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Running on empty: the case for a sustainable national transportation system.

I. Introduction:A New Era in Transportation Policy

With the election of the 104th Congress, our nation's federal government began a potentially historic transition. What is emerging from new concepts being considered and adopted in the executive and legislative branches is a government that in many respects will be leaner, more oriented toward incentives than regulation, and more concerned with results than process in its efforts to assist local governments and citizens in achieving social and policy goals. All of this will be particularly manifest at the federal Department of Transportation (DOT).

DOT is a focus of these efforts not only because it is a target for deficit-reducers in Congress, but also because our nation's system of transportation investment and management is at a crossroads. In particular, the Interstate Highway System (IHS), the centerpiece of federal transportation investment for the last forty years, is now essentially complete. It is time to consider what we learned from that impressive undertaking and what we should do next as a matter of public direction and policy in transportation.

Creative thought on these issues certainly will be welcome. All evidence indicates that in the past several decades we were far too indiscriminate as a nation in applying our transportation resources. Notwithstanding the achievement of the IHS, the overall result has been a patchwork system of various modes of travel that consumes far too large a share of our economic and environmental resources and now threatens our limited supplies of energy, clean air, and open space.

No one need be blamed for the mistakes of the past. The truth is, we know more now about the social harms of inefficient transportation than we did when our current system was under construction. In addition, unanticipated pressures of serving a growing population caused us to adopt short-term solutions that created long-term problems. Today, the nation's collective energies should focus on the future, on managing our transportation resources in a way that saves money and energy, decreases pollution, and enhances the lives of American citizens.

To this end, in late 1993 DOT began a challenging administrative exercise to piece together a new national transportation system" (NTS) that will integrate management of the various surface transportation modes-automobiles, trucks, rail, public transit, bicycling, pedestrian travel, and so on - into a more coherent fabric.(1) The Department also intends to adopt a new administrative structure that integrates the functions historically performed by the federal Highway Administration, federal Railroad Administration, federal Transit Administration, and certain other subagencies into a new "Intermodal Transportation Administration."(2) At least in principle, both initiatives build on the direction set by the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA),(3) which places new emphasis on intermodalism and gives new attention to environmental concerns in transportation planning, investment, and management.(4)

It is important for the nation's economic and environmental well-being that the promise of these initiatives be fulfilled with a blueprint for a sustainable NTS that will provide efficient mobility for present and future generations. The remainder of this Essay details the factual and legal context in which such a system must be considered, a procedural framework for federal transportation managers to follow, and a group of policy strategies for moving the system toward a sustainable course.

II. Economic and Environmental Inefficiency in Our Current

Transportation System

Efficiency is not everything. It is, nonetheless, an excellent starting point for evaluating our current NTS and establishing policies and objectives for improved patterns of travel and an improved Department of Transportation in the twenty-first century. This is particularly so in a climate in which public and private resources are increasingly regarded as scarce in our society.

Today, it is clear that something needs to be done. The economic costs of transportation inefficiency are enormous, especially considering hidden costs and those likely to be borne by future generations. The impacts of our current transportation practices are even more disturbing. These include massive energy overconsumption, air pollution, sprawl, and congestion.

A. Economic Costs

In announcing the NTS initiative, Transportation Secretary Federico Pena observed that Americans spend nearly one trillion dollars - seventeen percent of our gross domestic product - on transportation services each year.(5) Even a one percent improvement in the overall efficiency of our nation's transportation system, according to the Secretary, would produce nearly one hundred billion dollars in savings across the economy within a decade.6 These observations, made when DOT announced the NTS initiative in late 1993, make a compelling reference point for considering our current system's impacts.

Similarly, federal Office of Management and Budget Director Alice Rivlin has written that, as a nation, we have invested one trillion dollars in public works capital and spend some one hundred billion dollars annually on operating, maintaining, and adding new public works.(7) Most of this is required to support our national habit of driving and moving an incredible 3.5 trillion passenger miles each year.(8)

As plainly as these numbers speak, they may understate the severity of the costs. In a 1993 study, the Natural Resources Defense Council (NRDC) undertook to estimate the full range of costs attributable to passenger ground transportation.(9) NRDC's study attempted to account not only for the direct costs but also the societal costs of transportation, including the external costs and subsidies associated with energy use, congestion, subsidized parking, accidents, noise, building damage, and air and water pollution.(10) The study did not, however, attempt to quantify certain elusive transportation costs, including those associated with travel time, loss of wetlands and agricultural lands, and other impacts of urban sprawl.(11)

NRDC's researchers concluded that when the full range of costs are tallied, passenger ground transportation alone costs the American public $1.2 to $1.6 trillion each year.(12) This is equal to about one-quarter of our nation's annual gross domestic product and far greater than our total annual national expenditure on either education or health.(13)

Automobile transportation is responsible for nearly all of these costs, accounting for more than four thousand dollar per capita per year.(14) Indeed, NRDC found that just the direct personal costs of automobile travel account for about fifteen to twenty percent of the Gross Domestic Product.(15) Aggregate rail and bus transportation costs are at most thirty-one billion dollars per year, accounting for only one hundred dollars per capita or about two percent of the total.(16) Automobile costs are likely to increase in coming years, given that total mileage driven, average trip length, and the number of trips taken per year are all increasing while vehicle occupancy is decreasing.(17)

NRDC also found that a substantial portion of the costs of each of the three surface passenger modes is subsidized by society rather than paid directly by users.(18) Automobiles receive a much higher aggregate subsidy than does bus or rail transport, but the three modes receive a more or less equal subsidy on a per-passenger-mile basis. One difference between the three modes is the form of the subsidy: automobiles receive about eighty-five percent of their subsidy in the form of external costs such as air pollution, parking, and accidents, While buses and rail receive theirs primarily in the form of direct governmental expenditures.(19)

B. Energy Consumption

Transportation is by far the largest user of petroleum products in the United States, accounting for seventy-two percent of total U.S. oil consumption in 1987.(20) Highway travel accounts for about three-quarters of direct transportation energy use, and passenger highway travel accounts for two-thirds of that amount.(21) Despite vehicle fuel efficiency improvements over the last two decades, overall transportation fuel consumption continues to increase at a rate of about 2.6 percent per year.(22)

From a global perspective, the United States consumes more than one-third of the world's transport energy, almost all (ninety-six percent) of it in the form of oil products. This is more oil than the United States produces, despite our country's position as one of the world's largest oil producers.(23) The average resident of the U.S. consumes nearly five times as much energy for transportation as does the average resident of Japan and nearly three times as much as the average resident of western Europe.(24) This is, in part, because the average American undertakes the highest level of personal travel (13,500 miles per person, including nondrivers, per year) and owns the most vehicles per person (0.6, including nondrivers) in the world.(25)

Freight trucks are the second largest category behind automobiles) of U.S. transport energy consumption, accounting for nearly twenty-three percent of the total.(26) Freight truck mileage driven has been growing at well above three percent per year, faster than the Me of increase for cars.(27) When all kinds of trucks are considered, mileage driven by trucks has grown at an alarming 4.7 percent per year.(28)

