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Planning NAFTA Superhighways at the
End of the Age of Oil
Part Two

Mark Robinowitz

© Copyright 2006, From The Wilderness Publications, All Rights Reserved. This story may NOT be posted on any Internet web site without express written permission. Contact May be circulated, distributed or transmitted for non-profit purposes only.

An Introduction to Highway Laws

May 16, 2006 1100 PST – (FTW) – Freeway fighting is a complex and obscure topic. It involves arcane laws, reading thick reports, neighborhood association politics, and seemingly endless governmental meetings designed to soak up your time. Most of the best guides to stopping unnecessary roads were written in the 1970s, following the “peak” of successful citizen efforts to block highways, and are nearly impossible to find.

Fortunately, federal transportation laws are some of the strongest environmental laws remaining in the United States. There are many good precedents that even corrupt judges must provide some lip service to. A short guide to some of the most important laws suggests that Peak Oil could be used to force major shifts from new highway construction toward policies that would better prepare communities for the energy crisis.

The National Environmental Policy Act (NEPA) was signed by President Nixon, and governs all federal actions that impact the environment, even (acknowledged) military bases. NEPA is sometimes misrepresented as the National Environmental Protection Act, but it is procedural law, not substantive—it merely requires adequate disclosure of all decisions. If an administration planned to destroy all life on Earth, NEPA would require that they analyze a range of alternatives (perhaps an option to destroy half of the Earth along with a “No Action” option), since NEPA does not require selecting the least destructive alternative.

NEPA is the law that requires Environmental Impact Statements (for large projects) and Environmental Assessments (for smaller projects). The start of an EIS or EA is the drafting of a “Purpose and Need” to identify a problem, followed by “scoping” of a range of reasonable alternatives. The preferred alternative is approved in a “Record of Decision” after the Final EIS, at which time citizens can sue to block the project.

Section 404 of the Clean Water Act, also signed by Nixon, regulates the destruction of wetlands. Most highways destroy wetlands, an activity regulated by the Army Corps of Engineers. Wetland permits need to evaluate whether the action is avoidable before examining how to mitigate the impacts. The highway lobby has worked for many years to attack this law, and the Roberts Supreme Court is likely to reduce its effectiveness.

The Clean Air Act regulates highway construction in smoggy urban areas that are polluted beyond officially acceptable levels. Road construction using federal funds in these communities can only be approved in conjunction with promises that the projects will not worsen the smog problems—often an exercise in statistical manipulation that does not protect public health. A metropolitan area that fails to meet Clean Air standards can be threatened with a loss of federal highway funds. Ironically, the cutoff of those funds would be part of a lasting solution to air pollution, not merely a punishment for regions downplaying the problem.

Perhaps the most powerful and least known highway law is Section 4(f) of the 1966 Transportation Act, which prohibits transportation projects through parks and historic sites unless there is not a “prudent and feasible” alternative. (Roads built without federal money or other federal DOT actions are not affected by this restriction.) It was passed as a consequence of citizen anger about highways tearing up parks, since it is much cheaper for the highwaymen to decimate parkland than to compensate people for bulldozing their homes. The 1995 SAFETEA-LU law introduced a “de minimus” standard (too small to notice) to exempt minor impacts from 4(f) consideration.

Some highways also violate the Endangered Species Act, but this legal tact has rarely been successful in stopping road construction. The ESA is also under attack, and the environmental community is on the defensive trying to hold onto Nixon-era laws, rather than taking the initiative to create stronger protections to slow down or reverse the destruction of the biosphere. It is incredible that protections for extremely rare species are being eviscerated as climate change, habitat destruction, and toxic wastes are leading to the sixth great mass extinction of life in the Earth’s history.

One of the best guides to understand highway law is the FHWA Environmental Guidebook, a review of highway laws and regulations written for State transportation planners to ensure they design projects that will withstand legal challenges.

Segmentation and ISTEA: How to Use Peak Oil to Change Transportation Policies

The FHWA’s implementation of the NEPA law requires that the full impacts of a highway must be analyzed before a Record of Decision is issued. Approving a road that forces additional construction that is ignored in the environmental documentation is considered illegal “segmentation” of the project.

In the 1991 ISTEA law, a provision was added to federal highway approvals that requires all highway plans in a metropolitan area to fit into a regional long-range transportation budget to avoid a form of fiscal segmentation. If a metro area wants lots of new roads, they have to show how the projects could be paid for (federal and local funds) over a 20 year period. Approving a project that lacks funding is therefore a form of segmentation. The funds need not be available when construction begins, but the entire project has to fit within a constrained transportation budget—a process similar to buying a home with a mortgage (a home buyer has to show their potential ability to raise all of the funds over the span of the loan).

