Road Block

A recent U.S. Court of Appeals ruling on Environmental Protection Agency (EPA) air quality regulations has the Texas Dept. of Transportation (TxDOT) scrambling, though you wouldn't know it from listening to the top brass at the agency. On March 2, a three-judge panel of the D.C. Circuit Court (normally the most conservative in the nation) found in favor of the Environmental Defense Fund (EDF), which had sued the EPA for violating the provisions of the Clean Air Act. The court specifically invalidated several EPA provisions -- including "grandfathering" and other loopholes designed by the agency in conjunction with the Federal Highways Administration -- formerly used to allow highway construction (both state and federally funded) to continue even in cities or regions that are not in compliance with the Act.

Currently in Texas, all cities -- including those whose air quality is bad enough to be in "non-attainment" status (i.e., Beaumont-Port Arthur, Dallas-Fort Worth, El Paso, and Houston) -- are considered to be technically in compliance with theAct because they have acceptable pollution reduction plans on file with EPA (though the Dallas-Fort Worth plan has recently been criticized by the agency). The problem will come when the state's new non-attainment areas -- Austin, San Antonio, and Tyler -- are certified as such, in all likelihood about one year from now.

Because TxDOT has come to rely on those EPA loopholes, having the rug pulled out could have serious consequences for road-building across thestate. For example, it could take three to five years to come up with an acceptable pollution plan (called a "State Implementation Plan," or SIP) for new non-attainment areas; meanwhile, without the old loopholes, projects could not proceed, according to federal and state transportation officials.

According to a memo prepared by the Federal Highways Administration, as many as 73 projects -- totaling a staggering $1.7 billion -- could be held up in the new non-attainment areas by the court ruling. In Austin alone, 18 projects totalling$846.7 million could be affected. If the court rulingstands, TxDOT would have a tremendous incentive to sign contracts and get big projects (like SH130) underway before Austin is officially designated non-attainment next summer. Getting in under the wire might exempt those projects from being placed on hold during a conformity lapse, according to Mike Leary of Federal Highways.

The three TxDOT commissioners and senior staff were briefed on the Highways Administration memo the first week in April. Led by Chairman David Laney, TxDOT brass immediately began lobbying in Washington for relief, either through EPA regulatory power, or from Congress, where U.S. Sen. Phil Gramm has always helped the highway lobby. However, Laney somehow neglected to mention the court ruling or the memo to the state legislative leadership, despite the fact that he and his upper staff were in front of state Rep. Rob Junell's appropriations committee several times in the weeks following the issuance of the memo. "Apparently, it never came up," explained TxDOT spokesperson Randall Dillard. In fact, Junell first heard about the bombshell from Austin transportation activist Glenn Gadbois. "We intend to brief them," Dillard explained on May 11, "but we want to give them not just the problem, but some solutions, too."

But those solutions have not been forthcoming. An internal memo from TxDOT environmental affairs director Dianne Noble to all division directors outlined TxDOT's plan of action thus far. "After consulting with the governor's office," Noble wrote, "it was agreed that questions regarding air conformity should be replied to as follows: 'TxDOT is trying to get back the flexibility given by EPA that has been reversed by the recent court case.'" If that one-liner doesn't hold 'em, the memo went on, "If at all possible, no speculation on the potential impacts to Texas should be discussed."

Mike Yunkhe, the EDF attorney in Washington who argued the case, said he "never dreamed that we would win this big." Still, he suspects that the highway lobby may be overreacting. "What we see on the Hill is that everyone is running around like chickens with their heads cut off, without being able to say why," he said. "The court case only affects those areas that aren't doing their job."

The key issue for the new non-attainment areas like Austin, Yunkhe said, "is how they'll allocate allowable emissions to mobile sources. ... They canallocate to mobile sources [cars] all that's allowed and do more to reduce stationary sources [like industrial plants], or limit the use of cars by investing in transit and land-use planning, and relax on point-source pollution."

Of course, in Austin's case, there isn't all that much air pollution coming from industrial sources, but on the other hand, savings from transit and planning are unlikely to occur any time very soon. Sounds a little like the old trucker's highway anthem: We've got a long way to go, and a short time to get there. --Nate Blakeslee