C. Air Pollution

Our current transportation system also contributes mightily to the nation's resilient inventory of air pollutants. Some of the most serious products of motor vehicle exhaust include carbon monoxide, nitrogen oxides, volatile organic compounds, and particulates. These ingredients make for a nasty soup. Carbon monoxide can harm fetuses, impair perception and thinking, slow reflexes, and cause drowsiness, unconsciousness, and even death.(29) Nitrogen oxides and volatile organics not only cause health problems in their own right, but combine to form tropospheric ozone - the white smog that hangs over so many of our country's metropolitan areas.(30) Smog can irritate and alter lung function, reduce resistance to infection, and aggravate heart disease, asthma, and bronchitis.(31) Particulates can cause respiratory problems, including bronchitis, and can be toxic or carcinogenic, among other consequences.(32)

Congress and the Environmental Protection Agency (EPA) have set standards for these and other transportation-related air pollutants to protect the public health,(33) but many areas are unable to meet them. About one hundred urban areas, for example, currently violate the ozone air quality standard.(34) This is due largely to transportation sources, which contribute thirty-nine percent of the nitrogen oxide and thirty percent of the volatile organic precursors to the nation's ozone pollution.(35) In Southern California, the site of the nation's dirtiest air, automobiles and trucks are responsible for ninety-six percent of the region's carbon monoxide, seventy-two percent of its nitrogen oxides, and fifty-two percent of its volatile organics.(36)

Improvements in vehicle and fuel technology over the last three decades have lowered the levels of atmospheric lead and per-vehicle emissions of many pollutants.(37) However, EPA projects that increases in vehicle use will undermine these achievements, causing U.S. metropolitan regions to fall short of mandated reductions in several key pollutants by some forty-eight percent by the year 2010.(38) Reduction strategies must be concerned not only with total mileage traveled but also the number of trips taken, since by far the worst emissions occur during the first few minutes of travel.(39)

The threat of global warming is perhaps less certain but potentially more serious than that of the health problems associated with transportation pollution. Among greenhouse gas emitters, our transportation system is particularly egregious, accounting for about forty-five percent of all U.S. volatile organic compound emissions. Cars alone account for thirty-one percent of U.S. volatile organic compound emissions.(40) Other potent greenhouse gases produced by transportation include chlorofluorocarbons (CFCs) from air conditioning units in older vehicles, methane from petroleum production, and nitrogen oxides from vehicle exhaust.(41)

D. Sprawl and Congestion

Perhaps the most visible of transportation-related environmental problems is the expansive urban and suburban sprawl that now dominates the American landscape. Sprawl is self-perpetuating: the dominance of the automobile among our transportation choices makes low-density development possible; low-density development, in turn, makes us more dependent on automobiles for access to increasingly dispersed locations for employment, services, and recreation. This is bad news for all, but especially for those who are unable to use cars as a primary mode of transportation, including the poor,(42) the disabled, the elderly, and children.

Some of the statistics associated with this trend are particularly disquieting. For example, since 1960 the acreage of new development has grown six to ten times faster than the population in Chicago, New York, Washington/Baltimore, Dallas/fort Worth, Atlanta, San Francisco, and other regions.(43) Our typical new suburban household owns 2.2 cars, generates 12 auto trips per day, and drives 31,300 miles per year.(44) Moreover, the average distance driven per household per day has increased steadily, from 32.1 miles in 1983 to 41.4 miles in 1990 and, overall, vehicle miles traveled has grown four times faster than population over the last three decades.(45) Road surfaces alone now occupy some 60,000 square miles in the United States, or about 2 percent of our total land area.

Such auto dependence, at least as a matter of degree, is a particularly American problem. In European communities, auto use generally constitutes between 30 and 48% of all trips; transit constitutes between 11 and 26%; and pedestrian and bicycle trips constitute another 33 to 50%.(46) By comparison, Americans take 86% of their trips by automobile, only 3% by transit, and only 11% by walking and bicycling.(47) Even in Canada, transit claims 15% of all trips.(48)

Moreover, sprawl costs money. According to the National Growth Management Leadership Project (NGMLP), utility providers in California have learned that gas and electric service costs in low density Marin and Sonoma Counties are some four to eight times higher per household than they are in Alameda (Oakland) and San Francisco Counties.(49) In Loudoun County, Virginia, on the outer fringes of metropolitan Washington, D.C., officials estimate that a new family must buy a $400,000 home to generate sufficient property taxes to cover county services to a new household.(50) The average home in the county, however, sells for less than $200,000.(51) Similarly, the U.S. Postal Service estimates am man delivery to the door in large-lot suburbia costs $179 per household per month. Given that merely changing to curbside deliveries reduces the cost to $125 per month, even more substantial savings would be achievable in denser neighborhoods.(52)

As the typical American knows only too well, increased vehicle use also breeds increases in traffic congestion. The scourge of every delivery truck driver, driving commuter, and harried parent, congestion now claims over a billion vehicle-hours per year from the American public.(53) Federal Office of Management and Budget Director Alice Rivlin reported that more than 70% of peak hour travel on urban Interstate highways is now considered congested, and the Federal Highway Administration has projected as much as a 450% increase in annual delay times from 1984 to 2005.(54)

The value of lost productivity and other costs to society because of congestion is difficult to estimate but considerable. NRDC's researchers conservatively put the figure at $11 billion per year, but the Texas Transportation Institute reportedly estimates that the cost in thirty-nine urban areas exceeds $34 billion.(55) The General Accounting Office estimated U.S. congestion costs to be as high as $100 billion per year.(56)

III. The Legal Responsibilities of the Federal DOT

in Sustainable Transportation

Daunting as these facts may seem, they must not be regarded as inevitable. To the contrary, policy and funding decisions made at all levels of government profoundly influence transportation in this country. Any reform of the NTS and the federal government's role in it must address the costs described above if the system is to provide net benefits to society. Indeed, the relevant statutes require no less.

A. ISTEA and Related Statements of Departmental Policy

The federal initiative to create an NTS had its genesis in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA).(57) The purposes and policies pertaining to the system are clearly aimed at combatting the inefficiencies and harms described above.(58) In its first sentence, the Act's declaration of congressional policy states that the national intermodal transportation system is to be "economically efficient and environmentally sound."(59) Furthermore, the government must operate and maintain the NTS "with insistent attention" to energy efficiency, among. other things;(60) the need to achieve energy efficiency in transportation is referenced four times in this declaration.(61)

Similarly, the declaration states that the NTS must give particular attention to air pollution and traffic congestion. In particular, the need to reduce transportation-related air pollution and improve air quality is mentioned three times. Other listed objectives for the NTS include the provision of mobility for Americans who are elderly, economically disadvantaged, or disabled. These objectives are consistent with many programmatic features of ISTEA, including the requirement of section 1024(a) that metropolitan planning organizations consider energy conservation, congestion relief, land use, and environmental effects in developing transportation plans and programs.(62)