A few highway officials have privately admitted to this writer that they understand that Peak Oil should be included in transportation planning, while the agencies they work for have a “Not See” attitude and do not dare discuss it.

FHWA funded highway projects are designed to meet traffic needs 20 years in the future—not for existing traffic snarls. If Peak Oil were included in these projections, it would force major changes to transportation policies at the local and national levels.

While no one, not even Dick Cheney, knows precisely what will happen with Peak Oil, to ignore it completely and make more “growth” projections and traffic models that assume constant supplies and pricing of petroleum is delusional. When FHWA finally requires energy analyses in NEPA documentation, they could examine a range of scenarios: gasoline at $5 per gallon in 2025, gasoline at $50 per gallon in 2025, and gasoline not available to the public in 2025 (only to elites and the military).

It is impossible to project what oil will cost when annual extraction is roughly half of current levels (as the best estimates project for 2030). When that happens, current traffic demand statistics will probably be worthless.

Peak Traffic

The 2005 Final Environmental Impact Statement for the Inter County Connector highway had this response to a commenter who referenced Peak Oil as a reason not to build the road:

It is speculative to assume that increases in gasoline prices will "reduce congestion." Evidence indicates that very substantial price increases might be needed in order to substantially change transportation choices and decisions. Price increases could cause a variety of responses which might not affect highway usage; e.g. production and acquisition of more fuel-efficient vehicles. The travel forecasts were made assuming a cost-per-mile for operating an automobile. Historically, as the price of gasoline has increased, the miles traveled per gallon of gas have also increased. In fact, gas costs less per mile traveled today than it did prior to the first oil embargo in 1974. Petroleum scarcity as a result of consumption in China is speculative.
- Final Environmental Impact Statement, Inter County Connector (I-370)

This EIS is correct to state that planning for rising gas prices is speculative, but planning as if prices will remain constant for the next two decades is even more speculative.

It is not “speculation” to predict that higher gas prices will prevent increased traffic. Here is a small example of how this works, showing that the price increases that are likely from Peak Oil will lower traffic demand considerably in the design year of 2030:

  • More riders crowd buses
    The rising cost of driving sends record numbers to LTD, where human traffic jams the aisles
    by Jeff Wright
    The Register-Guard
    Thursday, April 6, 2006
    In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
  • High gasoline prices filling bus, train seats
    by Bernie Woodall
    Tuesday, April 25, 2006
    In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.

These statistics do not suggest a major shift (yet) due to increasing gas prices, but they hint at much larger changes to come on the petroleum downslope.

Peak Oil and Transportation Planning

There are two ways that Peak Oil could be inserted into highway planning for a large road project. These issues could be raised during the “Scoping” process that is the first step for an Environmental Impact Statement. If this framework was required to include reasonable scenarios for energy availability in the year 2030, new highways would be scrapped in favor of better transit, a revitalized train network, and maintaining existing infrastructure (especially aging bridges).

If a project is further advanced, NEPA mandates that a “Supplemental” EIS must be prepared if there are "new circumstances" not anticipated when the scoping process was conducted. Surely reaching the peak of petroleum production worldwide is an important circumstance for a transportation project allegedly designed for travel long past the peak of petroleum.

If FHWA included Peak Oil into environmental analyses for highway projects, this could create a seismic shift in transportation planning across the United States, allowing for honest public discussion about energy and transportation policies. There are several ways this shift could happen: a successful Federal lawsuit forces FHWA to include Peak Oil, the start of gasoline rationing makes transportation planners consider alternatives, or a change in national policies (probably the least likely in the near future).

Council on Environmental Quality Regulations Implementing NEPA:

40 CFR 1502.9: Draft, final and supplemental statements.

(c) Agencies:

(1) Shall prepare supplements to either draft or final environmental impact statements if:

(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or

(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

Federal Highway Administration Regulations about NEPA:

23 CFR § 771.130 Supplemental environmental impact statements.

(a) A draft EIS, final EIS, or supplemental EIS may be supplemented at any time. An EIS shall be supplemented whenever the Administration determines that:

(1) Changes to the proposed action would result in significant environmental impacts that were not evaluated in the EIS; or

(2) New information or circumstances relevant to environmental concerns and bearings on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS.

