1. Failure to Implement Title VI of the Civil Rights Act and Ensure Environmental Justice.

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1 COMMENTS BY SIERRA CLUB, COLORADO LATINO FORUM, AND NORTH DENVER COMMUNITY ORGANIZATIONS OBJECTING TO APPROVAL OF PROPOSED COLORADO STATE TRANSPORTATION IMPROVEMENT PROGRAM The Sierra Club, Colorado Latino Forum, Citizens for a Greater Denver, and organizations representing neighborhoods in north Denver affected by the proposed expansion of I-70, including but not limited to, the Elyria and Swansea Neighborhood Association, Cross Community Coalition, Berkeley Regis United Neighbors, Chaffee Park Registered Neighborhood Organization, and Clayton United submit the following comments to the Colorado Transportation Commission objecting to its approval of the draft State Transportation Improvement Program (STIP) for These comments focus primarily on objections to the inclusion of I-70 in the STIP based on the unlawful incorporation by the Denver Regional Council of Governments (DRCOG) of the I-70 East Project into the Denver Regional Transportation Plan for 2040 (RTP) and Transportation Improvement Program (TIP) for the reasons discussed in detail below. However, commenters also object to the STIP based on the failure of the Transportation Commission to include in the State Transportation Plan any strategies or performance measures for accomplishing the national transportation planning objectives enacted by Congress, and the failure to include in the STIP any discussion of how the projects contained in the STIP will achieve federal and State defined planning objectives in violation of the requirements of MAP-21. These comments are also being submitted to the U.S. Department of Transportation (US DOT) with a request that for the reasons discussed herein, any STIP containing the I-70 East Project must be disapproved and returned to Colorado. Approval of the STIP by the Secretary of Transportation will be unlawful, and will be subject to judicial review that could significantly delay federal funding of all Colorado transportation projects in the STIP. I. Violations of Federal Requirements Governing the Metropolitan Planning Process for the Development and Adoption of Regional Transportation Plans and Transportation Improvement Programs. In this section commenters identify violations of four major federal requirements that must be satisfied before a metropolitan planning organization may lawfully incorporate a regionally significant project into the regional transportation plan (RTP) and metropolitan transportation improvement program (TIP). As a result of the failure by DRCOG and/or CDOT to comply with these requirements, the I-70 East Project was unlawfully incorporated into the Denver RTP and TIP. As a result, the Transportation Commission may not lawfully advance the I-70 Project into the STIP for submission to U.S. DOT. 1. Failure to Implement Title VI of the Civil Rights Act and Ensure Environmental Justice. 1

2 The Secretary of Transportation Ray LaHood issued order No (a) requiring that as part of the planning and programming activities supervised by U.S. DOT the disparate impacts on human health caused federally supported activities must be identified, and alternatives evaluated or mitigation adopted to avoid such impacts. The first step calls for review of programs and activities to identify disproportionately high and adverse impacts on minority populations. (1) Environmental justice principles apply to planning and programming activities, and early planning activities are a critical means to avoid disproportionately high and adverse effects in future programs, policies, and activities. Planning and programming activities for policies, programs, and activities that have the potential to have a disproportionately high and adverse effect on human health or the environment shall include explicit consideration of the effects on minority populations and low-income populations. Procedures shall be established or expanded, as necessary, to provide meaningful opportunities for public involvement by members of minority populations and low-income populations during the planning and development of programs, policies, and activities (including the identification of potential effects, alternatives, and mitigation measures). (2) Steps shall be taken to provide the public, including members of minority populations and low-income populations, access to public information concerning the human health or environmental impacts of programs, policies, and activities, including information that will address the concerns of minority and low-income populations regarding the health and environmental impacts of the proposed action. If an activity is expected to have disproportionately high and adverse impacts on minority communities, then the Order calls for actions to prevent such impacts. 7.a. Statutes governing DOT operations will be administered so as to identify and avoid discrimination and avoid disproportionately high and adverse effects on minority populations and low-income populations by: (1) identifying and evaluating environmental, public health, and interrelated social and economic effects of DOT programs, policies, and activities, (2) proposing measures to avoid, minimize and/or mitigate disproportionately high and adverse environmental and public health effects and interrelated social and economic effects, and providing offsetting benefits and opportunities to enhance communities, neighborhoods, and individuals affected by DOT programs, policies, and activities, where permitted by law and consistent with the Executive Order, (3) considering alternatives to proposed programs, policies, and activities, where such alternatives would result in avoiding and/or minimizing 2