ISTEA became law with strong bipartisan support, and President George Bush signed it without reservation.63 Indeed, shortly after the statute's enactment in 1991, Transportation Secretary Samuel Skinner noted that the new law "represent[ed] a victory for the Nation" and established "a new vision' for surface transportation.(64) The leadership of the Federal Highway Administration under President Bush went further and adopted an environmental policy statement, committing the agency to "act creatively and decisively to minimize environmental degradation and protect environmental quality" while providing mobility.(65)

The Clinton Administration amply reinforced these sentiments. In his December 1993 statement announcing the NTS initiative, Transportation Secretary Federico Pena acknowledged the importance of using the initiative to assess how transportation investment choices affect the environment and patterns of energy consumption, so that society "will be better able to minimize pollution and wasteful fuel dependency."(66) The Secretary also observed that the initiative would allow planners to clarify priorities, making it easier to assess where investments should be placed.(67)

B. NEPA

The National Environmental Policy Act (NEPA)(68) provides further direction to the federal DOT, both in administering its programs generally and in undertaking significant exercises such as establishing the NTS. In particular, NEPA requires that, "to the fullest extent possible," all federal policies and programs must be administered in accordance with a number of environmental directives.(69) These require, among other things, that agencies such as DOT "use all practicable means" in their plans and functions to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;" "attain the widest range of beneficial uses of the environment without degradation ... ;" and "preserve important historic, cultural, and natural aspects of our national heritage."(70)

A number of NEPA provisions are particularly applicable. These include, for example, the following directives to federal agencies:

1) improve and manage programs to "maintain, wherever possible, an environment which supports diversity and variety of individual choice;"(71)

2) "identify and develop methods ... [to] insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking ... ;"(72)

3) "study, develop, and describe appropriate altenatives to recommended courses of action in any proposal which involves unresolved conflicts concerning altenative uses of available resources;"(73) and

4) provide to states and local governments advice and information pertinent to environmental quality and enhancement.(74)

These requirements are fleshed out in the now-long-standing regulations of the Council on Environmental Quality governing NEPA.(75) In Sum, they require DOT to assure that the various tranportation policies, investments, and facilities within its influence and subject to the NTS initiative are administered with keen attention to environmental quality. They also require in the NTS initiative that DOT consider alternative approaches that would benefit the environment.

This does not necessarily mean that DOT must undergo the familiar NEPA exercise of preparing a formal environmental impact statement (EIS) for the NTS.(76) Instead, these provisions govern the agency's actions whether or not an EIS is required.(77) Although certain conceivable circumtances - such as an NTS blueprint that calls for the diversion of agency resources to extensive new facilities construction - might well trigger the (EIS) requirements, that is not the course of action advocated here.78

C. Other Law and Policy

DOT's administration of the NTS must also be informed by, and attentive to, a number of additional federal laws pertaining to transportation equity and environmental quality. For the most part, these statutes do not govern the NTS process directly as do ISTEA and NEPA. They do, however, set forth standards, practices, and policies that transportation management and facilities must follow, usually at the local level. To be successful, an NTS management framework will need to assist localities in meeting their obligations under these laws and, at the national level, be consistent with the objective of meeting these obligations across the country.

Foremost among these laws is the Clean Air Act,(79) which, as noted above, establishes national ambient air quality standards and a process for attainment. These include controls on vehicle emissions and the requirement that state and local transportation planning conform to air quality planning.(80) Other relevant statutes include the Energy Policy Act,(81) the Clean Water Act,(82) the Civil Rights Act,83 and the Americans with Disabilities Act.(84)

In addition, pertinent expressions of policy may be found in legislation for historic preservation,(85) Scenic beautification,(86) and natural resources protection,(87) as well as in executive orders pertaining to the National Performance Review,(88) environmental justice,(89) and federal infrastructure investment.(90) Each of these affects both the character and the quality of transportation services that DOT is expected to provide.

IV. A NEW APPROACH IMPROVING DOT'S ROLE

There is much work to do if the economic and environmental challenges confronting our transportation system are to be met and DOT's legal responsibilities are to be fulfilled. DOT will not do this work alone, of course, since transportation in this country always has been a partnership among federal, state, and local governments and their citizens. This is especially the case under ISTEA, and the responsibilities of DOT'S partners in establishing and maintaining our transportation network may grow as a result of redefinition of the Department's structure and duties. But the federal government has an opportunity to contribute important leadership under the NTS initiative, especially since so much of our transportation system is dependent on federal investment or its success and since only DOT can assess national trends and needs.

The Department can seize this opportunity by creating an NTS that, on a continuing basis, establishes goals for our transportation resources, methods for assessing our performance relative to those goals, and a blueprint to guide public decisionmaking and investment in furthering those goals.

A. The Need for a Strategic Planning Process

When Secretary Federico Pena launched the NTS initiative in 1993, he eloquently and precisely set forth the need for a strategic planning process:

All too often, America's transportation investment decisions have been influenced more by the availability of funds for one type of transportation or another - rather than on a balanced analysis of real consumer needs .... The right questions in transportation should be: How can we move people or goods from point A to point B ... most cost effectively, with the least congestion, while protecting our environmental and enhancing safety?"(91)

The Secretary observed that the new transportation system should enable the nation to improve the allocation of limited state and federal transportation budgets,"maximize the efficient use of existing transportation systems ... [and] assess the likely impacts of proposed investments on social, economic and environmental goals."(92)

These sentiments were amplified, in part, by two Federal Register notices on the NTS, published by DOT in 1994.(93) Some of the announced objectives of the new system include, for example, gathering information to assist DOT'S proposals for new legislation and enhance decisionmaking to achieve national goals, and identifying "the most strategic and effective" uses of the resources available for transportation investment.(94) These objectives have become even more important in the context of potential changes in agency structure and budget that could lead to reductions in investment resources.

In essence, what is needed is a strategic planning process for managing infrastructure investments, transportation decisionmaking, and federal assistance to state and local transportation partners. The NTS should establish this planing process and provide the tools necessary to measure the system's economic and environmental performance. Armed with clear goals and information, DOT and its partners could then direct investments, decisions, and assistance on a continual basis to solutions that will

Unfortunately, this is not what the framework proposed in the Federal Register notices(95) would accomplish. In particular, the framework did not identify proposed transportation goals for the NTS. It did not add detail or meaning to the goals set forth in ISTEA and other relevant law; indeed, it did not even acknowledge them, except in the most general way.(96) Further, the framework did not propose methods for assessing whether the nation's transportation system is functioning well with regard to either the economy or the environment. Moreover, it did not indicate, except in the vaguest sense, what decisions or investments might be affected by information derived from the NTS.

Instead, the framework focused exclusively on "the identification and selection of facilities" to "constitute" the NTS.(97) The plan first mentioned selecting such facilities on the basis of the volume of traffic they carry, with "some non-volume criteria" suggested as well.(98) The framework proposed to collect better information on how the system functions only after NTS facilities were identified.(99)

This procedure puts the cart before the horse. Our country already has a "national transportation system" in the sense of a collection of highways, rail lines, airports, and so forth. What we need is a strategic planning process for assessing how the system is performing and directing public resources so that the system can better serve the national interest.(100) The evidence suggests that, at present, our transportation system is not perfominng nearly well enough.(101) The NTS should respond directly to these concerns.(102)

B. The Importance of Performance Goals and Assessments

The starting point for a strategically oriented NTS must be defining clear goals for the system. The system's managers must know what must be achieved in order to know what to measure and where, in a world of limited resources, to invest.

