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Winter 1972 The Asphalting of America: How the Government Subsidizes Highway Pollution in the Boswash Smog Bank James Sullivan Center for Science in the Public Interest

Kenneth Lasson University of Baltimore School of Law, [email protected]

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Recommended Citation The Asphalting of America: How the Government Subsidizes Highway Pollution in the Boswash Smog Bank, 2 Md. L. F. 56 (1972)

This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. MARYLAND LAW FORUM The Asphalli_g 01 AIIIe.. ic:a

How the Government Subsidizes 'Highway Pollution in the Boswash Sm,og iBank by James Sullivan and Kenneth Lasson

Editor's note: Receiving his Ph.D in meteorology his dreams, the intricate networks of superhigh­ and oceanography from M.I.T. in 1970, Dr. Sulli­ ways, th'Ousands of them, linking Sarasota with van founded and is currently a Co-Director of the Seattle, Phoenix with Philadelphia, Bangor with Center for Science in the Public Interest in Wash­ Baja California. What indeed hath the engineers ington, D. C. He is, in addition, the Chairman of wrought? the District of Columbia Advisory Committee on Air Pollution. At present, Dr. Sullivan is in the Ours is a nation befumed, P'Olluted, totally dis­ process of completing a handbook for citizen illusioned by the congestion which chokes a once­ action on highways and highway pollution. His marveled system of turnpikes and cloverleaves. ass,ociation with Mr. Lasson began when they were Although it is a lot more noisy and noxious, to­ both serving as consultants to Ralph Nader at the day's automobile goes together with air pollution Center for the Study of Responsive Law. just as inevitably as yesterday's horse went with its carriage. No, the ghost of Henry Ford should Mr. Lasson has written extensively in the socio­ have said to his son, you can't have one without legal field and included among his most current the other. publications is a recently released book entitled THE WORKERS: PORTRAITS OF NINE AMERICAN T'O most Americans concerned about the envi­ JOBHOLDERS (Viking Press, 1971; afterword by ronment but resigned to a vague hope that some­ Ralph Nader). Excerpts from this book were the where, somehow, somebody is doing some thing foundation for his article "Two Workers" which that will stem the dirty tide, it is jolting to learn appeared in the October; 1971 issue of THE the degree to which their various governments ATLANTIC MONTHLY. In addition to his own writ­ ignore well-documented causal effects between ings, Mr. Lasson has served as an editorial and highway proliferation and air pollution. Item: In administrative consultant to the Center for the New York, where millions of commuters are as Study of Responsive Law and is also a member of accustomed to traffic congestion as they are inured the Board of Directors of the Center for Science in to exhaust fumes, a member of the Tri-State the Public Interest. Graduated from The Johns Transportation Commission offers the opinion Hopkins University (A.B., 1963; M.A., 1967) and that "all this talk about air pollution is just so the University of Maryland School of Law (J.D., much hot air," which will soon blow over. Item: 1966), Mr. Lasson devotes a substantial portion of Spokesmen for Boston's Bureau Q1f Transportation his time to teaching at local colleges, including the Planning and Development admit never having University of Baltimore School of Law, where he viewed air pollution as a factor to be considered in is currently a Lecturer in Environmental Law. local highway programming. Item: The same is true in Hartford, Philadelphia and Baltimore. Item: And in Washington, D. C.-with the highest I What Hath The Engineers Wrought? I density of automobiles per square mile Q1f any city in the country-a voter referendum and various opinion polls which reflect the public's strong op­ "The improvement in city conditions by the gen­ position to thoughtless new road building, are all eral adoption of the motor car can hardly be smugly ignored. 'Overestimated. StreetSr-clean, dustless, and odor­ less-with light rubber tired vehicles moving To list similar failure around the country would swiftly over their sm'Ooth expanse would eliminate take volumes. While public officials are unanimous a greater part of the nervousness, distraction, and in condemning spoliation of the environment (be­ strain 'Of modern metropolitan life." cause anti-pollution ballyhoo remains politically desireable), numerous government-financed pro­ How innocent the author of those lines, which grams-all of which help to make the streets appeared in the July, 1899 issue of Scientific noisier and the air dirtier and the landscape uglier American. Had he only lived t'O see the reality of -are being quietly but substantially expanded. 56 VOL. II THE ASPHALTING OF AMERICA

