The Politics, Science and Law of Sprawl

Craig D. Galli
Parsons Behle & Latimer

Legal, scientific and policy implications increasingly come to a head in litigation involving road projects and suburban sprawl. Can complex litigation effectively counter political pressures to disregard the mandates of federal environmental laws to avoid the adverse consequences of sprawl? Do the requirements the National Environmental Policy Act (NEPA) require consideration of project alternatives and land use impacts resulting from highway construction using accepted integrated transportation, land use and growth impact models? Should the Federal Highway Administration (FHWA) promulgate regulations or issue guidance mandating the use of such models given the difficulty of judicially enforcing NEPA obligations against highway agencies who prepare environmental impact statements without performing such analysis? Litigation in Utah over a highway through wetlands on the eastern shore of the Great Salt Lake provides a case study.

Suburban Sprawl - American Dream or Disease?

Miniature mansions, prominently featuring three-car garages, perched on spacious lots far from inner city crime and poverty have long represented the proverbial "American Dream" for many middle class families. Suburban subdivisions often enhance their rural feeling by not installing sidewalks, curbs and gutters, and by attaching names such as "Fox Meadows" and "Brook Haven" even though wildlife and habitat have been eliminated by the development. A plethora of recent studies challenge the assumptions that urban sprawl spawned by new highway construction is healthy, economically sound and sustainable:

• The World Business Council for Sustainable Business, a coalition of 150 multinational corporations, enlisted MIT's Laboratory for Energy and the Environment to prepare Mobility Report 2001, which identifies numerous problems arising from automobile dependency and sprawl: "[C]ongestion is the cause of pervasive economic inefficiencies…. [B]uilding infrastructure to get rid of all congestion is not a solution. The costs - economic as well as environmental - would far outweigh any possible additional benefits to travelers."
• Beyond Sprawl: New Patterns of Growth to Fit the New California, published by Bank of America, maintains that "unchecked sprawl has shifted from an engine of California's growth to a force that now threatens to inhibit growth and degrade the quality of life…. Continual sprawl may seem inexpensive for a new homebuyer or a growing business on the suburban fringe, but the ultimate cost - to those homeowners, to the government, and to society at large - is potentially crippling…. This acceleration of sprawl has surfaced enormous social, environmental and economic costs, which until now have been hidden, ignored, or quietly borne by society. The burden of these costs is becoming very clear. Businesses suffer from higher costs, a loss in worker productivity, and underutilized investments in older communities."
• The National Association of Governors' report, Growing Pains: Quality of Life in the New Economy, concludes that the "economic boom of the 1990s has seen increasing demand for larger homes on larger lots, often with garages to handle two or more vehicles. . . . One consequence of largely uncoordinated land development and rapid expansion of suburban areas is that many urban centers have languished. . . . The effects of growth on quality of life jeopardize future state economic growth. . . . Unless something is done to preserve quality of life, growth today will stifle growth tomorrow. . . . Commercial development along highways transforms high-speed intercity connectors into miles of congested traffic."
• In Creating a Health Environment: The Impact of the Built Environment on Public Health, the Centers for Disease Control and Prevention (CDC) explains the connection between "urban sprawl … and the fact that we are an overweight, heart disease-ridden society…. As America increasingly becomes a nation that permits and even encourages thoughtless development and unmanaged growth, the impact of these factors grows clearer, and we ignore them at our peril."