3 disproportionately high and adverse human health or environmental impacts, consistent with the Executive Order, and (4) eliciting public involvement opportunities and considering the results thereof, including soliciting input from affected minority and low-income populations in considering alternatives. CDOT s Title VI Implementation Plan echoes the Secretarial Order, at 5: Environmental Justice requires the evaluation of whether the project has potential to cause disproportionately high and adverse human health or environmental effects on minority and low-income populations. Neither of these directives have been implemented, but instead have been ignored throughout the planning and programming process in the review and adoption of the I-70 East Project. In its comments on the Supplemental Draft EIS for the I-70 Project (attached as Attachment 1), the Sierra Club presented extensive evidence that the diseases of air pollution are occurring disproportionately among the residents of north Denver affected by pollution from I-70 compared to other neighborhoods within the City of Denver. The diseases U.S. EPA found to be most causally related to exposure to the fine particles emitted from highways include increased mortality from cardiovascular disease, and the increased incidence and severity of asthma among children living near highways. The Denver Environmental Health report of health status for these disease outcomes shows that mortality from cardio-vascular disease is as much as 70% greater among residents in the council districts along I-70 compared to other city council districts, and the frequency of hospitalization of children for asthma is 40% greater than in other Denver districts. In addition, data in the Supplemental Draft EIS showed that emissions of the pollutant linked to these effects, particles smaller than 2.5 micrometers in diameter, would increase significantly from an expanded I-70. Based on both the current health outcomes in north Denver neighborhoods showing a disproportionately higher incidence of the diseases of particle pollution, the causal link between these health outcomes and emissions from highways, and the expectation that emissions from an expanded I-70 would worsen the health impacts of highway pollution on these neighborhoods, the Sierra Club, Colorado Latino Forum and community groups requested that CDOT perform 1) air quality modeling to determine the concentrations of fine particles that would result from the Project, 2) a health impact assessment to determine the likely impact of increased exposure to this pollution on community health, and 3) a comprehensive evaluation of Project alternatives and mitigation strategies to identify policy options and project alternatives that would avoid exacerbating health impacts on north Denver communities, and provide a net health benefit by reducing community exposures to highway pollution. The higher pollutant exposures expected from increasing traffic by 30% in these neighborhoods will significantly further degrade the health status of these communities. 3