What follows is a brief (if heated) essay on seem only to have gotten worse. Between 1965 and the problems caused by indiscriminate highway 1970, the number of cars on American highways planning, based on research compiled last sum­ increased 2.5 times more than did the population. mer during an investigation of environmental im­ There are now enough automobiles in this country pact practices at the United States Department of to accommodate every United States citizen in the Transportation (DOT).1 front, and still leave room for every South Ameri­ can in the back. The phenomenally excessive growth of our car The Pitch Is A Familiar One population underscores the gross neglect of what economists tell us are "social costs"-expenses Public sensitivity to environmental issues has borne by society for an individual's personal activ­ never been keener, nor yielded greater frustration. ities, for which he does not pay. Freshman eco­ From huge corporate polluters to private motor nomics courses relate the story about a fisherman vehicle owners, many individuals find it impos­ who pilots his own boat and tries to catch as many sible to avoid defilement of the air they breathe. fish as he can, unmindful about depletion of the Environmentalists place the blame on runaway supply. Pretty soon the lake is fished out. Our population or on its concurrent, runaway tech­ oongested highways appear completely analogous: nology. That people are being sacrificed to prog­ each driver neglects the little bit of congestion ress is a social axiom which has become a hard he contributes to the roadway. Freeways are free truth. ways because motorists can ignore the costs of pollution, congestion and noise. We sponsor supersonic planes, massive housing and shopping developments, and even more turn­ Great Britain, which faces similar problems pikes and expressways, while everyone, blue collar with highway pollution, estimates the cost of re­ worker and executive alike, is forced to breathe sulting traffic slowdowns to be anywhere from ten dirty air and drink tainted water. In our daily cents per mile to $1.20 for each vehicle, depending frenetic exodus away from and back to the sub­ on the speed of traffic.2 If a driver were to pay urbs, along clogged and cluttered ribbons of con­ damages for the pollutants and noise his car emits crete, we are becoming increasingly calloused to -additional social costs-he'd be out $400 per the noise ~n~ tedium of bumper-to-bumper traffic. year. S The value of homes can decrease substan­ To many, It IS merely the price of progress.. tially if located near a highway. Acoustical ex­ perts estimate that to insulate a building from Despite over $15 billion spent annually trying traffic noise means a three percent higher con­ to ease nerve-wracking congestion, the has.sles struction cost.

"0ne Sef passeng of rails high ?,rs fhan f,,~an serve ... wall,. ,.,.enfy l ",ore anes of

1972 57 MARYLAND LAW FORUM

Finally, the oft-cited love affair between the highway cQnstructiQn. Less than $2 billiQn has motorist and his autQmQbile is reinfQrced with the been earmarked fQr mass transit.6 In the 1970's, idea that he is getting sQmething fQr nQthing. thQugh, New YQrk City alQne will require $2.5 RQads are as free for the taking as the fish in the billion fQr its rapid transit system.7 The Institute sea. But with newer and bigger highways CQme fQr Rapid Transit in Washington estimates that more and more cars. No matter hQW effective the fQr nineteen metrQPQlitan transit systems, mOire emission cQntrOiI devices, our cities are becQming than $17 billiQn will be needed Olver the next ten increasingly cOingested. years.8 The federal gQvernment has thus left the cities with nQ alternative but tQ build mOire freeways, While public officials are unanimous in con­ apparently Qblivious to the reality that they will demning spoliation of the e'nviro,nment ••• numer­ engender mOire cars, mOire cQngestiQn, mOire gaso­ line taxes, and eventually, as if to rub asphalt intQ ous government-financed pro'grams ••• are being the already festering PQllutiQn prQblem, still mOire quietly but substantially expanded. roads.

