Case Law Summary Travel Demand and Land Use Forecasting in NEPA

1
Case Law SummaryTravel Demand and Land Use
Forecasting in NEPA

• FHWA Environmental Conference
• June 19, 2008

2
Travel and Land Use Forecasts When Are They
Relevant?

• Defining purpose and need
• Analysis of alternatives
• Direct, indirect, and cumulative impacts analyses

3
Standard of Review

• Hard look
• Arbitrary or capricious, an abuse of agency
  discretion, or otherwise not in accordance with
  law or with procedures required by applicable
  law

4
Issues Affecting Sufficiency Under NEPA

• Consideration of appropriate range of impacts
• Recognize impacts
• Consider both winners and losers in
  population, land use, traffic, etc.

5
Issues Affecting Sufficiency Under NEPA (cont.)

• Sufficient disclosure and discussion
• Include good and the bad
• Test your reasoning rational, credible?
• No conclusory statements, reasonably thorough
  discussion required
• Scale discussion to overall significance of the
  impacts
• Submit reasoning and results to public comment

6
Issues Affecting Sufficiency Under NEPA (cont.)

• Choice of methodology
• Rational basis test (reasoned decision)
• Ensure methodology takes all relevant factors
  into account
• Explain reasons behind selection and rejection of
  methodologies

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Issues Affecting Sufficiency Under NEPA (cont.)

• Conflicts, inconsistencies, and validity issues
  in modeling or data
• Need objective, consistent application
• Assumptions and inputs must make sense
• Updating data not automatically required, but
  failure creates risk
• Beware decisions to vary assumptions/inputs by
  type of impact, or to forego analysis due to
  uncertainty

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Issues Affecting Sufficiency Under NEPA (cont.)

• Use of local, regional, or state land use plans
  and decisions
• May require between purpose and need/
  alternatives and approved plans
• Reliance on local plans growth controls in
  analyzing growth-induced effects may be
  reasonable, at least in developed areas

9
Issues Affecting Sufficiency Under NEPA (cont.)

• May find consistency (40 CFR 1506.2(d)) even if
• Plans do not mention project
• Plan deemphasizes new highway capacity (as
  compared to explicit rejection)
• Inconsistency
• Must consider and discuss true inconsistencies
  and reconciliation measures
• Resolution not required

10
Linking Planning and NEPA

• Goal incorporation of planning studies,
  analyses, conclusions into NEPA process to avoid
  duplication
• Guidance sources
• 23 CFR part 450, Appendix A
• 2005 FHWA Legal Opinion
• NEPA-stage requirements
• NEPA
• 23 U.S.C 139, if applicable

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Recap of NEPA Criteria

• Rational basis for analysis and conclusions
• Analysis and conclusions well-documented,
  including the reasoning
• Applicable planning procedures satisfied (e.g.,
  coordination, public involvement)
• NEPA documents adequately summarize the
  information
• More detailed documents appended or incorporated
  by reference and available for public review
• Information disclosed and available for public
  comment during NEPA

12
Standards for Data, Methods, and Modeling

• Reliable, defensible, current
• Reasonable assumptions, clearly stated
• Consistent with assumptions used in other
  regional transportation studies and project
  development activities
• Credible rationale for choices made