4 Sacrificing the health of children and increasing years of life lost to build a regional transportation facility is not an acceptable public policy. To ensure open disclosure and consideration of the consequences that Project emissions will have on health, a health impact assessment must be included in the current NEPA review because of the evidence provided by DEH showing that residents in these communities are now experiencing disparate health outcomes compared to other communities in Denver. Comments on Supp. Draft EIS, p. 3 ( see Attachment 1). This request must be seen in the context of the environmental injustice that has been perpetrated on the communities of north Denver since the construction of the interstate through the backyards of 10,000 residents in the 1960s. At that time there was no NEPA requiring that transportation agencies investigate the adverse impacts of their decisions, and there was little evidence of the severity of the impacts of highway pollution on human health. The decision made then might be chalked up to ignorance, if not indifference, to the well-being of low income, largely Hispanic, Spanish-speaking, poorly educated communities. Now, ignorance is no excuse for perpetuating that injustice. We know that highway pollution kills adults by triggering heart attacks, and maims children by causing asthma at an early age that limits their capacity to engage in physical activities, and forces them to seek frequent urgent care and miss school thereby contributing to educational underachievement. The adverse effects of persistent exposure to the elevated pollution levels near highways adds to the overall social and economic burden imposed on children raised in low income, non-englishspeaking communities. It is a disproportionate burden that is a quintessential example of environmental injustice. Yet, CDOT s response was simply NO. In the Final EIS, CDOT s response to the request from many residents and community leaders flatly refused to investigate the impact that Project emissions will likely have on adverse health outcomes reported in the Denver Environmental Health status report: A health study (health impact assessment or health risk assessment) is not required by NEPA or the Clean Air Act and therefore it has not been performed for this project. The current health status of the affected communities has been thoroughly discussed in the DEH s Health Impact Assessment (September 2014). The Final EIS adds to the information discussed in the DEH study by showing how air quality is likely to change in the future under different project alternatives. I-70 FEIS, FAQ, Air Quality and Health, AQ1. To the contrary, NEPA does require disclosure of the impacts that a project will have on human health. See 40 C.F.R (b)(2). But of significance here is the fact that CDOT fails utterly to fulfill its obligation under Secretarial Order (a) and CDOT s Title VI Implementation Plan to perform an evaluation of whether the project has potential to cause disproportionately high and adverse [impacts on] human health. 4

5 CDOT s justification for refusing to perform such an investigation includes the contention that the preferred Project alternative will have minimally different impacts on health compared to any of the other alternatives. But the fundamental flaw in that argument is that none of the alternatives were chosen for the purpose of investigating the extent to which the adverse impacts on community health could be avoided. All the alternatives considered are designed to accommodate roughly the same 30% increase in traffic in the corridor and the corresponding increase in pollution levels. Four or six alternatives that all add the same amount of pollution will not offer any useful information to a decisionmaker regarding available choices for implementing Title VI and the Environmental Justice policies prescribed by Secretarial Order (a). The hot-spot modeling analysis for PM10 was performed only for the preferred alternative, and provides no basis for assessing the potential benefits of moving traffic away from the north Denver neighborhoods. But the Hot-spot analysis clearly shows that the Project will worsen health effects in these neighborhoods because it provides compelling evidence that more traffic will increase emissions, and that increased pollution in the corridor will increase community PM10 exposures from the current background of 89 µg/m 3 to 152 µg/m 3 at near-highway locations. To pretend that this dramatic increase in exposure to highway pollution will have no impact on health when the DEH health status report for the neighborhoods in north Denver reveals an existing disparate incidence of severe health impacts at current pollution levels, CDOT is showing a complete and utter disregard for the health and well-being of residents in the low income, Hispanic neighborhoods adjacent to the highway. Neighbors, community groups and the Sierra Club asked CDOT to investigate the extent to which current disproportionately high and adverse impacts on community health could be reduced by removing traffic and pollution, rather than made worse by adding more traffic and more pollution. The communities adjacent to the highway asked for evaluation of alternatives designed to reverse the environmental injustice that resulted from location of the highway in these neighborhoods 50 years ago. For CDOT to do environmental justice today, it must, at least, consider ways to undo a half century of injustice initiated in a prior era when there was no requirement to do justice, or to protect community health. The two alternatives that commenters requested be evaluated in detail were: 1) to re-route the Interstate out of the densely populated low income urban neighborhoods of north Denver onto the I-76 and I-270 alignments which are less populated with nearby land uses dominated by commercial and industrial development; and 2) to require long-distance trucks to use the I-76/I-270 alignments and disperse local trucks to their destinations in north Denver by prohibiting truck access to the current I-70 between Washington and Colorado Boulevards. 5

