DOT Projects Vol I Guidance ICI

Guidance for Assessing Indirect and
Cumulative Impacts of Transportation
Projects in North Carolina
Volume I: Guidance Policy Report
Prepared For:
State of North Carolina
Department of Transportation/Department of
Environment and Natural Resources
Raleigh, North Carolina
Under Project No. 81777722
Prepared By:
The Louis Berger Group, Inc.
Cary, North Carolina

Issued November 2001
ACKNOWLEDGEMENT
This document reflects the proceedings and efforts of a Joint-agency Task Force on
Indirect and Cumulative Effects of the North Carolina Department of Transportation and
the North Carolina Department of Environment and Natural Resources. Participants in
the effort included the following individuals:
N-ImP
Janet D'Ignazio
Gail Grimes
Robin Smith
Dan McLawhorn
Melba McGee
William Funk
Chrys Baggett
Fred Lamar
Lisa Glover
Katherine Batey
Mike Dawson
Henry Lancaster
James Blackburn
Byron O'Quinn
Affiliation
Department of Transportation
Department of Transportation
Department of Environment and Natural Resources
Department of Environment and Natural Resources
Department of Environment and Natural Resources
Department of Environment and Natural Resources
Department of Administration
Attorney General's Office - Transportation
Attorney General's Office - Transportation
Federal Highway Administration
Federal Highway Administration
Association of County Commissioners
Association of Municipalities
Arcadis, Geraghty & Miller (Advisor)
The Louis Berger Group, Inc. served as consultant to the Task Force.
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
EXECUTIVE SUMMARY
The North Carolina Department of Transportation (NCDOT), in consultation with the North
Carolina Department of Environment and Natural Resources (NCDENR), undertook to develop a
guidance document, or policy, for evaluating the indirect and cumulative effects of transportation
projects in January 1999. The assessment of indirect and cumulative effects is identified as a
requirement under the National Environmental Policy Act of 1969, as amended (NEPA), the
North Carolina Environmental Policy Act (SEPA), and under the Council on Environmental
Quality (CEQ) regulations implementing NEPA. However, there are limited standardized and
comprehensive rules, legislation, procedures or guidance available for implementing these
requirements. Compounding this shortcoming is the apparent confusion regarding basic
definitions and terms, such as the extent of corporal and temporal boundaries in determining these
effects. These problems have hindered the assessment of indirect and cumulative effects in
environmental impact statements throughout the country.
The purpose of this guidance is to provide NCDOT NEPA/SEPA practitioners with a tool to help
in the identification, analysis and assessment of indirect and cumulative effects of transportation
projects as part of the NEPA/SEPA assessment process. This guidance is also intended to help
federal and state environmental regulatory and resource agencies, such as NCDENR, to
understand the assessment of indirect and cumulative effects and to provide a "standard" for
reviewing NEPA/SEPA assessment documents. Specifically, this guidance is intended to meet
the following objectives:
? Describe the terminology related specifically to indirect and cumulative effects assessment as
defined by regulations and clarified by the courts.
? Apply the existing case law regarding indirect and cumulative effects assessment to
interpretations of terms and applicable practices under NEPA/SEPA.
? Provide direction on project scoping issues and their implications for addressing indirect and
cumulative effects.
? Provide direction on identification and evaluation of project-induced growth effects.
? Describe various methodologies and techniques, which may be considered when undertaking
indirect and cumulative effects assessment.
? Describe a framework for incorporating in indirect and cumulative effects in NEPA/SEPA
documents, e.g., environmental assessments or environmental impact statements, as well as in
the planning and other activities, which precede the documents.
This volume, Volume I: Guidance Policy Report, comprises the technical, memoranda prepared
for the agencies' review in developing the guidance. Volume 11: Practitioner's Handbook,
describes the "how-to" methods of indirect/cumulative impact assessment.
Executive Summary Page ES-1
1 .... ;.., T..... ... .. ,. .,.. ..
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
TABLE OF CONTENTS
PAGE
VOLUME I
SECTION I BACKGROUND ON REQUIREMENTS FOR ASSESSING INDIRECT
AND CUMULATIVE PROJECT IMPACTS ........................ I-1
1.0 Introduction .................................................... I-1
2.0 Objective ...................................................... I-1
3.0 Relevant Statutes, Regulations and Guidelines ......................... I-1
3.1 Federal .................................................. I-1
3. 1.1 National Environmental Policy Act (NEPA) .............. I-1
3.1.2 Agency Documents .................................. I-2
3.2 North Carolina Rules and Regulations ......................... I-5
3.2.1 North Carolina State Environmental Policy Act (SEPA ...... I-5
3.2.2 Department of Environment & Natural Resources (NCDENR) I-6
3.2.2.1 Indirect and Cumulative Effects .................. I-6
3.2.2.2 Department of Transportation .................... I-7
3.2.2.3 Coastal Area Management Act (CAMA) ........... I-7
3.2.3 Other Regulations ................................... I-7
4.0 Case Law ...................................................... I-8
4.1 Introduction .............................................. I-8
4.2 Threshold Legal Questions for EIS Preparation .................. I-9
4.2.1 General Legal Standards for Judicial Review of
Environmental Impacts ............................... I-9
4.2.2 Significant Impacts ................................. I-10
4.2.3 Reasonably Foreseeable Impacts ....................... I-11
4.2.4 Timing and Scope of an EIS .......................... I-12
4.2.4.1 Timing: EIS Need Only be Prepared for Actual
Agency Proposals ............................. I-12
4.2.4.2 Scope, Segmentation and Impacts of Cumulative
Actions ..................................... I-13
4.2.5 Judicial Standard of Review of Agency Decisions Not to Prepare
an EIS: Arbitrary and Capricious Standard Now Applies to All
Federal Circuits .................................... I-14
4.3 Adequacy of the Substantive Evaluation of Cumulative and Indirect
Effects in an EIS ......................................... I-16
4.3.1 Standard of Judicial Review of an EIS's Content .......... I-16
4.3.1.1 Factual or Methodological Disputes Among
Experts ..................................... I-17
4.3.1.2 Incomplete or Unavailable Information ............ I-18
4.3.2 The Adequacy of Cumulative Effects Analysis in Transportation
Cases ............................................ I-18
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Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
TABLE OF CONTENTS (CONTINUED)
PAGE
4.3.3 Analysis of Guiding Standards and Trends in Cases Involving
Growth-Inducing and Other Indirect Effects .............. I-19
4.3.3.1 General Standards in Indirect Effect Cases ......... I-20
4.3.3.2 Induced-Growth as a Project Selling Point ......... I-22
4.3.3.3 Failure to Identify and Analyze Indirect Effects ..... 1-23
4.3.3.4 Level of Detail Required in an EIS's Evaluation of
Indirect Effects ............................... I-24
4.3.4 Effect of Land Use and Zoning Controls on Indirect Impacts
Analysis .......................................... I-26
4.3.5 Environmental Justice, Indirect Effects and Disparate Adverse
Impacts on Minority and Low-Income Communities ....... I-28
4.3.5.1 The Environmental Justice Executive Order of 1994 . I-29
4.3.5.2 Environmental Justice and NEPA: Federal Court's
Review of the Evaluation of Environmental Justice Issues
in EISs for Proposed Transportation and Other Federal
Projects in Light of E. O. 12898 ................. 1-30
4.3.5.3 Environmental Justice E.O. 12898 and Cause of
Action for Judicial Review or Enforcement ........ I-32
4.4 Other Legal Standards Which Often Apply to Indirect Effects
Cases .................................................. I-35
4.4.1 Non-federal Indirect Effects and the Small Handles
Problem .......................................... I-35
4.4.1.1 Major Federal Actions ........................ I-35
4.4.1.2 The Small Handles Problem .................... I-35
4.4.1.3 Evaluating Whether Federal Involvement is
Sufficient to Federalize a Project ................. I-36
4.4.2 Statute of Limitations ................................ I-37
4.5 Conclusion .............................................. I-37
5.0 Land Use Practice .............................................. I-39
5.1 Comprehensive Planning ................................... I-39
5.2 Zoning ................................................. I-39
5.2.1 Planning Agency ................................ I-39
5.2.2 Zoning Board of Adjustment ....................... I-40
5.3 Subdivision of Property .................................... I-40
6.0 Terminology/definitions .......................................... I-40
6.1 Identification of Indirect Effects ............................. I-41
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Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
TABLE OF CONTENTS (CONTINUED)
PAGE
SECTION II INDIRECT AND CUMULATIVE IMPACTS ASSESSMENT
IN NORTH CAROLINA: THE STATE OF THE PRACTICE ......... II-1
1.0 Objective ...................................................... II -1
2.0 Current Practice in North Carolina .................................. II -1
2.1 NEPA ................................................... II -1
2.2 SEPA ................................................... II -1
3.0 Current Practice in Other States ..................................... II -2
3.1 Florida .................................................. II -2
3.2 Wisconsin ................................................ II -3
3.3 Illinois .................................................. II -4
4.0 Assessment Needs in North Carolina ................................ II -4
4.1 Technical Needs ........................................... II -4
4.2 Procedural Needs .......................................... II -4
4.3 Policy Needs ............................................. II -5
4.4 Other issues and needs ...................................... II -5
4.4.1 Environmental Impact Statements ....................... II -5
4.4.2 Environmental Assessments ........................... II -5
4.4.3 Categorical Exclusions or Non-Major Actions Under SEPA .. II- 5
4.4.4 Mitigation .......................................... II- 5
5.0 Lessons Learned ................................................. II- 6
SECTION III NCDOT GUIDANCE ON INDIRECT AND CUMULATIVE EFFECTS
ASSESSMENT UNDER NEPA/SEPA IN NORTH CAROLINA .... III-1
1.0 Purpose of this Guidance ........................................ . III-1
2.0 Statutes and Regulations ........................................ . III-2
3.0 Terminology .................................................. . III-3
4.0 Scoping ..................................................... . III-6
4.1 Considerations .......................................... . III-8
4.1.1 Project Purpose and Need ........................... . III-8
4.1.2 Study Area ....................................... . III-8
4.1.3 Planning Context .................................. . III-9
4.1.4 Project Description - Transportation System Context ...... III-12
4.1.5 Environmental Context ............................. III-18
4.1.6 Project Description - Design Context .................. III-26
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Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
TABLE OF CONTENTS (CONTINUED)
PAGE
4.2 Identification of Potentially Significant Issues and Effects ........ III-28
4.2.1 Induced Growth Effects ............................. III-28
4.2.1.1 Projects Planned to Serve Specific Land
Development ............................... III-28
4.2.1.2 Projects Likely to Stimulate Complementary Land
Development ............................... III-32
4.2.1.3 Projects Likely to Influence Intraregional Location
Decisions (Development Shifts) ................ III-32
4.2.2 Effects Related to Induced Growth .................... III-33
4.2.3 Encroachment-Alteration Effects ...................... III-39
4.2.3.1 Ecological Effects ........................... 111-39
4.2.3.2 Socioeconomic Effects ........................ III-41
4.3 Techniques for Determining Significance ..................... III-43
5.0 Analysis of Indirect and Cumulative Effects ......................... III-48
5.1 Considerations .......................................... III-48
5.2 Methods for Analysis ..................................... III-49
6.0 Mitigation .................................................... III-51
6.1 Responsibilities ......................................... III-51
6.2 Mitigation Considerations ................................. Ill-53
6.3 Possible Mitigation Techniques for Indirect and Cumulative
Impacts ................................................ III-54
6.3.1 Possible Measures Implementable by NCDOT ........... III-54
6.3.2 Possible Measures Implementable by Municipal
Governments ..................................... III-54
LIST OF APPENDIX
Appendix A: Review of Integrated Land Use and Transportation Models .............. A-1
TOC Page 4
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Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policv Report
SECTION I
BACKGROUND ON REQUIREMENTS FOR
ASSESSING INDIRECT AND CUMULATIVE PROJECT IMPACTS
1.0 INTRODUCTION
Assessment of indirect and cumulative effects is identified as a requirement under the
National Environmental Policy Act of 1969, as amended (NEPA), and under the Council on
Environmental Quality (CEQ) regulations implementing NEPA. Currently, however, there are
limited standardized and comprehensive rules, legislation, procedures or guidance available for
implementing this requirement. Compounding this shortcoming is the apparent confusion regarding
basic definitions and terms, and in the extent of corporal and temporal boundaries, affecting the
understanding of indirect and cumulative effects. These problems have hindered the assessment of
indirect and cumulative effects in Environmental Impact Statement (EIS) and related documents
throughout the country, as well as in North Carolina. Under the North Carolina State Environmental
Policy Act of 1976 (SEPA) the State has generally adopted the federal definitions of indirect and
cumulative effects.
2.0 OBJECTIVE
The objective of this section is to provide relevant regulatory and legal definitions and
interpretations of what constitutes indirect and cumulative effects under NEPA and SEPA. Review
of these definitions and interpretations provides a common level of understanding of the
fundamentals of indirect and cumulative impact assessment. Full understanding of these
fundamentals serves to minimize misunderstandings and, thereby, aid parties in reaching consensus
on indirect and cumulative impact assessment.
3.0 RELEVANT STATUTES, REGULATIONS AND GUIDELINES
3.1 Federal
3.1.1 National Environmental Policy Act (NEPA)
The Federal statute most relevant to the assessment of indirect effects is the National
Environmental Policy Act (NEPA) of 1969, as amended. While NEPA does not specifically refer
to indirect effects, it contains two sections that are related to indirect effects as a concern for Federal
projects. First, in Section 101(b), NEPA makes it the responsibility of the Federal Government to:
"... assure for all Americans safe, healthful, productive, and aesthetically and
culturally pleasing surroundings ... attain the widest range of beneficial uses of the
environment without degradation, risk to health or safety, or other undesirable and
Section 1: Background on Requirements page 1.1
Guidance on Indirect and Cumulative Impact Assessment Volume I: Police Report
unintended consequences ... [and] preserve important historic, cultural, and
natural aspects of our national heritage. . . " (NEPA 1969, 42 USC 4331 Section
101(b))
In addition, it states that:
"... the Federal Government shall include in every recommendation or report on
proposals for legislation and other major Federal actions significantly affecting the
quality of the human environment, a detailed statement by the responsible official on
the environmental impact of the proposed action [and] any adverse environmental
effects which cannot be avoided should the proposal be implemented." (NEPA 1969,
42 USC 4332 Section 102(c))
The meaning of these sections was clarified when the CEQ issued its NEPA regulation in
1978, as part of its mission to provide assistance to Federal agencies on implementing NEPA. In the
terminology section of the regulation, the CEQ provides definitions of "effects. " Specifically, effects
are defined as having two components: direct and indirect. Direct effects "... are caused by the
action and occur at the same time and place, " and indirect effects "... are caused by the action and
are later in time or farther removed in distance, but are still reasonably foreseeable" (CEQ 1986,
40 CFR 1508.8). The CEQ regulation adds that indirect effects "... may include growth-inducing
effects and other effects related to induced changes in the pattern of land use, population density or
growth rate, and related effects on air and water and other natural systems, including ecosystems. "
The CEQ differentiates direct and indirect effects from the term "cumulative impact, " which ". .
. is the impact on the environment which results from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future actions ... "
3.1.2 Agency Documents
The CEQ noted that the terminology of 40 CFR 1508.1 should be uniform throughout the
Federal Government. Uniformity is reflected in the NEPA-implementing regulations of the various
Federal agencies, including those agencies of the U.S. DOT (i.e., United States Coast Guard
[USCG], Federal Aviation Administration (FAA), Federal Highway Administration (FHWA),
Federal Railroad Administration (FRA), Federal Transit Administration ( FTA), St. Lawrence
Seaway Development Corporation, and Maritime Administration). For example, the FHWA and the
FIFA reference the CEQ regulation for definitions in their NEPA-implementing regulation -- 23 CFR
771, Environmental Impact and Related Procedures. On the other hand, a review of agency manuals,
handbooks, policy papers, position papers, and other documents that do not have the force of
regulation reveals a variety of terminologies.
Many of the agencies under the direction of the U.S. DOT have established their own
guidelines for the implementation of the CEQ Regulations. The U.S. DOT defines the term
"secondary effects" as "those effects which can foreseeably occur due to the proposed action, " such
as activities which "induce new facilities and activities" (CEQ 1986, 1510.1C, p. 232). The U.S.
DOT refers directly to the CEQ guidelines for the definition of "indirect effects, " but refers to them
as "secondary or other foreseeable effects. "
Section 1: Background on Requirements page 1.2
Guidance on Indirect and Cumulative Impact Assessment Volume L• Policy Report
In its Environmental Policy Statement, the FHWA uses "indirect effects" as an overarching
term, covering both secondary and cumulative effects. This document uses the term "secondary
effects" as "social, economic, and environmental impacts which can appear in the future" (FHWA
1992). Another FHWA paper also uses the term "secondary effects. " The paper cites FHWA
Technical Advisory 6640.8A on the types of secondary impacts that should be discussed in the
preparation of documents. "These areas generally involve resources that exhibit induced changes
from project activities ... things like the social and economic structure of a community, floodplains,
and areawide water quality" (FHWA 1992, p. 2).
In a project planning document, the FTA differentiates indirect and direct effects, but does
not actually define either of them. They are simply cited as two different aspects of several categories
of effects, including economic, social, and environmental (UMTA 1986). A second source from the
FTA uses the tern "secondary development, " which it states "... can be thought of as changes in
land use that could be fostered indirectly by the implementation of a mass transportation project on
properties adjacent to or near it" (UMTA 1979).
A sampling of various other Federal agencies' documents also reveals a variety of
terminology. The focus here is on definitions used by several agencies with whom U.S. DOT
agencies often coordinate on NEPA document preparation or in satisfying other requirements. In its
handbook on NEPA, the U.S.Fish and Wildlife Service defines the term "secondary effects" as those
which are beyond the immediate effect on the environment of a project, or those which consist of
the ultimate changes in the environment (USFWS 1983). The USFWS definition of the term
"secondary effects" appears to be consistent with the CEQ definition of indirect effects, in that both
encompass the concept of "removed in time and distance. " The Advisory Council on Historic
Preservation uses the term "indirect impact, " but defines it only by differentiating it from direct
impacts without specificity (NHPA undated document, Appendix).
In its Guidelines for Specification of Disposal Sites for Dredged or Fill Material, the U.S.
EPA uses the term "secondary effects" as "... effects on an aquatic ecosystem that are associated
with a discharge of dredged or fill material, but do not result from the actual placement of the
dredged or fill material. " It should be noted that these guidelines implement Section 404(b)(1) of
the Clean Water Act, not NEPA. In other words, their terminology is not required to be consistent
with the CEQ terminology. While both the CEQ's "indirect effects" and the U.S. EPA Section
404(b)(1) guidelines' "secondary effects" are caused by the action and are removed from the direct
effect, the latter term does not include the concept of "reasonably foreseeable. "
This summary of definitions of indirect effects and other terms indicates that a variety of
terms are in use by Federal agencies -- in particular, "indirect, " "induced," and "secondary" --
despite a uniform regulatory definition. In some cases, these terms are used to convey the same or
similar meaning. In other cases, the terms are used to convey different meanings.
The FAA's guidelines on the economic effects of airports (USDOT/FAA 1992, p. 19)
delineate specific steps to determine the indirect aspects of these economic effects. The guidelines
suggest concentrating on the economic activities which would not have occurred in the absence of
the airport. One way to achieve this is to distinguish between persons who would not have traveled
to the region if there were no airport and those who would have come to the area anyway by some
Section 1: Background on Requirements Page I.3
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policv Report
other means. The former should be used to determine indirect effects. After estimating the number
of visitors via the airport, the guidelines describe how it is possible to use a table of value-added
expenditures per visitor to arrive at an approximation of the indirect economic impacts to the region.
The guidelines do caution that it is often difficult to distinguish between those who come to the
region simply due to the airport and those who would come to the region anyway by other means.
This can result in an exaggeration of indirect economic effects credited to the airport.
The FTA also provides a step-by-step approach for assessing indirect effects, although it is
much more general than that of the FAA (LTMTA 1979). The FTA prescribes the following steps:
1) Work with local planning boards, which may have a more accurate view of types of potential
indirect effects than an outside observer (e.g., a Federal agency);
2) Conduct a survey of potentially affected areas;
3) Compile a list of potentially affected development projects;
4) Compare the probable course of development to local zoning restrictions; and
5) Compile a list of probable indirect impacts, including the extent of these impacts in relation
to the characteristics compiled in earlier steps.
A guide to the significance of potential indirect impacts is then provided, using several
examples.
One noteworthy aspect of the FTA procedure is that the significance of impacts is positively
correlated with the degree to which an impact is viewed as negative. In other words, the more
negative the effect, the more significant the effect is deemed to be. According to this logic, even an
indirect impact which affected a huge area would not be called significant if it were deemed
acceptable by the local community. Obviously, if any of the secondary development would
potentially impact sensitive resources, e.g., wetlands or critical endangered species habitat, the
indirect effect could be considered significant regardless of size. Furthermore, the CEQ regulation
notes that impacts may be both beneficial and adverse.
The FHWA's position paper on secondary impact assessment (FHWA 1992) takes a more
philosophical approach to indirect impact assessment. The paper highlights several ways of
approaching indirect effects:
1) Consider indirect impacts as early in the EIS process as possible;
2) Think about resources as part of an integrated system, such that a change to any one part will
affect all others;
3) Cooperate with local planning boards and building inspection agencies who may have a more
accurate sense of the potential indirect effects than a Federal agency;
4) Establish parameters for both the area affected and the time for which indirect impacts can
be acceptably traced back to the original project (without these parameters, an accurate
accounting of indirect effects is difficult to achieve);
5) Assess the potential indirect impacts, paying particular attention to the public service and
natural resource base; and
6) Consider mitigation measures, although mitigation of indirect effects is trying because of the
cost and the difficulty in planning for uncertain events.
Section 1: Background on Requirements Page I-4
Guidance on Indirect and Cumulative Impact Assessment Volione I: Policy Report
A second FHWA document refers to the assessment of indirect impacts in the context of
direct impacts, but does not discuss assessment techniques specific to either (FHWA 1987).
However, the document is noteworthy because of the manner in which indirect effects are organized.
While most of the guidelines reviewed here contain separate sections on indirect effects, this
document includes indirect effects under the headings of each of the traditional impact categories
(e.g., social, environmental, economic). This treatment of indirect effects makes it clear that they are
part of all aspects of an EIS or an environmental assessment (EA), something that is not altogether
clear in many documents that classify indirect effects separately.
3.2 North Carolina Rules and Regulations
3.2.1 North Carolina State Environmental Policy Act (SEPA)
The North Carolina statute most relevant to the assessment of indirect and cumulative effects
is the North Carolina State Environmental Policy Act (SEPA) of 1976 (G.S.I 13A), as amended.
SEPA specifically refers to indirect and cumulative impacts under its General Provisions (1 NCAC
25.0108) published in the North Carolina Administrative Code (NCAC):
". . . This Chapter is applicable to any situation where there is: . . . (3) a potential
environmental effect upon eithernatural resources, public health and safety, natural beauty,
or historical or cultural elements of the state's common inheritance.. ., with environmental
effect defined as ... "Environmental effect" includes direct, indirect, and cumulative
impacts for the project or program that may be significant, depending upon the manner in
which the activity is carried out. . . "
1 NCAC 25, however, does not define direct, indirect or cumulative impacts, or suggest how
they should be addressed. The NCAC focuses mostly on procedures and format including
documentation format/requirements under .0500 for a state Environmental Assessment (EA), and
under.0600 for a state Environmental Impact Assessment (EIS). Under the content requirement for
an EA (1 NCAC 25.0502), the act states that "... the EA shall include maps and a brief discussion
of . .. (4) environmental effects of the proposed activity ... " For the Format and Content
requirements for a state EIS (1 NCAC 25.0603), the NCAC specifically mentions including
assessments of indirect (1 NCAC 25.0603(6)(b)) and cumulative (1 NCAC 25.0603(6)(c)) effects
and their significance as part of the scientific and analytical comparisons of the alternatives under
Environmental Consequences.
NCAC also addresses the issue of an environmental document prepared under NEPA. In 1
NCAC 25.0402 it states:
". . . If an environmental document is prepared under the provisions of the national
Environmental Policy Act (NEPA) for a specific activity, and it that document is reviewed
through the Clearinghouse process, then this review shall constitute compliance with the
requirements of this Chapter for that activity... "
Section 1: Background on Requirements page 1_5
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
In other words, NEPA documents must be submitted through the State Clearinghouse for
state agency review to meet SEPA requirements. By reference then this includes indirect and
cumulative effects as defined under NEPA.
3.2.2 Department of Environment & Natural Resources (NCDENR)
As the environmental agency with review, compliance and enforcement authority in North
Carolina, the Department of Environment, & Natural Resources (DENR) has incorporated
compliance with SEPA (1 NCAC 25) by reference (15A NCAC IC). Under 15A NCAC 1C.0101(c),
the code specifically states:
"... The provisions of the rules in this subchapter, the state rules (I NCAC 25),
and the SEPA shall be read together as a whole in order to comply with the
spirit and letter of the law ... "
and later under Agency Compliance (15A NCAC 1C.0102):
"... (a) Each EHNR agency shall interpret the provisions of the SEPA as a
supplement to its existing authority and as a mandate to view its policies and
programs in the light of the SEPA's comprehensive environmental objectives,
except where existing law applicable to the agency's operations expressly
prohibits compliance or makes compliance impossible.
"... (b) As part of making a decision on a project for which an environmental
document has been prepared, the agency decision-maker shall review the
document and incorporate it as part of continuing deliberations. The resulting
decision shall be made after weighing all the impacts and mitigation measures
presented in the environmental document, which will become part of the decision
making record ... "
By reference, these regulations also establish that the minimum criteria in rule 15A NCDC
1C.0504 be used in determining when environmental documents are not required. These regulations
operate by allowing separation of activities into "major" and "minor" depending upon the potential
for environmental effects. Some exceptions to the minimum criteria are also provided for under 1
NCAC I C.0503.
3.2.2.1 Indirect and Cumulative Effects
15A NCAC 1C also specifically defines "Cumulative Effect" and "Indirect Effects" for
application to DENR administered regulations. These are defined as "... (2) "Cumulative Effect"
results from the incremental impact of the proposed activity when added to other past, present, and
reasonably foreseeable activities regardless of what entities undertake such other activities.
Cumulative effects can result from individually minor but collectively significant activities taking
place over a period of time ... ". Indirect Effects are defined as: "... (4) "Indirect Effects" are
caused by and result from the proposed activity although they are later in time or further removed
in distance, but they are still reasonably foreseeable .... "
Section 1: Background on Requirements Page 1-6
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
3.2.2.2 Department of Transportation
Pursuant to 1NCAC 25.401(a), the Secretary of Administration approved the minimum criteria
for state-funded highway projects on August 28, 1992. The criteria include reference to "secondary
impacts," and "cumulative effects" stating that an activity normally falling below the minimum
criteria for evaluation may require an environmental document if "[t]he proposed activity has
secondary impacts, or is part of cumulative effects, not generally covered in the approval process for
the state action, and that may result in a potential risk to human health or the environment." The
document defines "non-major actions"as "actions which do not individually or cumulatively have a
significant effect on the human environment." Actions meeting the definition of "major actions"
include those that are "likely to precipitate significant foreseable alterations in land use; planned
growth; development patterns; traffic volumes; travel patterns; [and] transportation services......
3.2.2.3 Coastal Area Management Act (CAMA)
The Coastal Area Management Act (CAMA) applies specifically to the twenty coastal counties
in North Carolina. CAMA is a major vehicle for environmental management and protection of unique
and sensitive coastal habitats in North Carolina and is applied primarily as a planning and permitting
tool. Implementation of CAMA must conform to SEPA and NCDEHNR regulations regarding
consideration of indirect and cumulative effects. CAMA defines cumulative effects as:
... impacts attributable to the collective effects of a number of projects and include the
effects of additional projects similar to the requested permit in areas available for
development in the vicinity. (NCGS 113A-120 (a) (10))
Although indirect and cumulative effects are not specifically addressed in the CAMA
regulations, these types of effects are implied-for example, under 15 NCAC 7H .0208(b)(1) spoil
material must be "stabilized to prevent entry of sediments into the adjacent water bodies or marsh "
and spoil material must pose "no significant, long term wetland impacts"-indirect effects removed
from project site by distance and time.
