P.O. Box 92233 • Santa Barbara, California 93190
Phone: (805) 682-0585 • Fax: (805) 682-2379

January 7, 2005

Ashley Nguyen, EIR Project Manager
Doug Kimsey, MTC Planning Director

BY Email and US MAIL

Metropolitan Transportation Commission
101 Eighth Street
Oakland, CA 94607

RE: Supplemental Comments of the Transportation Solutions Defense and Education Fund to DEIR for MTC’s 2005 RTP, State Clearinghouse No. 2004022131

Dear MTC:

This office represents the Transportation Solutions Defense and Education Fund (TRANSDEF) a transportation advocacy non-governmental organization in the Bay Area. Please accept these comments on their behalf and denote them in the record as TRANSDEF comments.

As indicated by comments on the underlying RTP from TRANSDEF President David Schonbrunn, there are a number of important and valuable elements in the RTP. We generally find the analysis in the draft environmental impact report (DEIR) to be useful, however we have concerns regarding the project description and assumptions that underlie the DEIR’s assessment of the environmentally superior alternative.

Unfortunately, we have concluded that the EIR employs selective reasoning to mischaracterize the project’s impacts and benefits in comparison to the alternatives and deny decisionmakers and the public a fair analysis and thus comparison of alternatives. This flaw threatens to undermine both the EIR and the RTP.

1. CEQA Requires Identification of the Project Objectives and Consideration of Only Those Alternatives That Achieve the Objectives and Are Economically Feasible

CEQA requires an EIR to contain an “accurate, stable and consistent project description” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193), including a “clearly written statement of project objectives (Guidelines § 15124(b)), required to “help the lead agency develop a reasonable range of alternatives to evaluate in the EIR” (id.) that can achieve those project objectives. CEQA Guidelines § 15124(b). The EIR’s project description is flawed from the use of vague objectives that are not specifically related to a principal legal and technical function of the RTP – to meet the requirements of federal and state law to gain access to funding necessary to achieve the transportation improvements. The limitation of fiscal constraint is not applied evenly to the project and its alternatives. The function of fiscal constraint is an essential element of the RTP. Without fiscal constraint, the RTP cannot be approved and advanced to the State and Federal government for funding. Without the plan, the various projects would not be built as MTC would lack the legal authority and financial resources to complete them. The project description must be refined to include those parts of the project that MTC has authority to act upon – the fiscally constrained RTP.

In the vacuum created by MTC’s omission of this fundamental CEQA environmental review document element, the DEIR is allowed to drift from its moorings and founder into an illogical and counterproductive alternatives analysis

Public Resources Code § 21061.1 defines feasible as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” The EIR must apply the limitation of feasibility evenly to each alternative and the project description to ensure compliance with CEQA’s information disclosure and adequacy requirements.

2. Fiscal Constraint is Required by State and Federal Law for RTPs and Thus is a Required Element of the Project Description

The EIR attempts to blur the requirement of fiscal constraint through innovative use of a “vision” element and vague references to the state RTP as being exempt from this fundamental element of transportation planning. This effort is inappropriate, as the only RTP that may be approved under both federal and state law must be fiscally constrained.

The DEIR acknowledges that fiscal constraint is mandated by federal law for RTPs. DEIR at 1.2-4, citing 23 U.S.C. § 134 and 23 C.F.R. Part 450. Federal conformity mandates that transportation plans and TIPs be fiscally constrained consistent with DOT’s metropolitan planning regulations at 23 C.F.R. Part 450. This is required by EPA’s conformity regulations as well. 40 C.F.R. § 93.108 (fiscal constraints for transportation plans and TIPs).

The DEIR fails to recognize that state law, which similarly mandates preparation of RTPs that “shall be consistent with federal planning and programming requirements.” Government Code § 65080(c). Federal planning requirements include the mandate that an RTP include “a financial plan that describes how the adopted [RTP] can be implemented, indicates resources from public and private sources that are reasonably expected to be made available to carry out the plan, and recommends and any additional financing strategies for needed projects and programs.” 23 U.S.C. § 134(g)(2)(B). This requirement of “fiscal constraint” is echoed in 23 C.F.R. § 450.322(b)(11) which requires an RTP to “[i]nclude a financial plan that demonstrates the consistency of proposed transportation investments with readily available and projected sources of revenue.” This language establishes the federal mandate of fiscal constraint, and it applies with equal vigor, by virtue of California Government Code § 65080(c), to RTPs prepared under state law.

Additionally, California Government Code § 65080(b)(3) requires a state RTP to include a “financial element that summarizes the cost of plan implementation constrained by a realistic projection of available revenues. . . . The first four years of the financial element shall be based on the four year estimate of funds developed pursuant to § 14524 [state budget projections].” An RTP prepared under state law is subject to comparable, if not the exact same requirements of fiscal constraint as imposed by federal law.

California RTP Guidelines, issued by the California Transportation Commission on 09/09/1999, further elucidate the essential nature of a constrained financial element to a California RTP.

The third and final statutorily required planning element is the Financial Element. The Financial Element is fundamental to the development and implementation of the RTP. It identifies the current and anticipated revenue sources and financing techniques available to fund the planned transportation investments described in the Action Element. The intent of the Financial Element is to develop realistic financing constraints and opportunities. With this financing information, alternatives are developed and used by state and local decisionmakers in funding planned projects.

CTC RTP Guidelines § VIII (emphasis added).

The Guidelines proceed to elaborate specifically on the “Consistency Requirement.”