6 Neither of these options were investigated in any detail. To the extent they were considered at all, there was no investigation of the potential health benefits that could be achieved by reducing traffic from the current I-70 alignment, and reducing exposure to deadly highway emissions. Clearly, CDOT s refusal to recognize the disproportionately greater adverse impacts on health linked to highway pollution, and its refusal to investigate alternatives designed to avoid or reduce such impacts violates its obligation under its own Title VI Implementation Plan. Similarly, by signing the FEIS which refuses to conduct these investigations, FHWA has not fulfilled its obligation under Secretarial Order (a). Accordingly, there is no basis for DRCOG to have met its obligation to comply with Title VI and Order No (a), and no basis for the certification by Director Bhatt that CDOT has complied with Title VI of the Civil Rights Act. A naked declaration of compliance, without actual compliance, does not constitute compliance. The Project may not be added to the State TIP for submission to FHWA until an investigation that complies with Title VI and Order No (a) has been performed, disclosed to the public, and integrated into the planning process by taking actions that protect expose communities from the disproportionately higher adverse effects of air pollution in the I-70 corridor. Commenters understand that US DOT s planning rules require that Colorado incorporate the DRCOG TIP into the State TIP without change. That leaves the Commission with two options until a proper Title VI investigation has been completed: 1) refuse to add the DRCOG TIP to the STIP, or 2) return the TIP to DRCOG and ask that they remove the I-70 from the TIP so that other projects may be advanced until the I-70 investigation has been completed in a manner that complies with Title VI and Order No (a). 2. The Failure to Comply with Requirements of Federal Planning Law to Consider Mitigation of Adverse Impacts. The Sierra Club submitted comments to DRCOG requesting that the board evaluate and adopt as part of the Regional Transportation Plan (RTP) mitigation measures to reduce the disproportionate adverse impacts on health that would be caused by increasing community exposures to highway pollution from an expanded I-70 in north Denver. (Attached as Attachment 2). Two provisions of U.S.C. Title 23 that establish federal transportation planning procedures require consideration in the planning process of mitigation for the adverse impacts of federally funded transportation projects. 23 U.S.C. section 109(h) and 134(i). The first applies generally to the process for project planning, and the second applies specifically to the addition of a project to the MPO regional transportation plan. Neither have been implemented with respect to the incorporation of the I-70 East expansion project into the DRCOG Regional Transportation Plan. a. Section 109(h). 6

7 Section 109(h) of the Federal Aid Highway Act requires that highway projects be reviewed for their adverse environmental, social and economic impacts, and that mitigation strategies be identified to eliminate or minimize such adverse impacts. 23 USC 109(h). The FHWA regulation implementing this section requires that an EIS prepared under NEPA also address the social and economic impacts required to be considered under 109(h). 23 CFR In addition, the metropolitan planning rule issued by US DOT to implement ISTEA requires that MPOs address the criteria required by 109(h) in the transportation plan. 23 CFR (a) (13)(1993). The current planning rule does not retain this requirement, but if the state DOT does not address the requirements of 109(h) in an EIS prior to action by an MPO to adopt a regionally significant project into a regional plan, then the MPO must satisfy the requirements of this section before adding the project to the regional plan and TIP. A project must be eligible for federal funding before it may be included in a TIP. (i). Scope of Impacts to be Included in Discussion of Mitigation to Satisfy 109(h) The actions taken by a MPO as part of the planning process are necessary steps in the federal funding of a project. A project may not be added to a TIP for federal funding unless it comes from a conforming regional plan. To the extent that section 134(i)(2)(D) requires that an MPO consider mitigation, then that consideration must also be sufficient to satisfy 109(h). Section 109(h) requires that all adverse environmental, social and economic impacts are subject to the statutory requirement to identify reasonable mitigation measures. The consideration of mitigation measures required by 134(i)(2)(D) and 135(f)(4)(A) and (B) must be equally broad because FHWA/FTA may not approve the projects in a State TIP as eligible for federal funding until the determination required by section 109(h) has been made that the project is in the best overall public interest. The requirements of NEPA, enacted January 1, 1970, were supplemented for highway projects by 23 USC 109(h), enacted December 30, Section 109(h) of the Federal-Aid Highway Act requires a three-step evaluation of impacts and mitigation measures to ensure that final decisions on the project are made in the best overall public interest. 23 U.S.C. 109(h) (2004). The first step is to determine the possible adverse economic, social and environmental effects relating to any proposed project. Id. The second step is to determine the costs of eliminating or minimizing such adverse effects. Id. The third step is to consider the costs of eliminating or minimizing such adverse effects together with the need for fast, safe and efficient transportation to make a final decision on the project in the best overall public interest. Id. FHWA s implementing regulation further requires that any measures necessary to mitigate these adverse effects be incorporated into the project. 23 C.F.R (d). b. Mitigation needs to be considered to Satisfy 134(i)(2)(D). Section 134(i)(2)(D) requires that an MPO include in its RTP discussion of mitigation: 7