The Not-So-Great Plan'nring Process The Great Hig1hway Trust Fund The blatancy Qf the evil tends tQ be camou­ N Qt as familiar as the envirQnmental pitch is flaged by Qther federal statutes. N 01 roadbuild­ the hidden but abundant evidence that the federal ing prQgram may be apprQved that is nQt based gQvernment, rather than acting tQ prevent this UPQn "a cQntinuing, cQmprehensive, transPQrta­ unfQrtunate applicatiQn Qf ParkinsQn's Law, su~­ tiQn planning prQcess."9 The NatiQnal Environ­ stantially aids and abets it. When the federal-aId mental PQlicy Act Qf 196910 and variQus Depart­ highway prQgram was initiated in 1916, its pur­ ment Qf TransportatiQn regulations require that pose was tQ meet a grQwing public need, tQ the prQcess cQnsider the envirQnmental impact Qf satisfy the yearning fQr easy access tQ the CQun­ any prQPosed highway prQject. Nevertheless, if tryside, tQ get the farmer out Qf the mud. The there is a methQd tQ the madness Qf highway system then served three-and-a-half milliQn ~~tQ­ bureaucracy, it is weighted in favQr of the build­ mQbiles. (NQW there are three-and-a-half mIllIQn ing interests. miles Qf highway, with twenty-seven cars fQr each mile. Hard cQncrete CQvers an area equivalent tQ Interviews with resPQnsible planning officials mOire than half Qf New England.) in six cities Qf the so-called "Boswash SmQg Bank" (BQstQn, HartfQrd, New YQrk, Philadel­ In 1956 WashingtQn chose to further subsidize phia, BaltimQre and Washington), tQ determine the rQadbuilders' IQbby with the greatest boon the quality Qf envirQnmental impact stUdies, ever to befall manufacturers Qf asphalt, rubber yielded magnificent examples of bureaucratic Qb­ and autQmobiles-the Highway Trust Fund. All, fuscatiQn and ignQrance. of course, is totally within the law. The Highway Trust Fund guarantees that all mQnies obtained Thus, a member Qf New YQrk's Tri-State Trans­ frQm taxes on gasQline, tires and other items will PQrtatiQn CQmmissiQn Qffered his QpiniQn that pol­ be spent exclusively Qn CQnstructiQn Qf new rQads, lutiQn is nQt a seriQus prQblem, especially when and precludes their application tQ the maintenance cQmpared tQ sQmething like a garbage strike'. The Qf existing highways, Qr tQ the planning and planner cQnceded that nQne Qf New YQrk City's develQpment Qf Qther fQrms of transPQrtation. extensive air pollutiQn mQnitQring data had ever With such gQld SOl easily available, the states been incQrpQrated intQ transPQrtatiQn program­ have built new rQads at the drQP Qf a planning ming. Tri-State's Qfficer in charge Qf envirQnmen­ map. (If they didn't, they CQuid forget abQut tal planning described himself as "just a freight federal support Qn lQng-range prQjects.) Prior tQ man" who had been transferred to his new posi­ the establishment Qf the Fund in 1955, $666 mil­ tiQn when the envirQnment became a hOlt issue. liQn was spent Qn federal-aid rQads. In 1968, that figure had quintupled tQ a total Qf $3,167 milliQn.4 TransPQrtatiQn agencies in other cities gave The current tantalizer dangled befQre the hungry little mOire reaSQn fOil" public optimism. The Execu­ eyes Qf state rQad cQmmissiQners is the wQndrQus tive DirectQr Qf the BaltimQre RegiQnal Planning "ninety-ten plan" (that is, the federal gQvernment CQuncil said that he had "heard Qf no study" will cQntribute ninety cents fQr every dime paid abQut highway-related air PQllutiQn and averred IQcally).5 What strQnger incentive tQ spread the that "the transportation planning process is a asphalt? jQke." There was in fact SQme meager envirQn­ mental research dQne fQr a tWQ-mile segment Qf On the Qther hand, there is nQ similar federal Interstate 70 in BaltimQre, but an Qfficial of the SUPPQrt fQr mass transPQrtatiQn systems like sub­ Maryland State RQads CQmmission said he "didn't ways Qr mQnQrails-many times less destructive bQther" tQ give it to the Planning CQuncil. The tQ the envirQnment. (One set Qf rails can serve DirectQr Qf BQstQn's Bureau Qf TransPQrtatiQn mOire passengers than twenty lanes Qf highway.) Planning and DevelQpment appeared uncQncerned Over the next five years, apprQximately $2.3 bil­ abQut the quality (Qr quantity) of his informa­ liQn is slated tQ issue frQm the Trust Fund fQr new tiQn: 58 VQL. II THE ASPHALTING OF AMERICA

