In NEPA, Congress declared a new national policy:

It is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

But Congress did not stop with just a policy statement. It went on to authorize and direct that:

To the fullest extent possible:

(1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter. This mandated, among other things, that Title 23, U.S.C., including Section 109, would be construed so as to be compatible with NEPA and its policies.

The Statute continues:

and (2) all agencies of the Federal Government shall

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making

(C) include in every recommendation or report on major Federal actions significantly affecting the quality of the human environment, a detailed statement on

(i.) the environmental impact of the proposed action,

(ii.) any adverse environmental effects which cannot be avoided,

(iii.) alternatives to the proposed action,

(iv.) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v.) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

It is this provision, as you know, that for over 30 years has caused us to prepare environmental assessments, environmental impact statements, and records of decisions on thousands of transportation projects. In these 30+ years, we have learned a great deal about the importance of administrative records and how critical they become to show the adequacy of the decision-making process, particularly in litigation. We need to attach the same importance to the documentation of design decisions if we want to win more tort lawsuits. I will address documentation more later in the lecture.

23 U.S.C. 109(h): Process Guidelines and Action Plans In tandem with NEPA, the 91st Congress also added a new subsection (h) to Section 109 of Title 23, U.S.C., focusing on design criteria relating to social, economic, and environmental effects. It required the Secretary to:

(h) promulgate guidelines designed to assure the possible adverse economic, social and environmental effects relating to any proposed project on any Federal-aid system have been fully considered and the final decisions made in the best overall public interest, taking into consideration the need for fast, safe and efficient transportation, public services, and costs of eliminating or minimizing such adverse effects and the following:

(1) air, noise, and water pollution;

(2) destruction or disruption of man-made and natural resources, aesthetic values, community cohesion and availability of public facilities and services;

(3) adverse employment effects, and tax and property value losses;

(4) injurious displacement of people, businesses and farms; and

(5) disruption of desirable community and regional growth.

During the Senate debate on the Conference Report, Senator Randolph explained this requirement:

Provisions to improve consideration of economic, social, environmental and other impacts in highway design and construction were expanded by the conferees to implement our belief that highways should enhance communities rather than degrade them. Proper design and engineering practices can, in many instances, avoid, overcome or minimize adverse impacts on people and their surrounding environs.

I think it is significant that Congress chose to place these new requirements in Section 109 of Title 23, U.S.C., the section covering standards. It is significant that Congress did not make safety paramount over other considerations. I am of the view that Congress, in enacting Section 109(h), intended there to be a balancing of safety, mobility, economic, and environmental considerations. A 1995 decision by the U.S. Court of Appeals, Seventh Circuit, in Rothrock v. United States, 62 F.3d 196 (7th Cir. 1995), supports this view.

This decision arose from a suit seeking to recover for personal injuries sustained in an accident allegedly caused by the absence of guardrail on an I-65 bridge in Indiana that was resurfaced with federal funds. The issue being addressed by the Court was whether FHWA could properly approve the overlay project without requiring replacement of a section of guardrail on the bridge. Citing 23 U.S.C. 109(h) the Court noted: Congress directs the Secretary to formulate guidelines for the approval of projects "in the best overall public interest," taking into account such considerations as safety, efficiency, and cost. 23 U.S.C. § 109(h). The statute also directs the Secretary to consider [the five factors listed in 109(h)]. The sheer number of factors involved suggests that Congress intended these decisions to be made as an exercise of judgment and choice.

Thus, in deciding whether to fund Indiana's bridge resurfacing project despite the alleged nonconformance with certain AASHTO standards, the FHWA is charged with balancing a mix of factors such as cost and safety. This is inherently a discretionary judgment involving balancing a mix of policy factors (at 62 F.3d 199).