Fortunately, the primary goals for a performance-based NTS were already determined in ISTEA and other statutes and instruments of policy. These objectives - whether they be for economic efficiency, energy conservation, air pollution reduction, the equitable distribution of transportation benefits, or the enhancement of communitieis - have already been subject to the political process in Congress and the executive branch and are now the law of the land. These laws and policies should guide this process.(103)

In addition, DOT should establish, as an NTS focal point, criteria and assessment methods to determine how our existing transportation resources are performing relative to our defined national goals. Quantitative indicators are possible for a range of important performance factors, including energy intensity and usage, equity and access, performance efficiency, safety and security, economic costs, air and water pollution, land use, and infrastructure conditions.(104) Such measurements are prerequisites to an NTS that enable decisionmakers to allocate limited resources to those investments that perform best.

C. Putting a Strategic NTS to Use

Once goals are defined and performance is measured, the third and final step in constructing a continuing, strategic NTS should be to establish a coordinated program for improving performance. In this phase, the Department should articulate, after full consultation with its state and local government partners and citizen constituents, its assessments of where to invest public resources along with appropriate management, policy direction, and proposals for new legislation, if appropriate. DOT should repeat this undertaking periodically, perhaps at five-year intervals.

Such a process would assist DOT'S functions in at least three ways. First, performance measurements and defined investment strategies would be instructive to all categories of federal transportation spending. These include, for example, direct federal spending for projects of national or regional significance, such as Amtrak or the Interstate Highway System. The tools would be equally valuable in assessing private-sector investments that might be assisted with federal seed money and in evaluating whether projects undertaken by state decisionmakers with federal assistance are successful in meeting national performance objectives.

Second, a strategic NTS would help provide a context for the exercise of decisionmaking by DOT and its transportation partners on nationally significant policy issues. For example, data collected under the NTS could help the Department determine how and whether to craft and revise such statements of policy as the metropolitan and statewide transportation planning regulations,(105) the national program plan for Intelligent Transportation Systems (ITS) technologies,(106) and the joint memorandum between DOT and EPA on areas of cooperation for environmental transportation.(107) Such information could also be instructive for guiding DOT's many research activities.(108)

Third, the NTS process could assist DOT in developing proposals for legislation. A more clear set of strategies, needs, and priorities would inform decisions about how to allocate scarce public funds, for example, in the agency's annual budget requests. In addition, basic governing statutes such as ISTEA must be reauthorized periodically; an analytic and strategic NTS would help the Department decide whether to seek adjustment of the parameters of ISTEA's basic programs.(109) Information generated in the NTS might also lead the Department to recommend legislation for entirely new types of transportation investments.

D. Precedents and Models for a Strategic NTS

Analogous strategic planning exercises are followed by other federal agencies with responsibilities for managing nationally significant resources. For example, the U.S. Forest Service follows just such an exercise pursuant to the Forest and Rangeland Renewable Resources Planning Act (RPA).(110) Under RPA, every ten years the Forest Service undertakes a comprehensive assessment of the nation's forest and range resources, analyzing the uses and demand for those resources, evaluating opportunities for improving their yield of goods and services, and reviewing agency programs, laws, and regulations affecting them.(111)

Every five years, the Forest Service issues its renewable resources program, providing in detail its national-level plans for protecting, managing, and developing the national forest system; cooperative programs with states; and research.(112) The RPA program identifies needs and opportunities for both public and private investments, discusses priorities, and provides recommendations for agency management.(113) Typically, this exercise produces a wealth of information and establishes goals for agency budget requests and resource allocation as well as guidance for forest management and planning conducted at the local level.(114)

The U.S. Department of Agriculture (USDA) follows a similar process pursuant to the Soil and Water Resources Conservation Act (RCA).(115) USDA, like DOT, provides federal funding and technical assistance in cooperation with units of state and local governments. Under RCA, the agency provides a continuing appraisal, published every ten years, of the nation's soil and water resources, including data on the capability and limitations of those resources in meeting demand, changes occurring since the last appraisal, the costs and benefits of alternative management practices, and current federal and state laws and programs.(116) Like the Forest Service under RPA, USDA also produces a program as a guide for its conservation activities and for identifying adjustments needed in federal, state, and local government authorities.(117)

An additional model for at least some of the functions of a strategic NTS exercise might be found in the 1994 comprehensive report on transportation and the environment by the United Kingdom's Royal Commission on Environmental Protection.(118) The Commission examined in detail a number of issues related to the U.K.'s transportation system, including growth in mobility, vehicle emissions, tax revenue and infrastructure costs, vehicle technology, land use, and freight transport. The report calls for substantial reductions in carbon dioxide emissions from trucks and cars, tighter controls on pollutant emissions, increases in rail and bus subsidies, and decreases in highway spending.(119)

E. The Role of Facilities Designation and Mapping

It would not be in the public interest to establish an NTS that is facilities-oriented rather than evaluation- and management-oriented. The precipitous designation of some transportation facilities as "national" not only would miss the point of the acute need for performance assessment and a strategic plan, it likely would exclude some facilities and management tools that are, in fact, part of our country's "transportation system."

This does not mean, however, that there is no place for an inventory of facilities or a mapping exercise as part of a new NTS. On the contrary, it will be critical at some juncture to take stock of such resources as part of assessing our transportation needs and charting new directions for better performance. Maps, particularly those prepared with sophisticated Geographic Information Systems (GIS) technology, can provide enormous insight into the process.(120)

The identification of facilities shouldd not, however, be the principal or beginning objective for the NTS initiative. This is particularly the case given DOT's initial inclination to designate nationally significant facilities for the system by volume, among other criteria.(121) Such an identification would be likely to miss the significance of community facilities such as bikeways, paratransit,(122) and some buses that, in the aggregate, are both nationally significant and environmentally beneficial. Such an emphasis would also be likely to overlook important performance characteristics related to pollution, demand, and equity. Facilities should not "constitute" the NTS, and an assessment of facilities should follow the identification of system goals and performance measures, not vice versa.(123)

V. Conclusion: Ten Strategies for a Sustainable

Transportation System

In today's political climate, concepts and proposals abound for changing the role of government in American life. This discourse has significant implications for the federal DOT, perhaps leading to consolidation of some of the Department's surface transportation responsibilities and redefinition of the way those responsibilities are shared among national, state, and local governments. Those concerned with sustainable transportation systems should embrace such changes, since the objectives of economic, environmental, and govermental efficiency in transportation can only be achieved together.

Whatever the outcome of these debates, there should be a continued leadership role for the federal government in the things it does best, including the identification of national needs and priorities and the allocation of federal tax revenues. There is much to be said for the concept of local flexibility in achieving broad societal goals but, at the same time, patchwork decisionmaking must not inadvertently undermine the attainment of those goals.

