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Restoring the Rule of Law and Respect for Communities in Transportation

"This Article seeks to explain how ostensibly protected public resources have ended up standing, if not quite naked, then at least scantily clad in the cold wind of American transportation policy. The reason, in brief, is that transportation agencies have succeeded in elevating the limited logic of conventional traffic engineering to the status of public policy or even natural law. They have made it their mission to ensure that motor vehicle traffic flows at relatively high speeds with minimal interference. In carrying out that mission, they have not only enjoyed the deference that federal courts show administrative agencies, but have secured widespread--if often reluctant--cooperation from environmental regulators, local boards and commissions, and elected officials. Instead of providing means to attain goals set by the public and its elected officials, agency engineers have assumed responsibility for defining public goals."

Introduction

 

For decades, popular environmental literature has consistently sounded an alarm about the impact of humans on their natural surroundings. However, the mid-1990s' most widely read and debated book on the environment contends that the major battles in the war against pollution have been or are being won. "In the Western world," the author predicts, "pollution will end within our lifetimes, with society almost painlessly adapting [sic] a zero- emissions philosophy." Figuring prominently in the argument of this "eco-realist" are the large reductions in tailpipe emissions of lead, carbon monoxide, and smog-producing pollutants that have resulted from the regulation of automobile technology under the Clean Air Act. Even with enormous growth in the number of miles Americans drive each year, the air in the nation's cities is getting cleaner, and the decline in emissions from automobiles deserves much of the credit.

 

Yet if one descends from the atmosphere and surveys the effect of roads and traffic on our communities and landscape, federal law turns out to have been a far less effective guardian of the public well-being. Congress has attempted to rope off parks, historic properties, and wetlands from the traffic engineers in transportation agencies. Congress has sought to force the agencies to pursue less destructive courses of action by requiring them to study and disclose alternatives to their plans. Congress has indeed tried to turn the agencies' engineers into transportation and environmental planners. But, to a remarkable extent, transportation agencies have frustrated these attempts to control their activities.

 

This Article seeks to explain how ostensibly protected public resources have ended up standing, if not quite naked, then at least scantily clad in the cold wind of American transportation policy. The reason, in brief, is that transportation agencies have succeeded in elevating the limited logic of conventional traffic engineering to the status of public policy or even natural law. They have made it their mission to ensure that motor vehicle traffic flows at relatively high speeds with minimal interference. In carrying out that mission, they have not only enjoyed the deference that federal courts show administrative agencies, but have secured widespread--if often reluctant--cooperation from environmental regulators, local boards and commissions, and elected officials. Instead of providing means to attain goals set by the public and its elected officials, agency engineers have assumed responsibility for defining public goals.

 

On inspection, the goals of conventional American traffic engineering reveal themselves to be conspicuously inadequate. Much of the damage that asphalt and traffic inflict on communities and the environment can be avoided if those goals are merely subjected to scrutiny on the basis of commonly accepted public values. Throughout the 1980s and 1990s, public officials, transportation professionals, and community groups, here and abroad, have been subjecting the goals of traffic engineering to long-overdue scrutiny. They have been rejecting those goals and reclaiming the prerogative of defining the goals that engineering is to serve. The judgment these reformers have made is a simple one: that communities "neither can nor should be moulded to the requirements of car traffic."

 

This fundamental shift in thinking concerns both the place of motor vehicle traffic on our landscape and the role of traffic engineers in public policy. It could give new life to federal laws which have become all but dead letters, and dramatically improve the livability of American cities, suburbs, and towns. Because a critical first step toward restoring the rule of law and respect for communities is to understand conventional traffic policy, Part I of this Article discusses its goals and limitations. Part II discusses how conventional traffic policy has trumped federal laws intended to protect communities and the environment. Part III discusses a different policy that has taken hold at the municipal and federal levels and in several European countries--one that gives priority to the protection and improvement of the places that traffic passes through, rather than to traffic itself. The conclusion of this Article argues that as a consequence of this policy shift, the resource protection laws discussed here can achieve their intended effect to a much greater extent than they have in the past, and the health of many American communities can be improved in important ways.




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