3.2.2.4 Clean Water Act (CWA)
The Clean Water Act (CWA) refers to cumulative effects in standards for issuance of permits
by the North Carolina Environmental Management Commission. The Act states that the Commission
must "act on permits so as to prevent violation of water quality standards due to the cumulative
effects of permit decisions. " (NCGS 143-215.1(b)(2)) The definition of cumulative effects under the
CWA is identical to that for CAMA.
3.2.3 Other Regulations
Other regulations in North Carolina, including those dealing with air quality, the disposal of
hazardous materials, and the application of fertilizers and pesticides, address issues related to indirect
and cumulative effects, but do not explicitly refer to these types of effects.
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4.0 CASE LAW
4.1 Introduction
To date, there are no published decisions by North Carolina state courts evaluating the
cumulative or indirect effects of state projects or actions of any type, including transportation projects.
Most North Carolina transportation proposals, however, are subject to the requirements of the
National Environmental Policy Act ("NEPA"). NEPA requires preparation of an Environmental
Impact Statement ("EIS") for all major federal actions "significantly affecting the quality of the human
environment." 42 U.S.C. § 4332 (2)(C)(I). The Council on Environmental Quality ("CEQ") has
promulgated regulations which implement NEPA, guide the EIS process and define "federal actions"
as those which are subject to federal control and responsibility, including "projects and programs
entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies." 40 C.F.R.
§ 1508.18(a). The vast majority of North Carolina state transportation projects involve federal
funding or financial assistance, are subject to federal regulation or permitting, are often planned and
implemented with the direct involvement of the Federal Highway Administration ("FHWA") and are
thus federal actions subject to NEPA. Accordingly, federal case law provides guidance to North
Carolina transportation planners and decision makers involved in identifying and evaluating the
indirect and cumulative effects of transportation projects and proposals.
There is a small but growing body of federal case law regarding the cumulative and indirect
effects of transportation projects and other proposed actions that establishes the legal standards federal
courts apply when reviewing the adequacy of indirect impact analysis in EISs, Environmental
Assessments ("EAs") and other documents required by the NEPA. This section will review these
standards - as developed through major federal district, appeals and Supreme Court opinions - and
the legal framework and guidance they provide for state agencies engaged in the process of identifying
and assessing the indirect effects of transportation proposals. Particular attention will be given to the
very small number of federal cases reviewing North Carolina transportation projects involving
indirect or cumulative effect analysis. Arguments in law review articles and environmental law
treatises are also occasionally referenced when they help explicate federal courts' analysis of the
environmental impacts of agency actions. Although comprehensive, this case law review is not
intended to be an exhaustive canvass or definitive examination of the current status of federal court
review of EIS preparation.
This section will review : 1) threshold questions in EIS preparation, including: a) analysis of
what constitutes "significant" impacts; b) when significant impacts are "reasonably foreseeable;"
c) the timing and scope of an EIS, including segmentation and the impacts of cumulative actions; and
d) the legal standard courts apply to review an agency finding of no significant impact ("FONSI") in
an EA, resulting in a decision not to prepare an EIS; 2) the adequacy of cumulative and indirect effect
evaluation in an EIS, including: a) the judicial standard of review federal courts apply when
evaluating the content of an EIS; b) analysis of general principles and emerging trends in
transportation cases involving induced-growth and other indirect impacts; and c) environmental
justice issues; 3) other legal standards often at issue in cumulative and indirect effects cases,
including a) the "federalization" of non-federal transportation projects and the "small handles"
problem and b) the statute of limitations on challenges to an EIS.
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4.2 Threshold Legal Questions for EIS Preparation
NEPA requires preparation of an EIS for all major federal actions "significantly affecting the
quality of the human environment." 42 U.S.C. § 4332 (2)(C)(I). The EIS requirement is the primary
mechanism to satisfy NEPA's "twin aims": 1) to ensure that the agency's decision will be informed
by detailed analysis of the significant environmental impacts of a proposal; and 2) to guarantee that
this information will be available to the public, whose concerns and insight may then be incorporated
into the decision through the comment process. Robertson v. Methow Valley Citizen's Council, 490
U.S. 332, 109 S.Ct. 1835,1845 (1989); Morongo Band of Indians v. Federal Aviation Admin., 161
F.3d 569, 575 (9`h Cir. 1998). The EIS must consider not only the direct effects of a proposed project,
but the indirect and cumulative impacts as well, as long as they are significant. Although NEPA
requires that agencies take a "hard look" at all significant environmental impacts, the statute's twin
aims mandate a procedural process, not a substantive result. Robertson, 109 S.Ct. at 1845. Agencies
are required to analyze all reasonably foreseeable, significant impacts, but need not place concerns
over these environmental effects above the goals and positive economic development, access, safety
or other benefits of the proposed transportation project. "If the adverse environmental effects of the
project are adequately identified and evaluated, the agency is not constrained by NEPA from deciding
that other values outweigh the environmental costs." Id. In large measure, then, NEPA "guards the
environment through discussion and disclosure." Carmel-By-the-Sea v. U.S. Dept. of Transp., 123
F.3d 1142, 1150 (9`'' Cir. 1997).
4.2.1 General Legal Standards for Judicial Review of Environmental Impacts
As noted in the introduction, the Council on Environmental Quality ("CEQ") has promulgated
regulations which implement NEPA and guide the EIS process. See 40 C.F.R. §§ 1500-1508. The
CEQ regulations define "major" and "federal" actions and provide guidance for establishing the scope
of actions, project alternatives' and types of impacts to be considered in an EIS. NEPA requires that
the significant direct, indirect and cumulative environmental impacts of a proposed project be
analyzed. The CEQ regulations define direct impacts as those that are "caused by the action and occur
at the same time and place." 40 C.F.R. § 1508.8(a). Cumulative effects are defined as:
the impact on the environment which results from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future actions regardless of what
agency (federal or non-federal) or person undertakes such other actions. Cumulative impacts
can result from individually minor but collectively significant actions taking place over a
period of time.
40 C.F.R. § 1508.7. Indirect effects are those:
caused by the action [which] are later in time or farther removed in distance, but are still
reasonably foreseeable. Indirect effects may include growth-inducing effects and other
' There is a large body of federal case law related to the NEPA requirement that feasible alternatives
"reasonably related" to the purposes of the proposed transportation project, including build and no-build
alternatives, must be evaluated in an EIS. Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517, 524-25
(9t° Cir. 1994). As with the evaluation of impacts, "[a]n EIS need not consider every conceivable alternative,
however, nor remote and speculative alternatives whose effects cannot be readily ascertained." Id. at 525. Further
discussion of project alternatives is beyond the scope of this study.
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effects related to induced changes in the pattern of land use, population density or growth
rate, and related effects in air and water and other natural systems, including ecosystems.
40 C.F.R. § 1508.8(b). The terms "indirect effects," "secondary impacts," "growth-inducing
effects" and their variations are used interchangeably in federal case law, but all with the same
meaning ascribed to "indirect effects" in the CEQ regulations. "The agency need not speculate about
all conceivable impacts, but it must evaluate the reasonably foreseeable significant effects of the
proposed action." Dubois v. U.S. Department of Agriculture, 102 F.3d 1273, 1286 (V Cir. 1996).
4.2.2 Significant Impacts
The CEQ regulations provide guidance for determining which environmental impacts
"significantly" affect the environment:
"Significantly" as used in NEPA requires considerations of both context and intensity:
a) Context... means that the significance of an action must be analyzed in several contexts
such as society as a whole (human, national), the affected region, the affected interests and
locally. Significance varies with the setting of the proposed action. For instance, in the case
of a site-specific action, significance would usually depend upon the effects in the locale
rather than in the world as a whole. Both short- and long-term effects are relevant.
b) Intensity... refers to the severity of the impact. Responsible officials must bear in mind that
more than one agency may make decisions about partial aspects of a major action.
40 C.F.R. § 1508.27. The regulations then describe ten (10) factors that should be considered
in evaluating intensity, including the degree to which the proposed action: affects public health or
safety, may affect sites, districts or objects listed on the National Register of Historic Places, may
adversely affect federally listed endangered or threatened species, and the degree to which the effects
on the quality of the human environment are likely to be highly controversial. Id. at § 1508.27 (a), (b),
(d), (h), (I). The CEQ regulations are, by their terms, binding on federal agencies (40 C.F.R. § 1500.3)
and the Supreme Court has held that the regulations are entitled to "substantial deference." Robertson,
490 U.S. at 355, 109 S.Ct. at 1848, citing Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). Among
the CEQ regulation factors to be considered in evaluating significance are: "the degree to which the
proposed action affects public health or safety; the unique geographical characteristics of the
surrounding area; the potential for controversy; the possibility of unknown risks; and the potential
effect on endangered species." Foundation on Economic Trends v. Weinberger, 610 F.Supp. 829,
837-38 (D.D.C. 1985).
While direct, indirect and cumulative effects must all be evaluated for environmental impact,
the focus of the inquiry should be on the significance of any impacts, regardless of type, rather than
on classification of and differentiation between primary, secondary or cumulative impacts. City of
Davis v. Coleman, 521 F.2d 661, 680-81 (9' Cir. 1975). The Coleman court noted that "so-called
`secondary' impacts are often as significant as `primary' effects." Id. at 676. In Hanly v. Mitchell,
460 F. 2d 640, 647 (2°d Cir. 1972), the court developed a two part test for determining the significance
of indirect effects involving: 1) the degree of change from current land use; and 2) the absolute,
qualitative adverse environmental impacts of the project.
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4.2.3 Reasonably Foreseeable Impacts
An EIS need not contemplate and evaluate every conceivable indirect or cumulative impact
of a proposed agency action, only those that are "reasonably foreseeable." In an early, landmark NEPA
case, the Court of Appeals for the District of Columbia acknowledged that uncertainty is inherent in
determining what environmental impacts are "reasonably foreseeable" but emphasized that uncertainty
alone does not excuse an agency's failure to evaluate all potentially significant future impacts:
[O]ne of the functions of a NEPA statement is to indicate the extent to which environmental
effects are essentially unknown. It must be remembered that the basic thrust of an agency's
responsibilities under NEPA is to predict the environmental effects of the proposed action
before the action is taken and those effects are fully known. Reasonable forecasting and
speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk
their responsibilities under NEPA by labeling any and all discussion future environmental
effects as "crystal ball inquiry."
Scientists' Inst. for Public Information, Inc. v. Atomic Energy Comm'n, 481 F.2d 1079,1092
(D.C. Cir. 1973). The "crystal ball inquiry" and "reasonable forecasting" language of this case is
routinely cited in indirect and cumulative effect cases; agencies may not dodge the required
evaluation of reasonably foreseeable future impacts by labeling such attempts mere conjecture.
However, the assertion in Scientists' Inst. that "speculation is...implicit" in the assessment of
reasonably foreseeable future impacts is rarely quoted. More recent cases reserve use the term
"speculation" to distinguish between required "reasonable forecasting" and unreasonable
contemplation of "highly speculative" future impa, ts. One year after Scientists' Inst., the Court of
Appeals for the Ninth Circuit advanced a more circumscribed interpretation of what indirect effects
must be evaluated in an EIS in Trout Unlimited v. Morton, 509 F.2d 509 F.2d 1276 (9' Cir. 1974).
Trout Unlimited involved a challenge to an EIS for failure to analyze several possible environmental
consequences that could conceivably result from further development of the Teton dam and reservoir.
The court stated that:
Many of the consequences while possible are improbable. An EIS need not discuss remote
or highly speculative consequences ...A reasonably thorough discussion of the significant
aspects of the probable environmental consequences is all that is required by an EIS.
Id. at 1283. Subsequent cases continue to distinguish "highly speculative" effects and
improbable, remote consequences, which need not be evaluated, from impacts which are more
realistically "probable" and "reasonably foreseeable." See Environmental Defense Fund, Inc. v.
Hoffman, 566 F.2d 1060 (8"' Cir. 1977). After reiterating that "an agency need not speculate about
all conceivable impacts," but only reasonably foreseeable effects, the First Circuit further clarified that
reasonable foreseeability means that "the impact is sufficiently likely to occur that a person of
ordinary prudence would take it into account in reaching a decision." Sierra Club v. Marsh, 976 F.2d
763, 767 (151 Cir. 1992) (Sierra Club IV). More recently, the First Circuit noted that:
An environmental impact would be considered "too speculative" for inclusion in an EIS if it
cannot be described at the time the EIS is drafted with sufficient specificity to make its
consideration useful to a reasonable decision-maker.
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Dubois, 102 F.3d at 1286.
In an effort to relate typical factual issues to the general legal standard of "reasonably
foreseeable" as developed in federal case law,z the CEQ provided agencies with the following detailed
guidance for distinguishing between uncertain but probable effects and those that are too speculative
and improbable:
[I]f there is total uncertainty about the future land owners or the nature of future land uses,
then, of course, the agency is not required to engage in speculation or contemplation about
their future plans. But, in the ordinary course of business, people do make judgments based
upon reasonably foreseeable occurrences. It will often be possible to consider the likely
purchasers and the development trends in that area or similar areas in recent years; or the
likelihood that the land will be used for an energy project, shopping center, subdivision, farm
or factory. The agency has the responsibility to make an informed judgment, and to estimate
future impacts on that basis, especially if trends are ascertainable or potential purchasers have
made themselves known. The agency cannot ignore uncertain, but probable, effects of its
decisions.
Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Federal Register
(1981) at 18031 (answering the question "[h]ow should uncertainties about indirect effects of a
proposal be addressed...?") It should be noted, however, that CEQ's Forty Questions is an "informal
document" which is not a controlling authority, unlike the CEQ regulations themselves which are
binding on federal agencies and given "substantial deference" by federal courts. Northern Crawfish
v. Federal Highway Admin., 858 F. Supp. 1503, 1527, n.12 (D. Kan. 1994).
As a general matter, significant impacts are reasonably foreseeable if they are not too
speculative or improbable. An EA or EIS will not violate NEPA so long as an agency acknowledges
and evaluates all potential impacts that are significant and are likely enough to be identified and
"described with sufficient specificity" - either by the agency itself or by challengers during the
comment process.
4.2.4 Timing and Scope of an EIS
4.2.4.1 Timing: EIS Need Only be Prepared for Actual Agency Proposals
In Kleppe v. Sierra Club, 427 U.S. 390 (1976), the Supreme Court limited the need to prepare
an EIS only to those contemplated agency actions which had reached the formative stage of being
definitive or concrete proposals, evidenced by a formal report (as opposed to conceptual or
exploratory plans or ideas). While this "proposal" standard at first blush appeared to be a relatively
bright-line, mechanistic rule, subsequent cases demonstrated that it is not always clear when a
z The CEQ regulations were originally promulgated in 1973 to implement NEPA. As they have been
subsequently amended and new sections promulgated, much of the CEQ regulations have attempted to generally
codify federal case law relating to NEPA's requirements. See Thatcher, Understanding Interdependence in the
Natural Environment: Some Thoughts on Cumulative Impact Assessment Under NEPA, 20 Envtl. L. 611, 613
(1990).
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definitive proposal exists. The current CEQ regulations, which largely codify standards developed in
previous federal case law, attempt to define and clarify this standard:
A "proposal" exits at that stage in the development of an action when an agency ...has a goal
and is actively preparing to make a decision on one or more alternative means of
accomplishing that goal and the effects can be meaningfully evaluated ...A proposal may exist
in fact as well as by agency declaration that one exists.
40 C.F.R. § 1508.23.3
4.2.4.2 Scope, Segmentation and Impacts of Cumulative Actions
Agencies may not attempt to avoid NEPA's requirements by dividing transportation projects
into several smaller actions or component parts, each of which, considered separately, may not have
significant environmental impacts. Accordingly, projects must not be segmented into smaller parts
for which an EIS is not required when considered in isolation but which, if evaluated together, have
substantial impacts. Morongo, 161 F.3d at 579.
FHWA regulations state that in order to ensure "meaningful evaluation of alternatives" the
actions must 1) connect logical termini of sufficient length to address environmental matters on a
broad scope; 2) have independent utility and significance; 3) nor restrict consideration of alternatives
for other reasonably foreseeable improvements (23 CFR 771.111 (f)).
In addition to the scope of the transportation improvement that is evaluated, it is also important
to consider the scope of effects analyzed in an EIS. "Although agencies are given `considerable
discretion' in defining the scope of an EIS, connected actions must be considered together." Morongo,
161 F.3d at 579. Under the CEQ regulations, connected actions include those which: 1)
automatically trigger other actions for which an EIS may be required; 2) cannot or will not proceed
unless other actions are taken previously or simultaneously; and, 3) are interdependent parts of a larger
action and depend upon that larger action for their justification. 40 C.F.R. § 1508.25(a) (I) -(iii). See
Alpine Lakes Protection Soc. v. U.S. Forest Serv., 838 F. Supp. 478 (W.D. Wash. 1993). Thomas v.
Peterson, 753 F.2d 754 (9`h Cir. 1985), the U.S. Forest Service concluded that construction of a 25
mile timber road would have no significant environmental impact. The Forest Service did not,
however, consider the separate environmental impacts of timber harvesting, the transport of which
was the reason the road itself had been proposed. Id. at 758-59. The court held that the environmental
s One commentator has noted that: "there is no doubt that Kleppe ended one way that NEPA could be
used ...Had Kleppe gone the other way, NEPA might have compelled more agencies to think ahead, to plan even if
they did not want to, and, thus, to understand better the long term consequences of their acts. As it now
stands ...NEPA cannot be used to require such planning ...In other words, in some instances agencies can avoid
NEPA's requirement to act with foresight by defining their plans in a limited way... [although] courts have used
the [CEQ regulations] definition of `proposal' and the theory of cumulative impacts to control this tendency to
some extent. In addition, Kleppe can put environmental plaintiffs in a bind of not knowing when to sue. If they
sue too soon, they lose because there is no plan. If they sue too late, the plan may have gone so far that it is
impossible to change it in any meaningful way. In the real world, of course, once a proposal is sufficiently
concrete to trigger the preparation of an EIS, its contours may be set in concrete despite what the EIS says."
Thatcher, Understanding Interdependence in the Natural Environment: Some Thoughts on Cumulative Impact
Assessment Under NEPA, 20 Envtl. L. 611, 616-617, n. 18 (1990).
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impacts of the road's construction and the cutting and transporting of timber were connected actions
that must be considered together in an EIS. Because the sale of timber could not proceed without the
road and the road had no other justification except to provide access to the timber, the two actions
were "inextricably intertwined." Id. at 759
Cumulative actions must also be considered in determining the scope of an EIS. The CEQ
regulations define cumulative actions' as those "actions, when viewed with other proposed actions
have cumulatively significant impacts and therefore should be discussed in the same impact
statement." 40 C.F.R. § 1508.25(a)(2). Cumulative impacts of distinct, independent projects -
including past, present and reasonably foreseeable future impacts, even if those projects would not
themselves be subject to NEPA - must be included in the scope of an EIS when the actions
considered together with the proposed transportation project would have significant environmental
impacts. Fritiosfson v. Alexander, 772 F.2d 1225 (5`'' Cir. 1985). Fritiosfson, involved an Army
Corps of Engineers wetlands fill permit for a relatively small portion of a much larger wetland on a
quickly developing West Galveston Island off the Gulf Coast of Texas. Taken alone, the small
wetland fill would not have significant environmental impacts. The court held, however, that the
Corps failed to consider the cumulative impact on the estuary of all past fill activities and reasonably
foreseeable future fill permits likely to come before the Corps for subsequent development projects,
even though there were no such actual permit applications pending at the time. Id.
Before moving on to analyze transportation and other indirect and cumulative effect cases in
order to establish guiding principles and discern judicial trends, a final threshold legal issue must be
addressed: the legal standard courts apply to an agency's FONSI and decision not to prepare an EIS.
4.2.5 Judicial Standard of Review of Agency Decisions Not to Prepare an EIS: Arbitrary and
Capricious Standard Now Applies to All Federal Circuits
NEPA requires that agencies take a "hard look" at all significant environmental consequences
of proposed actions. Prior to 1989, the federal circuits were sharply divided as to the proper standard
of judicial review to be applied to an agency's finding of no significant impact ("FONSI") in an EA,
resulting in a decision not to prepare an EIS. A slim majority of federal circuit courts of appeal
followed the most deferential "arbitrary and capricious" standard of review, as set forth in § 706(2)
of the Administrative Procedure Act ("APA"). 5 U.S.C. § 706(2)(x). In applying this standard of
review, the court "must consider whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error in judgment." Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823 (1971). Although this inquiry must be "searching and
careful," the ultimate standard of review is narrow. Id. "Along the standard of review continuum, the
arbitrary and capricious standard gives an appellate court the least latitude in finding grounds for
reversal." North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538-39 (11`' Cir. 1990). The
Fourth Circuit, which includes the federal district courts of North Carolina, was among the federal
circuits applying the arbitrary and capricious standard of review. See Webb v. Gorsuch, 699 F.2d 157,
159 (4`h Cir.1983). However, five federal circuit courts of appeal - the V, 5", 8", 9`h and 1111 -
4See 3.2.2.1, surpa, for the definition of "cumulative impacts" at 40 C.F.R. §1508.7, as opposed to the
definition of the impacts of "cumulative actions" at 40 C.F.R. § 1508.25(a)(2). The adequacy of cumulative
impact analysis in transportation cases is reviewed in 4.3.2, infra.
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applied a more stringent "reasonableness" standard of review, one that provides more leeway for a
reviewing court to overturn an agency's FONSI and decision not to prepare an EIS.
In Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374, 109 S. Ct.1851, 1860
(1989), the Supreme Court resolved the split in the federal circuits in favor of the more deferential
arbitrary and capricious standard of review. Although the Marsh holding applied to an agency's
decision not to supplement an EIS, the Court emphasized, in dicta, that this decision was similar to
the threshold question whether or not to prepare an EIS. Id. Because they each require that an agency
take a "hard look" at all significant environmental impacts, both the initial decision to prepare an EIS
and the decision to supplement an existing EIS present "classic example[s] of factual dispute[s] the
resolution of which implicates substantial agency expertise." Id. at 375, 109 S.Ct. at 1860.
Accordingly, the Court held that the arbitrary and capricious standard set forth in § 706(2) of the
Administrative Procedure Act was more appropriate than the reasonableness standard because
technical matters within the realm of an agency's expertise should be accorded substantial deference.
Id. Subsequent to Marsh, the circuits that have addressed the issue have followed the Supreme
Court's direction and extended the Court's application of the arbitrary and capricious standard to the
threshold decision whether to prepare an EIS in the first instance. See Greenpeace Action v. Franklin,
982 F.2d 1342 (9`'' Cir. 1992); Committee to Preserve Boomer Lake Park v. DOT, 4 F.3d 1543 (10
Cir. 1993); North Buckhead, 903 F.2d at 1538-39. Following Marsh, the Fourth Circuit expressly
affirmed its application of the arbitrary and capricious standard of review to an agency decision
whether or not to prepare an EIS in light of the Supreme Court's ruling. See State of North Carolina
v. F.A.A., 957 F.2d 1125, 1128 (4' Cir.1992).
Although the "ultimate standard of review is a narrow one," the Supreme Court in Marsh took
pains to emphasize that application of the arbitrary and capricious standard must involve a "searching
and careful" review and "courts should not automatically defer to the agency... without carefully
reviewing the record and satisfying themselves that the agency has made a reasoned decision." 490
U.S. at 375, 109 S. Ct. 1860. A decision may be arbitrary and capricious if the agency "relied on
factors which [the controlling statutes and regulations did] not intend it to consider, [or] entirely failed
to consider an important aspect of the problem." Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm
Mutual Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct.2856, 2867 (1983). Although an agency's action is
arbitrary and capricious if it has "offered an explanation for its decision that runs counter to the
evidence before [it], or it is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise," the reviewing court is not required "to determine the merits of
conflicting views between two or more schools of scientific thought ...to choose between differing
expert views ...[or to] decide if an [agency's decision] is based upon the best scientific methodology
available." Friends of Boundary Waters Wilderness v. Dombeck, 164 F. 3d 1115, 1121, 1130 (81, Cir.
1999). In other words, the reviewing court defers to the agency's choice of evidence, methodology
and expert opinion so long as it is not arbitrary or capricious or completely ignores a critical factual
issue or type of significant impact.
The Marsh Court noted that in many factual circumstances, the difference between application
of the reasonableness standard compared to the arbitrary and capricious standard would be "of no
pragmatic consequence." 490 U.S. at 378, 109 S. Ct. at 1861. Despite the Supreme Court's assurance
of no practical significance, employing the more deferential standard instead of the reasonableness
test maybe outcome determinative in certain factual or procedural circumstances. This is particularly
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true because the party challenging an agency's FONSI bears the burden of establishing that the
agency's decision was arbitrary and capricious. Boomer Lake, 4 F.3d at 1555. One commentator
believes that Marsh's arbitrary and capricious standard only requires that a court reviewing an EA and
FONSI consider evidentiary, methodological or expert opinion challenges to an agency's
environmental impact decision if they were actually raised during the EA comment period. Whetstone,
Greenpeace Action v. Franklin: Extending Marsh's "Arbitrary and Capricious" Review to an Initial
EIS Decision, 23 Envtl. L. 1185, 1195 (1993). Under the more stringent reasonableness standard, a
court has more discretion to consider evidence or opinions not officially part of the EA administrative
record when reviewing an agency's FONSI. Id. at 1196-97. "To overcome the more deferential
treatment of the [Marsh] approach, challengers must show shortcomings in the agency's EA or FONSI
based upon the information the challengers presented to the agency before its decision was made."
Id. at 1198. Although Marsh does not address this question and courts may decide on a case-by-case
basis whether to consider evidence outside of the EA's administrative record upon judicial review,
plaintiffs arguing that a FONSI is arbitrary and capricious maybe unsuccessful if they are not actively
involved in the EA comment process, even though their arguments may have prevailed under the
reasonableness standard. See generally Oregon Natural Resources Council v. Lowe, 109 F.3d 521,
526-27 (9`h Cir. 1997) (Review may extend beyond the administrative record in NEPA cases where
the plaintiff alleges that the agency has "neglected to mention a serious environmental
consequence... or otherwise swept stubbornproblems or serious criticism... under the rug." citing Silva
v. Lynn, 482 F.2d 1282, 1285 (V Cir. 1973)).3
4.3 Adequacy of the Substantive Evaluation of Cumulative and Indirect Effects in an EIS
4.3.1 Standard of Judicial Review of an EIS's Content
Although the arbitrary and capricious standard now applies to all federal courts reviewing an
agency's EA and FONSI, resulting in a decision not to prepare an EIS (along with review of an agency
decision not to supplement an existing EIS, see Marsh,490 U.S. at 375, 109 S.Ct. at 1860) the Fourth
Circuit and all other federal courts review the adequacy of the content of an EIS using a
reasonableness standard. Under this "rule of reason," courts analyze an EIS to determine whether it
contains a reasonably thorough discussion of significant aspects of probable environmental
consequences. Carmel-By-the-Sea, 123 F.3d at 1150-51. Federal courts use the CEQ regulations and
the general legal standards for determining the significance, reasonable forseeability and probability
of environmental impacts to determine whether an EIS complies with NEPA. When reviewing the
substantive adequacy of an EIS under the "rule of reason" standard, courts "make a pragmatic
judgment" whether the statement's "form, content, and preparation foster both informed decision
making and informed public participation. Once satisfied that a proposing agency has taken a `hard
look' at a decision's environmental consequences, [the court's] review is at an end." Id. "Thus, in
considering a challenge under NEPA, [the court] may not substitute [its] judgment for that of the
agency concerning the wisdom or prudence of a proposed action." Laguna Greenbelt, Inc. v. United
States Dep't of Transp., 42 F.3d 517, 523 (90? Cir. 1994).
'As a general rule, courts reviewing an agency action under § 706(2)(a) of the APA must limit its analysis
to the administrative record. Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9`h Cir. 1986).
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Under this rule of reason, the court must be satisfied that the agency has gone "beyond mere
assertions" and has "explicated fully its inquiry, analysis and its reasoning." Dubois, 102 F. 3d at
1287. Thus, mere listing or cataloging of possible impacts in an EIS will not pass muster under
NEPA. Boundary Waters, 164 F.3d at 1128. In making its "pragmatic judgment" of the substantive
adequacy of an EIS, the court analyzes the statement's evaluation of significant environmental
impacts, while reviewing the administrative record upon which it was based, in order to determine
whether the agency's analysis and decision is "too unreasonable for the law [NEPA] to permit it to
stand." Dubois, 102 F.3d at 1287. However, "the existence of supportive studies and memoranda
contained in the administrative record but not incorporated in the EIS cannot bring into compliance
with NEPA an EIS that by itself is inadequate." IV Accordingly, general statements about "possible"
effects and "some risk" in an EIS's discussion of environmental impacts will not satisfy NEPA's
requirements. Neighbors of Cuddy Mountain v. U.S. Forest Service, 137 F.3d 1372, 1380 (9m Cir.
