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Embracing Adversity
- 1. Embracing Adversity G. Lain Ellis Environmental Affairs Division TxDOT (Please click “ V iew” menu, then “ N otes P ages” for script, notes. Slides are not self-explanatory.)
Editor's Notes
- This presentation begins just after a substantial presentation on the Freight Shuttle system. Therefore it begins on the assumption the audience has a high level of background information. Because Dr. Roop (TAMU) and Mr. Kuhn are enthusiastic about the program, the audience has heard a lot of very positive things. This presentation also assumes that the audience isn’t very fond of the environmental process, so I start out sharing that view with the audience because my ultimate point will be that despite the difficulty of the process, it can be harnessed as a highly beneficial tool. So I start as follows: Inside every silver cloud there’s a dark lining, and that’s me. Everyone knows how much pain is involved in the environmental process. And it’s true, especially for EISs. The common perception of NEPA is that it is an obstacle, and that it would be hard to intentionally design a better obstacle. But I’m here to tell you that this project is an ideal example of how to embrace that pain and turn it into an asset. I first became aware of the freight shuttle in a presentation to members of TxDOT administration and TxDOT leadership involved in development of public/private partnerships. As I sat there, I thought to myself that I was in a room where a revolution was being planned. And I was right. As I listened further, I reached a highly technical conclusion: This is soooo cool! I was right about that too.
- People who know me know that I am not the Department’s resident optimist. I have found an ideal web site that portrays my optimism: Despair.com. They sell “demotivational” posters for people like me, and given the fact that I work in the environmental realm, I have hung this poster outside my cube to remind people of my role in the system.
- Despair.com has a bunch of posters, and with each one they tell you who the ideal audience is.
- This one is particularly good as an inspiration for people working in the NEPA environment.
- This one really nails it. But, you may have noticed that the only consistent audience they mention is disaffected college students. When I first noticed it, I realized that the people at Despair.com don’t really understand the full depth of despair because....
- they didn’t know that nobody experiences despair as much as the project manager for an EIS. It’s expensive, it takes forever, and nothing is quite as frustrating. Importantly, recent changes in SAFETEA-LU have made the beginning of the process even more labor and time intensive because the new regulatory process requires a very high level of public involvement in the development of the need and purpose statement. The process subsequently requires a very high level of public involvement in the development of the alternatives that will be evaluated to meet the need and purpose. And that doesn’t even include the rest of the public involvement process. Failure to make a very robust attempt to bring in a wide range of stakeholders leaves us vulnerable to successful litigation.
- To make it even worse, the record of decision at the end of the process typically boils to this positive note: The preferred alternative is the worst one there is except for all the rest of them. So often, it’s not even particularly rewarding at the level of personal satisfaction.
- The prospect of the despair that comes with an EIS tempts us to try very hard to see if we can do an environmental assessment instead. After all, an EA reduces the amount of pain we might experience. But we should not yield to temptation rotely. We need to consider this decision very carefully
- I have a theory about why we try so hard to use EAs. This theory may not be true, but if it were true, it would account for TxDOT’s common behavior on large projects. I believe, perhaps falsely, that we are averse to acknowledging impacts because we are averse to the despair of an EIS. I believe we also are averse to the high levels of public involvement that come with an EIS. A FONSI is much easier to pull off than a ROD when you get to the end of the process. But the aversion to an EIS often ignores some important facts about NEPA. An EIS is only needed in cases where there are significant impacts. If there are none or if they are uncertain, we can do an EA. It can and often does reduce the variables that lead to despair. So working to get a FONSI instead of a ROD can be seen as an easy way out if we can find a justification for doing it. But is this a good gamble?
- In the environmental process, the only thing more expensive than an EIS is an EIS that follows an EA as required when an EA finds a significant impact. Now what would cause that? Given the requirements of NEPA, if an EA were to discover a significant impact, it would need to go to an EIS. Importantly, one of the impacts that could be a significant NEPA impact is a high level of public controversy about the environmental aspects of the project. In the current environment, there is widespread controversy as shown by the last legislative session and the unprecedented high numbers of unfavorable public comments on TTC 35 and 69. Public/private partnerships in general often have high levels of unfavorable public comment even in cases where they also have high levels of support. So the environment is ripe for significant public controversy, and therefore it is ripe for elevating EA projects to EIS projects. So what’s more expensive than an EIS following an EA? One that follows an EA and a court ruling, which is not unlikely in the current environment.