Interviewer: Have any studies been completed with respect to air pollution and highway traffic in the Boston area? Director: No.. Interviewer: What abo.ut the mentio.n of en­ viro.nmental goals in Bosto.n's transportatio.n plans, on file with the Department of Trans­ Po.rtatio.n in Washingto.n? Director: "CQncern for the environment" there didn't mean air pollution. It mean things such as land development. Pollution is difficult to measure and it is a relatively new thing. Interviewer: Has the Massachusetts Depart­ ment of Public Health, which is furnished with traffic data by your Bureau, made any air pol­ lutiQn studies? Present levels of air PQllution in the cities-­ Director: Not that I know of. approximately eighty-five percent Qf which is Interviewer: If the Health Department had in caused by automQbile exhaust fumes14-ha,ve con­ fact made any studies, would they have gone tributed to the rising incidence Qf chronic res­ into the transPo.rtation planning process? piratory diseases such as lung cancer, emphysema, Director: No. bronchitis, and asthma. They also. aggravate heart disQrders, impair vision and increas.e re­ Similarly conspicuous by their absence are air sponse time, the latter two effects proven causes PQllutiQn-highway proliferatiQn studies for Phila­ Qf highway accidents. Many commuters suffer delphia and Washington. The northeastern cities frQm headaches, attributed in part to. carbon thereby continue to deposit filth into. the Boswash monoxide poisQning ingested during stop-and­ SmQg Bank, dooming it to. ever-increasing con­ start rush hour traffic. The Smithsonian Institute taminatiQn. reports that air pollution has diminished Wash­ ington's sunlight by simeen percent orver the last fifty years. I The Governme,nrf Ads Yet the Highway Administration can produce But the real culpability for environmental neg­ nothing which So' much as acknowledges the lect rests at the federal do.orstep. No pro.phecies­ theory that mQre roads might produce mQre auto­ o.f-do.om here. In an engineering report labeled mQbiles, nothing which might cQrrelate pollution "Travel Time-A Measure of Highway Perrorm­ levels with traffic vQlumes in large cities, nothing ance,"ll the Department o.f Transportation fo.und by which to assess the magnitude of air pollution that traffic speeds on the Lo.ng Island Express­ hazards. The emphasis remains, instead, upon the way-often called the longest parking lot in the virtues of the interstate system. DOT failures are wo.rld-averaged up to. thirty-five miles per ho.ur covered up in much the same way that oortain during the rush hour. (CQmmuters participating municipal bus systems attempted to. mask the in the daily Expressway competitio.n are likely nQxious fumes emanating frQm exhausts, by add­ to. think that estimate high.) The study rejects ing rOise-scented perfume to the diesel fueJ.15 (The the familiar picture of monumental traffic SIl!airls, scheme was abandoned when people became sick lo.ng delays, a paralyzed system, and concludes from the ersatz fragrance.) that "the moto.rist has been able tOi maintain and even impro.ve Iris travel time in the city" (New The Department's public relations tactics often York) .12 Equally speedy scenes are described in have about them a Madison Avenue sheen and Los Angeles, Detro.it, San Francisco, Milwaukee, television commercial illogic which hide pertinent and other major metropolitan areas. faclts. For example, the study of rural highways mentioned above suggests that faster moving cars Another study, entitled "Benefits of Interstate give off smaller amQunts of carbon monoxide. Highways,"13 is used by the Federal Highway Ad­ Many engineers believe this proPQsition to be ministration's public relations department to sell sheer fantasy: urban highways during rush hours the idea that when new Interstate sections, are are usually s,low-moving, frequently stop-and-start opened to traffic, congestion on the old routes is --certainly something less than high-speed. More­ reduced by as much as fifty percent. (Is this Qver, while it is true that carbon monoxide emis­ reductio ad absurdum ?) What the pamphlet sions slacken at greater s.peeds, other poUutants chooses nQt to mentiQn is that .the ro.ads under such as lead and smQg-forming oxides of nitrogen study were all in rural areas, and that the results actually increase. cannot be extrapQlated to anything but farm country. An engineer involved in the research The DOT