8 (D) Mitigation activities. (i) In general. A long-range transportation plan shall include a discussion of types of potential environmental mitigation activities and potential areas to carry out these activities, including activities that may have the greatest potential to restore and maintain the environmental functions affected by the plan. (ii) Consultation. The discussion shall be developed in consultation with Federal, State, and tribal wildlife, land management, and regulatory agencies. For all of the reasons discussed at length in the comments submitted to DRCOG (Attachment 2), the statute requires that RTP shall include a discussion of types of potential environmental mitigation activities. The activities must include, but are not limited to, activities that may have the greatest potential to restore and maintain the environmental functions affected by the plan. If the I-70 expansion is added to the RTP, then the environmental functions affected by the plan include disruption or degradation of the function of providing north Denver residents with safe and healthy air to breathe. Fulfill this planning obligation, the Sierra Club asked DRCOG to consider and adopt operational policies to remove the pollution emitted by trucks from the dense urban neighborhoods along I-70 between Washington Boulevard and Colorado Boulevard. Such a policy would require that long-haul truck trips use the I-76/I-270 corridor, and that trucks with local destinations in north Denver disperse onto local arterial streets from Washington or Colorado Boulevards. The effect of such a policy would be a significant reduction in emissions from I-70 along its entire length from Wheat Ridge to Aurora. In response to these comments, DRCOG undertook assessment of the magnitude of mitigation needed to restore the function of a healthy air supply for near-highway communities, or even any consideration of the benefits that could be achieved by removing trucks from a portion of the corridor. The RTP, as amended with the addition of I-70, includes no discussion of any mitigation designed to avoid the adverse health effects of air pollution from traffic on the I-70 corridor. Since the RTP was amended to add I-70 to the regional plan without any consideration of the factors called out by section 134(i)(2)(D), the I-70 expansion project was unlawfully added to the RTP. As a result, CDOT Director Bhatt has no basis for certifying that DRCOG RTP was developed consistent with the requirements of 23 U.S.C. section 134. Furthermore, since the I-70 Project was not lawfully added to the RTP, it is not included in or consistent with the RTP. Accordingly, the I-70 project is not eligible for inclusion in the DRCOG TIP, or the STIP. 23 C.F.R (k). For these reasons, the STIP may not lawfully include the I-70 East Project. The Commission is left with two options until a proper consideration of mitigation is undertaken by DRCOG, and appropriate mitigation measures are added to the RTP: 1) refuse to add the DRCOG TIP to the STIP, or 2) return the TIP to DRCOG and ask that they remove the I-70 Project from the TIP so 8