Below are ten strategies to help federal, state, and local decisionmakers and their citizen constituents achieve a cleaner, more environmentally sustainable NTS. These strategies are not all-inclusive.(124) I only offer them as a starting point for a national dialogue on these issues. They should be among the eventual products of a forward-looking NTS.

A. Reward Jurisdictions for Transpotation Efficiency

DOT should establish a performance-based NTS, supported by performance-based investment. The NTS should encourage state and local governments to innovate in achieving energy savings, air quality targets, and reductions in overall vehicle use, and they should be rewarded with bonus payments when their transportation innovations prove successful. For example, for transportation projects that are cost-shared between state and federal funding sources, the amount of the federal share could be increased in jurisdictions that achieve reductions in vehicle miles traveled or other measurable performance targets.

B. Reward Consumers, Too

Many of the social costs associated with transportation, and particularly with driving, are directly related to the total distance traveled or the number of trips taken. Costs paid directly by drivers, however, are frequently not proportional to vehicle use. If these fixed costs could be made variable, drivers would be rewarded for practicing transportation efficiency.

One particularly promising technique for achieving this is pay-as-you-drive insurance, under which automobile insurance premiums would be collected at service stations as part of the overall charge for fuel or otherwise assessed on a per-mile basis. Drivers who conform to the average would pay, over time, the same as they do now; those who drive more or less would be charged accordingly. Another technique is parking "cashout," under which employers who provide free workplace parking to their employees would provide a cash equivalent to workers who choose alternative transportation to work.(125) The NTS should assist DOT's partner agencies and jurisdictions in refining and promoting these and other variable pricing techniques.

C. Improve Public Transit Service and Amenities

The share of trips taken by public transit is much lower in the United States than in many other industrialized countries, including Canada, western Europe, and Japan.(126) One of the many reasons for this is that potential passengers frequently perceive transit to be less convenient, comfortable, reliable, and safe than driving. We should strive to correct these shortcomings, beginning with reallocation of federal state, and local budget resources sufficient to support state-of-the-art transit systems in our metropolitan areas. Funding preference could be given to electric-and natural gas-fueled transit projects, to amenities such as safe shelters that can make transit more attractive, and to new smart technologies that can improve consumer information, service dependability, and ease of payment. Advanced transit systems in other countries, such as the system in Curatiba, Brazil,(127) can serve as models.

D. Expand the Range of Community Travel Choices

A fact of American life is that many citizens believe they have no reasonable alternatives to driving, notwithstanding its energy and pollution intensity. This belief may be well-founded. For example, many neighborhoods and destinations are not sufficiently dense in population to support frequent transit service, and such service that does exist may not go to all necessary locations. One answer is growth in the highly flexible "para-transit" industry (expanding on current services such as shared-ride airport shuttles, vanpool commuting, and taxis that carry more than one passenger in exchange for discounted fares)(128) and other non-traditional, demand-responsive transit services (such as minibuses and traditional bus service with occasional route deviations). Local transit authorities should be encouraged by federal policy either to provide such services directly or to function in a coordinating role, rather than in the competitive posture in which many now operate. Rapid developments in smart communications technology should also yield many beneficial applications in these services.

All levels of government should also encourage the development of bikeways and related infrastructure to support cycling, particularly given the large share of trips that are shorter than five miles. And much could be done to make our communities attractive once again to pedestrians, including new design standards and "traffic calming" techniques to promote slower vehicle traffic, enhanced road crossing options, and other pedestrian amenities. Government should also lead the way in promoting electronic movement of services and information, telecommuting, and flexible work options; these can reduce the need for trips for both government and private-sector employees. While the appropriate role for the various levels of government in providing incentives for these innovations and putting them into place should be thoughtfully considered, they must play an important role in the NTS.

E. Assure Transportation Equity

One of the most important goals of a new NTS should be to assure access for all income and age groups and historically disadvantaged populations to transportation alternatives and to important destinations such as major centers of employment, health care, and shopping. Access to and improvements in transportation services must be equitably distributed. Today, unfortunately, there are troubling indications that transportation benefits are not distributed equally. In southern California, for example, "the 20 percent of the population with the highest incomes accounted for 32 percent of all miles traveled in cars and buses;" the lowest 20 percent by income "accounted for only nine percent of travel."(129) There also have been allegations that suburban communities have received preference over inner-city communities in the distribution of transit funds.(130) The NTS should facilitate the detection and remedy of such situations. In addition, the NTS should mitigate past inequities in the location of large, polluting transportation facilities near low-income residents and communities of color.

F. Encourage Transit- and Pedestrian-Oriented Land Use

The greatest single obstacle to achieving transportation efficiency is unmitigated urban and suburban sprawl. We must begin to reduce the need for the longer and greater numbers of automobile trips that sprawl requires by encouraging additional, mixed-use development in community locations that can pleasantly accommodate population density and pedestrian travel. These include, for example, urban cores, older suburbs, and neighborhoods around transit stations. In particular, we need better implementation of the ISTEA requirement that state and local transportation planners consider the land use aspects of their programs and plans,(131) and we need to make state and federal assistance available to create incentives for the development of employment, retail, and housing centers in pedestrian and transit-oriented locations.

G. Rebuild and Repair Highways First

No one quarrels with the fact that, across the country, much of our existing roadway infrastructure needs to be rebuilt, with better methods and materials. Reconstruction should include "smart highway" vehicle detectors that can monitor, regulate, and, where appropriate, price the flow of vehicles. Federal and state transportation planners should assign top priority to maintenance and repair, postponing highway expansion until funding for repair is allocated fully. Indeed, because new highway capacity leads in most cases to increased traffic, energy consumption, and pollution, DOT should adopt a rebuttable presumption against the use of federal funds for any highway expansion accessible by single-occupancy vehicles. Some roads might still need to be built, but planners should first seek other methods of providing additional mobility. By seeking first to upgrade existing roads over building new ones, DOT can use its influence to promote more efficient use of current highways.

H. Promote Clean Vehicle Technology

Much can be done to save energy and pollution not only from more efficient travel but also from the introduction of cleaner vehicles, including those powered with alternative fuels, into the American marketplace. Rapid progress has been made in the last few years in the development of such promising technologies as electric cars, natural gas buses, hybrid engines for cars and trucks, and the so-called "Super-car" that will be able to achieve a fuel economy of one hundred miles per gallon or more. Further progress could be made by the development of "subcars" - small vehicles ideally suited for short trips or deployment in neighborhood fleets.

Government should play a leading role in creating incentives for these welcome developments, not only for the vehicles themselves but also for the fueling stations and other infrastructure that will be necessary for consumer acceptance. One ideal starting place, as the National Energy Policy Act(132) recognizes, is in government fleets, and other medium to large-sized, centrally-fueled fleets. Procurement standards and government grants and contracts should be updated to assure that such vehicles are purchased on an increasing-share basis as they become available. In the NTS, specific measures should be included to accommodate and encourage the development of these vehicles.