The RTP elements must be consistent within the Plan and consistent with other transportation plans in the region (i.e., local, state, etc). Specific consistency requirements relating to the Financial Element include the following:

• The first four years identified in the Financial Element shall (Government Code 14525-as per SB 45) be consistent with the four-year STIP Fund Estimate adopted by CTC;

The Goal, Policy and Objective Statements shall (Government Code § 65080(b)(1)) be consistent with the Financial Element and;

• Projects included in the ITIP and RTIP shall (Government Code § 14526(a)) be consistent with the RTP.

CTC RTP Guidelines § VII.B (emphasis added).

MTC impermissibly seeks to adopt the “Vision” Element into the RTP’s Action Element without observing the requirements and limitations imposed by the Financial Element. MTC is without authority to allow the RTP’s Goals, Policy and/or Objectives Statements to exceed the constraints imposed by the Financial Element. Further, this practice has obfuscated a clear and meaningful comparison of the alternatives in the CEQA document and process.

TRANSDEF is cognizant of Government Code § 66512, and observes that this MTC-specific statute does not supplant the general requirements of RTP Financial Elements, but instead requires additional revenue and expense analysis and proposal “for each segment of the [regional transportation] system, including the amount and sources of revenues necessary to construct and operate that segment.” Government Code § 66512. It is patently obvious that the MTC-specific requirements reflected in Title 7.1 are in addition to, and do not supplant the other RTP content and analytical requirements (i.e., fiscal constraint) that apply to all RTPs in the state.

Further, the phrase “without regard to any constraints imposed by law on expenditures from such sources” clearly refers to a different legal constraint, apart from the fiscal constraint required by state and federal law.

Statutes must be interpreted to give effect to the “obvious nature and purpose of the statute” and “harmoniz[ing] the various parts of a statutory enactment . . by considering the particular clause or section in the context of the statutory framework as a whole.” People v. Hammer (2003) 30 Cal. 4th 756, 762-763 (internal citations omitted). Were § 66512 to redefine the form of fiscal constraint required to be included in MTC’s RTP, that RTP would be inconsistent with all other RTPs in the state in a most fundamental aspect. Assuming, arguendo, that MTC’s RTP was intended to be inconsistent with the detailed requirements of Government Code § 65080, et seq., such an RTP would be plainly illegal and unacceptable for federal TEA-21 purposes. "When uncertainty arises in a question of statutory interpretation, consideration must be given to the consequences that will flow from a particular interpretation. [Citation.] In this regard, it is presumed the Legislature intended reasonable results consistent with its expressed purpose, not absurd consequences." Harris v. Capital Growth Investors XIV (1991) 52 Cal. 3d 1142, 11651166. It is illogical and runs counter to the integrated statewide Regional Transportation Planning requirements to isolate MTC and allow the Bay Area to operate under such a fundamentally different set of assumptions and planning requirements from the rest of the state.

MTC’s interpretation of § 66512 must also be governed by the rule of statutory construction that each word or phrase in a statute should be given some meaning and surplusage avoided. Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal. 4th 220, 234-235. Elevating § 66512 to preeminent status renders to surplusage the cohesive and comprehensive regional transportation planning process required of all areas of the state by the California Legislature.

It is thus amply clear that MTC may not bifurcate the RTP and its fiscal element into two different versions for state and federal law purposes.

3. MTC Cannot Allow the Inclusion of The Optional and Unfunded “Vision” Element to Defeat CEQA’s Required Selection of the Alternative With the Least Significant Environmental Impacts

As noted above, CEQA requires a stable and finite project description for the environmental review document to properly evaluate project impacts and inform decisionmakers of feasible alternatives that can achieve the project objectives with less adverse environmental consequences. MTC is without authority to piecemeal the RTP into two inconsistent plans, and rely on a fiction of state law approval to shield the EIR from a fair and meaningful comparison of alternatives.

MTC has a duty under both federal and state law to consider and ultimately adopt alternatives to plans that have less environmental impacts. As described by the CTC RTP Guidelines:

TEA-21 requires the transportation planning process to consider projects and strategies that protect and enhance the environment. One of the primary goals of CEQA is to prevent harmful environmental effects by requiring agencies to avoid or reduce, when feasible, the significant environmental impacts of their actions. Protection of the environment is an important public policy goal. It can also be a critical element of public acceptance of projects. Therefore, RTPs should seek to develop and implement alternatives that will minimize environmental damage.

CTC RTP Guidelines § VIII

CEQA’s fundamental premise is that decisionmakers should not adopt a project if an alternative project can achieve the project’s principal objectives with significantly less environmental impacts. As detailed elsewhere in public comment, the DEIR improperly employs an ill-defined alternatives analysis that fails to adhere to the confines of the project before the agency, the agency’s legal authority, and economic constraints. Eliminating these boundaries defeats the effectiveness, and the adequacy of the alternatives analysis.

MTC has an obligation under CEQA to adopt the environmentally preferred alternative when that alternative is feasible, achieves the project’s purposes and involves less significant adverse environmental impacts.

As MTC is without authority to adopt a fiscally unconstrained RTP for purposes of state and federal transportation planning purposes, the DEIR’s alternatives analysis must be revised to perform a fair evaluation and comparison of the various alternatives of the project that MTC is authorized to adopt and which meet the project objectives of meeting state and federal requirements. A fiscally unconstrained plan cannot be adopted as the region’s RTP under either state or federal law. Only a fiscally constrained RTP may be adopted, and thus, for CEQA purposes, the project definition, objectives and thus the alternatives analysis can only evaluate fiscally constrained RTP. The fiscally constrained plan is the RTP for CEQA purposes. Until the environmental review document is revised, the EIR misinforms the public and decisionmakers and fails in its most fundamental function.

/s/ Marc Chytilo
Marc Chytilo