…and their un-Earth Day environmental costs
By David Shattuck
In my three previous columns, I demonstrated that converting Lexington’s one-way streets to two-way traffic would result in unacceptable peak-hour traffic congestion; this congestion would be expected, in turn, to increase air pollution levels between 10-13%. Recall, too, that Lexington already has the worst carbon footprint of 100 cities surveyed by the Brookings Institute in 2008. In this column I explore some of the legal implications these facts raise.
As the 2007 Lexington Traffic Study explains, Main and Vine Streets (and also portions of some of the other downtown one-way streets) are part of the state highway system; accordingly, they cannot be converted unless the Kentucky Transportation Cabinet (KYTC) approves the proposal. KYTC, in turn, is limited by federal environmental and highway laws in what it may approve. The National Environmental Policy Act (NEPA) mandates that planners evaluate potential environmental consequences before implementing proposals that will involve significant federal funding or involvement. The first step in the NEPA process is an Environmental Assessment (EA). If the EA determines that the proposed action “will not have a significant effect on the human environment” then KYTC may issue what is known as a FONSI (no relation to the Henry Winkler character from Happy Days.)
FONSI is an acronym for “Finding of No Significant Impact.” On the other hand, if the EA concludes that the proposed action would have any significant environmental impact, then the law requires that a full-blown Environmental Impact Statement (EIS) be prepared prior to commencement of the project. Because an EIS takes years to complete, planners always strive to obtain a FONSI.
An agency determination that a project may proceed on the basis of a FONSI rather than an EIS may be challenged in federal court. Such challenges have succeeded in numerous cases, and would likely succeed in this case in the event LFUCG attempts to short-circuit the EIS process. Here’s why.
Section 128(a) of the Federal-Aid Highway Act governs any “Federal-aid highway project involving the bypassing of, or going through, any city” and requires LFUCG to certify that it “has considered the economic and social effects of [the project], its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.” Section 128(a) requires that planners give “meaningful” consideration to citizen concerns expressed at a public hearing on the proposal. The D.C. Circuit Court of Appeals described the statute’s purpose in a 1970 decision: “[T]hat highway planners be directly and publicly confronted with opposing views, to ensure that the planners take close account of the objectives and desires of individual citizens affected by the proposed project during the planning process.”
Accordingly, environmental and highway laws ensure that street conversion in Lexington will not happen just because some Master Plan calls for it. Rather, countless questions must be answered. These might include
- How many more vehicles will now be using New Circle, the Interstate, and other routes and what are the congestion, pollution and noise implications?
- How many more minutes will cars sit idling during peak hours and downtown events and how much air and noise pollution is generated thereby?
- How many autos will re-route to the residential neighborhoods that surround downtown?
In addition, these laws will require planners to study in detail impacts on auto and pedestrian accidents, as hard data from other cities shows that street conversion negatively impacts both. Restricted emergency vehicle access must also be addressed.
The $425,000 traffic study LFUCG is preparing to undertake acknowledges these truths, but the government has not provided any meaningful public consideration of them. Instead, the LFUCG has already prejudged the matter. The Request for Proposals (RFP) indicates the study will consist of five components. One of these states that “an assessment of environmental, environmental archeology and other services, air quality, safety, cultural and historical impacts that need to be addressed in order to implement two-way conversion/operation should be identified” (emphasis mine).
The RFP violates the environmental and highway laws referenced above because it does not require planners to undertake these inquiries prior to deciding whether a project should go forward. Indeed, LFUCG has already decided that conversion will go forward: the Master Plan calls for it and the Planning Commission has expressly adopted that provision of the Plan. Remarkably, the RFP does not ask whether the environmental impacts of street conversion are acceptable; instead it asks “what needs to be addressed in order to implement street conversion.”
Any doubts about LFUCG’s intentions are removed by the very next line which follows in the RFP: “identify potential environmental ‘red flags’ that may be anticipated in the implementation phases of the conversions.” Here again, LFUCG has already concluded that the conversion proposal itself need not be supported by an Environmental Assessment. LFUCG has confined its analysis of the environmental impacts to the “implementation phase” of a project. It is more interested in the barriers standing in the way of street conversion than in whether the environmental impacts outweigh the benefits it hopes to obtain in the first place.
Santec (formerly Entran, which also conducted the 2000 and 2007 traffic studies) has been awarded the contract for the current traffic study (although the contract has yet to be executed at the time of this writing, mid-April). In its 2007 study, Entran has already concluded that “higher vehicle emission levels (air pollution) can be expected as a result of the increased congestion” conversion would necessitate. Indeed, $19,000 of the $100,000 spent on that study came from a federal Air Quality planning grant.
Remarkably, Santec’s bid—it’s response for the RFP—gives short shrift to the environmental issues. Its proposal goes on for three entire pages describing the efforts it will undertake to convince Lexingtonians that conversion will work and be worth the effort. Yet the bid devotes just a single paragraph to all of the environmental issues, one which essentially parrots the RFP’s demand “to identify potential environmental red flags.”
Well, I’ve just identified one actual, significant environmental red flag: unless the city believes that two-waying downtown streets will have no environmental impact, NEPA requires that a full-blown EIS be prepared before deciding whether conversion should in fact be implemented. By not performing a public study of the environmental impacts of slower-moving downtown auto traffic, LFUCG is inviting a court challenge that it has acted in violation of NEPA.
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