1998). Nevertheless, the reviewing court "should not `fly speck' an EIS and hold it insufficient based
upon inconsequential or technical deficiencies." Dubois, 102 F.3d at 1287.
4.3.1.1 Factual or Methodological Disputes Among Experts
Although "[a]ccurate scientific evidence is essential to an Environmental Impact Statement"
and NEPA demands a reasonably thorough discussion of the environmental consequences in question,
"unanimity of opinion, expert or otherwise" is not required. Carmel-By-the-Sea, 123 F.3d at 1151.
As with review of an agency's EA and FONSI courts evaluating the adequacy of an EIS need not
determine the most meritorious expert opinion, methodological approach or school of scientific
thought; instead, the court must defer to the agency's informed choice of experts, evidence, and
methodology. Id. Carmel involved a challenge to an FEIS for a proposed state highway realignment.
The plaintiffs argued that the FEIS's analysis of the realignment's wetlands impacts was inadequate
and misleading because DOT failed to account for newly emergent wetlands created by a recent
earthquake. Id. While acknowledging that an agency may not rely on "stale" scientific evidence or
"ignore reputable scientific criticism," the court nevertheless rejected the challenge. Id. Finding
DOT's wetlands analysis "reasonably thorough," the court deferred to the agency's own expert
analysis, despite the "conflicting evidence." Id.
In Boundary Waters, 164 F.3d at 1129-30, one group of plaintiffs argued that a FEIS was
inadequate because it relied, in part, upon a study of visitor traffic that used inadequate data, made
unverified assumptions and employed a "seriously flawed" computerized travel zone model. With
regard to the challenged computer model, the FEIS acknowledged the "possible pitfalls" inherent in
the model, while explaining that it had been "fully updated" and its data interpreted "to avoid extreme
results that might otherwise be produced by the model in some instances." Id. Given this evaluation
of the model's methodology and results, the court rejected the plaintiffs' challenge, noting that
"NEPA does not require that we decide whether an EIS is based on the best scientific methodology
available." Id. at 1130. The court also rejected the challenge to the traffic study's choice of data and
assumptions. "Even assuming the data was flawed in some respects," the traffic study was not the only
source of information relied on in the FEIS. Id. "When an agency relies on a number of findings, one
a As discussed in n. 3, supra, the court may extend its review beyond the administrative record in NEPA
cases where the party challenging the adequacy of an EIS (or EA) alleges that the agency has "swept stubborn
problems or serious criticism... under the rug," Silva, 482 F.2d at 1285.
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or more of which are erroneous, [the court] must reverse and remand only when there is a significant
chance that but for the errors the agency might have reached a different result." Id.
4.3.1.2 Incomplete or Unavailable Information
Information that is relevant or necessary to make an informed decision concerning significant
environmental impacts may in some instances be infeasible to collect or analyze due to prohibitive
costs, unattainable due to scientific or methodological limitations, or otherwise unavailable or
impractical to obtain. When faced with this situation, early CEQ regulations required that agencies
prepare a "worst-case analysis" in an EIS to account for the lack of information. The CEQ rescinded
this worst-case analysis requirement in 1986 because agencies were routinely committing an
unreasonable amount of time and money to design and perform technical studies, some of
questionable merit, to satisfy the worst case requirement. See Note, Federal Agency Treatment of
Uncertainty in Environmental Impact Statements Under the CEQ's Amended NEPA Regulation §
1502.22: Worst Case Analysis or Risk Threshold?, 86 Mich. L. Rev. 777, 809-811 (1988). Under the
1986 CEQ regulations, agencies are required to obtain unavailable or incomplete information if
technically feasible and the costs of gathering the data or designing and conducting the studies are not
exorbitant. These new regulations replaced the worst case analysis with the requirement that agencies
faced with incomplete or "unavailable information concerning a reasonably foreseeable significant
environmental consequence... [must prepare] ...a summary of existing credible scientific evidence ...[and
present] ...an evaluation of such impacts based upon theoretical approaches or research methods
generally accepted in the scientific community." 40 C.F.R.§ 1502.22. The Supreme Court upheld the
CEQ's 1986 revised regulations revoking the worst case analysis requirement in Robertson, 490 U.S.
332, 109 S. Ct. 1835.
4.3.2 The Adequacy of Cumulative Effects Analysis in Transportation Cases
Carmel-By-the-Sea, 123 F.3d 1142, involved the realignment of a three mile section of
California State Highway 1, from the City of Carmel-by-the-Sea to Hatton Canyon. In Carmel, the
plaintiffs challenged the adequacy of the FEIS's evaluation of the realignment project's cumulative
effects on nearby wetlands and the Hatton Canyon's Monterey pine forest. Id. at 1148-50. The court
held that the FEIS's brief cumulative impacts analysis failed to provide a sufficient level of detailed
evaluation to pass muster under NEPA and remanded for further evaluation of the cumulative impact
of past, present and future projects together with the effects of the Hatton Canyon realignment on
surrounding wetlands, Monterey pine tree stands and a particular species of onion found in the area.
Id. at 1160-61. Although the FEIS referred generally to the area's "development projects" resulting
from Carmel's "ongoing urbanization" and "substantial growth [over] the last 30 years," past projects
were neither adequately catalogued or evaluated, described instead with only perfunctory generalities
"insufficient to permit adequate review of their cumulative impact." Id. at 1160. While the FEIS did
a better job of identifying, listing and describing planned future residential and commercial projects
in the area, along with other forecasted transportation improvements, "[m]issing, however, [was] any
discussion of how these projects together with the proposed Hatton Canyon project will affect the
wetlands, Monterey pine and [the threatened] onion [species]." Id. By merely noting that
"development pressures" provide "threats" to the area's resources (particularly the onion species), the
court held that the FEIS failed to provide any "meaningful analysis" of the cumulative or synergistic
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effects of both past, present and future development when considered with the effects of the proposed
realignment. Id. at 1161.5
In a case originating out of North Carolina, the Fourth Circuit held that a cumulative impact
analysis was not necessary for an airspace restriction action where a Supplemental EIS ("SEIS") was
being prepared for another airspace restriction that would include that challenged project. In State of
North Carolina v. FAA, 957 F.2d 1125, 1127-29 (4`h Cir. 1992), the failure the Federal Aviation
Administration (FAA) to prepare an EIS for its issuance of a final rule revoking, realigning and
establishing restricted airspace for Naval operations over portions of eastern North Carolina did not
violate NEPA, where the FAA reviewed and adopted a FONSI for the airspace restrictions prepared
by the Navy. (The FAA performed "more than a mere procedural review" of the Navy's FONSI,
"taking responsibility for the scope and content of the Navy's assessment"). Id. Among plaintiff
North Carolina's challenges was the fact that this review failed to analyze the cumulative effect of the
Navy's restriction in combination with other existing and three proposed restrictions in the airspace
over eastern North Carolina and its coastal waters. Id. at 1130-31. However, because the Marine
Corps was in the process of preparing a SEIS for one of the proposals that would evaluate the
cumulative effects of all of the region's proposed airspace restrictions, including the FAA's Naval
restriction at issue, the court held that the FAA's failure to address these cumulative impacts did not
violate NEPA. Id. "A cumulative impact analysis is therefore not necessary at this point, and it would
be a waste of resources given the necessity for analysis of the cumulative impact of this and [the] other
proposals ...[in the Marine Corp's SEIS]." Id. The court was careful to note that the FAA could revise
the restriction at issue upon completion of the Marine Corps SEIS "without facing the usual problem
that resources have been committed or the die otherwise cast." Id.
4.3.3 Analysis of Guiding Standards and Trends in Cases Involving Growth-Inducing and
Other Indirect Effects
The number of reported federal cases dealing with indirect effects is relatively small,
particularly in the realm of transportation projects. The cases reviewed below provide general legal
guidance for determining when a project's growth-inducing or other indirect effects (including the
adverse environmental impacts resulting from induced residential and/or commercial growth) are
significant and sufficiently probable that they must be analyzed in an EIS. Two of the cases analyzed
below, Mullin v. Skinner and Rankin v. Coleman, involve North Carolina state transportation
proposals on barrier islands, the EISs for which federal courts held were woefully inadequate in their
analysis of the projects' indirect effects. In other cases, promotion of the economic benefits resulting
from growth-inducing impacts as "selling points" for a proposed transportation project helps establish
that the indirect effects are sufficiently probable and describable to be presently evaluated in an EIS
before the project advances to a point where it will inevitably go forward and the adverse impacts can
not be considered, reversed or significantly mitigated. The most recent indirect effect cases provide
little guidance, however, regarding the level of detail with which the secondary impacts must be
analyzed in an EIS to satisfy NEPA's requirements. Furthermore, no clear standards emerge from the
case law regarding the use of local or regional planning documents and studies to support arguments
s In support of its holding, the Carmel court cited Thomas v. Peterson, 753 F.2d at 754-55, discussed in
Section 4.2.4.2, supra (remanding for evaluation of the cumulative impact of the construction of a timber road and
the cutting and transporting of timber, which were connected actions "inextricably intertwined." Id. at 759).
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that growth-induced development was already planned, would have occurred anyway, or that indirect
effects need not be evaluated in an EIS because existing zoning and other local land use controls
prohibit development of the type the project's challengers argue will be induced.
4.3.3.1 General Standards in Indirect Effect Cases
Of course, any indirect effects must be both probable and significant to warrant evaluation in
an EIS. In Gloucester County Concerned Citizens v. Goldschmidt, 533 F. Supp.1217 (D. N.J. 1982),
the plaintiffs challenged an FEIS for a proposed highway project "based upon the purported absence
of consideration of `secondary impacts' of the... project," specifically: 1) how the highway would fit
into the state's existing highway network; 2) what effect it would have on existing and planned mass
transit lines; and 3) the impact upon development and population growth. Id. at 1222. The plaintiffs
also complained that:
although the FEIS acknowledges that the highway will act as a catalyst to development in the
surrounding area, it does not go on to study the secondary effects of the road such as increased
development, with its concomitant increase in population and demand for state, county and
municipal services, such as schools, police and fire protection and sewage facilities.
Id. at 1228. The court found that there was adequate reference, accompanied by several maps,
of the relationship between the proposed highway and its specific place within the state's highway
network, and that it would not detract from usage of existing rapid transit lines. Further planning of
rapid transit lines was unlikely without the presence of the new facility. Population figures in the
FEIS demonstrated that the area had grown ai,d would continue to grow with or without the proposed
project, since there were existing roads that serviced the area. Accordingly, the court held that the
plaintiffs had failed to demonstrate that any of the secondary impacts would be "significant," and that
the failure of the FEIS to speculate on future events, "which, based on the information available at the
time of the FEIS, appear improbable, does not articulate a serious deficiency in the FEIS." Id. at 1229.
In Sierra Club v. Marsh, 729 F.2d 868 (V Cir. 1985) (Sierra Club III), the First Circuit
reviewed a NEPA challenge to a proposed port and causeway on a rural island in Maine. The
agency's EA resulted in a FONSI and decision not to prepare an EIS for the project. The court
evaluated the adequacy of the EA under the First Circuit's "reasonableness" standard applied before
1989, rather than the arbitrary and capricious standard of review required by the Supreme Court after
Marsh, 490 U.S. 360, 109 S.Ct.1851. The court set forth a three part test to determine whether a
particular set of impacts is definite enough to be evaluated, or too speculative to warrant
consideration:
1). With what confidence can one say that the impacts are likely to occur?
2). Can one describe them "now" with sufficient specificity to make their consideration
useful?
3) If the decision maker does not take them into account "now," will the decision maker
be able to take account of them before the agency is so firmly committed to the
project that further environmental knowledge, as a practice matter, will prove
irrelevant to the government's decision?
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Id. at 878. This three part test is based upon the general legal standards reviewed above for
determining whether indirect impacts are sufficiently likely to occur to be reasonably foreseeable.
Applying this test, the court reviewed the administrative record, including a "Municipal
Response Plan" which noted that development of the industrial park would follow construction of the
port, thus constituting a "two-part development package." Id. at 868. The record also included an EA
prepared by the Maine Department of Transportation which projected further industrial development
after construction of the cargo port:
Development of the cargo terminal will ...act as the principal stimulus to further industrial
development on the island itself. Several forest product and food industries are also expected
to have facilities on the island, as well as suppliers of paper making machinery and machinery
components... Industrial development, indirectly stimulated by constructing the cargo terminal,
will generate revenues [for the town]. The eventual fiscal impact on the town will, of course,
depend upon the degree and timing of the expected co-development of the island.
Id. at 868. These projections of industrial development resulting from the port's construction
in the record clearly satisfied the first test; there was ample "confidence" that indirect impacts were
likely to occur.
With regard to the second test, the court reviewed a 35 page "Land Use/Industria] Marketing
Study" prepared by the owner of the southern half of the island in addition to the town's "Municipal
Response Plan." Together, these documents in the administrative record provided detailed
descriptions of likely further development, analysis of the physical characteristics of the lower half
of the island, discussion of the feasibility of construction at various sites around the island, analysis
of development options, and evaluations of the likely impact industrial development would have on
the island's environment, employment and housing conditions, and the provision of medical,
emergency and sewage and other municipal services. The court noted that the CEQ regulations do
not require that the agency engage in speculation, but direct the agency to consider "likely purchasers
[of land] and the development trends in the area ...in recent years." Id. The court then noted that the
"land use" and "response" plans were detailed enough for evaluation to satisfy the second test
questioning whether the impacts can now be described with sufficient specificity to render their
consideration in an EIS useful.
As for the third test, the court held that once the causeway and port were built the pressure to
develop the rest of the island could prove irresistible and unstoppable. Accordingly, putting off their
evaluation in an EIS for some later time would result in environmental knowledge that would not offer
the decision maker a meaningful choice whether to proceed.
Because the indirect effects of industrial development expected to result from construction
of the port and causeway had been identified and specifically described in the planning documents,
which projected with considerable confidence that such development would occur, the Sierra Club
III court held that the failure to prepare an EIS evaluating these impacts violated NEPA. Analysis of
these effects could not be conducted at a later date because once construction of the port and causeway
neared completion, it would be too late to account for the indirect development, which would be a
foregone conclusion.
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After remand and further appellate review of Sierra Club 111, 729 F.2d 868, the Sierra Club
again challenged the FEIS for the project. See Sierra Club v. Marsh, 976 F.2d 763 (1" Cir. 1992)
(Sierra Club IV). The FEIS in Sierra Club IV restricted its indirect effect analysis to four light-dry
industries. The plaintiffs complained that the agency's evaluation of the project's indirect impacts
was inadequate because it failed to evaluate heavy industries. The administrative record revealed that
the water and sewage treatment facilities on the island were inadequate to sustain heavy industry.
Furthermore, the cost of upgrading the water facilities alone to sustain heavy industry was prohibitive.
Local officials and property owners directed their marketing toward light-dry, not heavy industry. The
court held that:
NEPA requires an EIS to evaluate only those secondary impacts that are reasonably
foreseeable. We conclude that it was permissible for the agencies not to analyze other water
dependent industries, such as auto processing, petroleum and cement, because the likelihood
of these industries developing on [the] Island is too speculative to be reasonably foreseeable.
Id. at 778. Because the EIS's identification of the four light-dry industries reasonably
discussed the type of industrial development likely to occur, the court upheld the agency's evaluation
of the project's indirect effects.
4.3.3.2 Induced-Growth as a Project Selling Point
Part of the court's rejection of the refusal to prepare an EIS evaluating indirect effects in
Sierra Club III, supra, was based upon the fact that the economic benefits of the industrial
development that would be induced by the project were constantly used as "selling points" for
construction of the port and causeway.
Other courts have also focused on use of indirect impacts to help "sell" or promote the
project. In Sierra Club v. Sigler, 695 F.2d 957 (5"' Cir. 1983), the U.S. Army Corps of Engineers
issued permits authorizing private construction of a multi-purpose, deep water port and crude oil
distribution system near Galveston, Texas. Among other challenges, the plaintiffs argued that the
FEIS violated NEPA because it failed to examine the adverse environmental impacts that would result
from the project's secondary effects. The court noted that the FEIS cited many benefits that would
flow from the terminal's construction. While the court did not call for an objective cost-benefit
analysis, it held that because the project's benefits were analyzed as "selling points" in the FEIS, there
could be no "hard look" required by NEPA without identifying and analyzing the adverse impacts
resulting from the project's indirect effects.
Chelsea Neighborhood Associations v. United States Postal Service, 516 F.2d 378 (2nd Cir.
1975) involved a U.S. Postal Service proposal to build a new vehicle maintenance facility. The
proposal included a plan by the City of New York to construct apartment units in the floors above the
facility. The EIS for the project lauded the benefits of constructing housing in the "air rights" above
the facility without discussing any of the projects disadvantages. Id. at 387-88. The court held that
"...using the housing as a `selling point' without disclosing its possible negative aspects is certainly
not the `environmental full disclosure' required by NEPA." Id. at 388.
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4.3.3.3 Failure to Identify and Analyze Indirect Effects
One early NEPA case from North Carolina and two major indirect effect cases from the Ninth
Circuit are routinely cited by plaintiffs challenging transportation projects on the basis of an EA or
EIS's inadequate or incomplete analysis of the induced-growth likely to be created by the project.
In the North Carolina case, Rankin v. Coleman, 394 F. Supp. 647, modified 401 F. Supp. 664
(E.D. N.C. 1975), the plaintiffs sought to enjoin the North Carolina Department of Transportation
("NCDOT") and the US DOT from further construction of a highway improvement project proposed
for Bogue Island, one of the barrier islands on North Carolina's Outer Banks. A long, narrow barrier
island in Carteret County covered with sand dunes and vegetation constantly subject to shifting sand
erosion and deposit, Bogue Island was "largely undeveloped" at the time of the court challenge except
for the resort community of Atlantic Beach at the island's eastern end. 394 F.Supp. at 655. Although
the court noted that the island could sustain "carefully planned and limited development," it found that
significant alteration of Bogue's dunes and vegetation could lead to "rapid erosion by the normal
action of ocean and wind and to virtual obliteration by storms." Id. Through the middle of this
"admittedly ecologically delicate environment" the defendants proposed the construction of a 44 foot
wide, asphalt paved, four or five lane highway that would span the length of the island, replacing the
existing 20 foot wide secondary road. Id.
Although the EIS prepared for the project noted that "a modern highway can enhance the
economic progress of resort and recreational areas ...and existing and planned development ...will
benefit from the project," it contained "no discussion at all regarding the secondary effects of
increased development of the island, such as increased demand for fresh water, increased amounts of
sewage and increased demand for other community services." Id. at 657. In addition to not
identifying and analyzing these indirect effects on the limited resources and fragile ecology and
environment of the island, the EIS failed to determine and evaluate the effect that increased
development would have on the island's natural dune and vegetation system as a barrier against
increasing erosion. Furthermore, the EIS failed to adequately identify and analyze the direct effects
of the proposed highway's construction on dune and vegetation clearance and the impact these direct
effects would have on the island's erosion and protection from storm damage. As such, the court held
that the EIS "completely overlooked... numerous social, economic and environmental" direct and
indirect effects of the highway, granted the injunction and remanded for completion of an adequate
EIS.6
In City of Davis v. Coleman, 521 F.2d 661 (9`h Cir. 1975) involved a proposal to build an
Interstate highway interchange to stimulate and service future development in a rural area. Neither
an EA nor an EIS was prepared. Instead, a three-page "Negative Declaration of Environmental
Impact" was issued. This declaration neither identified nor discussed the commercial and industrial
development that would likely spring-up around the interchange, located in a "sparsely populated
agricultural area," instead assessing only the direct impacts related to the construction of the cloverleaf
6 In further proceedings, the injunction was modified and construction of a two-lane replacement
highway was allowed to proceed subject to restrictions, including limiting the allowed highway and shoulder
width. 401 F. Supp. 664 (E.D. N.C. 1975).
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itself. The court held that the failure to identify and analyze the project's indirect effects violated
NEPA, noting that:
The growth-inducing effects of the... interchange are its raison d'etre, and with growth will
come growth's problems: increased population, increased traffic, increased pollution,
increased demands for services such as utilities, education, police and fire protection and
recreational facilities.
Id. at 674-75. The court further admonished the failure to identify and evaluate the indirect
effects of the project by noting that "common sense" dictates recognition of the "obvious"
development that would result from constructing a "large interchange on a major Interstate highway
in an agricultural area where no connecting road currently exists." Id. Not being able to predict the
exact type of development that would occur was no excuse for failing to prepare an EIS evaluating
the indirect effects of the project. Id. at 676-77. The court ruled that current and contemplated plans
of private parties and local government must be reviewed and, based upon that review, reasonable
forecasting of development likely to result from construction of the interchange must be conducted
in an EIS.
The second Ninth Circuit case, Coalition for Canyon Preservation v. Bowers, 632 F.2d 774
(9' Cir.1980), involved a proposal to widen a 10.8 mile section of a narrow, two-lane federal
highway that connected four small, rural towns in northern Montana and served as the primary access
road into Glacier National Park. The new segment would create an 88 foot wide, four-lane highway,
including 10 foot parking lanes with new curbing and other improvements in the sections passing
through the towns, resulting in the relocation of several business. The EIS admitted that "the
possibility exist[ed]" that the wider four-lane highway could result in "development along the
highway... increas[ing] at a faster pace than in the past." Id. at 782. However, "nothing further was
said about increased development" in the EIS. Id. The court held that the EIS's failure to assess this
foreseeable development violated NEPA:
The aerial maps of the area show that the [four] towns ...are centered about the main road;
tourism is their main source of income and roadside businesses are common. It is likely that
this project will have major effects on the character of these towns. This case requires
analysis of these secondary effects.
Id. at 783.
Along with the general legal standards for indirect cases reviewed above, these three decisions
emphasize that an EIS must identify and analyze the growth-inducing effects of transportation projects
that are significant, reasonably foreseeable and probable. The few indirect cases involving
transportation projects do not, however, provide clear guidance for determining how detailed the
analysis of secondary impacts must be to satisfy NEPA's requirements.
4.3.3.4 Level of Detail Required in an EIS's Evaluation of Indirect Effects
Sierra Club IV, 976 F.2d at 767, sets the stage for the remaining indirect effects cases reviewed
next by noting that:
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even as to those effects sufficiently likely to occur to merit inclusion, the EIS need only
"furnish such information as appears to be reasonably necessary under the circumstances for
evaluation of the project."
Id. (citations omitted). Just how much evaluation of indirect effects is sufficient to satisfy
NEPA? As noted above, mere listing or cataloging of possible impacts in an EIS will not pass muster.
Dombeck, 164 F.3d at 1128. However, the few recent indirect effects cases involving transportation
projects have not raised the bar very high beyond a mere descriptive listing.
In Sierra Club, Ill. Chapter v. U.S. Dept. of Transportation, 962 F.Supp. 1037,1040-41 (N.D.
Ill. 1997), for example, plaintiffs challenged the adequacy of an EIS for a proposed 12.5 mile toll road
that would extend Interstate 355, connecting it to Interstate 80 in southwest suburban and exurban
Chicago. In addition to disputing the sufficiency of the FEIS's evaluation of project alternatives and
many of the direct effects of the proposal, the plaintiffs argued that the FEIS failed to adequately
analyze the indirect effects of the toll road. Id. at 1045. The FEIS did "identify the [secondary]
environmental impact of the toll road, including proposed land use changes, conversion of agricultural
lands, development of certain facilities, possible urban sprawl, and development of toll road
interchanges."Id. (emphasis added). Although the court agreed with the plaintiffs that the agency
failed to describe any of these indirect effects "in considerable detail," the court held that the FEIS's
evaluation of the project's secondary impacts was "adequate, albeit cursory." Id. In rejecting the
plaintiffs' challenge, the court distinguished the Ninth Circuit's holdings in City of Davis, 521 F.2d
at 675, and Bowers, 632 F.2d at 783, noting that the EISs in those cases "completely failed to
identify" secondary impacts. Id.
This case provides little guidance for determining how much evaluation of the "identified"
indirect effects is sufficient to satisfy NEPA upon judicial review. Of course, the extent of the
analysis "reasonably necessary"to adequately evaluate secondary impacts is dependent upon the
particular circumstances of each case. See Sierra Club IV, 976 F.2d at 767. One problem is that
published opinions do not, of course, append the administrative record and the few indirect effect
transportation cases rarely quote key or exemplary language from the EIS's evaluation of secondary
impacts. While Sierra Club, Ill. Chapter, 962 F.Supp. at 1040-41 may be instructive as a case study
focused on the content of the FEIS's indirect effect analysis, the published opinion provides little, if
any, guidance.
Of even less help is Northern Crawfish, 858 F. Supp. 1503. This case involved the proposed
construction of a 15 mile, four-lane South Lawrence Trafficway ("SLT") in Kansas. Among other
challenges, the plaintiffs argued that the FEIS failed to adequately evaluate the indirect and cumulative
impacts of the project. Id. at 1523. Based upon review of the administrative record, the court granted
the defendant's motion for summary judgment, noting only that "the FEIS has considered the
cumulative impact and the indirect effects of the SLT." Id. at 1524. Although the court reviewed the
types of indirect effects that must be considered under NEPA and the CEQ regulations, the court
failed to even identify the secondary impacts discussed in the EIS, let alone describe why the analysis
of these impacts was adequate under NEPA.
On the other hand, recent indirect effect transportation cases involving disputes over the extent
to which proposed projects are growth serving or growth inducing provide more guidance.
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4.3.4 Effect of Land Use and Zoning Controls on Indirect Impacts Analysis
Federal courts have reached distinguishable conclusions when reviewing an agency's reliance
on local or regional plans or planning documents, economic development studies, or zoning and other
land use controls to support their evaluation of indirect effects in an EIS. In two recent cases, the
Ninth Circuit rejected EIS challenges based upon arguments that the agencies' evaluation of secondary
impacts improperly and unreasonably relied upon planning studies and documents to support their
conclusions that any growth that may be induced by the project was already planned for, would occur
anyway, and/or would not be significant because of limited land available for such development, even
though the plans and studies relied upon assumed construction of the challenged project proposals.
The first case, Laguna Greenbelt, 42 F.3d 517, concerned the 17.5 mile San Joaquin Hills
transportation corridor project running from Newport Beach to connect with Interstate 5 in Orange
County, south of Los Angeles. The plaintiffs challenged the adequacy of the EIS's evaluation of the
growth-inducing effects of the project. Specifically, the plaintiffs argued that the EIS's discussion of
indirect impacts "set forth insufficient information," and its conclusion that the toll road would "not
influence growth was misleading because it [was] based on local planning documents that assume
existence of the toll road." Id. at 525. The court disagreed, noting that:
The discussion and documentation in the EIS, however, support the EIS's conclusion that the
toll road will not affect the amount and pattern of development in Orange County. The EIS
relied upon evidence that Orange County has already experienced substantial growth, and that
the county is expected to continue to grow in the future, although at a declining rate. The
record shows that 98.5% of all land in the project's "area of benefit" is already accounted for
by either existing or committed land uses not contingent on construction of the corridor.
Id. (cites to administrative record omitted). The plaintiffs argued that the planning documents
relied upon in the EIS only authorize development, but do not "require or guarantee it, and that
developers may not go through with plans if the toll road is not built." Id. at 525 n.8. The court
dismissed this argument, noting that the EIS admitted that completion of the corridor may affect the
rate, but not the pattern and amount, of development that would occur. Id. 526, n. 9. While
acknowledging that there were "weaknesses in the EIS's analysis of growth-inducing impacts," and
that the plaintiffs may disagree with the EIS's conclusions, the court held that the discussion of the
indirect effects was "reasonably thorough" and thus satisfied NEPA under the "rule of reason"
standard of review. Id at 526 (specifically distinguishing Bowers,632 F.2d at 783 and City of
Davis,521 F.2d at 675).
Similarly, in Carmel-By-the-Sea, 123 F.3d 1142, the plaintiffs challenged the adequacy of the
EIS's evaluation of growth-inducing impacts for a project involving the realignment of a three mile
section of California State Highway 1, near Monterey. The FEIS acknowledged that the project "had
the potential to facilitate growth," but concluded that any such growth was already planned and
accounted for in the two applicable, local master plans, even though these planning documents were
based upon the assumption the corridor would be built. Id. at 1162-63. The court distinguished the
undeveloped agricultural area at issue in City of Davis, 521 F.2d at 675, from the area at issue in
Carmel, noting that "very little opportunity for development would occur within the [largely
developed] highway corridor." Although there was no identification or analysis of the likely induced-
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development in Davis, 521 F.2d at 675, the court held that the EIS in Carmel adequately identified
and evaluated the limited induced-growth that would result from the corridor project by referencing
and discussing that such growth was already planned for in the local master plans. Id.