line is for more than just .public con­ confided his opinion :that city highways become sumption. In a report to the Pres,ident's Council congested almost as soon as they a,re comp'leted, on Environmental Quality, established last year so saturated with cars are the urban areas. to act as the nation's environmental ombudsman, 1972 59 MARYLAND LAW FORUM the Highway Administration concluded that more rO'utes from poverty areas to wO'rk sites can inti­ highways "would result in impacts on the envirO'n­ mate that such grants are no more than bones ment which in most cases will be favO'rable."16 thrown to' the barking dogs. But in its First Annual Report the CO'uncil stated BaltimO're is perhaps the easiest among the that the Administration is "chiefly concerned with Boswash urban centers in which to get from one cost and en.g:ineering feasibility," and these fac'­ place to anO'ther. Yet even there, the highway tors "overshadow adequate consideration of a builders' cosmetic approach is overly evident. Last project's environmental impact."17 year, the Maryland State Roads Commission hired The Council went on to deplore unhealthy noise a public relations firm (Image CompatabiIity Sys­ levels caused predominantly by motor vehicles, tems, Inc.) to persuade city residents that more especially buses and trucks. What to' the highway highways should be built, that new roads would people is little. mO're than a "nO'ticeable nO'ise level" reduce air pollution. In 1970 almost $90,000 in can amount to nO'ise pressure O'f over ninety deci­ taxpayers' mO'ney was paid to' the firm, and a bels-enO'ugh to' cause permanent loss O'f hearing. member of the Image team "predicts" that a con­ Continued exposure to this annO'yance could lead tinuing public relations effort O'n the $837 million to chronic hypertension and ulcers.1s (Walking to expressways will be necessary untiIl the entire sys­ lunch in New York C~ty, the environmental direc'­ tem is completed.23 tor fO'r the Tri-State Transportation CommissiO'n appears to be mO'ving his mO'uth as if in a silent film, straining to shO'ut thrO'ugh the traffic noise~ I The Citizens React almost a parody of the roadbuilding lobbyist, and of himself.) Slick public relations>, however, are often not enough to whitewash the citizenry. Substantial The list of overlooked social costs goes O'n and O'Pposition to the highway lO'bby is being mounted O'n, as do the highways themselves. But roadbuild­ from all sides. In 1967, residents of Cambridge, ing cannO't be viewed as an issue seprurate and dis­ Massachusetts were infO'rmed that thirteen hun­ tinct from the social and ecO'nO'mic deterioratiO'n dred O'f their homes would be displaced to make of the inner city, from the ghettoes, the unsafe room for an eight-lane inner belt which WO'uld cut streets, 'the urban blight. In the Watts area of the city in half. More than five hundred faculty Los Angeles, according to the 1966 White House members from Harvard University and the Mass.­ Conference on Civil Rights, "transportation diffi­ achusetts Institute of TechnO'logy petitioned Alan culties discO'urage job seekers and impose unfair Boyd, then Secretary of Transportation, to re.. cost on workers least able to meet them."19 Re­ evaluate whether the rO'ad "needs to be built at liance on highway transportation effectively ex­ all, in view of major new develO'pments which cludes f:vom the jO'b market the 57.% O'f poO'r peo­ 20 have occu:cred since the Inner Belt plan was con­ ple whO' have nO' access to automO'biles. This ceived twenty years ago."24 This O'P>positibn bur­ federally subsidized imbalance contributed in geoned into overwhelming popular cO'ncern, re­ large measure to the Watts riots of 1964. plete with bumper stickers (CAMBRIDGE IS A The "you-can't-get-there-from-here" syndrO'me CITY, NOT A HIGHWAY) and posters. Taking affects other cities as well. A recent study by its interest into its own hands, the public forced New York University's Project Labor Maxket the state to conduct a complete study O'f sociologi­ found that transportation in the city often pre­ cal, econO'mic, and environmental ramifications sents an insurmO'untable barrier to' employment.21 befO're any more hIghways are built. The contro­ To get from the poverty areas of central Brooklyn versy has led Francis Sargent, Governor of Sec­ to industrial sections in