- But in our aversion to impacts, we often forget that not all impacts are adverse. We build our projects precisely because we believe that will have a beneficial impact. Then we forget that not all adverse impacts are significant. The regs for section 106, for example, explicitly say an adverse effect under section 106 is not automatically a significant impact under NEPA. Then finally, we often forget that not all significant effects under NEPA are fatal to a project. In fact, an alternative with the worst environmental impacts can legally be the preferred alternative when it is the alternative that best meets the need and purpose of the project.
- When we give in to despair, we run into a risk. We develop projects because we believe they are good projects, and during the project development process, we define alternatives with an eye toward avoiding impacts that we already know will be undesirable impacts. We often don’t get credit for this because these efforts go unrecognized in our usual practice. We often feel like we need to convince the public that actual or potential adverse effects of the project do not rise to the level of significance under NEPA. But this can easily backfire. It often forces the document producers into the use of tortuous text and logic. But tortuous text and logic by themselves lead the reader to wonder what the heck is going on here. An insignificant impact therefore becomes an unclear impact from the reader’s perspective, and they may incorrectly reach a conclusion that an adverse effect is significant. When an effect becomes unclear, the reader may reach the conclusion that the EA does not take a hard look at the project’s impacts. And if a member of the public can reach this conclusion, so can a judge, who probably is not a NEPA expert. Since the hard look is a judicial review standard, when a judge concludes that an EA doesn’t reflect a hard look, the easy way out becomes an easy way to the expense and time of an EA that becomes an EIS.
- In addition to the risk there is a certainty. If we use an EA because we think we can get a FONSI, we may fail to note that a finding of no significant impact means NO significant impacts. So an EA done with an expectation of a FONSI limits discussion. We can’t whisper about adverse effects and then shout about our positive ones. This is a shame: we develop projects precisely because be believe they do have benefits, and frequently these benefits are significant from the perspective of NEPA. In short, if we yield to temptation, we may sacrifice our ability to fully disclose the full benefits of our projects. And this is often not a good idea.
- I’ve taken the long way to the freight shuttle because initially there was discussion about trying to do an EA instead of an EIS. The freight shuttle is an example of how one can harness the power of significant impacts in the development of a project that is worth doing. The EIS will be a pain. But there will be a ton of public involvement no matter how the project is developed, so high levels of public involvement are not a reason to avoid an EIS. An EIS forecloses the possibility of going to court (or to an EIS) after an EA. But more importantly, there will be adverse effects. And in many cases it will be completely implausible to argue that they are not significant. Indeed, many impacts will be cumulatively significant even if specific instances are not significant by themselves. So trying an EA would be a bad gamble.
- Here’s a short list of adverse effects. Let’s look at each briefly.
- The controversy of public/private partnerships needs no elaboration, and any version of the freight shuttle that places it in a state-owned right of way will generate opposition. If the opposition even begins to approach the numbers or intensity that occurred in public comment on TTC 35 and 69, controversy will be significant under NEPA. As noted before, this factor alone will invite litigation. Moreover, since avoiding controversy will involve very high levels of public involvement, using an EA to reduce public involvement produces marginal benefit, and exposes the project to a high probability of successful litigation. So it would be a very risky, perhaps even very bad idea to go there.
- There will be significant socioeconomic impacts. Truck stops and other businesses that rely on trucking will be negatively affected, especially ones that are already marginal. Since many are in small communities, the local economic impact will be proportionally high because there typically aren’t many jobs to begin with. It will be a new impact that will contribute to the existing decline of small towns. Some long-haul truck drivers will lose their jobs. These impacts will be adverse and significant. Even if impacts are not significant at any single community or any single impact, it would be implausible to argue that the cumulative impact is not significant. But, economic opportunities will arise. Small towns may attract added-value facilities or drayage/offloading facilities. Economic opportunities to form local cooperatives for leasing shuttles can arise through pooled resources. Economic loss will be partially offset by lower costs for food, which is very sensitive to increased fuel costs, and has become a major issue. Costs for other goods will be similarly affected. This by itself will be a significant impact that will benefit large numbers of people, including those in small communities and minority populations. The short-term economic impact of construction jobs will provide income opportunities at a large scale. Beginning the process of reducing oil consumption for both diesel and crankcase oil will help reduce the export of currency and dependence on imported oil. Cumulative adoption of the shuttle system state- and nationwide would magnify these beneficial effects. These effects are significant and we want an opportunity to say so , which we can’t do in an EA. Relocations: Because it can be squeezed into the median in many locations on I35, business and residential relocations can be minimized if the route maximizes use of the median. Over the course of 650 miles, this can add up to a major mitigation impact through avoidance, especially in comparison with alternatives that require new lanes. This also can avoid the problem of segmenting land, which can be a significant economic impact to landowners.