Instead of arguing that growth induced by the project was already planned for, would occur
anyway, or would not be significant because of the limited available land, the following cases involve
agency claims that indirect effects of proposed transportation projects need not be evaluated because
existing zoning and other local land use plans and controls prohibit development of the type the
projects' challengers argue would be induced. No clear standards or guidelines emerge from these
next cases, which reach distinguishable conclusions regarding claims that growth alleged to develop
as an indirect effect of a challenged transportation project need not be evaluated in an EIS because
it could not occur without changes in local land use and zoning controls, and therefore would not
occur on its own as an indirect impact of the proposed project.
In a North Carolina case, Mullin v. Skinner, 756 F. Supp. 904 (E.D. N.C. 1990), property
owners sought to enjoin the North Carolina Department of Transportation (NCDOT) and the FI4WA
from proceeding with the construction of a high-rise bridge connecting the mainland and Sunset
Beach, a small North Carolina barrier island popular as a tourist destination, but housing only some
50 permanent residents. Id. at 906-907. The EA completed for the project resulted in a FONSI and
decision that no EIS need be prepared. Id. at 911-12. The plaintiffs challenged the FONSI, arguing
that the improved access to the island provided by the bridge would "induce high-density
development" on the island, resulting in numerous adverse environmental impacts. Id. at 918-20. As
such, the plaintiffs argued that the EA and decision n-t to prepare an EIS for the project violated both
NEPA and North Carolina's State Environmental Protection Act ("SEPA"), N.C. Gen. Stat. §§ 113A-
1 et seq.
In addition to maintaining that development would occur on the island regardless of whether
the bridge was built, defendants FHWA and the State of North Carolina argued that "significant
changes in development patterns can be brought about only through zoning changes, and not by the
construction of a high-rise bridge." Rejecting this argument, the court stated that:
Defendants'...point is so utterly devoid of common sense and inconsistent with NEPA that
it can not be taken seriously. This court did not need plaintiffs' experts to tell it that zoning
changes inevitably follow development pressures. To believe otherwise is to ignore reality.
More importantly, defendant's argument that it is these zoning changes which will cause
increased development, and not the bridge, completely ignores the [CEQ] regulatory
definition of `indirect effects' which they are required to abide by [under NEPA]: `indirect
effects ... are caused later in time ...[and] may include growth-inducing effects" [CEQ cite
omitted]. Even though zoning changes may be necessary to alter existing uses of land, if a
major action makes it likely that such a change will occur, the action will have an effect on
the environment.
Id. at 921. The Court further noted that the EA contained predictions of growth, including
enhanced economic and employment opportunities, increased tourism, greater usage of existing
recreational areas, and increased property values and tax base. "These predictions simply cannot be
squared with the conclusion that land use, development, and traffic will not be significantly altered
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by the new bridge." Id. Although the court does not make the argument, its analysis is in accord with
the "selling points" standard reviewed in Sierra Club III, 729 F.2d at 868.
In contrast, Florida Wildlife Federation v. Goldschmidt, 506 F. Supp. 350 (S.D. Fl. 1981), also
involved expert testimony claiming that land use planning would not be an effective means of
controlling the type and density of development likely to occur because of its vulnerability to political
pressures. The plaintiffs claimed that the proposed extension of Interstate 75 would induce massive
residential, commercial and industrial development in the area. However, the result was quite
different from Skinner, 756 F. Supp. at 921. The defendant's arguments centered on the existing Land
Use Plan for Broward County. Developed over a three-year period, following numerous studies and
at least 30 public hearings, the plan had the full force and effect of law throughout the county.
Procedures for adopting amendments were stringent and required six to nine months to complete. The
four amendments adopted since its inception actually reduced the number of residences allowed in
the study area. The court held that the evidence pointed strongly against induced development:
In short, plaintiffs' fears that I-75 will induce massive, total development of the study area
have little evidentiary support. Though it may be true as a general rule that access to
transportation causes development, the history of and projected increases in population
growth for south Florida demonstrate that growth will occur because of market demands even
when transportation is lacking. There is already some development in the study area, and
development will continue there as planned and allowed under Broward County's Land Use
Plan, whether or not I-75 is constructed, because it is the next logical area for
development... Though plaintiffs distrust the political process, all the evidence indicates that
the Land Use Plan is, and will continue ) be, enforced.
Id. at 368-369.
No clear standards emerge from the case law regarding the use of local or regional planning
documents and studies to support arguments that growth-induced development was already planned,
would have occurred anyway, or that indirect effects need not be evaluated because existing zoning
and other local land use controls prohibit development of the type the project's challengers argue will
be induced. The ability to rely on local plans and land use controls depends, of course, on the
particular facts of the case. However, courts will consider local and regional plans and land use
controls where strong arguments can be advanced that the controls will be strictly enforced and not
easily subjected to variance or amendment by political influence resulting from development pressure
caused, indirectly, by the proposed transportation project.
4.3.5 Environmental Justice, Indirect Effects and Disparate Adverse Impacts on Minority and
Low-Income Communities
Over the past fifteen years, community, civil rights and environmental activists have
increasingly challenged the adverse environmental, health and socioeconomic effects of federal and
state projects on predominantly minority and low-income communities by arguing that these
disparate impacts violate the Equal Protection Clause of the Fourteenth Amendment of Constitution,
Title VI of the Civil Rights Act of 1964 and/or Title VIII of the Fair Housing Act of 1968, often in
conjunction with claims that such projects also violate environmental statutes and regulations,
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including NEPA.' The activism and litigation surrounding these efforts has become known as the
environmental justice movement and its growth and development has been accompanied by an
increasing awareness and acknowledgment on the part of elected officials, governmental agencies,
organizations, academia, the media and general public that minority and low-income communities
bear a disproportionate share of adverse environmental impacts and hazards.' As early as 1987,
activists had called on the White House to issue an Executive Order on Environmental Justice.9 In
1994, President Clinton responded to the growing movement's call for Executive leadership.10
4.3.5.1 The Environmental Justice Executive Order of 1994
In response to the growing environmental justice movement and the increasing
acknowledgment that minority and low-income communities bear a disproportionate share of the
siting and permitting of facilities and projects with adverse environmental and health effects,
President Clinton issued Executive Order 12898 ("E.O. 12898") in 1994: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations. Executive Order 12898
called on federal agencies to take environmental justice issues, and the potential that federal agency
actions may have significant, negative environmental and health impacts on low-income and minority
communities, into account in all agency decision making, including public comment and review
procedures. E.O. 12898, 59 Fed. Reg. 7629 § 1-1 (1994). The Order provided that "to the greatest
extent practicable and permitted by law.... each federal agency shall make achieving environmental
justice part of its mission by identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of its programs, policies, and activities on minority
populations and low-income populations..." Id. at § 1-101.
Executive Order 12898 also directed federal agencies to develop internal standards and
procedures that facilitate the implementation of the Order's directives into agency decision making
processes. In addition, federal agencies were directed to develop an Environmental Justice Strategy
that identified and addressed any disproportionately high and adverse human health or environmental
' See Robert Collin, Environmental Equity: A Law and Planning Approach to Environmental Racism, 11
Va. Envtl. L. J. 495, 518-535 (1992); Rodger Field, Siting, Justice, and the Environmental Laws, 16 N. 11. U. L.
Rev. 639, 649-653 (1996); Willie Gunn, From Landfill to the Other Side of the Tracks: Developing
Empowerment Strategies to Alleviate Environmental Injustice, 22 Oh. N. U. L. Rev. 1227, 1271-1287 (1996);
Willie Hernandez, Environmental Justice: Looking Beyond Executive Order No. 12898, 14 J. of Envtl. L. 181,
197-99 (1996).
8 See Barry Hill, Chester, PA - Was it a Classic Example of Environmental Injustice?, 23 Vt. L. Rev.
479, 483-89 (1999); Stephen Johnson, NEPA and SEPA's in the Quest for Environmental Justice, 30 Loyola of
L.A. L. Rev., 565, 565-66, n. 1-4; Field, supra, 16 N. 11. U. L. Rev. at 639-643; Gunn, supra, Oh. N. U. L.
Rev. at 1227-1250; Hernandez, supra, 14 J. of Envtl. L. at 181-197.
9 See Gunn, supra, Oh. N. U. L. Rev. at 1251-52, n. 165.
10 It was clear to environmental justice activists that the new Administration would be receptive to
renewed calls for an environmental justice Executive Order. Prior to becoming Vice President, Senator Al Gore
had sponsored Senate Bill 2806, the Environmental Justice Act of 1992, 102 Cong., 2nd Sess. Gunn, supra, Oh.
N. U. L. Rev. at 1252, n. 168. Furthermore, newly appointed Administrator Carol Browner named environmental
justice one of the EPA's top priorities in 1993. Id. at 1252, n. 169.
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effects of their programs, policies, and activities on minority populations and low-income populations.
In order to fulfill these requirements, the Department of Transportation ("DOT") issued Order No.
5610.2, Order to Address Environmental Justice in Minority and Low-Income Populations. 62 Fed.
Reg. 18377 (1997). Likewise, the Federal Highway Administration ("FHWA") issued Order No.
6640.23, FHWA Actions to Address Environmental Justice in Minority Populations and Low-Income
Populations, in December 1998.
4.3.5.2 Environmental Justice and NEPA: Federal Court's Review of the Evaluation of
Environmental Justice Issues in EISs for Proposed Transportation and Other Federal
Projects in Light of E. O. 12898
Although E.O. 12898 did not directly address the use of any specific statutory or regulatory
schemes, President Clinton issued a memorandum concurrently with the Order "to underscore [that]
certain provisions of existing" civil rights and environmental laws, particularly Title VI of the Civil
Rights Act of 1964 and NEPA, "can help ensure that all communities across this Nation live in a safe
and healthful environment." The Presidential memorandum stated that:
Environmental and civil rights statutes provide many opportunities to address environmental
hazards in minority communities and low-income communities. Application of these
existing statutory provisions is an important part of this Administration's efforts to prevent
those minority communities and low-income communities from being subject to
disproportionately high and adverse environmental effects.
With regard to NEPA, the memorandum directed:
[e]ach Federal agency shall analyze the environmental effects, including human health,
economic and social effects, of Federal actions, including effects on minority communities
and low income communities, when such analysis is required by the National Environmental
Policy Act of 1969 (NEPA), 42 U.S.C. § 321 et seq..
In December 1997, the Council on Environmental Quality ("CEQ"), in consultation with
EPA, issued "guidance to further assist federal agencies with their NEPA procedures so that
environmental justice concerns are effectively identified and addressed." CEQ, Environmental Justice:
Guidance Under the National Environmental Policy Act, at 1 (Dec. 1997)." The CEQ's Guidance
directed agencies to evaluate environmental justice issues at each and every step of the NEPA process,
as appropriate, whenever such issues arise. Id. at 8. Furthermore, "environmental justice issues
encompass a broad range of impacts covered by NEPA, including impacts on the natural or physical
environment and interrelated social, cultural and economic effects." Id. Under the CEQ regulations
implementing NEPA, direct, indirect and cumulative "effects" and "impacts" are defined to "include
" As part of the Executive Office of the President, the CEQ "has oversight of the federal government's
compliance with Executive Order 12898 and NEPA" CEQ, Environmental Justice: Guidance Under NEPA, at 1.
As Chair of the Interagency Working Group (IWG) on Environmental Justice (established by E.O. 12898 to assist
agencies in developing environmental justice strategies), EPA is the lead agency responsible for implementation of
the Environmental Justice E.O. of 1994. Id. at n. 3. In April 1998, EPA also issued it's own Guidance: U.S.
EPA, Final Guidance For Incorporating Environmental Justice Concerns in EPA's NEPA Analysis (April 1998)
See (http://www.epa.gov/oeca/ofa/ejepa.html).
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"ecological ...aesthetic, historic, cultural, economic, social or health" effects. Id. at n. 23, 40 C.F.R.
1508.8.
The CEQ's 1997 Guidance for environmental justice analysis under NEPA stresses the fact
that E.O. 12898 "does not change the prevailing legal thresholds and statutory interpretations under
NEPA and existing case law." CEQ, Environmental Justice: Guidance under NEPA, at 9. Thus, any
adverse environmental, health, social, cultural, or economic impacts, be they direct, indirect or
cumulative, on minority or low-income communities must be "significant" to warrant evaluation
within an EIS or other document required by NEPA. Although the CEQ 1997 Guidance emphasizes
that E.O. 12898 focuses agency attention on evaluation of adverse environmental and health effects
of proposed projects that disproportionately impact minority and low-income populations, it
acknowledges that:
Under NEPA, the identification of a disproportionately high and adverse human health or
environmental effect on a low-income population, minority population, or Indian tribe does
not preclude a proposed action from going forward, nor does it necessarily compel a
conclusion that a proposed action is environmentally unsatisfactory. Rather, the identification
of such effect should heighten agency attention to alternatives (including alternative sites),
mitigation strategies, monitoring needs, and preferences expressed by the affected community
or population.
CEQ Environmental Justice Guidance under NEPA, at 9-10. Nevertheless:
When [an] agency has identified a disproportionately high and adverse human health or
environmental effect on low-income populations, minority populations, or Indian tribes from
either the proposed action or alternatives, the distribution as well as the magnitude of the
disproportionate impacts in these communities should be a factor in determining the
environmentally preferable alternative. In weighing this factor, the agency should consider
the views it has received from the affected communities, and the magnitude of environmental
impacts associated with alternatives that have a disproportionate and adverse effect on low-
income populations, minority populations, or Indian tribes.
Id. at 15. In Appendix A, the CEQ Guidance noted that impacts on low-income and minority
communities are "disproportionately high and adverse" when "they are above generally accepted
norms," where "the risk or rate of hazard exposure... appreciably exceeds or is likely to exceed the risk
or rate to the general population or other appropriate comparison group," or results in "cumulative or
multiple adverse exposures from environmental hazards." CEQ Guidance, Appendix A: Guidance
for Federal Agencies on Key Terms in Executive Order 12898. "Minority populations" include any
area where: "(a) the minority population of the affected area exceeds 50 percent, or (b) the minority
population percentage of the affected area is meaningfully greater than ...[that of] the general
population or other appropriate unit of geographical analysis."
In its final Guidance for addressing environmental justice in NEPA, EPA noted that by
focusing on low-income and minority populations in NEPA processes and evaluations:
Environmental justice concerns may lead to more focused analysis, identifying significant
effects that may otherwise have been diluted by examination of a larger population or area.
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Environmental justice concerns should always trigger the serious evaluation of alternatives
as well as mitigation options.
Final Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA
Compliance Analysis, April 1998, at p. 7.
Although the Presidential Memorandum accompanying E.O. 12898, along with the CEQ
Guidance, direct agencies to incorporate environmental justice analysis in all NEPA processes and
documents, the Order and memorandum do not impose upon federal agencies any new duty or
obligation to assure that proposed projects avoid any and all adverse impacts on minority and low-
income communities.
4.3.5.3 Environmental Justice E.O. 12898 and Cause of Action for Judicial Review or
Enforcement
Both the Environmental Justice E.O. of 1994 and the accompanying Presidential
Memorandum, by their terms, specifically state that they do not create any right to judicial review for
compliance or noncompliance. Section 6-609 of E.O. 12898, Judicial Review, provides that:
This order is intended only to improve the internal management of the executive branch and
is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or
procedural, enforceable at law or equity by a party against the United States, it agencies, its
officers, or any person. This order shall not be construed to create any right to judicial review
involving the compliance or noncompliance of the United States, its agencies, its officers, or
any other person with this order.
E.O. No. 12898, 59 Fed. Reg. 7629, § 6-609 (1994).12 Furthermore, the CEQ's 1997
Guidance for environmental justice analysis under NEPA stresses that it merely "interprets NEPA as
implemented through the CEQ regulations in light of Executive Order 12898" and as such does not
create any substantive or procedural rights, benefits or trust obligations enforceable in any court.
Accordingly, orders, guidelines or strategies issued by any federal agency regarding the
implementation of E. O. 12898 are likewise not subject to judicial review or enforcement. For
instance, the Department of Transportation Order No. 5610.2, Order to Address Environmental Justice
in Minority and Low-Income Populations, states that it is "an internal directive to the various
components of DOT and does not create any right to judicial review for compliance or
noncompliance." 62 Fed. Reg. 18377, 18378 (1997).
It is important to note that President Clinton could have made the environmental justice
provisions and directives of E.O. 12898 subject to enforcement upon judicial review. In general,
Executive Orders that are issued pursuant to statutory mandate or delegation of authority from
Congress have the same force and effect of law as federal statues, preempt inconsistent state law, and
nz The Presidential Memorandum accompanying E.O. 12898 contained identical language asserting that
the memo and its directive regarding Title VI and NEPA "is not intended to, nor does it create, any right, benefit,
or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States,
its agencies, its officers or any person."
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are enforceable by judicial review so long as the language and terms of the Order make clear an intent
to create a private cause of action for judicial review. See Independent Meat Packers Assoc. v. Butz,
526 F.2d 228 (8`' Cir. 1975), cert. den., 424 U.S. 966 (1976).
Executive Orders, like E.O. 12898, that do not carry the force of statutory law and are not
subject to judicial review, however, and:
are merely tools to implement the personal policies of the President. These Orders do not
legally bind agencies and are enforceable only at the President's discretion. Individuals
therefore cannot asset a cause of action to enforce the order's requirements.
Steven Osterow, Enforcing Executive Orders: Judicial Review of Agency Action Under the
Administrative Procedure Act, 55 Geo. Wash. L. Rev.659, 660, n.7 (1987).
Several recent federal court cases have dismissed challenges to transportation projects on the
grounds that NEPA documents failed to or inadequately considered the project's adverse impacts on
low-income and/or minority communities.
In Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 575 (91h Cir.
1998) the Morongo Indian Tribe challenged an airport "arrival enhancement project" (which was part
of a larger airport expansion project) proposed by the Federal Aviation Administration ("FAA") that
involved new flight paths over portions of the tribe's reservation. The tribe claimed that the FAA not
only failed to adequately evaluate the direct aircraft noise impacts and the indirect, growth-inducing
effects of the project in violation of NEPA, but failed to consider the disparate effects such impacts
would have on Native Americans residing on the Reservation, in violation of the Environmental
Justice E.O. of 1994 and the DOT Environmental Justice Order of 1997. The court failed to reach
the merits of either of the tribe's environmental justice claims, noting that no private cause of action
for judicial review was provided by E.0, 12898 ("this order shall not be construed to create any right
to judicial review involving the compliance or noncompliance of the United States, its agencies, its
officers, or any other person with this order." 59 Fed. Reg. 7629, § 6-609).
Likewise, in an unreported decision,' New Valley Greens v. U.S. Dept. of Transportation,
1996 U.S. Dist. LEXIS 16547, the court refused to rule on the merits of the plaintiff's environmental
justice challenges to the construction of a section of a "smart highway" proposed by the Virginia DOT
("VA DOT") between Blackburg and Roanoke, Virginia. In addition to challenging the adequacy of
the project's FEIS and a decision not to prepare a SEIS, plaintiffs alleged unsupported conclusion
regarding impacts on low-income and minority population. As part of the challenge of the defendant's
decision not to supplement the FEIS, the plaintiffs claimed that the unsupported and unexplained,
conclusive statement in the Addendum to the FEIS that "there will be no disproportionate impacts to
minority or low-income families" is wholly inadequate in violation of NEPA and the environmental
Justice E.O. of 1994. The court refused to reach the merits of this claim because E.O. 12898 creates
no private cause of action for enforcement through judicial review. The court stated and held that:
13 Unreported decisions (including opinions published only on electronic databases such as LEXIS and
Westlaw) are not official and have no binding precedential value, although they may be cited as persuasive
authority.
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In asserting that defendants have violated NEPA by failing to consider disproportionate
impacts on minority and low-income populations, plaintiffs are attempting to do indirectly
under NEPA what cannot be done directly under E.O. 12898, issued in 1994 [which] did not
exist at the time the FEIS was completed. Thus, defendants could not be held to have violated
NEPA for failing to consider disproportionate impacts on minority and low-income
populations in the FEIS. The only question, then, is whether the defendants can be held to
be in violation of NEPA for failing to consider E.O. 12898 in the Addendum. Because the
Order denies a private rights of action, plaintiffs may not use the courts to force defendants
to comply with the Order's commands. Thus, assuming arguendo, that defendants have
indeed failed to consider adequately E.O. 12898 in the Addendum, the plaintiffs have no
standing to enforce compliance.
Id., at 1655.
Citizens About Jet Noise, Inc. v. Dalton, 48 F. Supp. 2d 582 (1999), involved a challenge to
the relocation of aircraft to a Naval air station in Virginia as part of a larger base closure in Florida.
Among other challenges, the plaintiffs argued that the FEIS for the aircraft relocation was inadequate
because it failed to consider reasonable alternatives and contained a flawed environmental justice
analysis. The court noted that, "in accordance with Executive Order 12898, the Navy conducted an
environmental justice analysis of the [alternatives] and included this analysis in the FEIS." Id. at 604.
The plaintiff's claimed that this environmental justice analysis was fatally flawed because it used
different population statistics than those used for evaluation of noise impacts. The court refused to
review the merits of the adequacy of the FEIS's environmental justice analysis because "executive
Order 12898 specifically states that any agency actions taken pursuant to the provisions of the Order
are not subject to judicial review," citing Morongo, 161 F.3d at 575 and E.O. 12898, 59 Fed. Reg.
7629, § 6-609 ("this order shall not be construed to create any right to judicial review involving the
compliance or noncompliance of the United States, its agencies, its officers, or any other person with
this order.").
The Dalton court took a further step by opining in dicta 14 that "NEPA does not require an
environmental justice analysis." Id. (emphasis added). Although the Presidential Memorandum
accompanying E.O. 12892, the CEQ Guidance for implementing E.O. 12898 under NEPA, and the
Orders and Strategies of DOT, FHWA and other agencies all direct that environmental justice issues
shall be included in EISs and other NEPA documents, the Dalton court's statement that no
environmental justice analysis is required by NEPA is accurate only in the sense that the directives
in E.O. 12898 (and its accompanying Memorandum) do not have the binding force and effect of
statutory law, and, as such create no private right of action and are not are enforceable by judicial
review.
However, because E.O. 12898 does not create any new rights, but merely emphasizes the
already existing obligations under NEPA that adverse environmental impacts - including negative
socioeconomic and health effects - be identified and evaluated, minority and low-income community
'a Dicta refers to legal conclusions or positions on legal questions stated by a court in a published
decision that are not binding holdings because they do not relate to matters at controversy properly before the court
for its judgment. Legal positions or opinions stated in dicta, however, are often cited as persuasive authority by
other courts and, of course, indicate a position the court may take on an issue at a later date.
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groups could arguably convince a federal court that an EIS or EA that completely or inadequately
identified or evaluated significant adverse impacts of a transportation project on such a community
violated NEPA solely on NEPA's own terms and without regard to E.O. 12898. The new emphasis
and focus placed upon environmental justice issues in the NEPA process by E.O. 12898, DOT Order
No. 5610.2, and FHWA Order No. 6640.23, make it likely that transportation projects with adverse
effects on minority and low-income communities will be challenged as violating the terms of NEPA
without regard to the fact that on E.O. 12898 provides no private cause of action. Such challenges may
have a greater chance of success if plaintiffs can establish that DOT or FHWA failed to adequately
follow their own environmental justice orders, strategies and policies for identifying and analyzing
adverse impacts on minority and low income communities, particularly with regard to citizen
participation and community input at all stages of the NEPA process.
Although the Executive Order does not provide for judicial review, plaintiffs may seek review by
challenging a transportation project's disparate adverse impacts as discriminatory such that the NEPA
process violated Title VI of the Civil Rights Act of 1964. It is likely that this will be the major
mechanism for review and enforcement of agency policies relating to Environmental Justice in the
future.
4.4 Other Legal Standards Which Often Apply to Indirect Effects Cases
4.4.1 Non-federal Indirect Effects and the Small Handles Problem
4.4.1.1 Major Federal Actions
NEPA requires preparation of an EIS for all "major federal actions significantly affecting the
quality of the human environment." 42 U.S.C. § 4332(2)(C)(I). The question of whether an action
is "major" and thus triggers NEPA is rarely subject of controversy in case law. "Any substantial
commitment of resources, whether monetary or otherwise," is enough to qualify a transportation
project as "major." The CEQ regulations define "federal actions" as those which are subject to federal
control and responsibility, including "projects and programs entirely or partly financed, assisted,
conducted, regulated, or approved by federal agencies." 40 C.F.R. § 1508.18(a). Most transportation
projects are clearly federal actions.
4.4.1.2 The Small Handles Problem
When a proposed private and/or state action with significant environmental impacts involves
minimal or marginal federal agency action the question arises whether the federal agency must prepare
a comprehensive EIS that evaluates the environmental impacts of the entire project, not just the
smaller piece or pieces involving the federal agency. This dilemma is commonly referred to as the
"small handles" problem. See Fitzgerald, Small Handles, Big Impacts: When Should NEPA Require
an EIS?, 23 B.C. Envtl. Aff. L. Rev. 437, 438 (Winter 1996).
When determining whether a project constitutes a "major federal action," some courts have
adopted a "dual approach" by analyzing both: 1) the scope of the federal involvement in the project;
and 2) the significance of the project's environmental effects. Under this "dual approach," the federal
involvement must be major in order for an EIS to be required for the project. See Scherr v. Volpe, 466
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F.2d 1027 (7' Cir. 1972); NAACP v. Medical Center, Inc., 584 F.2d 619, 626-27 (3rd Cir. 1978).
Other circuits, however, have employed a "unitary approach" by analyzing only the significance of
the environmental impact. See Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 (8d'
Cir. 1974); City of Davis, 521 F.2d at 673. Under the unitary approach, courts reason that any federal
project which will have a significant effect on the environment should be considered a major federal
action. Courts adopting a unitary approach have emphasized that a dual approach could hold that
NEPA does not apply to "minor" federal actions that have significant environmental impacts, thereby
defeating one of the primary purposes of NEPA. See Fitzgerald, Small Handles, Big Impacts, 23 B.C.
Envtl. Aff. L. Rev. at 445-46. The CEQ regulations have expressly adopted the unitary approach. See
40 CFR § 1508.18.
4.4.1.3 Evaluating Whether Federal Involvement is Sufficient to Federalize a Project
The application of a unitary approach would at first glance appear to resolve the small handles
problem; the significance of the environmental impact would require a comprehensive EIS even for
projects that have marginal or minor federal involvement. See Fitzgerald, Small Handles, Big Impacts
23 B.C. Envtl. Aff. L. Rev. at 448. However, most courts have also inquired whether the federal
involvement in a project has been sufficient to "federalize" the whole project. Under this approach,
the threshold inquiry is whether the federal involvement is significant enough to the project in its
entirety - including the non-federal aspects of the project - so as to "federalize" the entire project.
Id. One commentator has noted that:
A project is clearly federalized when the non-federal portions of the project require federal
action before legally going forward. Alth )ugh federal action legally authorizing a project is
sufficient to federalize a project, such legal authorization is not necessary to federalize a
project. Whether a project has been sufficiently `federalized' is less clear, however, when the
federal action is not a legal requirement for the project, but the federal agency arguably has
de facto control over the fate of a project so that opponents of the project can argue, in good
faith, that the project will not go forward without agency approval.
Id. at 449. When determining whether federal involvement is sufficient to "federalize" a project,
courts examine the nexus between the federal and non-federal components of the project. Id. In
evaluating this nexus, some courts have analyzed whether the federal and non-federal components are
interdependent or merely complementary.
For example, Port of Astoria v. Hodel, 595 F.2d 467,471-77 (9d' Cir. 1979) involved a private
corporation's proposal to construct an aluminum reduction plant. Because a federal agency contracted
to supply power to the plant, thus enabling the private project to proceed, the Court of Appeals for
the Ninth Circuit held that the private and federal agency actions were interdependent. Id. at 477.
Since the entire project was therefore "federalized," a comprehensive EIS was required that evaluated
the impacts of both the aluminum plant and the power lines from the federal agency. Id.