adjacent Queens without retary of TransportatiO'n John Volpe's home state, a car, for example, one must bOaJrd a train that to place a ban on virtually all new highway devel­ crosses the East River intO' Manhattan, traverses O'pment within Route 128 encircling Boston. midtown, tunnels under the river again, and Even New York has O'n occasion succumbed to finally deposits its riders in Queens. It is thus the ire O'f its mO're cO'ncerned citizens. In 1961, easier and faster to get to parts of the Bronx Tribourough Bridge and Tunnel Authority chief fifteen miles away than to industrial areas only RO'bert Moses, urged the City Fathers to take ad­ four miles away. Although inhabitants of poverty vantage of 90 ..10 federal funding and to construct areas are more dependent on public transportation a ten-lane Lower Manhattan Exp.ressway con­ than residents of middle class sectiO'ns, the system necting the east and west sides of Manhattan. As serves them less well. AccO'rding to the PrO'ject was their wO'nt, the highwaymen had considered Labor Market study, such a result is easily under­ little mO're than the engineering aspects 0[ the standable: it was designed to serve the middle prO'Posed turnpike. But this time the citizens' class, not the poor. IO'bby was able to light some fire in oppositiO'n. The Department of Transportation, in the Buffeted back and forth by the MayO'r's office, the meantime, reports to the Council on Environmen­ BO'ard of Estimates, and the State Legislature, the tal Quality that "new and improved highways will storm raged until November of 1968 when the provide greater mobility to more people ... High­ local Department of Air Resources released a way travel exceeds one trillion vehicle miles an­ study wMch raised the issue of the highway's nually, about the equivalent of two milliO'n round potential hazards to the health of the community.25 trips to the moon. "22 A Department O'fficial, asked The Board of Estimates yielded to the pressure, about demO'nstration grants for experimental bus and de-mapped the project. 60 VOL. II THE ASPHALTING OF AMERICA Council, fQl' example, recently severed diplomatic The road building Senate Public Works Com­ relations with the Wisconsin highway department mittee is chaired by Jennings Ra,ndolph of West and adopted a policy of non-cooperation (i.e., it Virginia. For ten years prior to his election in won't answer letters or return phone calls). 1958, (he) was the treasurer of the American Whether this administrative pique is enough to Road-builders Associatio,n, the 5000-member combat the highway lobby remains open to ques­ highway construction industry lobby. tion. Meanwhile, the electorate in East Baltimore apparently had had enough of George Fallon, The Lobby And The DOT Chairman of the House Public Works Committee and winner of the American Road Builders Asso­ Paving America is big business. In 1969, over ciation (herinafter ARBA) award for outstand· $18 billion was spent on highways.29 Transporta­ ing contributions to the highway program. In tion accounts for approximately twenty percent November of 1970 Fallon was voted out in favor of the gross national product. Through the Trust of Paul Sarbanes, a free-thinking freeway op­ Fund procedure, the highway lobby has been ele­ ponent. And a West Baltimore citizens' group vated to an exceptionally powerful position, with which calls itself Volunteers Opposed to the Capitol Hill as its base. The roadbuilding Senate Leakin Park Expressway (V.O.L.P.E., Inc.) has Public Works Committee is chaired by Jennings sought court action to enjoin construction of an Randolph of West Virginia. For ten years pri()r expressway through one of the largest municipal to his election in 1958, Randolph was the Treas­ parks in the country and the only city wilderness urer of the American Road Builders Association, park in the United States.26 the 5000 member highway construction industry lobby. (In 1966, ARBA President John P. Moss In Washington, a no-holds-barred fight-to said of the Senator: "Jennings Randolph is not some the Dienbienphu of a long guerilla war be­ only 'Our friend-he is one of us.") 30 Randolph's tween the highway lobby and the citizenry-is counterp1art in the House used to be George still in full swing. New roads are coming under Fallon, who often received campaign support attack for the same reasons: hodge-podge plan­ from the ARBA and the American Trucking ning and fa1llure to consider anything other than Association. (A year after Fallon was named pork-barrel dollars and cents. And the communi­ ARB A's annual award winner, Senator Randolph ties with the most at stake, usually black neigh­ ran off with the prize.) borhoods, are forcing the issue. The highway lobby's influence feeds down very Under substantial public pressure, the D. C. quickly through the Department of Transporta­ government agreed to underwrite a long overdue tion, whose cavalier sponsorship of the asphalt­ study of air pollution and highway p'roliferation. ing of America bespeaks either highly question­ By now the fires were already hot. At the Novem­ able motives or extremely narrow minds. Secre­ ber, 1969 elections, eighty-four percent of D. C. tary of Transportation John A. Volpe was Com­ voters opposed by referendum coiIlStruction of the missioner of Public Works in Massachusetts be­ Three Sisters Bridge and related freeways. The fore he became Governor. He was also part owner referendum itself was virtually ignored, but sev­ of one of the largest building construction com­ eral months ago a legal challenge to the Bridge panies in the country; upon taking state office, he achieved tentative victory when plans were or­ transferred this interest to his brother. dered remanded for administrative review. In May of 1968, ninety-five percent of the registered The power kernel of the DOT is the Federal Democrats voting in the primary election favored Highway Administrati'on, whose hard agency line a proposal that would have prohibited new free­ lends substanUal inertia to the Department and way construction unless approved by a specific prevents it from responding to the serious en­ referendum.21 A 1963 opinion poll by National vironmental problems of the cities. Citizens try­ Analysts, Inc., disclosed that approximately sixty­ ing to bring about legitimate reforms to the six percent of automobile- and bus-commuters in system inevitably run into the amorphous, im­ the Washington area preferred investment in movable mass of bureaucracy. Freedom of infor­ rapid transit systems, rather than in new high. mati'On is essential to public participation, but ways and parking lots. 28 the Highway Administration seems to fill its pot­ Washingtonians are further rankled by what holes with secrecy. they consider to be little les,s than extortion on the A more sophisticated technique for withholding part of Congressman William H. Natcher (D., facts is through selective gathering of data. Com­ Ky.). The Chairman of the House Appropriations prehensive air pollution studies and estimates of Committee, which controls funds for every Dis­ future contamination levels for American cities trict of Columbia development program, has fro­ are suppressed or excluded. The Tri-State Trans­ zen all desperately needed subway financing until portation Oommission does not communicate with freeway construction begins. The end of this con­ New York City's Environmental Protection Ad­ troversy is not in sight. ministration, which has done extensive pollution On a few occasions, local governments them­ monitoring. At the federal level air pollution selves take the initiative. The Milwaukee City studies are simply ignored. 1972 61 MARYLAND LAW FORUM

Perhaps because the highway public relations • Promote free expression within the Depart­ approach is uncontested, the "transportation ment of Transportation, and free access to infor­ planning pl"OOeSS" ends up as highway planning. mation by the pUblic-especially scientists, en­ Said an ex-developer with the Bure1au of Public gineers, and planners studying environmental, Roads: "The highway planner is in the unique social and economic effects of national transporta­ and favorable position of being able to plan, tion policy. almost without regard to other modes of trave1." The executive director of Tri-State suggests that Only by a completely objective assessment of the transportation planning process is "more the highway/pollution problem, and by intelligent talked about than executed." action to solve it, can we hope to achieve less One of the more disturbing observations made crowded streets, quieter cities, cleaner air, and a by the student interviewers was the apparent generally more humane environment. universality