- Adding the land bridge to the landscape will have a dramatic visual effect. In places where it passes near historic resources, those effects are likely to be adverse. Although it is highly unlikely that any single occurrence would rise to the level of NEPA significance, the cumulative adverse effects might, especially if it arouses controversy from the historic preservation community, which often is affluent and passionate. These interests will argue plausibly that the cumulative impacts are significant under NEPA. In addition, visual effects in general would occur all along the corridor. So together, visual effects almost certainly would be classified as an adverse, significant effect. Even if they were not individually adverse, they would certainly contribute to the significance of the total adverse impact of the project. Importantly, however, this visual impact would come along with a reduction in noise. Many in the historic preservation community, including the state and national regulatory agencies, have successfully argued that noise is an adverse effect on historic resources. Thus, the action causing an adverse effect mitigates an existing adverse effect. In addition, when the first shuttle passes by, the land bridge will be in itself a historic facility because of its revolutionary character. This itself will be a significant development with respect to historic resources, and the juxtaposition of the old and new resources would be a representation of the broad sweep of Texas history. So if public and regulatory involvement were to conclude that the visual impacts were significant under NEPA, it also would be plausible to argue that the other impacts are significant too, and therefore mitigate the significant adverse effects related to historic resources. If the process reached this conclusion that these effects are significant, we would want an opportunity to say so, which we can’t do in an EA.
- Water quality: Wetlands will be impacted, probably a lot of them. But since wetland impacts will be mitigated anyway, there would be net water quality improvement that would be a significant bonus. Oil leakage washed by rain into streams will be reduced. While this probably is not significant in any single place, over a 650 mile length, it adds up. Similarly with rubber worn from tires. To the extent that oil disposal is a risk for adverse environmental impacts wherever it occurs, reduction of the volume of crankcase oil to be disposed mitigates risk. Endangered species and habitat: It is inevitable that over 650 miles there will be adverse impacts to species and habitat, and these impacts could be regarded as significant. Water quality issues will reduce existing impacts to endangered species. In places where new location is necessary, habitat impacts can be temporary in some cases, and the elevated nature of the shuttle will not create barriers to movement of species. Again, the shuttle system minimizes impact relative to any other mode that requires ground-based construction. In fact, just being in the median as much as possible reduces the total environmental impact to the extent that it stays off of new location. Air quality: any reduction in particulates and greenhouse gasses will be a benefit. In the cities, where congestion slows trucks down, it could be a significant impact. But even if it is not significant in any single place, over a 650 mile length, it adds up. In the long run, as the shuttle system expands, this will become an increasingly significant environmental impact. So overall, there would be large-scale beneficial effects. These effects are significant and we want an opportunity to say so, which we can’t do in an EA.
- There is no doubt that the freight shuttle would broadly alter the human environment, and that the total alteration would be significant. But, in an average year, there are 720 truck-related injury accidents in the I35 corridor. Because of the way the shuttle would be built, these accidents would be virtually eliminated. Now that is significant. And we want to be able to say so.
- So the freight shuttle is an opportunity to embrace adversity because it gives us an opportunity to harness support. The SAFETEA-LU 6002 process, although cumbersome, would help take a great concept and make it greater by identifying economic opportunities that project developers never would or could have thought of. In addition, the environmental community would see the revolutionary nature of the shuttle as an infrastructural element that addresses concerns they have been advocating for decades. By embracing the existence of adversity, we’d get an opportunity to discuss significant beneficial impacts that we would have to unjustifiably paper over if we did an EA. In addition, embracing and fully disclosing adverse effects would constitute the hard look required by judicial review standards. In short, an EIS would frontload the process for success.
- Is it always a good idea to pursue an EIS instead of an EA? Of course not—no approach is appropriate all the time. Sometimes it’s obvious that an EA is a very robust way to develop a large project. Sometimes, the benefit of an EIS will be marginal, especially in cases where the likelihood of litigation is low. But when the project is as cool as the freight shuttle, even if it is nowhere near as massive, we should seriously consider embracing adversity and despair, and make lemonade out of an EIS. It would be nice, for a change, to have a ROD that says all the alternatives are good, but none of the other alternatives is as good as the preferred alternative. Thank you.