Power Shift or Powerdown?

As Peak Oil awareness continues to spread, supporters of the dominant industrial paradigm will increase their propaganda that technological shifts are sufficient to solve the problems. These efforts to maintain the status quo of growth-based economics in the face of resource limitations distract from practical steps our society could have taken to mitigate these impacts.

An egregious example of this limited focus (on demand-side solutions) is the Power Shift series of conferences across the country, sponsored by a coalition including environmentalists (Natural Resources Defense Council, Union of Concerned Scientists) and warmongers (Center for the Defense of Democracies, a neo-conservative supporter of the “War on Terror”). Power Shift is a carefully crafted means of keeping grassroots who are concerned about these issues from recommending policies and logistics that would be needed to address the problems.

The brochure distributed at the April 8 Power Shift event in Portland, Oregon had pictures of interstate highways and messages about our right to Middle East oil, but there was no mention of relocalization of food production, Amtrak, or converting the bloated military budget for peaceful uses.

Power Shift is a proposal to substitute alternative fuels (other than oil) to maintain car culture and centralized energy systems, even though biofuels, liquefied coal, and other demand-side technologies cannot possibly fill maintain current overconsumption levels.

Powerdown, the title of Richard Heinberg’s excellent book, is a more realistic approach. Powerdown includes relocalizing production, renewable energy, efficiency, conservation, and reduction of demand. Unfortunately, the elites who fund many energy outreach efforts cannot figure out how to profit as much from this approach, and therefore are not interested in Powerdown.

From The Wilderness published two articles about some of the players behind “Power Shift” and the “Oil Storm” scenario exercise presented to audiences:

OIL SHOCKWAVE: Torrance, CA Emergency Simulation Targets Big Business and Local Government Managers—Ominous Timing in Advance of Hurricane Katrina


Reviving the Rails: A Best-Case Peak Oil Scenario

"In the United States, we have a railroad system that the Bulgarians would be ashamed of. We desperately are going to need railroad transport for moving people around, for moving goods around—we don’t have that. What we do have is a trucking system that is going to become increasingly dysfunctional, especially as the expense mounts of maintaining the tremendous interstate highway system. It costs so much money every year to maintain what the engineers call a high level of service—which means that the trucks that are delivering things from the central valley of California to Toronto don’t break their axles while they’re bringing those Caesar salads to Toronto. Once you have a certain number of trucks that are breaking their axles in that 3,000 mile journey, that’s the end of transcontinental trucking—which also implies that this is the end of certain economic relationships that we have gotten used to."
- author James Howard Kunstler, from an interview in the film "The End of Suburbia: Oil Depletion and the End of the American Dream"

It is serious time to look at the nationalization of America's critical infrastructure industries: oil, gas, electricity, and others that have gouged the American consumer and now deserve to lose their windfall profits in a nationalization effort that will return to them ten cents on the dollar, if they are lucky.
- Wayne Madsen Report, April 25, 2006

A best-case scenario for mitigating Peak Oil could include bullet train service between cities (with solar panels lining the tracks to provide some of the power), light rail and better bus service on major roads, major investments in renewable energy and hyper-conservation, land use shifts to reduce commuting distances, widespread suburban agriculture to convert lawns into food production (which would reduce truck deliveries), and other steps to reduce our demand for oil, coal, natural gas, uranium, concrete, and mineral ores.

If we continue on the current road of overshoot, the likely consequence will be a “national Katrina” disaster, where a small group would still have access to fuels, capital, and quality food while a much larger underclass would be left to scramble for survival. But that dismal potential shares one outcome with the “positive scenario”—both the cooperative, conservation future, and the collapse scenario would greatly reduce need for more highways. Whether we cope with Peak Oil and climate change or continue to ignore the problems until they become catastrophic and un-mitigable, there is no need to continue to expand highway network.

Relocalizing production and building renewable energy systems is a bigger priority for using the remaining oil than more freeways for Wal-Mart delivery trucks.

Future generations will regret that essential farmland was paved over—not that one more dumb highway wasn’t built.

Politicians who have nothing practical for the public to mitigate the consequences of Peak Oil risk being thrown out of office once the price of gas goes up and stays up. Who will get the blame for ignoring the issue?

The most important question regarding planning for 2030 is what type of economy we will have after the cheap, abundant oil is replaced by expensive, scarce oil. Will we use the remaining oil to relocalize production and build lots of renewable energy equipment or will this oil be used to build more freeways and fuel a futile World War to control the remaining oil fields? The answers to these questions determine the future of the human race.