of acceptance by DOT people of the Department's hard-line arguments. Noone lat Footnotes DOT expressed 'anything resembling a negative 1 Substantial assistance on this research was rendered sentiment about the Department, or saw fit to by David Weinstein, currently a third year law student question the one-sidedness of its policies. Whether at Yale University. the nay-sayers have been filtered out by selection • G. ROTH, PAYING FOR ROADS 29 (1967). (survival of the conformable), or by other means, • Private communication to Mr. Sullivan by Mr. William is perhaps not as significant as another set of Wickery, transportation economist at Columbia University. dynamics: the degree of an official's heart-and­ • STATISTICAL ABSTRACT 543 (1969). soul adherence to the agency line appeared to be 6 Federal-Aid Highway Act, 23 U.S.C. § 120 (c) (1958). directly proportional to his length of service. • Urban Mass Transportation Assistance Act of 1970, With the oldest DOT employees there is almost Pub. L. No. 91-453, 84 Stat. 962. • Testimony of Congressman Edward I. Koch before the complete Department-self identifioation. HOUSE PUBLIC WORKS COMMITTEE, May 12, 1970. 8 Testimony of Dr. William J. Ronan, President of the Institute for Rapid Transit, in hearings before the SUB­ Some Suggestio1ns COMMITTEE ON HOUSING AND URBAN AFFAms, October 15, 1969. Roadbuilding programs supported by the lobby, • 23 U.S.C. § 134 (a) (1962). steered through the Congress, and trucked into 10 Pub. L. No. 91-190. :11 Prepared by the URBAN PLANNING DIVISION of the every corner of the federal bureaucracy, have pre­ FEDERAL HIGHWAY ADMINISTRATION, January, 1970. cluded any realistic assessment of the environ­ 12 Id. at 7. mental, social, and economic effects of new high­ 13 HOUSE COMMITTEE ON PUBLIC WORKS, Committee Print ways. Criticism is stifled. The chances for clean 91-41, September, 1970. air, uncongested cities, relative peace and quiet, l' See the Air Quality Control Documents published by and fast, efficient urban transportation are there­ the OFFICE OF AIR PROGRAMS, ENVIRONMENTAL PROTECTION by greatly diminished. AGENCY. l3 Speech delivered by Carlos C. Villarreal, Administra­ All of this is especially frustrating in light of tor of the Urban Mass Transit Administration, at the Con­ the available remedies. Some relatively simple servation Foundation Environmental Forum, November changes in law and policy would bring about sub­ 18, 1970. :16 ENVIRONMENTAL STATEMENT FOR PROPOSED FEDERAL­ stantial improvements in the quality of our en~ AID HIGHWAY ACT OF 1970, AND HIGHWAY TRUST FUND vironment. We must-- EXTENSION ACT OF 1970 (August, 1970) at 2 • .. COUNCIL ON ENVIRONMENTAL QUALITY, FmST ANNUAL • Eliminate the Highway Trust Fund. Origi­ REPORT 20 (August, 1970). nally intended to lapse in 1972, it should be re­ ,. Id. at 126. placed by funding from general revenues (along ,. M. HARRINGTON, TOWARD A DEMOCRATIC LEFT 38 with other health, education, and public works (1969) • programs). At the very least, the Highway Trust l/Jl This is the percentage of U. S. households with incomes Fund should be replaced with a Transportation under $3,000. U. S. DEPARTMENT OF COMMERCE, SPECIAL Trust Fund, which could support all modes of REPORT OF HOUSEHOLD OWNERSHIP AND PURCHASE OF travel. AUTOMOBILES AND SELECTED HOUSEHOLD DURABLES 65, 1967-1970 series (August, 1967) • • Restrict the number of cars entering metro­ • 1 O. ORNATE, TRANSPORTATION NEEDS OF THE POOR politan areas. This could perhaps best be accom­ (1960). plished by higway tolls to pay for the social costs .. See note 13 supra at 4. of automobile use. os Baltimore Sun, Nov. 6, 1970, at C-20, col. 8. .. H. LEAVITT, SUPERHIGHWAY-SUPERHOAX 56 (1970). • Increase citizen participation by holding 25 Id. at 63. hearings on long-range transportation plans, in .. Sierra Club v. Volpe, Civil No. 71-1118M (D. Md., filed addition to the present highway hearings required October 12, 1971). by federal law. .. Testimony of Peter S. Craig to the JOINT ECONOMIC COMMITTEE, May 6, 1970. • Conduct objective air, noise and water pollU­ 28 Id. tion studies before new roads are built. Mass tran­ .. HIGHWAY STATISTICS, U. S. DEPARTMENT OF TRANS­ sit alternatives should be considered in a light PORTATION (1969). other than the shining gloss of freeway pamphlets. 80 See note 24 supra at 111. 62 VOL. II