9 that other projects may be advanced until the necessary mitigation of the adverse impacts of emissions from I-70 has been integrated into the RTP in a manner that complies with section 134(i)(2)(D). 3. Failure to Comply With Transportation Conformity Requirements in Violation of the Clean Air Act. The Clean Air Act prohibits DRCOG from giving approval to the I-70 East Project, or to a regional transportation plan or TIP containing such Project, until the I-70 Project has been found to conform to the applicable implementation plan. No metropolitan planning organization designated under section 134 of title 23, shall give its approval to any project, program, or plan which does not conform to an implementation plan approved or promulgated under section 7410 of this title. 42 U.S.C. 7506(c)(1). For a project to be found to conform, it must meet the criteria and procedures required by EPA s Hot-spot conformity rules. 40 C.F.R and Section (a) requires that for the proposed project to conform The FHWA/FTA project must not cause or contribute to any new localized CO, PM10, and/or PM2.5 violations, increase the frequency or severity of any existing CO, PM10, and/or PM2.5 violations, or delay timely attainment of any NAAQS or any required interim emission reductions or other milestones in CO, PM10, and PM2.5 nonattainment and maintenance areas. This finding has not been made. Until a final conformity determination is made, it is unlawful for the Project to be approved by DRCOG as part of the RTP or the MPO TIP. The Project was unlawfully approved by DRCOG as part of the RTP in both 2015, and again in It cannot, therefore, be added to the metro TIP or the STIP. Furthermore, the I-70 East Project cannot be found to conform based on the proposed conformity determination published with the Final EIS for the Project. The proposed conformity determination does not demonstrate conformity because it violates numerous requirements specified in EPA s conformity regulations, 40 C.F.R , , and EPA s regulatory hotspot guidance promulgated in 2010: Transportation Conformity Guidance for Quantitative Hot- Spot Analyses in PM2.5 and PM10 Nonattainment and Maintenance Areas (EPA 420-B ) [hereinafter 2010 Hot-spot Guidance ]. The reasons why the proposed conformity determination violate EPA s 2010 Hot-spot Guidance are explained in detail in the comments submitted by the Sierra Club to CDOT on March 2, (Attached hereto, and incorporated herein as Attachment 3). Therefore, the I-70 East Project was unlawfully incorporated into the Denver Regional RTP and TIP by DRCOG because the Project is not in conformity with the applicable implementation plan 9

10 as required by the Clean Air Act. 42 U.S.C. 7506(c)(1). Until a final conformity determination is made that is consistent with EPA s conformity criteria, procedures and regulatory 2010 Hotspot Guidance, the Project may not be included in the STIP because it has not been lawfully included in the MPO RTP and TIP. 4. The Denver Regional Transportation Plan was Not Lawfully Developed or Adopted Because it Fails to Accomplish the National Planning Objectives Required by Federal Transportation Planning Law. Federal requirements governing the development of regional and State transportation plans have evolved significantly beginning with the enactment of SAFETEA-LU in 2005, and continuing with the enactment of MAP-21 in SAFETEA-LU added to federal transportation law new language directing Metropolitan Planning Organizations (MPOs) to adopt regional plans that accomplish the objectives of the planning process. Section 134 of the Federal Aid Highway Act has included language since ISTEA establishing four general objectives for the planning process, and requiring consideration of projects and strategies that will achieve more detailed planning factors. These objectives were retained in section 134, as amended by SAFETEA-LU: (a) Policy.--It is in the national interest to-- (1) encourage and promote the safe and efficient management, operation, and development of surface transportation systems that will serve the mobility needs of people and freight and foster economic growth and development within and between States and urbanized areas, while minimizing transportation-related fuel consumption and air pollution through metropolitan and statewide transportation planning processes identified in this chapter; and (2) encourage the continued improvement and evolution of the metropolitan and statewide transportation planning processes by metropolitan planning organizations, State departments of transportation, and public transit operators as guided by the planning factors identified in subsection (h) and section 135(d). Until the 2005 amendments, however, this language had been understood to be largely hortatory without any mandatory action-forcing language. In the amended Title 23, section 134(c) (2005), the Act for the first time required that MPOs adopt transportation plans that accomplish these objectives. 1) Development of long-range plans and TIPs.-- To accomplish the objectives in subsection (a), metropolitan planning organizations designated under subsection (d), in cooperation with the State and public transportation operators, shall develop long-range transportation plans and transportation improvement programs for metropolitan planning areas of the State. 10