In another Ninth Circuit case, Enos v. Marsh, 769 F.2d 1363 (9`h Cir. 1985), the Corps of
Engineers proposed a project designed to provide a second deep-water harbor for commercial and
industrial use on the island of Oahu. The plaintiffs challenged the EIS, for failing to adequately
evaluate the environmental impacts associated with the indirect effects of state-sponsored shoreside
facilities, including piers, warehouses, and industrial facilities that would be developed around the
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harbor. Id. at 1371-72 The plaintiffs argued that the state's shoreside facilities and the federal harbor
projects were so functionally interdependent that they constituted a single federal action. The court
disagreed, noting that the federal and state projects serve complementary but distinct functions. The
court distinguished cases where certain segments of projects were designated as "state" and others as
"federal" projects in an effort to avoid NEPA's requirements. Id.
Two additional factors dissuaded the court from including the state's activities within a federal
NEPA action:
First, the shoreside facilities are completely state-funded. "Where federal funding is not
present [the court has] generally been unwilling to impose the NEPA requirement" of filing
an EIS. Second, the federal government exercised no control over the planning and
development of these facilities. Rather, local officials have been the only relevant decision
makers. Lacking both federal funding and federal supervision over the development of the
facilities, the construction of the shoreside facilities is not "federal" action for the purposes
of NEPA.
Id. at 1372 (citations omitted).
Many transportation projects involving indirect effects will constitute "major federal actions"
subject to federal control and responsibility by nature of being "entirely or partly financed, assisted,
conducted, regulated, or approved by federal agencies." 40 C.F.R. § 1508.18(a). In those situations
where significant indirect effects stem from non-federal portions of a larger project (such as the state
planned shoreside facilities in Enos, 769 F.2d at 1371-72), courts analyze the nexus between the
federal and non-federal components to determine if they are interdependent, thus "federalizing" the
entire project, or merely complementary, in which case the non-federal aspects need not be evaluated
in an EIS.
4.4.2 Statute of Limitations
Private actions involving NEPA claims are subject to the six year statute of limitations under
the Administrative Procedure Act ("APA"), 28 U.S.C. § 2401(a). Sierra Club v. Slater, 120 F.3d 623,
629-30 (6`h Cir.1997). Issuance of the Final EIS, or of the record of decision ("ROD") approving the
FEIS, constitutes the final agency action at which time the statute of limitations commences. Id. at
630-31. See Johnson, 30 Loyola L. Rev. at n. 70 re: NEPA does not include a judicial review
provision, but the A.P.A. "creates a right of review for final agency actions under NEPA." citing
Marsh, 490 U.S. 360, 375 (1989). "The general federal question jurisdictional statute enables federal
district courts to hear those challenges." 28 U.S.C. § 1331.
4.5 Conclusion
Although it requires that agencies take a "hard look" at all significant environmental impacts,
NEPA demands a procedural process, not a substantive result. Agencies are required to analyze all
reasonably foreseeable, significant impacts, but need not place environmental concerns above the
project's positive economic development, access, safety or other benefits and goals. NEPA's focus
is on disclosure, discussion and informed decision making. While direct, indirect and cumulative
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effects must all be evaluated for environmental impact, the focus of the inquiry should be on the
significance of any impacts, regardless of type, rather than on classification of and differentiation
between primary, secondary or cumulative impacts.
Under the CEQ regulations, which are binding on federal agencies and are given substantial
deference by federal courts, determination of the significance of an action requires considerations of
both context and intensity. An EIS need not contemplate and evaluate every conceivable indirect
impact of a proposed agency action, only those that are "reasonably foreseeable." Although
uncert ainty is inherent in an attempt to identify and analyze any future indirect or cumulative effect,
agencies may not dodge the required analysis of future impacts by labeling such attempts mere
conjecture. Instead, an EIS must engage in "reasonable forecasting" by analyzing all significant
impacts that are not remote or highly speculative, but are realistically probable. As such, reasonable
foreseeability means that the impact is sufficiently likely to occur that a person of ordinary prudence
would take it into account in reaching a decision. An indirect impact is too speculative if it can not
be described at the time the EIS is drafted with sufficient specificity to make its inclusion in an EIS
useful. An EA or EIS will not violate NEPA so long as an agency acknowledges and evaluates all
potential impacts that are significant and are likely enough to be identified and described with
sufficient specificity - either by the agency itself or by challengers during the comment process.
Although the arbitrary and capricious standard now applies to every federal court reviewing
an agency's EA and FONSI resulting in a decision not to prepare an EIS, all federal courts review the
adequacy of the content of an EIS using a reasonableness standard. Under this "rule of reason"
standard, the court must be satisfied that the agency has gone "beyond mere assertions" and has
explicated fully its inquiry, analysis and reasoning. Thus, mere listing or cataloging of possible
impacts in an EIS will not pass muster under NEPA. However, the few recent indirect effects cases
involving transportation projects have not required much more than a descriptive listing. Of course,
the extent of detailed analysis reasonably necessary to evaluate secondary impacts depends upon the
facts and circumstances of the case. Because judicial opinions do not append the administrative record
and only rarely quote key or exemplary language from an EIS's evaluation of indirect effects, most
published opinions provide little, if any, guidance concerning the level of detail required in an
agency's analysis of the secondary impacts of transportation projects.
The relatively small number of indirect effect cases involving transportation projects provide
general legal guidance for determining when a project's growth-inducing or other indirect effects
(including the adverse environmental impacts resulting from induced residential and/or commercial
growth) are significant and sufficiently probable that they must be analyzed in an EIS. Promotion of
the economic benefits resulting from growth-inducing impacts as "selling points" for a proposed
transportation project helps establish that the indirect effects are sufficiently probable and describable
to be presently evaluated in an EIS before the project advances to a point where it will inevitably go
forward and the adverse impacts can not be considered, reversed or significantly mitigated.
No clear standards emerge from the case law regarding the use of local or regional planning
documents and studies to support arguments that growth-induced development was already planned,
would have occurred anyway, or that indirect effects need not be evaluated in an EIS because existing
zoning and other local land use controls prohibit development of the type the project's challengers
argue will be induced. The ability to rely on local plans and land use controls depends, of course, on
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the particular facts of the case. However, courts will consider local and regional plans and land use
controls where strong arguments can be advanced that the controls will be strictly enforced and not
easily subjected to variance or amendment by political influence resulting from development pressure
caused, indirectly, by the proposed transportation project.
Finally, the increasing focus on environmental justice has led environmental, civil rights and
community activists to begin challenging the disparate adverse environmental impacts of federal
agency actions on minority and low-income communities. Although President Clinton's 1994
Environmental Justice Executive Order and related orders and strategy directives by U.S. DOT and
FHWA, by their terms, do not create a private cause of action for judicial review, it is likely, however,
that environmental justice claims will begin to surface more frequently in cumulative and indirect
effect challenges to transportation project EISs when brought in conjunction with Title VI challenges.
5.0 LAND USE PRACTICE
5.1 Comprehensive Planning
Pursuant to NCGS Chapter 160A-383, zoning regulations must be made in accordance with a
comprehensive plan and designed to address a public purpose such as lessening congestion, secure
safety from fire, panic and other dangers, to promote the general health and welfare, to prevent the
overcrowding of land and to facilitate the provision of a variety of public services. Zoning regulations
must be made with consideration as to the character of the district, suitability of particular uses and
a view toward conserving the value of buildings and encouraging the most appropriate land use
throughout the city.
Land use control in North Carolina is very similar to comprehensive (synoptic) planning and
zoning used widely through much of the United States. Refer to Municipal Government in North
Carolina (UNC Institute of Government, 1996) for further details.
5.2 Zoning
The enabling legislation granting zoning authority to local governments is addressed at NCGS
160A-381. Counties and municipalities are granted the authority to adopt zoning schemes for the
purpose of promoting health, safety, morals or the general welfare of the community. The enabling
legislation permits control of both bulk and use on the land, including size and location of buildings,
lot size and coverage, permitted uses and dedications.
5.2.1 Planning Agency
In order to exercise the powers conferred in the enabling legislation, a local government must
create or designate a planning agency to prepare the text and map of a zoning ordinance, which is
then certified to the to the local legislative body for review and comment either adoption/ rejection
or return to the planning agency for revision before final adoption or rejection.
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5.2.2 Zoning Board of Adjustment
The local legislative body may appoint a board of adjustment to hear and decide appeals of any
order, decision or determination of the administrative officer charged with the enforcement of the
zoning ordinance. Appeals of zoning board decisions are made by certiorari proceeding in state
superior court.
The ordinance may also provide for the zoning board to permit special or conditional exceptions
to the zoning regulations.
5.3 Subdivision of Property
North Carolina enabling legislation provides for the subdivision of land by ordinance within
the territorial jurisdiction of each county. A county need adopt subdivision regulations only for the
portion of the county regulated by an adopted zoning plan. Areas of the county without zoning are not
required to adopt subdivision regulations.
The subdivision control ordinance provides for the orderly development and growth of the
county; for the coordination of the development of streets and roads within the proposed subdivision
and with other community facilities. The ordinance may require dedication of land for streets,
easements or recreation. The ordinance may also provide for a payment in lieu of construction of
streets or other dedication, where such funds will be used to serve the occupants of the subdivision.
Funds received by the county for this purpose are transferred to the municipality where the
development will occur.
6.0 TERMINOLOGY/DEFINITIONS
The NCHRP review study of indirect effects (NCHRP, 1998) noted no consistent definition of
indirect effects was used in the 90 EISs studied. This review also notes that the terms "indirect" and
"secondary" were essentially used interchangeably across all disciplines in these EISs. The term
"induced effects" was typically used and applied to land use or economic impacts. "Cumulative
effects" were generally differentiated from "indirect effects" by inclusion of effects from other
projects. In several instances the definitions of "cumulative" and "indirect" were found to overlap
considerably. The term "primary effects" was used in one EIS to include both "direct effects" and
"indirect effects."
The NCHRP also reported a strong positive correlation between the existence of a local land
use plan and the identification of indirect effects, especially as related to cultural resource effects.
This may be due to the Section 106 requirements for evaluating indirect and cumulative effects to
cultural resources in the legislation. The number of indirect effects, especially wetlands and
ecological effects, also tended to be higher in projects outside of Metropolitan Statistical Areas
(MSAs).
According to CEQ's Forty Most Asked Questions, "reasonably foreseeable" includes
uncertainty; however, the effects, although uncertain, must also be "probable." The courts have
supported this definition. Therefore, considering that "indirect effects" are "probable" eliminates
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effects that are "possible" from consideration. The use of "probable" also helps to distinguish indirect
effects from direct effects. Direct effects appear to be inevitable results of an action on the project's
affected environment, while indirect effects are not inevitable but probable. It is important to note
that distinguishing between "direct" and "indirect" effects is not as important as whether the effect
is significant or not (FHWA, 1992).
TYPES OF EFFECTS
Type of Effect Direct Indirect Cumulative
Nature of Effect Typical/ Inevitable/ Reasonably Reasonably
Predictable Foreseeable/Probable Fore seeable/Probable
Cause of Effect Project Project's Direct and Project's Direct and
Indirect Effects Indirect Effects and
Effect of Other
Activities
Timing of Effect Project Construction and At Some Future Time At Time of Project
Implementation than Direct Effect Construction or in the
Future
Location of Effect At the Project Location Within Boundaries of Within Boundaries of
Systems Affected by the Systems Affected by
Project the Project
6.1 Identification of Indirect Effects
Although definitions of indirect effects vary widely between agencies in documents other than
regulations, there is some consistency in the examples given to support these definitions. For example,
the FAA, the FHWA, and the FTA have all used socioeconomic changes to illustrate indirect effects.
A typical case comes from the FTA, which discusses indirect impacts on housing demand, which can
lead to higher rents, thus driving out poorer tenants and changing business patterns.
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EXAMPLES OF INDIRECT OR SECONDARY EFFECTS
BY VARIOUS AGENCIES
Agency Source Document Example
Federal Position Paper: Secondary and Changes in land use, water quality, economic
Highway Cumulative Impact Assessment vitality and population density; negative impacts
Administration in the Highway Project on endangered species; effects on the ability of
(FHWA) Development Process, FHWA, existing environmental protection measures to
April 1992. absorb an increased load (e.g.. water treatment
plant must work harder because of more pollutants
due to project). secondary and induced
Guidance for Preparing and Any land use activities that can be considered
Processing Environmental and secondary, including social, economic and
Section 4(f) Documents, environmental. secondary
T 6640.8A, 1987.
Federal Transit Procedures and Technical Increased congestion resulting from development;
Administration Methods for Transit Project impact on parking and highway traffic; increased
(FTA) Planning, September 1986. demand for housing near a rail station could have
the effect of raising rents and driving out poorer
tenants; availability of commercial space could be
affected by changes in residence patterns;
impaired access to buildings, parks, transit delays,
etc., all due to construction. secondary
development
U.S. Department of Impacts of secondary development on community
Transportation (U.S. DOT), development patterns; changes in local
Urban Mass Transit infrastructure; changes in local socioeconomic
Administration Circular, UMTA characteristics. secondary development
C 5620. 1, Guidelines for
Preparing Environmental
Assessments, October 16, 1979.
Federal Order 5050.4A Airport Shifts in patterns of population movement and
Aviation Environmental Handbook, U.S. growth, public service demands, and changes in
Administration DOT, FAA, October 8, 1985. business and economic activity due to airport
(FAA) development; regional growth and development,
spin-off jobs, induced impacts on natural
environment. indirect
Tips for Airport Sponsors and Population increases, public service demands (fire
Their Consultants, FAA, and police), and changes in economic activity due
Southwest Region, 1993. to operation of airport. indirect
Estimating the Regional Off-site economic activities attributable to the
Economic Significance of airport, such as travel agency services, hotels,
Airports, U.S. DOT, FAA, pp. restaurants, retail establishments. indirect
92-96, September 1992.
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U.S. Fish and USFWS, NEPA Handbook, Vegetation management causing a change in plant
Wildlife Release 304, September 1983. species which can result in a change in grazing
Service patterns and animal population; changes in native
(USFWS) fish stock due to artificial fish stocking which
increases food demand (by predators) in that
stream. final ultimate change
U.S. U.S. EPA Dredge or Fill For an ecosystem: fluctuating water levels in an
Environmental Regulations, 404(b)(1) impoundment and downstream associated with the
Protection Guidelines, Section 230.21(b). operation of a dam, septic tank leaking and
Agency surface runoff from residential or commercial
(U.S. EPA) developments on fill, and leachate and runoff
from a sanitary landfill located in waters of the
United States. secondary
*Source: NCHRP 1996, (Table 1, Page 15)
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SECTION II
INDIRECT AND CUMULATIVE IMPACTS ASSESSMENT
IN NORTH CAROLINA: THE STATE OF THE PRACTICE
1.0 Objective
The objective of this section is to identify the state of the practice of indirect and cumulative
impact assessment in North Carolina and to compare the North Carolina practice to the practices in
other states. A comparison to other states' practices and the requirements leads to identification of
gaps in practice.
2.0 Current Practice in North Carolina
2.1 NEPA
Under the NEPA umbrella there are three levels of environmental studies, namely the
Environmental Impact Statement (EIS), Environmental Assessment (EA) and Categorical Exclusion
(CE). Categorical Exclusion level studies are for actions which "... do not induce indirect
significant impacts to planned growth or land use... " or "... do not otherwise, either individually
or cumulatively, have any significant impacts " (23 C.F.R. § 771.117). Therefore, CEs by definition
do not have significant indirect and cumulative effects.
A review of over 20 recent EA and EIS studies for NCDOT projects shows indirect and
cumulative effects assessments to be lacking in most projects reviewed. Typically indirect and
cumulative effects analysis were historically not included as an issue or a contract item when projects
were scoped and negotiated. NEPA studies conducted in-house by NCDOT were also found to
typically not address indirect and cumulative effects.
Assessment of direct effects is the primary focus of the current practice by NCDOT for
compliance with NEPA. This is due to direct effects being easier to measure and therefore assess.
Indirect and cumulative effects have usually not addressed formally in the documents although they
(one or two specific issues) may be identified briefly.
2.2 SEPA
Proposed state and federal agency projects in North Carolina are submitted for state review
through the state clearinghouse in the Department of Administration. Those proposed projects
submitted under SEPA comprise about 300 projects annually (Personal Communication, Chrys
Baggett, NC Department of Administration). These projects include those related to: water and
wastewater, prisons, university facilities and buildings, as well as transportation projects.
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Under North Carolina law, each agency may establish specific criteria (1 NCAC 25.0301(x)),
through the standard rule making procedures, regarding the minimum thresholds necessary to trigger
a requirement for a SEPA environmental study of a proposed action. Non-Major Actions are those
federal and state funded actions which have a minimal potential for adverse environmental impacts.
State funded non-Major Actions, according to the minimum criteria, do not require preparation of
a state environmental document. Major Actions are those actions of considerable importance,
involving a substantial commitment of time and resources, which may have an adverse impact to the
natural or cultural environment (NCDOT, 1993). Unless a SEPA document is prepared under a lead
agency designation, the project will have to meet the non-major action criteria of other state agencies
to meet the requirements of SEPA without preparing a document.
State funded projects which meet the minimum criteria threshold are not exempt from the
regulatory requirements enforced by other state and federal agencies, such as the US Army Corps
of Engineers and the Department of Environment and Natural Resources. It is the responsibility of
the agency sponsoring the project to obtain all required permits and licenses, and to coordinate with
other agencies during the project development process (NCDOT, 1993).
3.0 Current Practice in Other States
Practices by DOTS in other states regarding indirect and cumulative effects assessment were
reviewed to assess what might be learned from their experiences. The following discussions
highlight the current practices of the DOTs in Florida (FDOT), Wisconsin (WisDOT) and Illinois
(IL DOT).
3.1 Florida
Historically, FDOT has taken the position that the Department of Transportation is not the
growth management agency of the state. Indirect and cumulative effects therefore, are considered
as factors which must be examined as part of the local jurisdictions and MPOs comprehensive
planning process. However, FDOT does have a requirement that their projects and plans must be
consistent with the comprehensive plans approved by the local governmental units.
Environmental agencies have not been satisfied with this local approach, however, as changes
in local personnel (elected and staff level), regulations/zoning, and political priorities have resulted
in failure to support the long-term environmental commitments which were made. This has resulted
in a loss of credibility with the agencies and difficulty on subsequent FDOT projects (Personal
Communication, Gary Evink, FDOT).
In the late 1990s the Governor's office put together a Working Group, which included all
state and federal agencies, to deal with growth management issues and their implications. A study
on "Secondary and Cumulative Environmental Impacts of Transportation Projects" by the Florida
Atlantic University/Florida International University (FAU/FIU) Joint Center for Environmental and
Urban Problems (FAU/FIU, 1998) for the FDOT helped identify specific issues and made
recommendations which were considered by the Working Group. The Working Group settled on
an early environmental screening approach in the Metropolitan Planning Organization (MPO)
transportation systems planning process. The Comprehensive Plans developed would include any
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environmental commitments made at the local level. As an integral part of these plans, the Working
Group believed that the environmental commitments would be less likely to be overlooked by local
governmental units. Thirteen screening elements were developed to help identify potential indirect
and cumulative effects issues.
This approach allows the more broad scale indirect and cumulative effects issues to be dealt
with at the earlier, comprehensive planning stage. FDOT then is able to focus on dealing with the
natural resource issues more directly related to their project, such as off-site effects of blocked or
enhanced drainage, habitat fragmentation/maintenance of wildlife corridors, etc. The Development
Regional Impact (DRI) process remains very controversial in Florida, however, as citizens groups
feel it usurps local control, while environmental groups feel it does not go far enough to protect the
environment.
Currently, FDOT is also involved with the FHWA in streamlining the environmental
assessment process. This streamlining can be expected to further complicate the indirect and
cumulative effects assessment process.
3.2 Wisconsin
Wisconsin DOT (WisDOT) has developed a technical reference guidance document for
addressing indirect and cumulative effects for project-induced land development (WisDOT, 1996).
Their guidance provides a seven-step analysis framework for conducting indirect and cumulative
effects analysis, provides some background and reference information, and provides more detailed
information on specific analysis techniques. The guidance does not, however, specifically describe
how an indirect and cumulative effects analysis should be conducted. The seven-steps are:
0 Define the project study area,
© Analyze the existing patterns and trends for land use and development,
© Analyze the extent of land use planning and regulation,
0 Understand the type of transportation project,
© Assess the potential for project-induced land development,
0 Assess potential consequences to the human environment, and
0 Describe tools to manage land development.
These seven-steps do not need to be undertaken sequentially. Steps 0 and 0 need to be pursued
early in the process because they define the area, time and issues for assessment in steps © and 4.
However, data collected in steps © and 4 could change the initial conclusions of the other steps.
As part of the seven-step process, WisDOT has developed, a screening worksheet which
functions as a checklist. The checklist also allows appropriate details to be provided. WisDOT is
using this screening worksheet to direct projects to different levels of NEPA analysis. They currently
recognize four levels of projects. WisDOT is also undertaking their projects as if they were all
federally funded and therefore requiring the appropriate level of NEPA study and assessment. In
practice, WisDOT feels that they will be preparing more EIS level studies than they have in the past.
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The WisDOT guidance has been tried on only a few non-controversial EIS projects, but the
Environmental Protection Agency (EPA) has accepted the process proposed by WisDOT (Personal
Communication, Susan Fox, WisDOT).
WisDOT is also working with FHWA to streamline the environmental assessment process
and is experimenting with using their completed screening worksheets as a major component of the
EIS document itself. WisDOT is also working with EPA to develop a computer model for indirect
and cumulative effects assessment.
3.3 Illinois
The Illinois DOT (IL DOT) has recently initiated indirect and cumulative effects assessment
as part of the NEPA compliance for their projects. They are requiring that indirect and cumulative
effects be addressed in all EIS level studies, but not at the EA level. IL DOT has not sanctioned a
specific methodology, but is requiring evaluation of indirect and cumulative project effects related
to: water quality, wetlands, threatened & endangered species, flood plains, etc. IL DOT feels that
the intent of NEPA and the CEQ regulations is directed at indirect and cumulative effects to natural
resources rather than to social/economic and other resources.
IL DOT is also documenting their environmental analyses of indirect and cumulative effects
as a separate chapter in the NEPA documentation rather than including it as part of the chapter on
environmental consequences. (Personal Communication, Barbara Stevens, IL DOT).
4.0 Assessment Needs in North Carolina
Initial review of NEPA practices in North Carolina and other states regarding "gaps" in the
practice resulted in the identification of three categories of needs, namely Technical, Procedural, and
Policy. Note that there is some overlap with some needs falling under more than one category.
4.1 Technical Needs
• Standardized terminology and definitions statewide as per regulations and policy.
• Assessment of indirect and cumulative effects on a broad scale to assist in major-investment
decision making.
• Training NCDOT and review agencies' staffs about indirect and cumulative effects
requirements, methodology and responsibilities.
4.2 Procedural Needs
• Develop MOAs with agencies regarding indirect and cumulative effects assessment and the
criteria that agencies will use to review environmental documents.
• Review of indirect and cumulative effects should acknowledge the potential uniqueness of
each project and be flexible to accommodate differing approaches and detail.
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4.3 Policy Needs
• Coordinate with agencies and public to ensure all significant potential indirect and
cumulative effects are assessed during the project study.
• Do the NEPA/SEPA and CEQ regulations allow indirect and cumulative effects to be
addressed at comprehensive planning stage, unrelated to specific projects? Is comprehensive
planning adequate throughout the state to allow indirect and cumulative effects to be
considered earlier in the comprehensive planning process?
• Agencies need to recognize that because control of some issues, such as land use, is beyond
the mission and jurisdiction of the sponsoring agency (i.e., NCDOT), DOT can not mitigate
such issues.
4.4 Other issues and needs
4.4.1 Environmental Impact Statements
• EIS level studies require identification and assessment of significant indirect and cumulative
effects as part of environmental documentation.
• Indirect and cumulative effects should be included with direct effects during project scoping
with agencies and the public.
4.4.2 Environmental Assessments
• EA level studies require scoping at an early stage to allow for the identification of potential
indirect and cumulative effects. To end the environmental document process with a FONSI,
the FONSI should include a determination that the project will not result in a potential for
"significant" indirect or cumulative effects.
• Indirect and cumulative effects should be included with direct effects during project scoping
with agencies and the public.
4.4.3 Categorical Exclusions or Non-Major Actions Under SEPA
• CE level projects will not be included as projects contributing either individually or
cumulatively to significant effects.
4.4.4 Mitigation
• Avoidance or mitigation for indirect and cumulative effects must be assessed when the
indirect and cumulative effects will be "significant."
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5.0 Lessons Learned
The FDOT and NCDOT experiences with indirect and cumulative effects assessment on
NEPA projects show that problems arise when permitting agencies rely on environmental
commitments from non-DOT governmental agencies to mitigate or avoid "significant" indirect or
cumulative effects (i.e., counties, municipalities). Commitments have not been honored as local
priorities change.
Overall, it is probably too soon to assess success of the approaches to indirect and cumulative
effects being tried by the Florida, Wisconsin and Illinois DOTs.
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Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policv Report
SECTION III
NCDOT GUIDANCE ON INDIRECT AND CUMULATIVE EFFECTS
ASSESSMENT UNDER NEPA/SEPA IN NORTH CAROLINA
1.0 PURPOSE OF THIS GUIDANCE
The general purpose of this guidance is to provide NEPA/SEPA practitioners in these
agencies with a tool to help in the identification, analysis, and assessment of indirect and cumulative
effects as part of the NEPA and/or SEPA assessment processes conducted by NCDOT. This
guidance is also intended to help review agencies understand NCDOT's assessment of indirect and
cumulative effects under NEPA/SEPA. Specifically, this guidance on indirect and cumulative
effects is intended to meet the following objectives:
? Describe the terminology related specifically to indirect and cumulative effects assessment
as defined by the regulations and clarified by the courts.
? Apply the existing case law regarding indirect and cumulative effects assessment to
interpretations of terms and applicable practices under NEPA/SEPA.
? Provide direction on project scoping issues and their implications for addressing indirect and
cumulative effects.
? Provide direction on identification and evaluation of project-induced growth effects.
? Suggest various methodologies and techniques which may be considered when undertaking
indirect and cumulative effects assessment.
? Describe a framework for incorporating indirect and cumulative effects in NEPA/SEPA
documents, e.g., environmental assessment or environmental impact statements, as well as
in the planning and other activities which precede the documents.
This guidance is not binding and can not be cited as the NCDOT interpretation of federal or state
statues or rules and regulations.
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2.0 STATUTES AND REGULATIONS
Numerous Federal and North Carolina statutes and regulations are relevant to indirect/cumulative
effects assessment. These statues and regulations are detailed in Section I and include:
• National Environmental Policy Act (NEPA),
• Council on Environmental Quality(CEQ) regulations,
• North Carolina Environmental Policy Act (SEPA), and
• elements of the North Carolina Administrative Code.
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3.0 TERMINOLOGY
This section contains key terms used in indirect and cumulative impact assessment.
Definitions that are directly from the regulations or interpreted from the courts are referenced.
Direct Effects are those effects that "... are caused by the action and occur at the same time
and place." (CEQ 1986, 40 CFR § 1508.8(a)).
Indirect Effects are those effects that "... are caused by the action and are later in time and
farther removed in distance, but are still reasonably foreseeable." Indirect effects "may include
growth-inducing effects and other effects related to induced changes in the pattern of land use,
population density or growth rate, and related effects on air and water and other natural systems,
including ecosystems."(CEQ 1986, 40 CFR §1508.8(b)). The terms effects and impacts are used
synonymously in the CEQ regulations (see in 40 CFR § 1508.8(b)).
There are three main forms of indirect effects (NCHRP Report 403 Guidance for Estimating
the Indirect Effects of Proposed Transportation Projects ):
Encroachment-Alteration Effects - alteration of the behavior and functioning of the
affected environment caused by project encroachment (physical, chemical, or biological) on the
environment
Induced Growth Effects - changes in the intensity of the use to which land is put that are
caused by the action/project. These changes would not occur if the action/project does not occur. For
transportation projects, induced growth is attributed to changes in accessibility caused by the project.
Induced Growth Related Effects - alteration of the behavior an functioning of the affected
environment attributable to induced growth.
A project may involve one or more of these types of effects.
Cumulative effects are "environmental impacts resulting from the incremental effects of
an activity when added to other past, present and reasonably foreseeable future activities regardless
of what entities undertake such actions. Cumulative effects can result from individually minor but
collectively significant activities taking place over time and over a broad geographic scale, and can
include both direct and indirect impacts." (see 40 CFR § 1508.7).