Law of Sprawl

Local land use planning and controls remain almost entirely the domain of state and local government. However, the Council on Environmental Quality regulations implementing NEPA require consideration of "growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate." 40 C.F.R. § 1508.8(b). Courts have enjoined highway and other development projects where environmental impact statements failed to analyze impacts on land use and growth patterns resulting from the development. See City of Davis v. Coleman, 521 F.2d 661, 675-76 (9th Cir. 1975) ("The growth inducing effects of the [interchange] are its raison d'être, and with growth will come growth's problems: increased population, increased traffic, increased pollution, and increased demand for services …Uncertainty about the pace and direction of development merely suggests the need for exploring in the EIS/EIR alternative scenarios based on those external contingencies. Drafting an EIS/EIR necessarily involves some degree of forecasting. While "foreseeing the unforeseeable" is not required, an agency must use its best efforts to find out all that it reasonably can. . . ."); Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 (9th Cir. 1980); Sierra Club v. U.S. Dep't Trans., 962 F. Supp. 1037 (N.D. Ill. 1997); Friends of the Earth v. U.S. Army Corps of Engineers, 109 F. Supp.2d 30, 41 (D.D.C. 2000); Sierra Club v. Marsh, 769 F.2d 868, 877 (1st Cir. 1985); Mullin v. Skinner, 756 F. Supp. 904, 920-21 (E.D.N.C. 1990).

The Transportation Equity Act for the 21st Century of 1998 requires that metropolitan planning organizations (MPOs) "provide for consideration of projects and strategies that will . . . support the economic vitality of the metropolitan area. . . , increase the accessibility and mobility options available to people. . . , protect and enhance the environment, promote energy conservation, and improve quality of life. . . , enhance the integration and connectivity of the transportation systems, across and between modes. . . ." 49 U.S.C. § 5303(b)(1). While this provision could be construed to require consideration of impacts on development and growth patterns resulting from highway construction as well as the integration or "connectivity" of highway and transit projects, federal transportation laws ensure that this requirement remains aspirational, if not optional, by expressly barring judicial review of transportation plans to challenge compliance with these factors. Id. § 5303(b)(2).

Science of Sprawl

Even though NEPA and federal transportation laws do not expressly mandate the use of any particular scientific methodology or models to consider land use impacts or alternative growth scenarios, transportation and urban planning experts have long attempted to empirically describe the correlation between highway construction and impacts to land uses and growth patterns. An early model (EMPIRIC) developed for the greater Boston area in the 1960s forecasted the interaction between land use and travel behavior, including travel demand and automobile ownership. This early work resulted in the development of integrated models to predict the interaction between transportation and land use. One such model (DRAM/EMPAL) has been successfully used since the 1970s. Currently, over twenty different integrated land use and transportation planning models exist and have been applied in over thirty metropolitan areas in the United States. Such models also have been widely used in Europe.

One model (ULAM), initially developed for use in Florida, allows planners "to create and evaluate alternative land use scenarios such as comparing compact development patterns versus urban sprawl patterns." The planner can change inputs relating to the transportation network to identify changes in travel time and land development patterns. The model can also identify "increased development activities around proposed or existing rail transit stations." A more sophisticated model (UrbanSim) allows transportation and land use "policy assumptions to be input to the model to examine their potential consequences on outcomes such as urban form, land use mix, density, and travel patterns." A team of transportation engineers at Brigham Young University, under a grant from the National Science Foundation, established a "Pareto set scanner" to allow planners to sift through thousands of possible land use/transportation plans developed through a "genetic algorithm" process to identify plans which best achieve the desired travel times, cost, mode choice and development pattern.

Accordingly, accepted scientific methods now exist to assist state transportation agencies interested in conducting urban and transportation planning in a manner that satisfies future travel demand, but which minimizes the adverse effects of sprawl.

Politics of Sprawl

State and local transportation and urban planners with either the political support or courage to evaluate alternative growth scenarios and impacts on growth patterns resulting from proposed roadway projects avail themselves of the tools described above in the transportation planning and NEPA compliance process. Use of such tools and popular support for "smart growth" initiatives have led some governors to take a strong position opposing new highway projects and unfettered sprawl development which consumes wildlife habitat and open space. For example, Maryland Governor Parris Glendening exclaimed: "We cannot fool ourselves - or the public - any longer: We can no longer build our way out of our highway congestion problems. It is not an environmentally or financially feasible solution." Growing Pains at 10. When Governor Roy Barnes of Georgia proposed smart growth legislation in 1999 to address relentless congestion and violations of air quality standards, he stated: "Either you help me do something now or this boomtown known as Atlanta becomes a ghost town. And if our growth stops here, it stops everywhere in the state." Id. at 32. With strong backing from business and industry, Georgia created the Georgia Regional Transportation Authority which has extensive regulatory authority to limit new road construction and sprawl development. See Brookings Institution Center on Urban and Metropolitan Policy, Moving Beyond Sprawl: The Challenge for Metropolitan Atlanta (2000).

