Building Environmental Collaborations While Funding Highways: An Innovation in Transportation Governance

Building Environmental Collaborations While Funding Highways: An Innovation in Transportation Governance

December 06, 2019  |  Martin Wachs, Professor Emeritus, University of California

Transportation agencies have been trying for generations to fulfill their missions while doing as little environmental harm as possible. But the objectives of enhancing mobility and preserving species and natural lands unavoidably conflict with one another. Many transportation projects harm endangered species and their habitats and induce urban growth that further impacts them. The huge scale of harbors and airports and the linear nature of highways and rail lines fragment multiple habitats, hindering species’ seasonal migration and reproduction. Water pollution from runoff poisons animals and plants, and noise pollution disrupts feeding and mating patterns.

Where proposed transportation facilities threatened to intrude into pristine species habitats and marine or riverine environments, activists and state and federal environmental protection agencies were, for many decades, among their most aggressive opponents. Epic battles lasted for years as opposing self-righteous forces claimed to represent the public interest and saw no option but to keep fighting. Millions of dollars were spent on legal fees and advocacy that would better have been spent on transportation projects and environmental protection.

In the midst of this ongoing contention, the California Department of Transportation (Caltrans) acquired a large tract of environmentally sensitive land near Beach Lake in the Sacramento River Valley in anticipation of future projects. By the early 1990s, Caltrans deemed the land no longer necessary, and prepared to sell it as surplus property. A creative staff member, however, urged Caltrans to hold on to the land and use it for environmental mitigation credit to offset damage from future transportation projects. In an unusual move at the time, the agency adopted her proposal. It paid off handsomely, fulfilling mitigation requirements for 49 separate road projects in 14 counties and saving Caltrans over $25 million.

Preserving land in anticipation of future required environmental mitigation is beneficial to infrastructure project developers. Advance mitigation using large tracts saves project sponsors money and time. It also better preserves natural environments than does single project mitigation, by allowing species to migrate and complex ecologies to function at a regional scale.

Over time, as court-ordered settlements and imposed environmental mitigation became increasingly financially burdensome for transportation agencies, they began to see money spent on mitigation as an investment more than a cost. The incorporation of funding for environmental stewardship into transportation programs has taken decades to achieve. Trust between conflicting interests has grown haltingly, but the change is a governance innovation worth celebrating and imitating.

Early partnerships between transportation and environmental agencies were created to develop Habitat Conservation Plans (HCPs), encouraged by Section 10 of the Endangered Species Act (ESA). These allow “incidental take permits” that collectively cover all projects included in the plans. At the rapidly developing fringe of the Los Angeles metropolitan area, acrimonious disputes between development interests and environmentalists during the 1980s and 1990s gave rise to The Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP). MSHCP is a comprehensive, multi-jurisdictional, long-term effort to conserve 146 endangered and threatened plant and animal species and their habitats on more than 1.2 million acres in western Riverside County. The MSHCP, a partnership between preservationists and pro-development interests including transportation agencies, charges exactions on new land development and contributes a portion of a voter-approved county transportation sales tax to fund land acquisition and the preservation of sensitive habitat. Preserved land fulfills mitigation requirements for new road and freeway projects named in the plan. Highway authorities reluctantly came to the table but participated over time with increasing commitment when they started to see that the MSHCP streamlined the process of obtaining environmental clearances for their projects.

Prospects for advance mitigation have benefited from the expanding role of local dollars in transportation funding. Since the 1970s, the growing gap between transportation needs and revenue has been narrowed across the U.S. by the adoption of local option sales tax (LOST) measures for transportation in many counties and cities. The politics of LOSTs benefited from advance mitigation in California in particular, where state law requires a two-thirds super-majority in county elections to enact such taxes. The challenge of achieving such a substantial majority led proponents of LOSTs to work assiduously to broaden their base of support. In the early years, environmentalists opposed transportation projects and measures to raise taxes that would facilitate their construction. To attract support from green voters, sales tax and measure proponents began to include commitments to advance environmental mitigation in ballot measures. Inclusion of funding for environmental mitigation of transportation projects in several counties led to vital support from environmentalists in obtaining voter approval of the measures. In the first 25 years of the Western Riverside MSHCP, $12 billion worth of transportation projects contributed $371 million of mitigation funding. Some $121 million came from Riverside County’s voter-approved LOST.

The Orange County Transportation Authority (OCTA) developed a countywide HCP specifically to mitigate transportation projects and dedicated 5 percent of the revenue from the countywide transportation sales tax to funding land purchases and restoration. OCTA planners credit the support of environmental groups garnered through mitigation commitments with creating the majorities needed to pass the measures. In 2004, San Diego County residents voted to extend that county’s TransNet half-cent sales tax for transportation infrastructure by 40 years and included in the measure a commitment to spend $650 million to purchase mitigation land through several HCPs.

As California accumulated experience with advanced mitigation and partnerships between transportation agencies, resource agencies, and environmental interests tentatively built trust among one another, a political constituency grew for more formal and extensive advance mitigation programs funded by transportation revenue. An opportunity to realize that vision arose when the California legislature and Governor Jerry Brown agreed that deterioration of the state’s transportation system and growing congestion necessitated a substantial increase in state gasoline and diesel fuel taxes, which had not been raised in 25 years. In 2017, the state legislature approved a major transportation revenue bill, the Road Repair and Accountability Act (SB1), that raised gasoline and diesel excise taxes, indexed future fuel taxes to future values of the consumer price index, and raised annual vehicle registration and use fees, including those levied on electric vehicles in recognition of the fact that they did not pay motor fuel taxes. The bill was controversial and hotly debated. It achieved a required majority of two-thirds in the state senate but the senator who cast the deciding vote was recalled in the next election. In 2018, opponents placed a proposition on the ballot to repeal SB1 but it was defeated.

Almost unnoticed among the arguments for and against the tax increases were provisions that constitute the full flowering of the partnership between transportation and advance mitigation. SB1 created a statewide advance mitigation program and allocated $30 million per year for the next four years to funding a revolving Advance Mitigation Account in the State Transportation Fund. Increased revenues are starting to flow and Advance Mitigation Program (AMP) funds soon will be available to Caltrans. Transportation projects will reimburse the program from project budgets for the mitigation it provides, and the revolving fund will be thus be replenished to mitigate later projects.

Transportation officials have come to realize that meeting project environmental requirements in a piecemeal fashion after completing project planning and design was inefficient and downright wasteful. Environmentalists who opposed many transportation investments gradually also began to realize that collaboration and mutual accommodation would be a more fruitful avenue leading toward environmental preservation. Money is always the best lubricant for rough edges among competing public policies, and small steps showed that spending transportation project money wisely on mitigation can in the long run preserve sensitive land, enhance species habitat, and deliver transportation projects more quickly and at lower cost. Advance mitigation is a program based on governmental collaboration worth emulating in other policy arenas.

This commentary is part of an ongoing series from Eno and the Reason Foundation that explores challenges to transportation governance and considers whether they can be addressed through institutional reform. 

The views expressed above are those of the author and do not necessarily reflect the views of the Eno Center for Transportation.

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