The Council on Environmental Quality (1998) issued a handbook on cumulative effects that
organizes such effects into four types:
? Type 1 - repeated "additive" effects from a single proposed project.
Type 2 - stresses from a single source that interact with receiving data to have an
"interactive" (non-linear) net effect.
Type 3 - effects arising from multiple sources (projects, point sources, or general
effects associated with development) that affect environmental resources additively.
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Type 4 - effects arising from multiple sources that affect environmental resources in
an interactive (i.e., countervailing or synergistic fashion).
Cumulative effects Types 1 and 2 (single action) are generally similar to encroachment - alteration
indirect effects. Moreover, cumulative effects types 3 and 4 (multiple actions) are generally similar
to effects related to induced growth (which generally relate to other actions in addition to the
transportation project).
Reasonably Foreseeable is defined in three court decisions:
"...Reasonably Foreseeable consequences of induced development projects are reasonably
foreseeable if the impact is sufficiently likely to occur that a person of ordinary prudence would take
it into account in reaching a decision" (Sierra Club v. Marsh, 976 F2d 763,767 (V Cir. 1992) (Sierra
Club IV)).
"... An environmental impact would be considered `too speculative' for inclusion in an EIS
if it cannot be described at the time the EIS is drafted with sufficient specificity to make its
consideration useful to a reasonable decision." (Dubois v. U.S. Department ofAgriculture, 102 F.3d
1273, 1286 (1 S` Cir. 1996).
The 5' Circuit Court noted that "... the CEQ regulations require analysis of direct, indirect
and cumulative impacts and held that in this context, the impacts were not limited to those from
actual proposals, but must also include impacts from actions which are merely being contemplated
(i.e., are not yet ripe for decision). However, the court noted that contemplated actions must be
"reasonably foreseeable," not speculative and not off in the distant future." (Fritiofson v. Alexander,
772 F.2d 1225 (5`h Cir. 1985)) Reasonably foreseeable includes uncertainty; however, the effects
must also be probable (46 FR 18026, as amended, 51 FR 15618).
Significance is "... the degree to which the proposed action affects public health or safety;
the unique geographical characteristics of the surrounding area; the potential for controversy; the
possibility of unknown risks; and the potential effect on endangered species." (40 CFR §1500 -
1508). The 2°d Circuit court developed a two part test for determining the significance of indirect
effects involving: 1) degree of change from current land use; and 2) absolute, qualitative adverse
environmental impacts of the project. (Haply v. Mitchell, 460 F.2d 640, 647 (2°d Cir. 1972)).
Context is the setting to which an effect occurs, be it over time, distance or area. Context
is one of the two factors used to determine whether an effect is significant. (40 CFR § 1508.27(a)).
Intensity refers to the severity of an impact. Intensity is one of the two factors used to
determine whether an effect is significant. Note that different review agencies may view the severity
of impacts quite differently. The following ten factors should be considered in evaluating intensity
(40 CFR § 1508.27(b)). These factors include:
(1) "... both beneficial and adverse impacts should be considered.
(2) ... the degree to which the proposed action affects public health and safety.
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(3) Unique characteristics of the geographic area such as proximity to historic or cultural
resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically
critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to be
highly controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or
involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with significant
effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but cumulatively
significant impacts. Significance exists if it is reasonable to anticipate a cumulatively
significant impact on the environment. Significance cannot be avoided by terming the action
temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways, structures, or
objects listed in or eligible for listing in the National Register of Historic Places or may cause
loss or destruction of significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or
its habitat that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements
imposed for the protection of the environment." (40 CFR 1508.27(b))
Accessibility - The ease of movement between places. As movement becomes less costly--
either in terms of money or time--between any two places, accessibility increases. The propensity
for interaction between any two places increases as the cost of movement between them decreases.
Accessibility is also defined as the attractiveness of a place as an origin (how easy it is to get from
there to all other destinations) and as a destination (how easy it is to get to there from all other
destinations). Consequently, the structure and capacity of the transportation network affect the level
of accessibility within a given area. The accessibility of places has a major impact upon their land
values (and hence the use to which the land is put), and the location of a place within the
transportation network determines its accessibility.
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4.0 SCOPING
Scoping is the key to proper and timely identification and analysis of indirect and cumulative
effects. Scoping provides the best opportunity to identify potentially significant issues, set
appropriate boundaries for the analysis and identify relevant past, present and future actions.
Scoping also allows for the setting of the environmental baseline for which all effects are compared.
Under the federal CEQ regulations (40 CFR Part 1500 - 1508) specific details regarding
scoping are provided at §§ 1501.7. As part of this scoping the lead agency shall: "... determine the
scope and significant issues to be analyzed in depth in the Environmental Impact Statement." (§§
1501.7(a)(2); and "... identify and eliminate from detailed study the issues which are not significant
or which have been covered by prior environmental review (§ 1506.3), narrowing the discussions
of these issues in the statement to a brief presentation of why they will not have a significant effect
on the human environment or providing a reference to their coverage elsewhere." (§§ 1501.7(a)(3).
These issues include those that have indirect and cumulative effects as well as direct effects.
Indirect and cumulative effects should be considered in the scoping process for both NEPA
and SEPA documents.
Scoping should generally:
? identify potentially significant issues and effects for further analysis,
? identify social, cultural and natural ( hysical and ecological) resource issues that effect the
human environment,
? identify federal, state and other government, and private actions,
? identify all past present and future actions.
Figure 1 provides a decision tree for scoping potentially significant indirect and cumulative
effects requiring detailed analysis. Tables 1 through 16 have been developed to assist scoping,
impact identification, and impact assessment. While it is not necessary to complete the checklists,
the checklists can aid data identification and organization. Checklists corresponding to the various
scoping steps are referenced by table number.
Scoping of potentially significant indirect and cumulative effects should be timed to coincide
with the transportation problem identification step of the generic transportation project planning and
development process. The objective is to define goals of the study area, e.g., preservation of
community character or a particular ecosystem, in an effort to complement the conventional
transportation goals or problems, e.g., traffic safety, inadequate level of service, etc. Better
understanding of the interrelationships between an area's transportation and other goals early in the
transportation development process can lead to better anticipation of a proposed transportation
project's indirect effects issues, e.g., a balance between conflicting needs and goals. Consequently,
the social, economic, and environmental goals of the subject area plus the transportation goals can
be used as input to forming a project proposal, the next step in the generic transportation project
planning and development process.
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Figure 1
Decision Tree for Scoping Potentially Significant Indirect and Cumulative Effects
Requiring Detailed Analysis
1 Project Purpose and Need
Yes Detailed analysis of
Explicit economic development purpose? 11 induced growth
effects required
No, Skip to Step to
Proceed to 2 determine type
2. Planning Context
Yes Detailed analysis of
Conflict with local plan? No induced growth
effects required
No, Proceed to 3 to
Proceed to 3 determine type

3. Project Description - Systems Context
Yes
Planned to serve specific land development? p
1 No
Detailed analysis of

Yes this type of induced
Likely to stimulate land development having growth required
complementary functions? 1
1 No Proceed to 4
LikelY to influence intrare9ional land Yes
development location decisions? 10
No,
Proceed to 4
4. Environmental Context
Yes
Notable Feature present in impact area? I Proceed to 5
No
Detailed analysis of encroachment-ateration
effects not required.
End significance evaluation.
5. Project Description - resign Context
Yes Detailed analysis of
Notable Feature significantly impacted? -? encroachment-
alteration effects
No required
Detailed analysis of encroachment-alteration
effects not required.
End significance evaluation.
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4.1 Considerations
This section highlights key considerations in scoping the indirect and cumulative impact
assessment.
4.1.1 Project Purpose and Need
Economic development (from induced growth) is often cited as justification for proposed
transportation projects. Indeed, certain programs, e.g., "development highways," are authorized by
legislation with economic development as their intent. With respect to indirect and cumulative
impact assessment, the questions of confidence in and specificity of types of induced growth or
secondary impacts as set forth in various court decisions can often be condensed into a single
question: if the benefits of induced growth are "selling points" of the project, including those that
are legislated, an EA/EIS must consider them. Ignoring selling points in an EA/EIS can lead to
segmentation and a judicial finding of inadequacy. In other words, addressing the virtues of induced
growth while ignoring its disadvantages is certainly not the "environmental full disclosure" required
by NEPA and SEPA.
Among the potential externalities of project-induced growth are: increased population,
increased traffic, increased pollution, and increased demands for services such as utilities, education,
police and fire protection, and recreational facilities. If a project's justification depends in whole or
part on marketing induced growth or other project-generated benefits to the area, e.g., access to a
major activity center, then there is no question that such effects are "reasonably foreseeable" and
must be included in the NEPA/SEPA document.
4.1.2 Study Area
The study area consists of the broad geographic limits within which the proposed project
would likely have an influence. For encroachment-alteration effects, these limits may be defined by
the limits of environmental systems, e.g., watershed boundaries or regional landscape units. For
induced growth effects, these limits may be defined by the area over which the project could
influence travel costs or travel patterns. These limits may be defined by the travel forecasting model,
where employed, or an area ranging between 15 and 30 minutes travel time from the proposed
project (for induced growth effects, the influence of freeway interchanges generally extends up to
a one-mile radius, up to two to five miles along major feeder roadways to the interchange, and up
to one-quarter mile around a fixed guideway transit station). Political and U.S. Census geography
should also be considered in delimiting the study area for practical purposes.
It should be expected that the study area boundaries will be refined as the project proceeds
from planning to project development. Since it is obviously easier to narrow the study area for focus
rather than to expand the study area, it is advisable to err on the side of inclusion during the planning
phase.
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4.1.3 Planning Context
Consistency with local plans is one of the project evaluation criteria for NEPA/SEPA.
Potential inconsistency between a project's indirect effects and planned development patterns
expressed in adopted plans (as well as zoning adopted to enforce the plans) is a potentially
significant issue for the project's NEPA/SEPA evaluation. In addition, the project's cumulative
impact assessment needs to account for planned future development as expressed by any relevant
adopted plans. In addressing indirect and cumulative impact assessments as part of environmental
impact statements, courts have found that current and contemplated plans of private parties and local
government outside the direct control of state and Federal government must be reviewed. Based
upon that review, reasonable forecasting of the type of development must be conducted.
Land use control in North Carolina, where it is employed, is very similar to comprehensive
(synoptic) planning and zoning used widely throughout much of the United States. Zoning
regulations are made in accordance with a comprehensive plan and designed to address a public
purpose. Zoning regulations are made with consideration as to the character of the district, suitability
of particular uses, and a view toward conserving the value of buildings and encouraging the most
appropriate use of land as identified by the municipality's planning process.
There are several other formal planning processes in North Carolina, certain of which are
geographic specific. Among those covering relatively large areas are the following: multi-objective
plans and policies adopted pursuant to the Coastal Area Management Act covering areas within the
State's designated coastal zone; long range transportation plans adopted by metropolitan planning
organizations covering the State's designated urbanized areas; multi-objective water quality
management plans covering the State's river basins; and the State Implementation Plan for air quality
standards attainment.
Social, economic, and environmental goals expressed through formal plans reflect a current
vision of a desired future. Because of their inherent rippling effect over space and time, one way to
measure a transportation system's or project's indirect effects is to envision the future both with and
without the system or project improvements. Consideration of various goals early in the planning
process can help focus the effort toward balancing transportation and other needs, and also toward
understanding potential indirect (and cumulative) effects.
Empirical evidence indicates that transportation investment and changes in land use occur
only in the presence of other factors, such as supportive local land use policies and development
incentives, availability of developable land, and a good investment climate. Therefore, an
understanding of local goals combined with an understanding of the role that a transportation
investment could play in achieving these goals, given local circumstances, could lead to the
coordinated formulation of a broad range of actions for reaching these goals. Ideally, the desired
future or outcome should lead, and the transportation solution combined with other appropriate
strategies, e.g., land use, environmental protection, and housing, should follow.
As discussed above, proposed transportation improvements are often planned to support an
area's economic development goals. In this case, the anticipated economic growth and land use
conversion from that growth are to be treated as indirect effects of the transportation project.
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Understanding the economic development goals should not only help formulate the scope of the
proposed transportation improvement, but will also help eventually understand the nature of the
induced indirect effects.
While it is recommended that available plans be used to help determine the area's various
goals, several items should be kept in mind:
? the age of the plan - In many areas there is no requirement for periodic updating of
comprehensive plans even where there is a formal planning process. Political winds tend to
change over time and a dated plan may not reflect the area's current needs and goals.
? the geographic area covered by the plan - Often, an incorporated area may have a
comprehensive plan and zoning while an adjoining unincorporated area does not. There is
empirical evidence that metropolitan regions where cities have expanded spatially (by
annexing adjoining areas) have experienced relatively minimal disinvestment in central
business districts, suburban sprawl, and related ills as compared to other regions. The
distinction between the incorporated and unincorporated area in terms of current land use
may not be clear. However, the absence of land use controls in the unincorporated area and
may affect the character of future urbanization in the incorporated area. In addition, one
municipality's growth management plan may not conform to the overall plan for a region.
? who was involved in preparing the plan - It is important to know, for example, whether or
not the local citizenry has bought into a resources management plan prepared by a non-local
entity.
? the degree of importance attached to the goals by the public and their decision-making
authorities. For example, a history of extensive zoning variances or zoning changes maybe
indicative of a weak plan. The past three-to-five year history of use and density variance
applications versus issuances, as well as outright zoning changes, should be examined in
assessing the ability of an area to control growth following a major transportation
improvement. The assessment of the resiliency, or lack thereof, of development controls is
important as illustrated by two divergent court cases. In one case, the court found that even
though zoning changes may be necessary to alter existing uses of land, if a major Federal
action makes it likely that such changes will occur, the action will have an indirect effect on
the environment. In another case, involving the extension of an interstate highway, the court
relied on testimony regarding history of enforcement of the county land use plan as evidence
which pointed strongly against induced development because (1) the history of and projected
increases in population growth for the study area demonstrated that growth will occur
because of market demands even when transportation is lacking; (2) there was already some
development in the study area, and development would continue there as planned and
allowed under the county's land use plan, whether or not the highway was constructed,
because it is the next logical area for development, and (3) all the evidence indicated that the
land use plan is, and will continue to be, enforced. It can be concluded that a general rule (or
presumption) exists that equates new transportation access with secondary development.
However, this presumption can be rebutted through a demonstration of viable and effective
regional land use plans which generate confidence in their stringent enforcement.
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Adopted comprehensive plans can also provide information on other entities' future actions
for consideration in the indirect and cumulative impact assessment. Such information includes that
on planned infrastructure (water, sewer, road) construction and expansion; private or public
investment in major developments (activity centers) for construction, redevelopment or expansion;
and, investments or programs for environmental restoration or preservation. Where applicable,
information on the project sponsor (entity responsible), concept and scope, status, and likelihood of
occurring should be compiled.
Rural areas in the State generally lack comprehensive land use plans and corresponding
zoning. Consequently, it may be prudent to use a public involvement method or methods to gather
information on development directions and goals when a major project is planned in a rural area of
the State. Even in areas where there is an up-to-date comprehensive plan and an effective land use
development review process, it is probably wise to use a public involvement method or methods to
at least confirm the directions and goals expressed in the plan, plus to gather information on the
area's directions and goals first hand, when appropriate. This greater level of detail may be needed
for subsequent indirect effects assessment if issues are anticipated.
A number of public involvement techniques are advocated for obtaining the perceptions or
opinions. For example, the U.S. DOT document, Innovations in Public Involvement for
Transportation Planning, is a notebook which outlines various practical techniques of public
involvement that can be used in a variety of situations. The reader should consult these and other
pertinent documents for details.
The area's expressed goals give a part of the picture needed to understand potential indirect
and cumulative effects in a "big picture" context. It is also important to understand direction, i.e.,
where an area has been, where it is, and where it is going. Direction can be understood in part by
identifying past, present, and anticipated socioeconomic, environmental quality, and land
development trends. Equally important is knowing the forces that have shaped landscapes, economic
activity, and land use patterns, e.g., transportation system, physical environment, political, and
market influences, and how the forces have been influential (the same is true of existing and
anticipated forces).
The impacts of past actions (one of the considerations for cumulative impact assessment) can
be assessed through a combination of the following techniques (among others):
? demographic trends (population, employment, educational attainment, household income,
etc.) from U.S. Census data.
? landscape changes from interpretation of a time series of aerial photography and/or local
documented historical accounts.
? concentration of and mix of industries from historic business reports.
? transportation system development trends and trends in how the transportation system
historically influenced land development.
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The data collection task for this factor should generally rely on readily attainable sources. The
data collection should not be viewed as an end in and of itself, but rather as a foundation for future
steps. Data for this purpose can be both quantitative and qualitative. The checklists provided in
Tables 1 and 2 are for use in identifying, organizing, and documenting the planning context.
4.1.4 Project Description - Transportation System Context
Changes in accessibility imply changes in travel demand and travel patterns. Modeling of
travel demand in transportation systems has been common practice for decades, and is required by
federal regulations in urbanized areas. In modeling practice, a project (or change in the system)
needs to be of a certain size to produce a measurable change in travel demand or travel patterns.
Therefore, it follows that only those projects that could produce a measurable change in travel
demand or travel patterns (and, thus, accessibility) need to be examined for indirect and cumulative
effects in the transportation system context (regardless of whether the project is in an urbanized area
or a rural area). Table 3 provides a checklist for categorizing new highway construction projects on
the basis of system characteristics. Table 4 lists transportation project types that potentially change
local and regional accessibility.
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TABLE III-1
ORGANIZATION AND TABULATION OF GOALS CHART
(Check where applicable)
Social Health and Well-Being Goals
- Achieve adequate, appropriate and accessible
open space and recreation
- Comply with state and federal water and air
quality laws
- Preserve or create multicultural diversity
- Preserve heritage
Provide choice of affordable residential
locations
Provide urban environment for those with
special needs
- Promote land use patterns with sense of
community
- Provide a range of services accessible to all
- Promote a healthy and safe environment
- Provide sound management of solid and
hazardous waste
Other
Economic Opportunity Goals
- Support activities to meet changing
economic conditions
- Provide energy-efficient transportation
- Provide developments with transit-supported
capabilities
- Target economic export activities
Attract and maintain workforce
Promote infill of smaller, passed-over sites
Encourage redevelopment of older areas for
new purposes
Other
Ecosystem Protection Goals
- Protect ecosystems
- Minimize fragmentation
- Promote native species
- Protect rare and keystone species
Protect sensitive environments
- Maintain natural processes
- Maintain natural structural diversity
- Protect genetic diversity
- Restore modified ecosystems
Other
Notes
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TABLE III-2
STUDY AREA DIRECTIONS AND GOALS CHECKLIST
(Check where applicable)
1. Generalized Setting
Within Metropolitan Statistical Area (Identify MSA)
Outside of MSA _
Both Inside and Outside MSA Indicate Distance to Nearest Metropolitan Center
2. Characteristics of Transportation System (Note: These items are not intended to cover entire transportation need but rather to use information from more detailed
assessments to provide a preliminary indication of existing accessibility, service and modal interrelationship characteristics, i.e., factors relevant to subsequent indirect effects
analysis).
• Identify missing links in transportation system
• Map and describe existing level of service on minor and principal arterials and their access characteristics.
• Indicate distance to nearest interstate highway if not in study area.
• Map and describe existing transit routes and demand.
• Map and describe major concentrations of existing and planned development.
• Describe modal interrelationships including competing and complementary characteristics.
3. Population Trend Projection
Declining
Static (tl %,/] 0 years)
Slow Growth
Rapid Growth (>10%/10 years)'
Employment Trend Projection
Declining
Static (±I %/10 years)
Slow Growth
Rapid Growth (>10%/10 years )
4. Planning Context
Yes No If yes, identify by title, agency and date
Zoning _
State Master Plan _
County/Regional Master Plan
Municipal Master Plan _
Growth Management Plan _
Water Quality Management Plan
Other Natural Resources Management Plan
5. For each plan identified in No. 3, summarize key goals, elements and linkages to other plans (specify, in particular, elements related to economic development, land
use development, the transportation system, and natural resource protection).
6. Describe any efforts to elicit local needs and goals from residents and/or agencies (source and result).
7. Describe known plans for major new or expanded activity centers including public facilities.
Is the activity center dependent on transportation system improvement? Yes No
8. Is the transportation need linked to economic growth and land development? Yes _ No _
If yes, is the nature of the linkage to:
Serve the needs of planned growth or
Channelize growth or
Stimulate growth or
9. Based on information obtained, are there any apparent conflicts between transportation and other needs that could result in controversy? (Describe).
Yes Possible No

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TABLE III-3
CHARACTERIZATION OF NEW HIGHWAY CONSTRUCTION
1. Type of new construction:
a. Bypass: yes no
b. Connector Road: yes no
c. Roadway Relocation: yes no
d. New Highway Construction: yes no
e. New Interchange Construction: yes no
f. Others: yes no describe:
Please answer questions 2 and 3 relating to current conditions on the primary existing route If a model is
used, please provide node numbers.
2. Road Section Description
a. Name (SR Route):
b. From: Node #
c. To: Node #
d. Segment Length:
e. Function Class (Check one):
- Rural Interstate _ Other Princ. Art. Minor Art.
- Major Collector _ Minor Collector Local
- Urban Interstate _ Other Freeway _ Other Princ. Art.
- Minor Art. _ Major Collector _ Local
f. Area Type (check one) _ Rural - Small Urban Urban
3. Traffic Data:
a. Annual Average Daily Traffic (AADT) Volume: veh/day
The above traffic count is (check one): One-way Two-way
b. Average Weekday Daily Traffic (ADWT) in July: veh/day
c. The above traffic count is (check one): One-way Two-way
Please answer questions 4 and 5 concerning the new alignment. If a model is used, please provide node
numbers.
4. New Road Description:
a. Name (SR Route):
b. From: Node #
c. To: Node #
d. Segment Length:
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e. Function Class (Check one):
Rural Interstate Other Princ. Art. Minor Art.
- Major Collector - Minor Collector _ Local
- Urban Interstate - Other Freeway _ Other Princ. Art.
- Minor Art. - Major Collector _ Local
f. Area Type (check one) - Rural - Small Urban _ Urban
5. Traffic Forecast (not needed for model):
a. New alignment volume: Estimated average daily traffic: veh/day
The above traffic estimate is (check one): One-way Two-way
b. Estimated Peak Hour Diversion from Parallel Facilities:
i. From Freeways:
From Street: Volume (vph)
To Street:
From Street: Volume (vph)
To Street:
From Street:
To Street:
ii. From Arterials:
From Street:
To Street:
From Street:
To Street:
Volume (vph)
Volume (vph)
Volume (vph)
From Street: Volume (vph)
To Street:
iii. From Locals:
From Street: Volume (vph)
To Street:
From Street: Volume (vph)
To Street:
From Street: Volume (vph)
To Street:
Section III: Guidance Page 111-16
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
TABLE III-4
EXAMPLES OF MINIMUM PROJECTS WHICH POTENTIALLY CHANGE
LOCAL OR REGIONAL ACCESSIBILITY
1) Highway/Roadway
a) New construction or new alignment. Principal Arterial or above, 1 mile or longer;
b) Widening of Principal Arterial or above to provide additional through-traffic lanes, 1 mile
or longer (urban) or 2.5 miles or longer (rural);
c) Additional grade-separated ramps or new interchanges on Principal Arterials or above.
2) Transit/Rail
a) New passenger rail service and extensions of existing service, 5 miles or longer;
b) Purchase of additional (not replacement) rolling stock to support increased frequency and
higher ridership;
c) Rail connections to provide new regional service;
d) New rail stations and new or expanded rail park-and-ride facilities resulting in 100 new
parking spaces.
Section 111: Guidance Page 111-17
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
4.1.5 Environmental Context
An inventory of baseline environmental conditions is typically done as a project proposal is
being developed, usually prior to the NEPA class of action determination. The typical inventory has
become fairly routine, and the sources of data to undertake the typical inventory are relatively well
established. The baseline environmental screening can be used as a tool to identify notable features,
or specific valued, vulnerable or unique elements of the environment. The objective of this step is
to identify specific environmental issues within the study area against which the project may be
assessed.
Whether from encroachment-alteration or project-induced growth, indirect effects from
transportation projects change the environment. Society has preferences for how much change is
acceptable. The acceptability of the degree of change varies depending on the affected setting or
population. A number of terms are found in the literature that describe settings or populations
commonly afforded special attention with respect to change. The term notable features is used in this
study as an overarching term that encompasses the various terms found in the literature, e.g.,
sensitive species and habitats, valued environmental component, unusual landscape features,
vulnerable elements of the population.
What constitutes a notable feature depends on perspective (there are likely many other
perspectives or disciplines of study not discussed here that are captured by the term notable
features). Therefore, the inventory should cast as wide a net as possible on perspectives. Similarly,
the definition of notable features in an area depends on scale. What is notable to a region will often
differ from what is notable to a community or city. The various geographic scales should be
examined in keeping with the CEQ regulations which state that significance varies with context.
The objective of the environmental inventory step of the typical transportation project
development process is to gather information about baseline environmental conditions. Indirect and
cumulative effects assessment requires a "big picture" approach. Tables 5 and 6 are to be used by
the analyst to perform the requisite "big picture" inventory. Notable features can then be gleaned
from the inventory lists using the checklists presented at Tables 7 and 8. Table 8 was prepared to
note that through enactment of laws, society as a whole has in effect placed a value on certain
resources or determined that certain resources require special consideration before actions like
transportation projects are undertaken. Table 8 lists pertinent federal laws; state and local
transportation agencies should expand the list to include pertinent state and local laws.
The following are potentially useful sources of ecological information:
? National Biological Service.
? National Heritage Program Network.
? Fish and Wildlife Information Exchange.
? Regional Natural Resource Plans.
? Resource Agency Management Plans.
Section III: Guidance page 111.18
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
TABLE III-5
ECOSYSTEM CONDITIONS INVENTORY
Setting Describe/Characterize
(Map Locations)
Suburban
Landscapes
Remnant Communities
Greenways
Remnant Populations
Wetlands and Riparian Zones
Drainage Patterns
Natural Vegetation Diversity

Rural
Watersheds
Local Ecosystem Integrity
Riparian Corridors
Endemics and Migratory Species
Riparian and Forest Corridors
Hydrology
Landscape Pattern Diversity
Dispersal Routes

_ Wildland
Regional Ecosystems
Remote Habitat
Contiguous Habitat
Habitat Interior Species
Unique Environments
Structural Components of Interior
Habitat
Subpopulation Movements

Section III: Guidance Page 111-19
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
TABLE III-6
SOCIOECONOMIC CONDITIONS INVENTORY
Economic
Residents' occupational mix
Jobs in community (mix)
Jobs/housing balance (self-containment)
Income distribution mix
Journey to work (length and mode)
Job growth rate
Business ownership and services characteristics
Describe/Characterize
Demographic
Population growth rate
Population age mix
Household types
Retired population percent
Social
Community cohesion
Crime rates
Clubs, sports and organizations participation
Education levels mix
Sense of control over change
Balance of old timers and newcomers
Physical
Housing stock mix and values
Open space percent
Town area and form
Separation from other activity centers
Residential density
Mix of land uses
Town edge activity
Historic structures and places
Circulation and traffic characteristics
Neighborhood design characteristics
Infrastructure character
Commercial building scale
Town entrance setting
Scenic character
Trees and vegetation presence
Noise levels and timing
Lighting influence
Section 111: Guidance
Page 111-20
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Guidance on Indirect and Cumulative Impact Assessment Volume 1: Police Report
The following are potentially useful sources of socioeconomic information:
? comprehensive plan, historical studies of the community, newspaper accounts of public opinion.
? published statistics - existing measures and future projections of demographic factors in area,
region, and nearby areas from U.S. Census, comprehensive plans, and utility companies; journey-
to-work statistics from the U.S. Census. Within an urbanized area, the metropolitan planning
organization should be consulted for population and employment statistics since it would have
these and the future, locally approved projects for use in transportation planning.
? citizen survey or focus groups to ascertain what people like most about the area, where they
would take visitors to give them a feel for the area (uniqueness).
? field studies to analyze physical elements of neighborhood or community form.
Field investigations should be performed, particularly during project development, to confirm
secondary source information or to investigate items not identified through readily available
information. Following confirmation, the location and extent of inventoried items should be mapped
and/or tabulated.
It is possible that a project study area could contain a number of possible notable features,
and differing views of what is notable or why it is notable. For these reasons, it is in a transportation
agency's interest to have as many interested parties, e.g., resource agencies, as necessary involved
in determining what are notable features for a particular study area.