When political leaders and transportation planners desire to construct new highways to support planned sprawl development, the existence of accepted models (and even legal requirements to evaluate alternatives and impacts associated with new highway construction) provide little incentive to use such analytical tools which could generate data that call into question the planned highway.

Sprawl in Utah: A Case Study

Utah's governor and transportation planners, unlike their peers in many other states, have embarked on the most aggressive highway expansion program in Utah's history and, as demonstrated below, have done so with little consideration of growth impacts and alternative growth scenarios.

In 1996, Gov. Michael Leavitt announced plans to construct a 130-mile highway from Brigham City to Nephi, Utah's most populated area along the Wasatch Front. The first segment of the new "Legacy Highway" would extend 12 miles through open space and farmland along the eastern shore of the Great Salt Lake, destroying 114 acres of wetlands, 337 acres of farmland, and affecting thousands of additional acres of wetlands and wildlife habitat which form part of the Western Hemisphere Shorebird Reserve Network. The eastern shore of the Great Salt Lake is a critical link of the Pacific Flyway for migratory waterfowl such as 40,000 wintering tundra swans. Local government planners urged a route as close to the Lake as possible in order to maximize the amount of future development projects they hoped to annex, thereby expanding their tax revenue base. The governor called for "expedited" environmental review of the project, prompting many public interest groups and officials at the Army Corps of Engineers and U.S. Fish & Wildlife Service to express concern regarding the objectivity of the NEPA process and the underlying political pressure imposed on agency decisionmakers.

In January 1998, even though the draft environmental impact statement (EIS) had not yet been issued for public comment, the Utah Department of Transportation (UDOT) commenced acquiring highway right-of-way. More than 570 written comments were submitted by the public, private organizations, and government agencies opposing the project. EPA rated the draft EIS "environmentally unsatisfactory" and "inadequate." EPA and many public interest groups criticized the draft EIS for, among other things, failing to consider a more inland alternative route which would avoid the wetlands. Project opponents also claimed that the EIS, prepared by UDOT's contractor, failed to consider the sprawl development that would accompany the new highway, and alternatives to the highway, such as a combination of mass transit and alternative growth scenarios to reduce vehicle miles traveled (VMT) and eliminate the need for the highway. The EIS claimed that no land use impacts would occur because growth would occur anyway and the new highway was already included in the development plans of the local governments in the area.

After issuance of the final EIS, EPA threatened to veto the permit if it were issued and the Army Corps delayed issuance of the Clean Water Act permit pending further review. Gov. Leavitt and Utah's congressional delegation applied intense political pressure on the Corps to issue, and on EPA not to veto, the Clean Water Act permit. President Clinton's outgoing EPA regional administrator, Bill Yellowtail, agreed not to veto the permit but warned Governor Leavitt on Jan. 5, 2001, that if the project received final approval from the Corps without taking time to address EPA's concerns, "[t]here are some areas where you will be seen as non-compliant and [the highway project] has some vulnerabilities."

Shortly after issuance of the Corps permit on Jan. 9, 2001, Utahns for Better Transportation (a local coalition of transit advocates and local environmental groups), Sierra Club, and Salt Lake City Mayor Rocky Anderson filed a law suit, alleging violations of NEPA and the Clean Water Act's prohibitions on filling wetlands if less damaging practicable alternatives exist. The district court upheld the project approvals on August 11, 2001. During pendency of the plaintiffs' motion for injunction pending appeal, UDOT graded and filled 8 of 14 miles of highway right-of-way. On Nov. 16, 2001, the Tenth Circuit granted the motion for injunction in an unusually detailed decision which included a finding that the "financial loss" suffered by UDOT resulting from the injunction was "self-inflicted," given that "the state agency was aware that there were several court cases challenging the approval of the Legacy Highway, but chose to proceed nevertheless." Utahns for Better Transportation v. United States Dep't of Transp., No. 01-4216, slip op. at 9 (10th Cir. Nov. 16, 2001). Gov. Leavitt and UDOT then embarked on a public relations campaign, blaming the plaintiffs for damages of $100,000 per day resulting from the work stoppage. Pending before the Utah Legislature is a bill to allow UDOT to recover damages from the plaintiffs and to withhold state funds to reimburse Salt Lake City for Olympic related expenses. Oral argument in the Tenth Circuit on the case on the merits was scheduled for March 20, 2002.