11 Similar language in amended section 135(a)(1) required that the Statewide Transportation plan also accomplish the objectives stated in section 134(a). In 2012, this general statutory framework was retained in MAP-21, but augmented with a new requirement to implement the planning objectives through the use of performance criteria. (a) POLICY. It is in the national interest (1) to encourage and promote the safe and efficient management, operation, and development of surface transportation systems that will serve the mobility needs of people and freight and foster economic growth and development within and between States and urbanized areas, while minimizing transportation-related fuel consumption and air pollution through metropolitan and statewide transportation planning processes identified in this chapter; and (2) to encourage the continued improvement and evolution of the metropolitan and statewide transportation planning processes by metropolitan planning organizations, State departments of transportation, and public transit operators as guided by the planning factors identified in subsection (h) and section 135(d). Again, Congress reenacted the requirement that transportation plans accomplish the planning objectives, but added new language requiring that transportation plans and transportation improvement programs be developed through a performance-driven, outcome based approach to planning : (c) GENERAL REQUIREMENTS. (1) DEVELOPMENT OF LONG-RANGE PLANS AND TIPS. To accomplish the objectives in subsection (a), metropolitan planning organizations designated under subsection (d), in cooperation with the State and public transportation operators, shall develop long-range transportation plans and transportation improvement programs through a performance-driven, outcome based approach to planning for metropolitan areas of the State. This language on its face establishes a duty to accomplish all the objectives in subsection 134(a) (1) and (2). The general planning objectives in (a)(1) establish four broad criteria to be achieved by all transportation plans: 1) improve mobility, 2) foster economic growth and development, 3) minimize fuel consumption, and 4) minimize air pollution. These objectives allow discretion for determining how they are to be achieved, but do not allow the planning agencies discretion to adopt plans that fail to achieve progress with respect to one or more of the four objectives. This new language links objectives in 134(a)(1), including the climate related objectives of minimizing transportation-related fuel consumption and air pollution, to both MPO plans and 11

12 TIPs by requiring that MPOs accomplish these objectives by adopting performance criteria in the plan. For State plans MAP-21 retains the requirement that the statewide plan accomplish the objectives in section 134(a)(1). See section 135(a)(1). In section 135(d), Congress also directs the states to use a performance-based approach: (2) Performance-based approach. (A) In general. - The statewide transportation planning process shall provide for the establishment and use of a performance-based approach to transportation decisionmaking to support the national goals described in section 150(b) of this title and in section 5301(c) of title 49. This general requirement governing the planning process is implemented through the requirements in 135(f) governing the contents of the Statewide transportation plan: (7) Performance-based approach. - The statewide transportation plan should include (A) a description of the performance measures and performance targets used in assessing the performance of the transportation system in accordance with subsection (d)(2); and (B) a system performance report and subsequent updates evaluating the condition and performance of the transportation system with respect to the performance targets described in subsection (d)(2), including progress achieved by the metropolitan planning organization in meeting the performance targets in comparison with system performance recorded in previous reports;. The statutory objectives of minimizing transportation-related fuel consumption and air pollution were first enacted by ISTEA in 1991, but were supplemented in 2012 by the addition of Section 150(b) which declares it a national goal to protect[] and enhance[]e the natural environment (b) NATIONAL GOALS. It is in the interest of the United States to focus the Federalaid highway program on the following national goals: (6) ENVIRONMENTAL SUSTAINABILITY. To enhance the performance of the transportation system while protecting and enhancing the natural environment. This goal to protect[ ] and enhance[e] the natural environment encompasses the long-standing objectives of the planning process to minimize fuel consumption and air pollution, but is substantially broader. Together, the original statutory objectives of the planning process dating from 1991, along with the more recently enacted broader national goal of protecting and enhancing the natural environment, provide ample authority for U.S.DOT to include minimizing 12