4.1.6 Project Description - Design Context
At the stage where alignment and design alternatives are under consideration, more precise
knowledge of project details allows for closer attention to encroachment-alteration effects and
impacts to notable features in the environment. Particular attention should be paid to the effects of
linear crossings on non-linear community and ecological features. The limits of disturbances to the
environment can also be more precisely determined. Table 9 provides a checklist of project impact
causing activities that can be used to identify these types of effects. Knowledge of project design
also allows for identification of the full range of induced growth effects including more localized
highway-oriented commercial development centered around access points.
Section Ill: Guidance Page 111-26
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Police
TABLE III-9
PROJECT IMPACT-CAUSING ACTIVITIES CHECKLIST
Modification of Regime
Exotic Flora Introduction
Modification of Habitat
Alteration of Ground Cover
Alteration of Groundwater Hydrology
Alteration of Drainage
River Control and Flow Modification
Channelization
Noise and Vibration
Land Transformation and Construction
New or Expanded Transportation Facility
Service or Support Sites and Buildings
New or Expanded Service or Frontage Roads
Ancillary Transmission Lines, Pipelines and Corridors
Barriers. Including Fencing
Channel Dredging and Straightening
Channel Revetments
Canals
Bulkheads or Seawalls
Cut and Fill
Resource Extraction
Surface Excavation
Subsurface Excavation
Dredging
Processing
Product Storage
Land Alteration
Erosion Control and Terracing
Mine Sealing and Waste Control
Landscaping
Wetland or Open Water Fill and Drainage
Harbor Dredging
Resource Renewal
Reforestation
Groundwater Recharge
Waste Recycling
Site Remediation
Changes in Traffic (including adjoining facilities)
Railroad
Transit (Bus)
Transit (Fixed Guideway)
Automobile
Trucking
Aircraft
River and Canal Traffic
Pleasure Boating
Communication
Operational or Service Charge
Waste Emplacement and Treatment
Landfill
Emplacement of Spoil and Overburden
Underground Storage
Sanitary Waste Discharge
Septic Tanks
Stack and Exhaust Emission
Chemical Treatment
Fertilization
Chemical Deicing
Chemical Soil Stabilization
Weed Control
Pest Control
Access Alteration
New or Expanded Access to Activity Center
New or Expanded Access to Undeveloped Land
Alter Travel Circulation Patterns
Alter Travel Times between Major Trip Productions
and Attractions
Alter Travel Costs between Major Trip Productions
and Attractions
Others
If Yes.
Yes No
Describe Generally (Breadth, Duration. Location and Type)
Section 111: Guidance
Page 111-27
Guidance on Indirect and Cumulative Impact Assessment Volume P Police Report
4.2 Identification of Potentially Significant Issues and Effects
Indirect and cumulative effects fall into three broad categories discussed in detail below.
Potential effects in each of these categories should be considered for their relevance to the project
and significance in the study area.
4.2.1 Induced Growth Effects
Transportation improvements often reduce the time-cost of travel enhancing the
attractiveness of surrounding land to developers and consumers. Development on vacant land or
conversion of the built environment to more intensive uses is often a consequence of highway and
transit projects. Growth in population and employment attributable to a direct project effect (change
in accessibility) is an indirect effect that produces its own effects on the environment.
Important characteristics of induced growth are illustrated in the attached figures:
? The land-use impacts of highway investment vary depending on existing land-use conditions
in the project area (see Figure 2).
? Transportation investments can prompt changes in economic, social, and demographic
conditions which can alter location decisions and land use (see Figure 3)
A transportation investment and the increased accessibility that it brings is just one factor in
the development decision-making process. Other factors include: location attractiveness,
consumer preferences, the existence of other infrastructure, local political and economic
conditions, and the rate and path of urbanization in the region (see Figure 4).
Induced growth effects fall into three general categories:
4.2.1.1 Projects Planned to Serve Specific Land Development
Transportation projects designed specifically to serve existing or planned large land
development projects or groups of projects require a thorough analysis of induced growth and related
effects. This is because:
land development is highly likely
? the magnitude and timing of the development are known or generally predictable
? details of development projects are known and can be analyzed for environmental effects
Since the land development projects are known, analysis of this type of growth is related
more to the evaluation of cumulative effects than indirect effects. The analysis will also require a
greater focus on impacts related to the timing of development than its probability.
Section 111: Guidance Page 111-28
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Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
4.2.1.2 Projects Likely to Stimulate Complementary Land Development
Complementary land development, such as highway-oriented businesses (gas stations, rest
stops, motels), is more likely near interchanges in rural areas where property values were originally
low. Interchanges in suburban or urban areas where property values were higher before the project
are more likely to support a greater proportion of higher density uses, as well as a greater mix of
uses. Factors influencing the likelihood and rate of development near rural interchanges include:
? distance to major urban area or regional center (proximity corresponds to higher probability
of development)
? traffic volume on the intersecting road (higher volumes correspond to higher probability of
development)
? presence of frontage road (greater potential for intensive development)
? availability of water and sewer (greater potential for development)
If these factors are present, induced growth effects of this type warrant analysis.
Common patterns of development:
? Interchange quadrants on the right-hand side of motorists approaching the interchange from
the main road have higher visibility and are often developed first.
? Transit projects with stops in suburban or urban areas may produce higher density
commercial and residential uses and complementary retail and service development such as
coffee shops, dry cleaners, and newsstands.
4.2.1.3 Projects Likely to Influence Intraregional Location Decisions (Development Shifts)
Apart from the complementary development described above, on a regional basis, the impact
of highway and transit projects is generally minimal. The localized effect of such projects on land
use can be substantial, however. If the conditions for development are generally favorable in a
region, i.e., the region is undergoing urbanization, then highway and transit projects can become one
of the major factors that influence where development will occur, and project-induced growth
warrants evaluation.
Where transportation projects do influence land development, the general tendency is toward
relatively high density commercial or multi-family residential development near facility nodes in
urban and suburban areas and single-family residential development in the urban fringe.
Development effects are most often found:
? up to one mile around a freeway interchange
? up to two to five miles along major feeder roadways to the interchange
? up to one-half mile around a transit station
Section 111: Guidance Page 111-32
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
General circumstances influencing the likelihood of induced development shifts include:
? Extent and maturity of existing transportation infrastructure - influence of highway projects
diminishes with successive improvements because each new improvement brings a
successively smaller increase in accessibility
? Land availability and price are key determinants of development; property values are de-facto
indicators of the potential for land use change because investment decisions revolve around
market prices.
? State of the regional economy - even if changes in accessibility are great, development is not
likely to occur if the regional economy will not support new jobs and households
? Area vacancy rates - high local vacancy rates in housing or commercial space of good quality
may be absorbed before any shift in development to the project area is seen.
? Location attractiveness - quality of existing development, local politics, growth history, are
all factors considered in addition to transportation availability and cost.
? Land use controls - development is shaped by zoning ordinances and other land use controls
that influence the amount of land available for various uses, the densities permitted, and the
costs of development. Pressures for development can prompt communities to alter land use
controls, however, and an evaluation should be made which considers the likelihood that
changes inland use controls will occur. Such an evaluation can consider the historical record
of zoning enforcement and granting of variances, whether the controls are rooted in long
range comprehensive plans, and the existing amount of undeveloped land for each use.
If these conditions are favorable for development, a detailed analysis of induced growth and
its potential for impact on important area goals or notable features is warranted.
Review of recent indirect effects case law suggests that analysis of induced growth effects
is required whenever economic development is cited in the statement of purpose and need for the
project.
4.2.2 Effects Related to Induced Growth
Induced growth and land development themselves can affect the environment in many
possible ways. A general tabulation of possible land development effects is presented in Table 10.
A tabulation of possible socioeconomic effects of land development from is presented in Table 11.
Obviously, the degree of certainty, specificity, and need to know about the induced effects will
determine the extent that the corresponding related effects should be examined.
One particular effect related to induced growth, the effect of transportation investments on
air quality vis-a-vis land use change, has come to the forefront in recent years. From the above
discussion, it is clear that transportation investments influence land use under certain circumstances.
Empirical data suggests that transportation investments worsen per capita emissions when they
support development at the urban fringe, i.e., the location where the lowest density and highest travel
consumption are found. From this it is inferred that transportation investments will improve per
capita emissions when they create arrangements of land uses that require less vehicular travel.
aection III: (guidance Page 111-33
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policv Report
However, the relationship between travel and land use is complex. For example, income
accounts for a portion of travel variability with land use. In addition, insufficient data is available
to determine causality, e.g., whether low density residential development "causes" people to have
more vehicle travel or whether people with a proclivity toward extensive auto mobility select low
density areas for living. Regardless, the general interrelationships among transportation investment,
land use, and air quality merit exploration particularly for those plans or projects that involve the
urban fringe (generally high land availability/low land prices in an urbanizing area).
Section Ill: Guidance Page 111-34
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TABLE III-11
POSSIBLE EFFECTS OF LAND DEVELOPMENT
ON SOCIOECONOMIC VARIABLES
1 LAND DEVELOPMENT
46 V AMABLES in? ?111LiY BE CIL?hiGEf1
• Diversity in amount and type of employment
activities
• Seasonality of economic activities
• Property values
• Distribution of personal wealth
• Fiscal expenditures for municipal services
• Municipal revenues
rxYstca VARIABE5 THAT MAX BED
• Form of buildings: height and width
• Landscaping and topographical features
• Supply, location and densities of buildings
• Supply and location of functions of buildings:
residential (single-family, multi-family,
etc.)
commercial
- recreational
industrial
• Supply and spatial distribution of open space
and greenery
• Traffic volumes
• Noise levels
• Air quality
SOf:IA9 V U ' LES THAT MAY BE CILiNGED .
At Community Scale At Neighborhood Scale
• Demographic Characteristics • Demographic Characteristics
- age, sex characteristics age, sex characteristics
- migration characteristics migration characteristics
- displacement of residents displacement of residents
- racial, ethnic characteristics racial, ethnic characteristics
• Institutional Membership Uses and Perceptions of Services
- civic groups recreation
- religious groups shopping
- social clubs mass transit
- political groups schools
• Residential Patterns • Recreation Uses and Perceptions in Informal Space
supply and distribution of various housing types around Home
- segregation of social, racial, ethnic or income • Pedestrian Mobility
groups Perceptions of Environmental Quality
• Uses and Perceptions of Services • Perceptions of Personal Safety and Privacy
- recreation Aesthetic Preferences
- shopping - visual attractiveness
- mass transit - view opportunities
- schools - historical resources
- health care
• Perceptions of Environmental Quality
• Perceptions of Personal Safety and Privacy
• Political Power
- membership in dominant decision-making groups
- elected officials
Section III: Guidance Page 111-38
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Police Report
4.2.3 Encroachment-Alteration Effects
Alteration of the behavior and functioning of the affected environment caused by project
encroachment can be characterized into two broad categories:
4.2.3.1 Ecological Effects
Transportation corridors have unique impact on ecosystems associated with their linear
form. These corridors may function as specialized habitats, conduits of movement, barriers or
filters to movement, or sources of effects on surrounding habitats. Improvements within corridors
can have consequences to habitats removed in time and distance from the project. Together with
other human actions the cumulative effects can be significant.
The following indirect and cumulative effects of transportation project actions can have important
consequences for ecosystems (see Table 12):
? Habitat fragmentation from physical alteration of the environment
? Lethal, sublethal and reproduction effects from pollution,
? Degradation of habitat from pollution,
? Disruption of ecosystem functioning from direct mortality impacts,
? Disruption of natural processes (i.e., hydrology, species competition, predator-prey
relations, etc.) from altered energy flows.
The ability of an ecosystem to respond to a disturbance or perturbation from a transportation
project is a function of its resistance (the ability of the ecosystem to withstand or resist variation
imposed by disturbance or perturbation) and recovery (the ability of an ecosystem to respond after
being changed). Note that different elements of an ecosystem will have different rates of resistance
and recovery which also interact with each other.
section III: Guidance Page 111-39
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4.2.3.2 Socioeconomic Effects
Encroachment by transportation projects can directly affect the physical nature of a
neighborhood in two major ways:
? alteration of traffic patterns and access
? relocation of homes, business, or relocation or alteration public facilities
These direct effects can result in indirect effects that can be magnified by the cumulative impacts
of other actions. These effects include alterations to:
? neighborhood cohesion
? neighborhood stability
? travel patterns of commuters and shoppers
? recreation patterns at public facilities
? pedestrian dependency and mobility
? perceived quality of the natural environment
? personal safety and privacy
? aesthetic and cultural values
These variables should be used to explore effects from changes in the physical environment
from transportation projects. For example, a highway project can physically alter the local street
network and/or increase traffic volumes on local streets, both of which could effect pedestrian
mobility and consequently, interactions and neighborhood satisfaction.
The categorization of effects on the environment presented in Table 13 can be a useful tool for
identifying socioeconomic indirect effects. Of particular note on Table 13 is the opportunity-threat
category of effects, i.e., those that can occur while a project is planned but before construction.
Examples include effects on real estate investment and maintenance of property. Such effects may
indicate the long-term indirect effects of a project once implemented.
It is important to note that the ecological and socio-economic encroachment-alteration effects
described above can also arise from induced growth which is itself an indirect effect. Induced
growth effects are described below.
Section III: Guidance Page 111-41
Guidance on Indirect and Cunuilative Impact Assessment Vollnne 1: Policy Report
TABLE III-13
CONCEPTUAL APPROACH TO EFFECT IDENTIFICATION
Temporal Phase
System Affected Opportunity-Threats Development/Event Adaptation/Post-
Development
Physical Anticipatory construction Potential massive alteration Creation of development-
or lack of maintenance, of the physical specific facilities,
decay of existing structures environment, construction deterioration of alternative
and facilities. of new and upgrading of productive facilities,
existing facilities. destruction of environment.
Cultural Initial contact, new ideas, Suspension of activities that Gradual erosion of culture:
potential for loss of assure cultural continuity loss of unique knowledge,
cultural continuity. (e.g., subsistence harvest). skills, and/or perspectives.
Social Organizational changes Population increase, influx Gradual loss of social
investment of time, money, of outsiders: decline in human capital (e.g.,
or energy for support or density of organizational networks
resistance; differential acquaintanceship: social and skills, replacements
construction of risk. change. having limited optional
application).
Political/Legal Litigation to force or block Intrusion of development Zoning and regulatory
proposed development, activity into community changes in search of new
heightened political claims- politics, litigation and development, new
making. conflict over activity laws/ruling in response to
impacts. impacts.
Economic Decline or increase in Traditional boom/bust Loss of economic
property values, effects, inflation, entrance flexibility, specialization of
speculation, investment. of outsiders into local labor business.
market.
Psychological Anxiety, stress, anger: Stress associated with rapid Acquisition of coping
gains or losses in perceived growth, psycho-social strategies that are
efficacy. pathology, loss of efficacy. potentially maladaptive
under future scenarios.
Source: Gramling and Freudenberg, p. 218.
Section III: Guidance Page 111-¢2
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policv Report
4.3 Techniques for Determining Significance
There are a number of techniques discussed below that could support identification of cause-effect
linkages between project impact-causing actions and goals and notable features. The techniques can
be used individually or in combination. The techniques involve varying degrees of background
research.
Matrices - A project evaluation matrix is commonly a grid diagram in which two distinct
lists are arranged along perpendicular axes, e.g., actions and environmental characteristics.
The interaction between actions and their environmental characteristics are noted in the
matrix. A weighting of the interactions relative to impact significance is often performed.
While a variety of techniques may be employed to identify indirect effects in addition to
matrices, the final product of this step in the framework should be completion of the
Evaluation Matrix attached as Table 14 below.
Networks - Also known as system diagrams, networks can be used in classifying, organizing,
and displaying problems, processes, and interactions and to produce a causal analysis of the
indirect effects situation. Obviously, the network is only as good as the as the underlying
understanding or assumptions of often complex processes and interactions.
Qualitative Inference - This technique involves a case study description of an area of
concern, e.g., habitat or neighborhood, and an identification based on professional judgement
of the possible changes that the proposed project would entail. The case study should focus
on the elements or indicators that characterize the area of concern using ecological,
economic, demographic, or social profile information from baseline investigations. This
technique, though practical and simple, has obvious limitations. Foremost among these is
slipping into speculation based on limited data or unusual circumstances. Broad
participation, including input from local planners on the local real estate market, can help
avoid speculation.
Cartographic Techniques - Specific techniques, like the McHarg overlay (McHarg, 1969),
are time-tested. These can be particularly useful for visualizing potential indirect effects
related to alteration of the physical environment, e.g., habitat fragmentation or community
segmentation. Computerized geographic information systems have greatly enhanced the
ability to process and display cartographic information. Cartographic techniques are limited
in their ability to reveal the structure, function, and dynamics of areas. However, their utility
can be expanded by relating inventoried information about these characteristics via a
relational database.
Section 111: Guidance Page 111-43
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Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
Comparative Case Analysis - A comparative study involves comparing a like area where a
project similar to that proposed has been completed. This technique is described in detail in
Section VI below. Care should be taken not to rely exclusively on a comparative case for
identification of effects but as a supplement to other techniques.
It is likely that some combination of methods will be needed in most situations to identify
the proposed transportation project's indirect effects. This combination would include cartographic
techniques for spatial analysis; matrices or networks for visualizing systems' functions and behavior
and interconnections with the project; and either qualitative inference or comparative case study to
support the visualization. Regardless of the method used, tabulation is necessary to organize the
information discerned to date and to make explicit the process used to determine which indirect
effects should be carried forward to detailed analysis. Table 14 was prepared for this purpose.
Typically, a determination of impact significance includes considerations of impact magnitude and
importance. Tables 15 and 16 list considerations that are relevant to indirect effects.
A technical memorandum should be prepared that lists the indirect effects that warrant further
analysis, if any, and presents the scope of detailed analysis. The technical memorandum should
contain relevant documentation supporting the list of identified indirect effects, e.g., checklists,
networks, maps, etc., as well as documentation on those indirect effects considered but dismissed
from further analysis by agreement of the involved parties.
Section III: Guidance Page 111-45
Guidance on Indirect and Cumulative Impact Assessment Volute 1: Policy Report
TABLE III-15
IMPACT MAGNITUDE CONSIDERATIONS FOR
ASSESSING POTENTIAL SIGNIFICANCE OF INDIRECT AND CUMULATIVE EFFECTS
Encroachment-Alteration Effects
Indicators of significance include when such effects:
• Are wholly or partially within or substantially contiguous to a notable feature (see Step
2)
and
• Impair the character or quality of important historical, archaeological, architectural or
aesthetic resources
or
• Impair existing community or neighborhood character
or
• Substantially change the capacity of the environment to support existing uses or
functions
Induced Growth and Related Effects
Indicators of significance include when a simultaneous or subsequent action:
• Is likely to be taken as a result of the transportation project
or
• Is dependent on the transportation project
and
• Could attract a large number of people to a location compared with existing location
attractiveness
or
• Could cause a substantial adverse change in existing air quality, ground or surface
water quality or quantity, energy usage, traffic or noise levels
or
• Could cause a substantial increase in potential for erosion, flooding, leaching, or
drainage problems
or
• Could cause a substantial change in the use, or intensity of use, of land
or
• Could cause substantially adverse encroachment alteration effects
Section 111: Guidance Page 111-46
Guidance on Indirect and Cumulative Imp act Assessment Volume 1: Policy Report
TABLE III-16
IMPACT IMPORTANCE CONSIDERATIONS FOR
ASSESSING POTENTIAL SIGNIFICANCE OF INDIRECT AND CUMULATIVE EFFECTS
Context
• Regional consequences
• Potential divergence from local needs and goals
General Considerations
• The need to know about the consequences of a simultaneous or subsequent action now
(or the degree to which the decision on the transportation project represents a decision
in principle about a simultaneous or subsequent action)
• Probability or confidence that the effect will occur
• Effect duration and irreversibility
• Degree to which the effect can or will be controlled
• Degree of controversy related to the effect
• Whether the effect threatens a violation of federal, state or local law, or requirements
imposed for the protection of the environment
• Degree of effect on public health and safety
Section 111: Guidance
Page 111-47
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
5.0 ANALYSIS OF INDIRECT AND CUMULATIVE EFFECTS
Once potential indirect and cumulative effects have been identified, those effects meeting the
criteria for potential significance,
explicit economic development purpose
divergence from local needs and goals, and
potential to impact notable features of social or natural environment,
require further analysis to more precisely determine issues such as
? magnitude
? probability of occurrence,
? timing and duration, and
? degree to which the effect can or will be controlled.
Results and methods employed in the analysis should be fully documented in a technical
memorandum. This document should also include specific findings regarding the significance of
each potential effect. Indirect and cumulative effects still thought to meet the criteria for
significance, should receive further consideration regarding consequences and options for avoidance
or mitigation.
A variety of quantitative and qualitative tools can be employed in the analysis of indirect and
cumulative effects. This section will describe general considerations involved in the analysis, the
tools available, and their application in the context of systems planning and project evaluation.
5.1 Considerations
The first step in the analysis of potentially significant indirect and cumulative effects is to
assess the potential and magnitude of project-induced growth. Once the level of induced growth
has been assessed, impacts on the natural environment arising from development can be evaluated.
Encroachment-alteration effects arising from the project itself should also be assessed after induced
growth impacts are explored so that these alteration effects can be fully understood in the context
of future land uses.
Analyzing induced growth is an exercise in creating and comparing forecasts of future
conditions. At least two forecasts are necessary:
a Base or No-Action Forecast which describes future conditions in the absence of the project
or plan, and
? an Action Forecast describing conditions in a future point in time following implementation
of the project alternative or plan.
These forecasts should be designed to fully consider cumulative effects by including
significant past and anticipated actions undertaken by other parties in both the base and project
scenarios.
Section 111: Guidance Page 111-48
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
The key in forecasting is an underlying system of logic that can produce reproducible and
relatively consistent results regardless of the forecaster. It should be noted that forecasting is not the
exact determination and prediction of the future, but the logical extrapolation of likely effects that
will occur from known associations among different critical parts of the system (Vlachos, 1976).
As with other steps in the framework, induced development forecasting techniques may be
either qualitative or quantitative in nature:
Qualitative methods can serve to evaluate the context or overall situation wherever little
historical data exist or wherever existing data are questionable or inconsistent.
Quantitative methods consist of modeling or the search for causal factors, and extrapolation
or emphasis on time series.
Whenever possible, forecasts developed for other purposes by regional planning and
transportation agencies should be utilized. Use of established forecasts as control totals or baselines
will not only reduce the level of effort required in the assessment but will promote acceptance of the
findings.
A variety of qualitative and quantitative methods are described below. More complete
descriptions of available methods can be found in Volume II, an evaluation of integrated land use
transportation models appears in Appendix A. Examples of how these techniques can be combined
and applied to potential planning and project scenarios are addressed in the following sections.
5.2 Methods for Analysis
Qualitative and quantitative techniques for analyzing indirect effects include the following.
Literature Review/Comparative Case Analysis - Literature searches can reveal information
used to build qualitative assessments and scenarios of future conditions. A small but
growing literature on indirect and cumulative effects can also point to projects with similar
characteristics and locational features allowing for comparative case analysis. When using
the effects of a past project to illustrate the potential future effects of a proposed project, care
must be taken not to overlook contributing factors exogenous to project conditions, such as
regional growth rates or economic conditions.
Scenario Writing - Scenarios describing a range of potential future outcomes based on
reasonable, explicitly stated assumptions can be a very useful tool to assess the potential and
magnitude of indirect and cumulative effects. The professional judgement of the analyst,
local experts, and stakeholders can be used to form assumptions. Multiple scenarios can be
prepared to show the lower and upper bounds of reasonably foreseeable outcomes.
Trend Extrapolation - Simple extrapolation techniques such as curve fitting can be applied
to time-series or cross-sectional quantitative data to predict future conditions. Future
baseline estimates of population, employment, housing starts, and other conditions can be
predicted using historical data, assuming that conditions underlying these trends are expected
to continue. This type of forecasting technique is unnecessary, however, when accepted
forecasts have already been developed for the study area for other purposes.
Section 111: Guidance Page 111-49
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Police Report
Expert Panel Surveys/Delphi Technique - Thorough surveys of local experts, stakeholders,
and professionals can be invaluable in developing assumptions and assessing future
conditions. Survey techniques can include informal conversations; formal inquiry following
an instrument administered by mail, phone, or interview; or discussions or meetings of a
collaborative task force or expert panel. The most structured consultation method is the
Delphi technique, an iterative process that allows a consensus opinion to be developed from
the independent assessment of experts. These methods can be modified or used in
combination to meet the needs and constraints of the evaluation.
Build-Out/Carrying Capacity Analysis - Assumptions regarding the consumption of land as
various types of land uses are developed can be used to predict future conditions based on
the carrying capacity of developable land, or permitted uses and densities of land use
regulations. This technique is important in constructing a quantitative baseline forecast or
translating the output of population or employment forecast into a land use scenario. The
technique is also important for assessing the potential for conflict between local land use
regulations and the development pressures that can arise from project-related improvements
in accessibility.
? Regression/Econometric Techniques - Multivariate linear regression techniques can be
applied to time-series or cross-sectional data to predict future No Action conditions and
conditions resulting from project alternatives. By determining the relationship between
population and employment growth, and factors such as accessibility and location
attractiveness, the analyst can predict future baseline conditions and then change the
accessibility variable to predict the impact of project-related transportation time savings.
Gravity Models - This technique allows the analyst to allocate study area population and
employment control totals to smaller analysis zones (i.e., TAZs) based on available land,
accessibility to other zones, and other measures of attractiveness. When improvements in
accessibility arising from the project are factored into the equation, changes in the allocations
can be analyzed. Although less sophisticated than formal land use models, this technique can
provide quantitative findings to support qualitative scenario writing or survey efforts.
Integrated Land Use Transportation Models - These models allow analysts to predict land
use futures given a wide range of project and policy considerations. Highly quantitative and
often complex, the models require significant data and analyst resources. The models are
often used by agencies for system-wide analysis, however, and output data orthe model itself
may be adapted for use in analyzing a particular project or study area.
Section III: Guidance Page 111-50
Guidance on Indirect and Cumulative Impact Assessment
Volume I: Policy Report
6.0 Mitigation
6.1 Responsibilities
Mitigation responsibilities specifically focus on the implications of a United States Supreme
Court case, Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989). The questions are
(1) is the Robertson case applicable and is there any other case law on this issue? (2) Is mitigation
of cumulative or indirect impacts required? This memorandum will attempt to answer these
questions. However, please note that this is an advisory memorandum. It has not been reviewed and
approved in accordance with procedures for issuing an Attorney General's opinion.
In Robertson, the Forest Service issued an EIS with the stated purpose of providing "the
information required to evaluate the potential for skiing" at Sandy Butte, owned by the Forest
Service. Id. at 338. The Forest Service had received an application by a company to develop 3900
acres of Sandy Butte and an additional 1165 acre adjacent parcel, already owned by the company.
Id.
The EIS evaluated five alternatives, ranging from the "no build" alternative to development
of a ski area that could accommodate 10,500 skiers. Id. at 339. The EIS concluded that "the off-site
development of private land under all five alternatives -- including the 'no build' alternative --'will
have a significant effect on air quality during severe meteorological inversion periods."' Id. at 340.
The EIS also noted that "the off-site effect of the development 'would noticeably reduce numbers of
deer in the Methow [Valley] with any alternative."' Id. at 343.
The EIS further "identified actions that could be taken by the county government to mitigate
the adverse effects of development [on air-quality],
could implement at the construction stage of he project," id. at 340, and also "described both on-site
and off-site mitigation measures" to lessen the impact on the deer population, id. at 343. The
adequacy of the mitigation discussion and implementation was challenged by a local group.
The Supreme Court held that "NEPA and CEQ regulations require detailed analysis of both
on-site and off-site mitigation measures, citing 40 C.F.R. § 1502.16(b). Id. at 358. The Court
stressed, however, that while "mitigation [must] be discussed in sufficient detail to ensure that
environmental consequences have been fairly evaluated," NEPA contains no "substantive
requirement that a complete mitigation plan be actually formulated and adopted." Id. at 350. In
other words, the Supreme Court emphasized that discussion of possible mitigation for reasonably
foreseeable impacts is just another part of the procedural "hard look" analysis required by NEPA
The Court thus upheld the Forest Service's discussion of mitigation.
There have been no other Supreme Court opinions on this issue. However, other federal
courts have since addressed the issue and fleshed out the mitigation requirements.