I. Strengthen and Modernize Intercity Rail

For trips of five hundred miles or less, passenger rail could be made much more competitive with driving and air travel than it is now. Government-sponsored initiatives have led to the development of highly efficient, comfortable, and popular rail systems in Europe and Japan, but such developments continue to lag in the U.S. It is time for a greater share of public investment to be placed in high-speed rail infrastructure in certain targeted transportation corridors, such as Miami-Tampa-Orlando, Cleveland-Columbus, San Diego-Los Angeles-San Francisco-Sacramento-Reno-Las Vegas, Atlanta-Columbus/Macon-Savannah, and the northeast corridor from Boston to Washington, D.C., perhaps with a southern extension to Richmond or Raleigh.

J. Shift Freight Transport from Trucks to Rail

Even a modest shift of freight transport from trucks to rail would produce savings in congestion, highway wear and tear, energy use, and pollution.(133) Several things must happen to make rail transport more competitive in the marketplace for goods that now move by trucks and air. First, we need to upgrade rail freight infrastructure along with rail passenger infrastructure, and the same corridors mentioned above are leading (but not the only) candidates. Second, the intermodal connections between rail lines and ports, roads and air terminals need to improve so that transfers can be made efficiently. Third, we should impose reasonable fees so that trucks begin to pay a larger and fairer share of their true social and environmental costs, including their disproportionate contributions to pollution, infrastructure wear, and congestion; revenues from such fees could be earmarked for some of the improvements needed to strengthen more efficient modes of transport.