Proposed high speed rail corridors
Proposed, unfunded network of high speed rail corridors,
a step toward a real passenger train network

Old and new Amtrak trains
Old Amtrak (long distance trains traveling 80 mph / 130 kph)
and new Amtrak (Cascades route using Spanish trains that can
go 124 mph / 200 kph, but the tracks they travel cannot
accommodate those speeds)

Magnetic levitation test track
Magnetic Levitation test track in Germany. MagLev trains
travel around 300 mph / 480 kph.  Demonstration routes for
ultra high speed trains
are proposed between Baltimore and
Washington, D.C.
, Pittsburgh, Atlanta, Florida, and
southern California.

Amtrak "Acela" high speed train
Amtrak “Acela” train from Boston to Washington, D.C.
(150 mph / 240 kph) - almost as fast as high speed rail in
Japan, Europe, and Korea.

Additional Resources: 

The Long Emergency: Surviving the End of the Oil Age, Climate Change, and Other Converging Catastrophes of the Twenty-first Century by James Howard Kunstler -

The UNplanning Journal discusses the Oregon Transportation Plan and contains some detailed comments.

The End of Suburbia: Oil Depletion and the Collapse of the American Dream (movie).

The Power of Community: How Cuba Survived Peak Oil, a documentary from Community Solution.

Food Not Lawns - Eugene, Oregon

City Farmer - Vancouver, BC

Urban Gardening Help

City Repair - Portland, Oregon

Saving Oil in a Hurry: Oil Demand Restraint in Transport
Workshop on Managing Oil Demand in Transport (2005)

Future U.S. Highway Energy Use: A Fifty Year Perspective (DRAFT)
May 3, 2001
Office of Transportation Technologies Energy Efficiency and Renewable Energy U.S Department of Energy

Association for the Study of Peak Oil
334. “New roads and a tunnel in Switzerland” (March 2004 issue):
In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.

Switzerland operates a devolved form of government seeking to involve its citizens in major issues rather than impose decisions by parliamentarians under the iron grip of party machines, as practiced in many so-called democracies. The decision now facing the Swiss people is whether or not to modernize the highway system and build a new tunnel under the Alps.  Linear extrapolation of past trends of traffic and goods transport has no doubt been used to justify the mammoth undertaking, but it is meeting strong opposition, partly built on recognition of oil depletion. A cartoon has appeared depicting a future scene of a cyclist and an old man looking down on an empty highway with trees growing through the cracks.  The old man comments “In my day we believed in all that” to which the cyclist replies "You still had petrol."

The Swiss Federal Office of Energy is holding a Workshop on oil and gas resources on February 27th which will be open to the public. ASPO will be represented by Campbell and Bauquis in a discussion with representatives of the IEA, IHS, Schlumberger and Chevron-Texaco. It remains to be seen if it will have any positive outcome, as the accompanying report commissioned by the Federal Office simply contrasts the views of so called “optimists” and “pessimists” to reach a neutral position, absolving the government from the need to take any firm action. The likely outcome is that the investments in roads and tunnels will be neither approved nor rejected but simply delayed—it might indeed be a good political response, given that impact of peak oil will soon be self-evident.

New Zealand: No easy solutions in sight to keep oil prices in check

by Cameron Pitches
New Zealand Herald
Tuesday, April 4, 2005
In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.

…New Zealand’s transport agencies need a contingency plan for the rising price of oil. At US$70 a barrel, the Auckland Regional Transport Authority should be looking to secure options on electric rolling stock for our rail network.

At US$100, the Government should be suspending all new roading projects. At US$200, Auckland International Airport’s proposals for a second runway should be shelved in favor of a container wharf for shipping.

Reliance on emerging new energy technologies such as hydrogen won’t help us in the short term, either. The so-called hydrogen economy is a net energy-loss proposition - more energy is put in to the extraction, compression and storage of hydrogen than comes out of it.

In addition, more than 90 per cent of hydrogen is obtained from fossil fuels, which defeats the purpose of an alternative fuel….

A bridge too far: Big men and their little toys
by Am Johal
Seven Oaks Magazine
Tuesday, May 24, 2005
In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.

...Building our way out of congestion through highway expansion seems incredibly short-sighted, especially in the context of oil reaching $100 a barrel by 2010 and a public transportation sadly in need of a billion dollar overhaul.

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