13 greenhouse gases (GHGs) as an objective of the planning process. In the context of the Clean Air Act, the Supreme Court decided that GHGs are within the statutory definition of air pollutants, and therefore subject to emission standards under the Act for the regulation of motor vehicles. Massachusetts v. U.S.EPA (2007). Nothing in the transportation law suggests that Congress intended a different, more limited use of the term when it declared that an objective of the transportation planning process is to minimize air pollution. DRCOG has not identified any performance criteria for measuring progress toward accomplishing any of the national transportation planning objectives. The failure to plan for minimizing air pollution is particularly disturbing with respect to their failure to include in the RTP any measures to prevent the metro area from becoming non-attainment for PM2.5. Recent monitoring data from the Globeville monitor shows that the Denver metro region is now on track to violate the national ambient air quality standard for PM2.5. See discussion of PM2.5 monitoring data in the Sierra Club FEIS comments (Attachment 3). Yet despite the potentially costly consequences of having to develop and implementation plan under the CAA to reduce emissions from I-25 and I-70 in the Globeville area, DRCOG has taken no action to develop policies to minimize emissions of PM2.5. Similarly, DRCOG has not adopted any plan elements to minimize fuel consumption. The failure to develop and adopt a plan to accomplish these national planning objectives, and the absence of any performance measures or targets to track progress toward achieving these objectives, violates the planning requirements of section 134. Accordingly, the Secretary cannot lawfully find that the TIP and STIP have been developed consistent with [section 135] and section 134. Before the investments a State has included in its STIP may be approved, section 135(g)(7) and (8) require that A finding shall be made by the Secretary at least every 4 years that the transportation planning process through which statewide transportation plans and programs are developed is consistent with this section and section 134. The finding must be current at the time of STIP approval. At a minimum, this requires that the Secretary find that the State and each MPO with a project in the STIP must have adopted a plan that minimizes fuel consumption and air pollution, and contains some performance-based criteria for determining how that objective will be accomplished. Section 135(f)(7). Neither the DRCOG plan nor the Colorado State plan satisfy this test for STIP approval. II. Colorado Statewide Plan and STIP Fail to Satisfy Federal Planning Requirements. 13

14 As discussed with respect to the DRCOG RTP and TIP, the same requirement to accomplish the national planning objectives in 134(c) apply to the Statewide plan and STIP. The Commission has been remiss in not developing a Statewide plan to minimize air pollution or fuel consumption. The Commission did approve an Air Quality Action Plan in 2012 that recognizes the duty enacted in FASTER, SB to address reductions in greenhouse gas (GHG) emissions through the Statewide transportation plan, and the objective defined by Governor Ritter s executive order No to reduce GHG emissions statewide 20% by 2020, and 80% by Those emission reduction targets are performance measures or targets, but CDOT has not adopted any tool to track and report progress toward reaching these objectives. A provision added by MAP-21 for implementing performance-based planning is the requirement that States show how their investment decisions will achieve the performance targets in an MPO or State plan. Section 135(g)(4) requires that for a State program of projects to be approved for federal funding, the State must show in the STIP how investments included in the STIP achieve the performance targets: (4) Performance target achievement. - A statewide transportation improvement program shall include, to the maximum extent practicable, a discussion of the anticipated effect of the statewide transportation improvement program toward achieving the performance targets established in the statewide transportation plan, linking investment priorities to those performance targets. The current draft STIP includes no mention of these performance targets, and includes no discussion of how investments included in the STIP will advance the State toward achieving the performance targets in the AQ Action Plan. The Secretary may not lawfully approve the State TIP and other products of the planning process if the MPO RTPs and TIPs incorporated into the State Transportation Plan and TIP do not satisfy these requirements, or the STIP contains no discussion to demonstrate how the projects and other investments in the STIP will achieve the State s GHG emission targets. Particularly important to commenters is the absence of any explanation regarding how the $1.17 billion investment programmed for the I-70 expansion will contribute to achieving Colorado s GHG reduction goals. CONCLUSION. For all of these reasons, the Transportation Commission may not lawfully include the DRCOG TIP projects in the STIP. Commenters request that the metropolitan TIP be returned to DRCOG with instructions to remove the I-70 East Project from the RTP and TIP until all of the requirements discussed in section I of these comments have been complied with. The STIP may 14

15 then be amended later to include the remaining projects in a DRCOG TIP after funding allocated for I-70 has been removed. Respectfully submitted, Robert E. Yuhnke Robert E. Yuhnke and Associates (303)