In sum, the economic and environmental costs of our nation's existing transportation patterns are unsustainable. If the patterns continue unabated, we soon will be "running on empty." Fortunately, a substantial body of federal law authorizes DOT and its state and local partners to address these problems with a new national transportation system that looks beyond piecemeal investments and facilities to identify national performance objectives and a strategic planning process for meeting them. Such a process should facilitate the adoption of a bundle of policies for setting the system on a more sustainable course. Change cannot be expected to occur overnight, but it must begin now. * Senior attorney and Director of the Transportation Project at the Natural Resources Defense Council in Washington, D.C. J.D., Georgetown University Law Center; B.A., Emory University. I want to thank the Nathan Cummings Foundation and the Energy Foundation for their support of the work that made this Essay possible. (1) National Transportation System Initiative: Outreach for Issues, Positions, Problems, and Recommended Solutions, 59 Fed. Reg. 32,481, 32,482-83 June 23, 1994) [hereinafter Outreach for Issues]; National Transportation System Initiative: Supplementary Information on Process and Criteria, 59 Fed Reg. 43,610, 43,613-15 (Aug. 24, 1994) [hereinafter Supplementary Information]. (2) U.S. Department of Transportation, News Release No. 18-95, at 1 (Feb. 2, 1995) (on file with author); Pena Details New Look for Agency: 3 Units Outlined in Transportation, Wash. Post, Feb. 3, 1995, at A17. (3) Pub. L No. 102-240, 105 Stat. 1914 (1991). The ISTEA enacted, amended, or repealed over 100 separate sections throughout 10 different titles of the United States Code. For purposes of this Essay, the most relevant ISTEA provisions are codified at 23 U.S.C. [subsections]101-410 (Supp. V 1993), 49 U.S.C. [sections] 101 (Supp. V 1993), and 49 App. U.S.C. [subsections] 1601-1625 (Supp. V. 1993). (4) See, e.g., 23 U.S.C. [sections] 134(a), (f) (Supp. V 1993). (5) U.S. Department of Transportation, News Release No. 129-93, at 2 (Dec. 9, 1993) (on file with author). (6) Id. (7) Alice M. Rivlin, Budgeting for Performance, Intergovernmental Persp., Fall 1993-Winter 1994, at 11, 12. (8) Id. (9) Peter Miller & John Moffet, National Resources Defense Council, The Price of Mobility: Uncovering the Hidden Costs of Transportation (1993). The study excluded costs of freight movement and costs relating to air and marine travel. (10) Id. at i-ii. (11) Id. at ii. (12) Id. at 62. (13) Id. at 62-67. (14) Id. at 62. (15) Id. (16) Id. (17) Id. (18) Id. (19) Id. A comprehensive study of transportation costs released in February 1995 contains findings even more staggering than those of Miller and Moffet. See Todd Litman, Victoria Transport Policy Institute, Transportation Cost Analysis: Techniques, Estimates and Implications 4-5, 4-6 (1995). It placed total U.S. motor vehicle costs (excluding rail) at $2.346 trillion per year. Id. at 4-6. The study compared costs per passenger mile for eleven modes of transportation, finding ridesharing and telecommuting the most cost-efficient. Id. (20) Stacy C. Davis & Patricia S. Hu, Oak Ridge Nat'l Lab., Transportation Energy Data Book 3-3 (1991). (21) Id. (22) See D.L. Greene et al., Transportation Energy to the Year 2020, in National Transp. Bd., National Research Council, A Look Ahead, Year 2020 (1988). (23) Office of Technology Assessment, Saving Energy in U.S. Transportation (Summary) 1, 2 (1991) [hereinafter OTA]. (24) Id. at 1. (25) Id. at 3, 10-11. (26) Id. at 7. (27) Id. at 9. (28) Id. at 8-9. (29) See H.R. Rep. No. 490, 101st Cong., 2d Sess., pt. 1, at 148-49, 205-06 (1990); Miller & Moffet, supra note 9, at 68 citing Organization for Economic Cooperation and Development (OECD), Environmental Effects of Automobile Transportation (1986)). (30) Miller & Moffet, supra note 9, at 68. (31) See National Research Council, Rethinking the Ozone, Problem in Urban and Regional Air Pollution 31-38 (1991). (32) Miller & Moffet, supra note 9, at 68-69 (citing OECD, Environmental Effects of Automobile Transportation (1986) and Richard L. Ottinger et al, Environmental Costs of Electricity (Pace University Center for Environmental Legal Studies ed., 1990)). (33) Clean Air Act, 42 U.S.C. [sections] 7409, 7410 (1988 & Supp. V 1993). (34) OTA, supra note 21, at 2. (35) Id. (36) See Michael W. Cameron, Envtl. Defense Fund, Transportation Efficiency: Tackling Southern California's Air Pollution and Congestion (1991). (37) See Jon Kessler & William Schroeer, U.S. Envtl. Protection Agency, Meeting Mobility and Air Quality Goals: Strategies that Work (1992). (38) The projected pollutants include ozone, nitrogen oxides, carbon dioxide, and sulfur dioxide. See id.; see also Joint Report From U.S. Dep't of Transp. and Envtl. Protection Agency, Clean Air Through Transportation: Challenges in meeting Natural Air Quality Standards 32-34 (1993). (39) See George W. Ellis et al., Alabama Highway Dep't, The Determination of Vehicular Cold and Hot Operating Fractions for Estimating Highway Emissions (1978) (discussing the effects of engine operating temperature on emissions). (40) Office of Technology Assessment, Catching Our Breath: Next Steps for Reducing Urban Ozone 12 and figure 1-4 (1989). (41) Miller & Moffet, supra note 9, at 68-71. (42) The poor are also those most likely to be displaced by highway and parking construction and to suffer from blight and pollution caused by large, nearby transportation facilities. See, e.g., Charles Komanoff, pollution Taxes for Roadway Transportation, 12 Pace Envtl. L. Rev. 121, 154 (1994) (observing that "America's motor vehicle dependence disproportionately harms poor people"); Steven N. Brautigam, Note, Rethinking the Regulation of Car Horn and Car Alarm Noise: An Incentive-Based Proposal to Help Restore Civility to Cities, 19 Colum. J. Envtl. L. 391, 398 n.29 (1994) (inferring from other statistics that "the poor are the most affected by high urban noise levels"). (43) The National Growth Management Leadership Project in Portland, Oregon collects data on regional expansion in these and other cities. (44) Peter Calthorpe, The Next American Metropolis 47-48 (1993). (45) Id.; see also OTA, supra note 23, at 5. (46) Calthorpe, supra note 44, at 47. (47) Id. (48) Id.; see also OTA, supra note 23, at 10-11. OTA asserts that policy changes required to duplicate the European model in this country may not be politically acceptable. OTA, supra note 23, at 10-11. Achieving even incremental shifts toward the European model shares for transit and pedestrian travel would yield tremendous social benefits, however, and the success of our neighbors in Canada is encouraging. (49) NGMLP analyzed data from a Pacific Gas and Electric filing before the state Public Utilities Commission. See supra note 43. (50) Anna Borgman, As Exurbs Grow, So Does Burden of Borrowing, Wash. Post, Feb. 26, 1995, at B1. (51) Id. (52) In what may become a landmark report, four diverse institutions in California argued in February 1995 that unsustainable patterns of sprawl will make that state less competitive, burden taxpayers with higher costs, degrade the environment, and lower the quality of life for citizens. Bank of America et al., Beyond Sprawl: New Patterns of Growth to Fit the New California (1995) (on file with author). The four institutions included the California Resources Agency, the Greenbelt Alliance, the Low Income Housing Fund, and Bank of America. (53) Rivlin, supra note 7, at 12. (54) Id.; OTA, supra note 23, at 13. (55) Miller & Moffet, supra note 9, at 22-23; Rivlin, supra note 7, at 12. (56) See U.S. Gen. Accounting Office, Pub. No. GAO/PEMD-91-18, Smart Highways (1991). (57) Pub. L. No. 102-240, 105 Stat. 1914 (1991). For relevant codification, see supra note 3. (58) See supra part II. (59) 49 U.S.C. [sections] 101 Supp. V 1993). (60) Id. (61) Id. (62) 23 U.S.C. [sections] 134(f) (Supp. V 1993). Section 1024(a), which establishes general requirements for metropolitan transportation planning, reiterates that "[i]t is in the national interest to encourage and promote the development of transportation systems embracing various modes of transportation in a manner which will efficiently maximize mobility ... and minimize transportation-related fuel consumption and air pollution." Id. [sections] 134(a). (63) ISTEA was signed into law on Dec. 18, 1991. (64) U.S. Dep't of Transp., Pub. No. FHWA-PL-92-008, ISTEA of 1991 (1992) (message by former Transportation Secretary Samuel K. Skinner). (65) Federal Highway Admin., U.S. Dep't of Transp., Pub. No. FHWA-PD-92-012, Environmental Programs and Provisions (1992) (message by Administrator T.D. Larson). (66) Federico Pena, Address at the National Transportation System Presentation 7 (Dec. 9, 1993) (transcript available in Office of Assistant Secretary for Public Affairs, U.S. Department of Transportation). (67) Id. (68) National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370(d) (1988 & Supp. V 1993). (69) Id. [sections] 4332 (1988). (70) Id. [sections] 4331(b)(2), (3), (4). (71) Id. [sections] 4331(b)(4). (72) Id. [sections] 4332(2)(B). (73) Id. [sections] 4332(2)(E). (74) Id. [sections] 4332(2)(G). (75) 40 C.F.R. pts. 1500-1508 (1994). (76) Such statements are required for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. [sections] 4332(2)(C) (1988); see 40 C.F.R.pt 1502 C.F. pt 1502 (1994). (77) See, eg.,40 C.F.R. [subsections] 1500.3 1507.2(d) (1994). (78) See id. [subsections] 1502.4(b), 1508.18. (79) 42 U.S.C. [subsections] 7401-7671 (1988 & Supp. V 1993). (80) 42 U.S.C. [sections] 7506(c) (detailing transportation conformity requirement). (81) Energy Policy Act of 1992, 42 U.S.C. [subsections] 13201-13556 (Supp. V 1993). (82) Federal Water Pollution Prevention and Control Act (Clean Water Act), 33 U.S.C. [subsections] 1251-1387 (1988 & Supp. V 1993). (83) Civil Rights Act of 1964, 42 U.S.C. [subsections] 1981-2000(h) (1988 & Supp. V 1993). (84) Americans with Disabilities Act of 1990, 42 U.S.C. [subsections] 12101-12213 (Supp. V 1993). (85) See, e.g., Historic Sites Act, 16 U.S.C. [sections] 461 (1988) (declaring a "national policy to preserve for public use historic sites, buildings, and objects of national significance"). (86) See, e.g., Highway Beautification Act of 1965, 23 U.S.C. [sections] 131 (1988) (declaring "that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled"). (87) See, e.g., Endangered Species Act of 1973, 16 U.S.C. [sections] 1531(c)(1) (1988) (declaring Congress's policy to be that afl Federal departments and agencies shall seek to conserve endangered species and threatened species"). (88) Exec. Order No. 12,862, 58 Fed. Reg. 48,257 (Sept 14, 1993) (directing government officials to seek efficiencies in government staffing and fuctions); see also Albert Gore, Jr., From Red Tape To Results: Creating A Government that works Better and Costs Less: Report of the National Perfromance Review (1993). (89) Exec. Order No. 12,898, 59 Fed. Reg. 7629.(Feb. 11, 1994) (requiring examination of the impacts of federal programs on minority populations). (90) Exec. Order No. 12,893, 59 Fed. Reg. 4233 (Jan. 26, 1994) (governing federal spending on transportation and other infrastructure); see also Hank Dittmar, Surface Transporation Policy Project, Developing The National Transportation System: A Concept Paper 5-6 (1994). (91) Pena, supra note 66, at 2-3. (92) Id. at 3. (93) Outreach for Issues, supra note 1; Supplementary Information, supra note 1. (94) Outreach for Issues, supra note 1, at 32,481-82; Supplementary Information, supra (95) Outreach for Issues, supra note 1; Supplementary Information, supra note 1. (96) See Outreach for Issues, supra note 1, at 32,481-83. (97) Supplementary Information, supra note 1, at 43,611. (98) Id. at 43,611-12. (99) Id. at 43,611. (100) Independent of the NTS, Vice President Gore's study on "reinventing" government recommended that DOT "institute a strategic planning process to promulgate national, integrated transportation policies." Gore, supra note 88, at 150. (101) See infra part II. (102) There are encouraging signs that DOT is moving toward a strategic approach to the NTS. A June 1995 notice on the NTS requested public comment on concepts to "set a strategic agenda in achieving progress? toward national social, economic, and enviromnental goals for transportation. National Transportation System Initiative: Refinements to the Development Process, 60 Fed Reg. 31,180, 31,180 June 13, 1995) [hereinafter Refinements to the Development Process]. The notice acknowledges the lack of public support for identifying high volume facilities through a mapping process to constitute the NTS. Id. (103) Those commenting on the NTS Initiative propose additional pertinent objectives, including some related to transportation equity. See, e.g., Comments from the American Public Transit Association to the Department of Transportation (Sept. 30, 1994) (on file with author); Comments from the League of American Bicyclists to the Department of Transportation (Aug. 24, 1994) (on file with author). (104) For example, BTUs per passenger mile and per capita fuel consumption might be used to measure energy intensity and usage, while land use might be measured by percentage of urban, suburban, and rural land devoted to transportation and the relation of population density to various modes of travel. For a list of potential measurements, see Dittmar, supra note 90, at app. B. In addition, at least some performance indicators apparently are being developed by the Department's Bureau of Transportation Statistics. See T.R. Lakshmanan, Remarks to Transportation Research Board Session 198 (Jan. 26, 1995) (on file with author); see also Refinements to the Development Process, supra note 102, at 31,180. (105) 23 C.F.R pt. 450 (1994); 49 C.F.R. pt 613 (1994). (106) 59 Fed. Reg. 60,188 (Nov. 22, 1994). "ITS applies advanced technologies such as information processing, communications, and electronics to surface transportation needs." Id. at 60,188. (107) Memorandum of Understanding, 57 Fed. Reg. 34,606 (Aug. 5, 1992). (108) DOT undertakes a variety of research relating to such topics as highway and transit construction, performance, safety, and various advanced transportation technologies. Many of these activities are undertaken at University Transportation Centers funded by DOT. For examples of DOT research programs, see, e.g., 23 U.S.C. [sections] 307(e) (1988 & Supp. V 1993); 59 Fed. Reg. 2902 (Jan. 19, 1994). The National Performance Review also recommended development of an integrated national transportation research and development plan. Gore, supra note 88, at 140. (109) The current ISTEA authorizes Congress to appropriate funds for transportation investment only through the end of federal year year 1997 (Sept. 30, 1997). See 23 U.S.C. [sections] 104(b)(3)(B) (Supp. V 1993). (110) Forest Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. [subsections] 1600-1614 (1988 & Supp. V 1993). (112) Id. [sections] 1602. (113) Id. (114) Environmental organizations and legal commentators have criticized particular decisions and recommendations made by the Forest Service in the RPA process, such as decisions to emphasize commercial timber production targets rather than ecosystem preservation in the RPA program. This criticism, however, has generally not been directed to the RPA assessment itself or the structural framework for the RPA program, which is a sound one.