Utah's "brawl over sprawl" illustrates several problems with the current system for permitting new roadways which promote sprawl and destroy open space and critical wildlife habitat. First, even though accepted methods exist to analyze land use impacts from highway construction and to consider alternative land use scenarios, state leaders and transportation planners hostile to "smart growth" and transit can avoid utilizing such scientific methods. For example, in 1997, early in the Legacy Highway NEPA process, non-government transportation experts urged state transportation planners to develop an integrated land use/transportation model for use in the Legacy Highway EIS and other highway projects. State planners refused because they did not want a new set of modeled growth projections to contradict assumptions state planners relied on to justify planned highways. After issuance of the final EIS, state planners attempted to disarm highway opponents by engaging Cambridge Systematics, Inc. (CSI) to evaluate various aspects of the final EIS. However, CSI confirmed that "it would appear unlikely that the development pattern in the absence of the proposed Legacy Highway would be the same as the pattern that would exist if the highway were built." CSI identified a number of models which could have been developed and used to quantify growth impacts from the highway. Notwithstanding this confirmation that the "no land use impacts" conclusion in the final EIS was invalid, the federal agencies with oversight - FHWA and Army Corps of Engineers - approved the project, even though NEPA requires that federal agencies "insure the professional integrity, including scientific integrity, of the discussions and analyses in the environmental impact statements." 40 C.F.R. § 1502.24. In short, politics trumped science, reducing federal oversight to a rubberstamp.

Second, state planners can ignore considering specific alternative land use scenarios which have widespread public and business support. In 1997, a public/private partnership created "Envision Utah," "dedicated to studying the effects of long-term growth." Envision Utah proposed a "Quality Growth Strategy" designed to conserve critical lands, reduce emissions from motor vehicles, reduce water consumption, enhance transportation efficiency, provide more transportation choices and mobility, provide more housing choices, reduce congestion, and require less investment in new roads. Using preliminary models, Envision Utah concluded that the Quality Growth Strategy - consisting of a combination of "smart growth" measures and transit investments would save $4.5 billion in future infrastructure costs over the next 20 years and "make our transportation system more efficient with less congestion on the roads. At the same time, average speeds increased by 12.5 percent; commute times declined by 5.2 percent; and transit trips increased by 37.5 percent. These system improvements came with a reduction in road spending of approximately $3.5 billion and an increase in transit spending of $1.5 billion for a net savings of $2.0 billion." Envision Utah published a "toolbox" of recommended land use policy and regulatory changes to implement the Quality Growth Strategy, which has received enormous public support. The majority in a survey involving more than 17,000 people responded that they did not want to continue in the growth with big residential lots, no farmland protection and total dependence on cars, but preferred houses on smaller lots "under a third of an acre, near rail or transit lines, in neighborhoods with a mix of small businesses and town houses." Even though Gov. Leavitt serves as Envision Utah's honorary chairman, he has been hostile to smart growth, telling the New York Times for example, that "[y]ou have some very well-meaning people whose idea of future homes are a bunch of apartment complexes stacked up next to light rail depots." New York Times (Jul. 14, 1999).