A mitigation plan "need not be legally enforceable, funded or even in final form to
comply with NEPA's procedural requirements." We need only be satisfied that the
agency took the requisite "hard look" at the possible mitigating measures; but, on the
other hand, a "perfunctory description is not adequate to satisfy NEPA's
requirements. A "mere listing" of mitigating measures, without supporting analytical
data, also is inadequate.
Section 111: Guidance
Page III-51
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Police Report
Okanogan Highlands Alliance v. Williams, 236 F.3d 468 (9th Cir. 2000) (citations omitted).
These mitigation requirements appear to apply to mitigation of both direct and indirect or cumulative
impacts. See National Parks & Conservation Assn v. United States DOT, 222 F.3d 677 (9th Cir.
2000) (applying similar analysis and finding that EIS contained adequate discussion of mitigation
of cumulative impacts from introduction of alien species).
In the only 4th Circuit opinion on point, the court was asked to decide whether an EIS should
have included the costs of mitigation proposed in the EIS to abate noise resulting from expansion
of a naval operation. Citizens v. Dalton, 2000 U.S. App. Lexis 17422 (4th Cir.). The court found
it was not arbitrary and capricious for the Navy to exclude the exact cost of mitigation from the EIS
where the document noted costs would be significant and where the Navy had no authority to spend
federal money on non-federal property improvements to abate noise.
It is unclear from the case law how detailed the discussion of mitigation must be. CEQ has
provided some guidance on the scope of the mitigation analysis in its "Forty Questions" document.
This discussion is applicable to mitigation of both direct and indirect or cumulative impacts.'`
19a. Mitigation Measures. What is the scope of mitigation measures that must be
discussed?
A. The mitigation measures discussed in an EIS must cover the range of impacts of
the proposal. The measures must include such things as design alternatives that
would decrease pollution emissions, construction impacts, esthetic intrusion, as well
as relocation assistance, possible land use controls that could be enacted, and other
possible efforts. Mitigation measures must be considered even for impacts that by
themselves would not be considered "significant." Once the proposal itself is
considered as a whole to have significant effects, all of its specific effects on the
environment (whether or not "significant") must be considered, and mitigation
measures must be developed where it is feasible to do so. Sections 1502.14(f),
1502.16(h), 1508.14.
19b. How should an EIS treat the subject of available mitigation measures that are
(1) outside the jurisdiction of the lead or cooperating agencies, or (2) unlikely to be
adopted or enforced by the responsible agency?
A. All relevant, reasonable mitigation measures that could improve the project are
to be identified, even if they are outside the jurisdiction of the lead agency or the
cooperating agencies, and thus would not be committed as part of the RODs of these
agencies. Sections 1502.16(h), 1505.2(c). This will serve to alert agencies or officials
who can implement these extra measures, and will encourage them to do so.
Because the EIS is the most comprehensive environmental document, it is an ideal
vehicle in which to lay out not only the full range of environmental impacts but also
the full spectrum of appropriate mitigation.
`"Impacts" are defined in CEQ's regulations to be synonymous with "effects," which
includes both direct and indirect effects. 40 C.F.R. § 1508.8.
Section lll: Guidance Page 111-52
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policy Report
However, to ensure that environmental effects of a proposed action are fairly
assessed, the probability of the mitigation measures being implemented must also be
discussed. Thus the EIS and the Record of Decision should indicate the likelihood
that such measures will be adopted or enforced by the responsible agencies. Sections
1502.16(h), 1505.2. If there is a history of nonenforcement or opposition to such
measures, the EIS and Record of Decision should acknowledge such opposition or
nonenforcement. If the necessary mitigation measures will not be ready for a long
period of time, this fact, of course, should also be recognized.
Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations, 46 Fed. Reg. 18026 (1981).
In sum, the EIS must address mitigation of cumulative or indirect impacts "in sufficient detail
to ensure that environmental consequences have been fairly evaluated." Robertson, 490 U.S. at 352.
This includes mitigation that could only be undertaken by entities other than the agency preparing
the EIS. The agency must only describe such mitigation possibilities; it does not have to actually
implement them itself or receive commitments from other organizations (such as local governments)
to implement them.'
6.2 Mitigation Considerations
¦ General mitigation considerations based on impact assessment (direct, indirect or
cumulative)
? to proceed with the project, as proposed; or
? to formulate a revised project; or
? to otherwise mitigate adverse effects associated with the proposed project
¦ Specific mitigation considerations for indirect and cumulative effects (project-by-project
basis)
? Is mitigation relevant decision on the project?
? Are the effects significant?
? Are there practicable mitigation measures?
? Are mitigation measures within the jurisdiction of the sponsoring agency? Can the agency
practicably control the impact and does it have a continuing program responsibility over the
impact?
'Though mitigation of cumulative/indirect effects is not required, FHWA has indicated
that it may provide funding for such mitigation. See Position Paper: Secondary and Cumulative
Impact Assessment in the Highway Project Development Process, Federal Highway
Administration Project Development Branch, HEP-31 (April 1992) (available at
http://www.fhwa.dot.gov/environment/ nepa/2_c_imp.htm); see also 23 C.F.R. 771.105(d).
Section 111: Guidance Page 111-53
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policv Report
? What is the sponsoring agency's role when mitigation measures are not within its
jurisdiction?
6.3 Possible Mitigation Techniques for Indirect and Cumulative Impacts
6.3.1 Possible Measures Implementable by NCDOT
? Comprehensive Performance Measures
? Promoting Regional Coordination
? Access Controls
? Context Sensitive Design
6.3.2 Possible Measures Implementable by Municipal Governments
? Zoning/Comprehensive Planning
? Growth Management Regulation
? Adequate Public Facilities Ordinances (APFOs)
? Development Moratoria
? Urban Growth Boundaries
? Extraterritorial Zoning/Annexation
? Resource Management and Preservation Regulations
? Coastal zone management areas
? Watershed management areas
? Stream corridors
? Special area management plans
? Land Acquisition/Conservation Easements
? Incentives for Brownfield/Infill Development
? Development Fees and Exactions
Section III: Guidance Page 111-54
:. ,.
Guidance on Indirect and Cumulative Impact Assessment Volume P Policy Report
Integrated Land Use and Transportation Models
Transportation planners have long relied upon computer based models to predict how traffic patterns
change with improvements to the transportation system. In the last two decades, there have been an
increasing number of models that also predict the indirect land use effects of transportation
projects-land development and the location of households and employers. To properly simulate
the relationship between land use and transportation, integrated models are required. These models
predict how changes in accessibility influence changes in location and how the congestion created
by relocated households and businesses, in turn, affects accessibility. Several approaches have been
employed to simulate locational decisions but it is the feedback between the transportation and land
use components of these models that make them integrated and useful in the analysis of
indirect/cumulative effects.
Since the early 1990s, computer modeling of land use patterns has become more sophisticated. In
recent years, developers have undertaken improvements in the feedback loop between travel demand
and land use components. have improved the process of calibration, and have added Geographic
Information System software as a graphical interface for data input and output. Even the more
complex computerized models now run quickly on standard desktop computers. This increased
sophistication and improved usability has contributed to wider use of models at state agencies and
MPOs.
A 1995 study described the results of a survey of model use at MPOs in the thirty-five largest
metropolitan areas. Eighteen of the thirty-five employed or were planning to employ modeling
techniques at the time of the survey: twelve indicated that they use one of the models discussed
below (DRAM-EMPAL); another six have developed or are developing their own models. The
remaining MPOs employed qualitative techniques including the Delphi method to allocate forecasted
population and employment. (Porter, 1995)
This section examines integrated land use and transportation models that are currently available for
implementation. Several reviews of formal land use models and their integration with travel models
have been published in recent years. This section is based in large part upon three recently published
reviews: Land Use Impacts of Transportation: A Guidebook (NCHRP Report 423A, 1999); Review
of Land Use Models and Recommended Model for DVRPC (Oryani and Harris, 1996); and
"Operational Urban Models: State of the Art" (Wegener, 1994). Several other papers have been
published on the importance and utility of transportation/land use modeling and are cited below.
A full list of references appears at the end of the section.
Appendix A Page A-1
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
ITLUP (DRAM/EMPAL)
Developed in the 1970s by University of Pennsylvania's Steven H. Putman under contract with the
U.S. Department of Transportation, the Integrated Transportation and Land Use Package (ITLUP)
is the most widely used model for land use forecasting among transportation agencies. Due to its data
and time intensive nature however, it is most often employed by larger agencies.
ITLUP forecasts population growth and household location in zones based on the Lowry gravity-
model method. The software consists of two major submodels: DRAM and EMPAL. DRAM
(Disaggregated Residential Allocation Model) estimates household location by household type
(income quartiles) in relation to employment locations in a future year and the probability of work
trips between zones in that year. Travel between zones is based on transportation impedance (time
or cost) and a measure of attractiveness for each zone based on the availability of land, the
percentage of households by income quartiles, and the location of employment. The location of
employment can be derived through EMPAL (Employment Allocation Model) or through
assumptions made outside the model. Another submodel, LANDCON calculates the consumption
of land associated with the household and employment forecasts. Model calibration is achieved
through an automated program (CALIB) that estimates equation coefficients and provides
goodness-of-fit statistics, asymptotic t-tests for the statistical significance of the coefficients, and
point elasticities for sensitivity analysis. (DVRPC, 1996)
Structure of ITLUP
Source: Oryani & Harris, 1996
Appendix A Page A-2
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
Travel models provide the input for zone to zone travel impedance and ITLUP is capable of
interfacing with all the major travel model packages in use today, including TRANPLAN, EMME/2,
and MINUTP. The model can also be adapted to read any travel impedance matrix generated by
custom packages. Through its interface with travel models, ITLUP allows users to estimate the
induced land use impacts of transportation improvement projects. ITLUP can be run for several
different improvement scenarios, showing the impact of zone to zone accessibility changes on the
location of employment and households. Outputs from ITLUP can also be fed back into travel
models in an iterative fashion to create an integrated model of the transportation/land-use interaction.
Data Required
Inputs to the model are ideally provided on the level of Traffic Analysis Zones (TAZs) and include
base year and historical data on employment, households, land consumption, and travel impedance
as follows.
By Zone:
? Employment by type (1-digit level SIC) for base year and one previous period
? Households by income quartiles for base year and one previous period
? Total land area
? Land area by use category (residential, industrial, commercial)
? Vacant developable land
? A zonal travel impedance matrix (travel time or cost from travel model)
For study area:
5) Control totals for households and employment in 5-year intervals for forecast period.
Advantages
? Data requirements match data maintained in most jurisdictions.
? Compatible with outputs from standard travel models.
? Long history of successful adaptations, substantial literature/knowledge base on application.
Disadvantages
? Involves high level of effort and substantial commitment of time and resources.
Lacks representation of the land market clearing process (this will be a component of a model
revision called METROPILUS, see below).
? Simplifies the relationship between employment and household generation and does not account
for important household demographic characteristics shown to affect location choices such as
household structure (number of children and workers), and ethnicity.
Appendix A Page A-3
Guidance on Indirect and Cumulative Impact Assessment Volume I. Policy Report
? Cannot address changes in policy alternatives such as land use regulations, economic
development strategies, or major infrastructure improvements.
Initial runs of the model have been know to produce unreasonable forecasts requiring manual
intervention with adjustment of calibration residuals and constraints. The lack of standardized
procedures for these adjustments leave open the possibility for the introduction of error.
Pending Revision
Putman has announced that ITLUP is in the process of being replaced with a more comprehensive
package called METROPILUS. Active users of ITLUP will be upgraded to the new package when
it becomes available. METROPILUS will be based on the location surplus notion and will integrate
employment location, residential location, and land consumption in a single package. The addition
of land value (relative housing prices or a multivariate index) as an attractiveness measure is another
planned feature. The model will interface with ARCVIEW GIS software (ESRI) for input, output,
and some statistical routines (DVRPC, 1996).
Requirements for Implementation
Licensing: Consulting contract packages range from $15,000 to $100,000 depending on scale of
implementation.
Platform: Mainframe, DOS, Windows, UNIX.
Staffing: teams vary in size and expertise depending on scale and consulting services usually one
senior-level and one junior-level staffer.
Consulting for implementation and calibration available.
Appendix A - Page A-4
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
MEPLAN
The MEPLAN model developed and refined over the last thirty years by Marcial Echinique and
others is also based on the Lowry-gravity model principle but includes components of economic
theory, such as input-output modeling, discrete choice analysis, and random utility theory, that are
not part of the standard Lowry construction.
The core function of the model is to determine land consumption in and among zones by linking
supply and demand for space, transport, and factors of production such as labor. Employment
markets are modeled using input-output techniques to determine industrial composition and
inter-industry flows. Employment in base industries, those industries dependent on exogenous
export-driven demand, is determined. Basic employment drives demand for housing and non- base
industries such as retail and services.
Random utility theory is employed in the allocation of industries and households to zones firms and
households are assumed in this model to act in a utility-maximizing and cost-minimizing way. The
model attempts to approximate market mechanisms by calculating elasticities in demand with the
respect to the prices of land, floorspace, labor, and travel. In this way, the location choices of
employers and households are based not only on the time cost of travel (the effect of congestion on
the network) as in other models, but the price of land.
The input-output methodology allows for demand for the transport of goods between zones to be
modeled in addition to the work and non-work trips of household members. Person-trips and
commodity flows between zone are distributed across modes and routes using an interative
multi-path assignment techniques common to transportation demand models.
Structure of MEPLAN
Basic Prcducti
ffipply (land)
I
a?pPly ('Wtwor
Source: Oryani & Harris, 1996
Guidance on Indirect and Cumulative Impact Assessment Volume I Policy Report
MEPLAN consists of three submodels and an evaluation chapter. LUS is the regional/urban land
use and economic model which estimates the demand for inputs to basic production in zones. FRED
is an interface program that converts demand for production inputs at the zonal level to flows of
goods and people. The TAS submodel distributes these flows across modes and routes in the
network. The model is typically run in 5-year increments over a 20+ year study period to achieve
a balance between the land use and transportation components. The effects of changes in prices and
accessibility are lagged to approximate the real world constraint of imperfect information and the
non-instantaneous nature of location change. The evaluation chapter, EVAL, allows for the
assessment of the land use and transportation effects of a project through cost-benefit analysis of
policy scenarios in comparison with abase case. The model's reliance on market mechanisms makes
it particularly suitable for evaluating policy changes that result in changes in price or supply of
production inputs. Examples include the effects of increases in parking charges, public transportation
fares, and tolls.
Data Required
Inputs to the model are provided on a zonal level. It may be necessary for the zones to be
aggregations of Traffic Analysis Zones (TA-Zs) if the economic data is not available at the proper
level of detail. Data required to run the model include:
? Land use and land prices (by sector)
? Floorspace and prices (by sector)
? Population (by household type)
? Employment (by sector)
? Input-Output tables (user-determined sector aggregation)
? Exogenous forecast of basic employment
? Transportation network (by mode)
Additional data by zone and economic sector is required for calibration:
? Exogenous production
? Induced production
? Unit production prices
? Valued added to each unit of production
? Exports and Imports
? Restrictions to internal production
Advantages
? Fully incorporates market functions and the pricing factors of production and transportation for
a closer approximation to the theoretical understanding of real world mechanisms.
Appendix A Page A-6
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
? Allows for evaluation of a wide range of user-defined policy scenarios affecting supply, or
pricing of transportation/production factors.
? MEPLAN allows for flexibility in the spatial level of analysis, making amenable to data
constraints.
Disadvantages
? Substantial data requirements including detailed regional economic data not normally collected
or manipulated by transportation planners.
? Calibration is a detailed process often requiring developer assistance. The calibration process
may have limited utility because it is largely cross-sectional in nature.
? Model's reliance on input-output data makes it more suitable to intra-regional studies rather than
intra-urban applications. It may be difficult to accurately disagregate input-output data to the
small TAZs seen in urban areas. Beyond the problem of disagregation, if only a few industry
sectors are represented in small urban TAZs, the functioning and accuracy of the model maybe
compromised.
? No method for linking with commonly used travel demand models since MEPLAN contains its
own travel demand component.
MEPLAN has been limited to one application in the United States: an academic exercise for the
Sacramento, California region.
Requirements for Implementation
Licensing: approximately $40,000 for full package of chapters
Platform: DOS, Windows, and UNIX S
Staffing: team consisting of a planner, transportation engineer, and economist
Consulting for implementation and calibration available.
Appendix A Page A-7
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Policv Report
TRANUS
TRANUS and MEPLAN are based on the same theoretical framework differing little in basic
structure or data requirements. TRANUS make greater use of logit-based formulations for mode and
route choice.
TRANUS has also been applied to the Sacramento in an academic project and is currently in use by
the Oregon Department of Transportation in their statewide modeling effort undertaken in the late
1990s.
Requirements for Implementation
Licensing: $6,000
Platform: Windows 95
Staffing: team consisting of a planner, transportation engineer, and economist
Consulting for implementation and calibration available.
Appendix A Page A-8
Guidance on Indirect and Cumulative Impact Assessment Volume 1: Pol
METROSIM
The METROSIM model is a discrete choice model of housing location developed by Alex Anas at
the State University of New York at Buffalo. The model has been adapted for several specific
regional applications: CATLAS for the Chicago area (residential location, housing, and mode
choice), CPHMM a prototype dynamic housing market model for Chicago, Houston, Pittsburgh, and
San Diego MSAs, and a NYSIM which modeled housing location, work and non-work travel, and
commercial real estate markets for the New York Metro area MPO.
As with MEPLAN and TRANUS, METROSIM takes an economic market based approach to
residential and employment location. METROSI A is not, however based on the Lowry gravity
model formulation. The model is made up of several submodels estimating activity in basic industry,
non-basic industry, households, residential and commercial real estate, vacant land, travel demand,
and traffic assignment. A simultaneous equation system is used achieve equilibrium in three market
sectors: labor market and employment location, housing market, commercial space. The model
iterates between the interactions of the three markets and the transportation network until an overall
equilibrium state between land use patterns and transportation flows is achieved. The model can
produce either one long-run steady state equilibrium forecast or an incremental set of forecasts on
an annual basis.
Structure of METROSIM
Source: Oryani & Harris, 1996
Appendix A Page A-9
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
Calibration is cross-sectional, dependent upon one base year, employing econometric techniques.
The functioning of the model and the calibration is complex and requires the direct involvement of
the developer.
Data Required
? Census Transportation Planning Package (CTPP, Urban Elements 1, 2, and 3)
? Transportation network (by mode)
? Data on real estate parcel characteristics and values
Advantages
? Minimal data requirements, data is available and familiar to transportation planners.
? Every aspect of the model is rigorously grounded in economic theory making one of the most
theoretically consistent integrated models.
Disadvantages
? Complexity of model requires participation of developer.
? The model's assumption of equilibrium, perfect information, and the immediate adjustment of
all households and businesses within each time period are not consistent with real-world
conditions.
? The model is based on one-worker households. An adjustment for the multi-worker households
common today is possible but undermines the structure of the nested choice structure of the
model.
? METROSIM is calibrated cross-sectionally with little history of long-term validation.
Requirements for Implementation
Licensing: not distributed commercially, use by arrangement with developer
Platform: UNIX workstation only
Staffing: estimates should be obtained from developer
Appendix A Page A-] 0
Guidance on Indirect and Cumulative Impact Assessment Volume I. Policy Report
UrbanSim
UrbanSim, one of the most recently developed integrated land use and transportation models, was
created in the late 1990s by Paul Waddell and a team from the University of Washington under
contract to Parsons Brinkerhoff. The development of UrbanSim has been funded by the Oregon
Department of Transportation, and the National Cooperative Highway Research Program, with
subsequent funding from the State of Utah Governor's Office.
UrbanSim contains two categories of decision-makers and choices influencing urban development:
endogenous and exogenous. The decisions made by households, workers, businesses, and
developers are endogenously modeled, and the decisions made by the public sector are treated as
exogenous, and are input to the model in the form of policy scenarios. The design of treating urban
development as an interaction between market behavior and governmental actions is intended to
maximize the realism of the model as well as its utility for assessing the impacts of alternative
governmental plans and policies related to land use and transportation.
Structure of UrbanSim
Source: Waddell,
Appendix A Page A-11
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
The model endogenously predicts the location of businesses and households; the location, type, and
quantity of new construction and redevelopment by developers; and prices of land and buildings. A
household mobility and location submodel simulates the household decision to stay or move in a
given year and predicts housing type and location if a move is undertaken. Multinomial or nested
logit estimation techniques are used to model household behavior in a manner similar to the
modeling of mode choice in travel demand models. Price and accessibility are among the factors
influencing locational choice. A business location submodel also uses logit functions to distribute
business among zones in each year of the model run.
The simulation of development decisions to convert vacant or developed land to other uses is based
on calcluations of demand and development profitability carried out by a development submodel.
Infrastructure availability and government constraints such as zoning, growth boundaries or impact
fees can also be factored into the development decision making process.
UrbanSim produces results based on adjustments in prices, land availability, and accessibility on a
yearly basis for the entire study period. The model user defines time periods for recalculation of
travel costs and congestion using a travel demand model (TRANPLAN, EMME/2, MINUTP)
external to UrbanSim. The travel demand model can be run at regular intervals or to incorporate
changes anticipated by the completion of major facilities or improvements.
Calibration is performed using historical time-series data in multiple regression analyses to estimate
bid price functions for different household groups. Outside statistical software used for regression
(SAS, SPSS). Logit estimation using outside package (Limdep, Alogit) also necessary. Validation
with known data for historical periods can also be conducted with model runs.
Data Required
? Regional control totals for population and employment
? Household characterstics (Census STF3 and PUMS)
? Existing land use (at parcel level, usually GIS input)
? Land use plans (compatible with parcel-level GIS)
? Infrastructure plans (compatible with parcel-level GIS)
? Environmental constraints (compatible with parcel-level GIS)
? Regional development costs (by land use type)
? Government regulations (impact fees, tax abatments)
? Travel cost matrix (from external travel demand model)
Appendix A Page A-12
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
Advantages
? No licensing fee for use and designed for any microcomputer platform capable of running Java
(Windows, MacOS, Unix).
? Provides results based on market mechanisms and policy constraints at a high level of spatial
disaggregation (TAZ).
? Explicitly accounts for use of land, and characteristics of households and businesses in yearly
time periods. Accounts for new development and redevelopment.
? Capable of modeling impacts of land use and other government policy scenarios.
? Compatible with existing travel demand models and transportation planning data.
? Data output to built-in GIS reader for mapped results.
Disadvantages
? Newly developed software does not have track record of practical applications, calibration, and
validation.
? Substantial data requirements including parcel level data on land use, vacant land,
environmental constraints, and infrastructure availability. Requires GIS expertise and careful
preparation of data of a level and type not normally utilized by transportation professionals.
Pending Revision
According to the UrbanSim web page, the model is being reworked to fix bugs and accommodate
recent improvements. The new version will be available for free download in Fall 2000. Previous
versions are not available and the developer recommends against their use.
Requirements for Implementation
Licensing: no fee; free for download (www.urbansim.org)
Platform: DOS, Windows, MacOS and UNIX (requires free Java Developers Package)
Staffing: travel modeler, land use planner, GIS analysts
Contact developer for information on consulting for implementation and calibration.
Appendix A Page A-13
Guidance on Indirect and Cumulative Impact Assessment Volume I: Policy Report
Other Operational Models
Several MPOs have developed in-house land use and transportation models to meet their forecasting
needs. One example is:
POLIS (Projective Optimization Land Use Information System) developed by Poulicos Prastacos
for the Association of Bay Area Governments, is a mathematical programming formulation of the
Lowry model. The model is based on random utility theory. Basic employment and travel
impedance are exogenous to the model. Similar in function, data requirements, and output to
ITLUP.
There are a few examples of models that are not fully integrated transportation and land use
models but contain components that may be useful those studying the indirect/cumulative effects
of transportation projects:
CUF (California Urban Futures) - Developed by John Landis at the University of California at
Berkeley, CUF operates entirely within the Arclnfo GIS platform. Although the model is a large
scale metropolitan simulation model, it cannot be integrated with travel demand models and does
not include travel cost considerations-it would not therefore be useful on its own for modeling
transportation improvement alternatives. It does allow for modeling of land use policy alternatives
and provides bottom-up population anct household projections and residential land consumption
predictions.
TELUS (Transportation, Economic, and Land Use System) - Developed for the North Jersey
Transportation Planning Authority (NJTPA) by a team from the New Jersey Institute of Technology
and Rutgers University, TELUS is a transportation management software tool. The software
combines a database of projects in the Transportation Improvement Plan (TIP) with the capability
to translate the cost of improvement projects into economic impacts for the 13-county region covered
by the MPO. TELUS is also designed to measure the change in property values related to
transportation investment projects and changes inaccessibility. Property value impacts are measured
using a comparison between similar projects and communities, and a multiple regression model
(covering the period 1990-2000) describing the relationship between the cost of improvements and
changes in property values.
SCALDS (Social Cost of Alternative Land Development Scenarios) - The SCALDS model was
developed in 1998 by Parsons Brinkerhoff Quade & Douglas, Inc. for FHWA. The model is not a
fully calibrated land use and transportation model. It is, however, a comprehensive accounting
framework for evaluating many of the most important costs and benefits associated with
transportation systems and related land development. The model would be useful in evaluating the
impacts of a variety of land use and growth scenarios developed on the regional level. The model
does not provide forecasts of induced growth or allocation of projected development to sub-regional
zones. The model has three main calculation paths:
Appendix A Page A-14
Guidance on Indirect and Cumulative Impact Assessment Volume L Policy Report
? Physical Development -This portion of the model estimates consumption of land; the projected
mixture of new housing units; local infrastructure cost; the annual operating cost of sewers,
water, and storm water; and the average amount of non-residential building space needed to
support new development. A short term projection of school children and school costs is also
provided. These outputs are based on growth forecasts generated by MPOs or other regional
entities that are exogenous to the model. The growth forecasts include projections of
population, households, housing units, vacancy rate, employment, and vehicle miles traveled
(VMT), aggregated at the regional level.
? Travel Cost - This path models the annual operating cost of peak and non-peak travel on a
passenger miles traveled (PMT) basis. Person trips are derived from household estimates and
the average number of trips per household. Trips are allocated to modes based on the percentage
of trips made by vehicle type and PMT is calculated from these figures. Costs per passenger
mile are then estimated based on depreciation and financing, insurance, registration, fuel,
maintenance, transit, parking, and value of travel time costs.
? Air Pollution and Energy Consumption - This portion of the model estimates air pollution by
transport mode. and energy consumption by transportation and residential and non-residential
land uses. The model uses accepted national estimates derived from recent literature. Locally
developed estimates or inputs from other modeling estimates may be substituted.
Further information on the SCALDS model and a complete copy of the Microsoft Excel spreadsheet
model is available through the FHWA website (http://www.fbwa.dot.gov/scalds/scalds.htm).
Smart Groivth INDEX This GIS-based sketch planning tool was prepared by Criterion Planners
in 1999 for the U.S. EPA. The model offers evaluation of alternative growth scenarios, land-use
plans, and urban design features for consistency with community goals and policies. Smart Growth
INDEX employs a gravity model formulation to allocate exogenous regional population forecasts
to sub-regional zones based on user-selected policy constraints and incentives. The model is
designed to score the results of land use scenarios against a set of performance indicators. The
model is also capable of scoring a micro-level land use plan or urban design with another set of
environmental performance indicators. An abbreviated four-step travel demand sub-model is a
component of the model but input from an external travel demand model such as TRANSCAD or
MINUTP is also acceptable. Data required by the model in ESRI (AreView) shapefile format
includes existing housing by type, road network (street centerlines by functional class), employment
count and location, and current or proposed land-use plan designations. Features constraining
urbanizaiton such as steep slopes, flood plains, and urban growth boundaries can also be entered into
the model in shapefile format.
Outputs of the model include residential density and location, employment density and location, land
use mix, jobs/housing ratio, vehicle miles traveled (VMT), travel costs, and air/water quality,
Appendix A Page A-15
Guidance on Indirect and Cumulative Impact Assessment Volume I: Polio' Report
resource use infonnation. The model produces spatial output based on land use cells of a size
specified by the user. Land prices are not modeled and it is not possible to change the parameters
of the gravity model component.
Smart Growth INDEX offers visual output and sketch-level analysis of the impacts of transportation
improvements and land use policies, producing a subregional allocation. Model outputs can be used
in support of other analysis techniques described in this chapter. More information on the model is
available through the EPA website (littp://www.epa.gov) or Criterion Planners
(http://www.crit.coi-n). The model requires ArcView or ArcInfo GIS (ESRI) for operation.
Appendix A Page A-16
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