At the same time, it must be said that the top-down approach employed by the Forest Service in the 1980s in allocating nationally set outputs for the forest system to local forest units was controversial. For a thorough discussion of the relationship between national goals for the forest system and local decisionmaking, see Charles F. Wilkinson & H. Michael Anderson, Land and Natural Resource Planning in the National Forests, 64 Or. L. Rev. 1, 76-90 (1985). (115) 16 U.S.C. [subsections] 2001-2009 (1988 & Supp. V 1993). (116) Id. [sections] 2004(a), (d). (117) Id. [subsections] 2004-2005. (118) Royal Comm'n on Envtl Protection, Pub. No. CM 2674, Eighteenth Report: Transport and the Environment (1994). (120) See, e.g., Dittmar, supra note 90, at app A. DOT's Bureau of Transportation Statistics reportedly is attempting to develop state-of-the-art GIS models for transportation. See Refinements to the Development Process, supra note 102, 60 Fed. Reg. at 31, 180-81. (121) Other initially proposed criteria involved the importance of facilities in providing links between regimes, border crossings, and points of entry, and defense and emergency preparedness. See Supplementary Information, supra note 1, 59 Fed Reg. at 43,612. (122) For further explanation, see infra note 128 and accompanying text. (123) See Supra notes 97-102 and accompanying text. (124) Many publications and reports explicate in more depth strategies such as those presented here. See, e.g., Laura Briggs & Richard Bradley, Business Council, Transporation for Livable Communities: A Powerful New Approach To Transportation Policy 6-16 (no publication date provided) (on file with author); Tri-State Transp. Campaign, A 21st Century Transportation System: A Vision of Our Region's Land, Cities and Communities 34-70 (1993); Alliance To Save Energy et al, America's Energy Choices: Investing in a Strong Economy and a Clean Environment (1991); Rivlin, supra note 7; OTA, supra note 23. (125) The Clinton Administration proposed changes in federal tax law to encourage parking cash-out as one of a number of strategies to reduce greenhouse gas emissions. The measure was the transportation centerpiece of the American response to the Framework Convention on Climate Change adopted at the Earth Summit in Rio de Janeiro, Brazil, in 1992. See William J. Clinton & Albert Gore, Jr., The Climate Change Action Plan 21 (1993). (126) See supra parts II.B, II.D. (127) Curatiba, a city of 1.6 million, has achieved a 75% share of workplace commuting via mass transit through a sophisticated, highly efficient system relying primarily on convenient interconnections among different types of buses. Bus System in Brazil Everything Ours Is Not, L.A- Times, July 17, 1994, at S13. (128) To elaborate on just one example, computer-assisted ridesharing is widely practiced in Europe. Computers not only simplify the process of finding riders and choosing routes, they also can help allay fears about sharing vehicles, because they make it easy to learn about prospective participants. Given technological assistance to facilitate service, drivers might have ample incentives to form similar networks in the United States. Some might earn money by charging passengers. Equally appealing would be the time savings: by increasing the number of passengers in their cars, drivers would be able to use high-occupancy vehicle lanes - an option that substantially reduces travel time in many congested areas.

Ridesharing and other forms of paratransit can have many useful functions in efficient transportation systems, including as an alternative to solo-driving, park-and-ride lots at suburban rail stations and for traveling to and from locations that are not well served by traditional public transit. The Natural Resources Defense Council's Transportation Project, with the cooperation and assistance of the Institute for Transportation Studies at the University of California at Davis, is preparing a comprehensive study of how new communications technology can assist paratransit and other alternatives to solo driving. (129) Michael W. Cameron, Envtl. Defense Fund, Efficiency and Fairness on the Road: Strategies for Unsnarling Traffic in Southern California 11 (1994) (on file with author). (130) The NAACP Legal Defense Fund has filed suit under Title VI of the Civil Rights Act charging discrimination in the allocation of transit funds in greater Los Angeles. Community Labor Strategy Ctr. v. Metropolitan Transit Authority (pending C.D. Cal.). (131) 23 U.S.C. [sections] 134(f)(4) (Supp. V 1993). (132) See 42 U.S.C. [subsections] 13212, 13235, 13257 (Supp. V 1993). (133) See supra notes 5-6 and accompanying text.
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Date:Jun 22, 1995
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