Third, NEPA allows the FHWA to delegate responsibility for preparation of an EIS for a highway project to the state highway agency, i.e., the proponent of the project. 42 U.S.C. § 4332(D). Theoretically, the FHWA still must provide oversight and independently review the EIS for adequacy. 23 C.F.R. § 771.109(c)(1). As a practical matter, however, FHWA oversight is spotty and subject to political pressures, especially given that FHWA oversight and project approvals occur on the local level. Thus, attempts by FHWA's national experts to ensure sufficiency and adequacy of the NEPA process can be stymied by local FHWA personnel with close relationships with local highway builders. For example, shortly before the local FHWA official approved the Legacy project, one of FHWA's top experts from headquarters, Dr. Bruce Spear, rejected the assertion in the final EIS that it evaluated, as a project alternative, an "extraordinary expansion of the public transit system." Spear complained to local FHWA personnel: "What is somewhat troubling is that there appears to be no effort to include aggressive transit … in any of the proposed alternatives." Notwithstanding this judgment from FHWA's national expert, local FHWA personnel approved the project several weeks later with no additional transit analysis.

Fourth, the hostility to smart growth and transit by Utah's governor and legislature cuts directly against the state's history and traditional values. Shortly after arriving in the Salt Lake Valley in 1847, Mormon pioneer leader Brigham Young and his associates made a number of land use and urban planning decisions, remarkable for the time, which dramatically shaped the quality of life for many generations. Young's new settlement was patterned after a plat and land use plan authored by LDS Church founder Joseph Smith called the "City of Zion." Smith's 1833 urban development plan, designed to accommodate communities of 20,000 people, incorporated such modern ideas as zoning, strict land use regulation, a town center and surrounding greenbelt. In 1996, the American Institute of Certified Planners awarded the "City of Zion" plat the National Planning Landmark Award as one of the earliest examples of smart growth. As the community grew, in 1872 Young introduced the first trolley cars, drawn by mules and horses. By 1889, the Salt Lake City Street Railway Company had twenty-one mule and horse-drawn trolleys covering approximately 14 miles of track. Salt Lake City was the second city in the country to electrify its streetcars. By 1918, Salt Lake City had almost 150 miles of streetcar track. Approximately half of all adults living in Salt Lake City rode the streetcars on a daily basis.

Many generations later, Utah residents now show similar enthusiasm for rail transit. State planners predicted that by 2010, the Utah Transit Authority (UTA) new "TRAX" light rail might reach 11,000 daily riders. However, since its first month of operation in December 1999, ridership has averaged 20,000 riders. Notwithstanding the extraordinary success of TRAX, state transportation planners do not propose expanding TRAX northward into Davis County (which has a population density similar to Salt Lake County now serviced by TRAX) anytime before the year 2030. The 2030 long-range transportation plan still calls for nine times the investment in new highway construction compared to transit investments. UTA has received little financial or political support from the legislature and governor compared to other states with light rail systems, and must resort to highly innovative approaches to raise funds for the acquisition and operation of the TRAX system and a future commuter rail.

Potential Reform

Some might argue that the requirement of NEPA to consider reasonable project alternatives (such as mass transit combined with alternative land use scenarios) and land use impacts resulting from highway construction can be adequately enforced through federal oversight from the FHWA and citizen groups seeking judicial review of EISs for highway projects considered inadequate. Federal oversight, however, can be rendered ineffectual by pressure imposed by politicians who disregard the mandates of environmental laws and the adverse consequences of sprawl. Moreover, litigation is extremely expensive and complex, and the discretion courts pay agencies in NEPA cases renders prospects for success remote.

Until the public becomes better educated regarding the impacts of and alternatives to new highway construction and sprawl development, the best hope is for FHWA to take seriously its oversight role by amending the FHWA NEPA regulations to expressly require (or issue guidance mandating) analysis of land use and growth impacts, and alternative land use scenarios, using integrated land use/transportation models for highway projects at or near metropolitan areas which provide access to large tracts of developable land. Such analysis would vindicate the purpose of NEPA to ensure "that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

Craig Galli (Brigham Young University, BA, MA; Columbia, JD) chairs the environmental department at the Salt Lake City firm of Parsons Behle & Latimer where he specializes in environmental litigation. He is an adjunct professor at the University of Utah College of Law and a former senior trial lawyer with the Environment Division, U.S. Department of Justice, Washington, D.C. Mr. Galli also represents Utahns for Better Transportation in the above mentioned litigation challenging the Legacy Highway.