Does Texas's SB 312 force the Loop 1604 toll project to repay state highway money, or is it exempt because its environmental review started early?

Plain-English summary

A Texas House committee chair asked whether amendments made by Senate Bill 312 in 2017 force the Loop 1604 toll project in Bexar County to repay highway funds the Texas Department of Transportation contributed. Senate Bill 312 changed several Transportation Code provisions to require repayment of money the Department spends on toll facilities and turnpike projects. But the same bill added an exception: notwithstanding those repayment provisions, a toll project entity does not have to repay Department funds "if a toll project entity commenced the environmental review process for the project on or before January 1, 2014." So the whole question came down to one date: did Loop 1604's environmental review start before January 1, 2014?

The AG laid out the framework but stopped short of deciding. The state's environmental review process runs through the Transportation Code and the Department's rules in title 43 of the Administrative Code, which (like the federal NEPA rules) set up three levels of review: a categorical exclusion, an environmental assessment, and an environmental impact statement. "Commence" means to begin or to initiate formally by performing the first act, so the review process starts when the first such act is performed. The Alamo Regional Mobility Authority, which is pursuing the project, said it hired an environmental services consultant in 2009 to prepare an environmental impact statement, and that the Federal Highway Administration reclassified the project as an environmental assessment in 2013.

On those facts the AG offered two pieces of guidance and one refusal. First, a court could view hiring a consultant to perform an assessment or impact statement as among the first acts of the review process. Second, the AG advised that downgrading a project's review level from an environmental impact statement to an environmental assessment is likely not the "commencement" of a new review process, since federal rules favor coordinating reviews in a single process. But the ultimate question, when this particular project commenced, turned on disputed facts, and fact-finding is beyond the scope of an AG opinion. The AG gave the same answer to a related question about whether a change in the project's end points (a new termini) was a major federal action triggering a fresh NEPA review: that too is a fact question outside the opinion process.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting legislator (as the opinion described it): The opinion explained how Senate Bill 312's repayment requirement and its pre-2014 environmental-review exception fit together, but told the chair that applying the exception to Loop 1604 depended on a contested factual question the AG could not answer.

The Alamo Regional Mobility Authority and the Transportation Commission (as the opinion described them): The opinion acknowledged the Authority's account that its review began in 2009 and was reclassified in 2013, and advised that the change from an impact statement to an assessment was likely not a new commencement. It left the dispositive date determination, and thus whether repayment is required, to be resolved on the facts.

The public following toll-road finance (as the opinion described them): The opinion identifies the legal test (did review commence on or before January 1, 2014) without deciding whether this project meets it, so the repayment outcome for Loop 1604 remained unsettled as a matter of the opinion.

Common questions

What did Senate Bill 312 change about toll-project funding?
It amended Transportation Code provisions to require that money the Department of Transportation contributes to toll facilities and turnpike projects be repaid, while adding an exception for projects whose environmental review began on or before January 1, 2014.

Is the Loop 1604 project exempt from repayment?
The AG could not say. The exemption depends on when the project's environmental review commenced, and that is a disputed fact question the opinion process cannot resolve as a matter of law.

Does changing the review from an impact statement to an assessment restart the clock?
Likely not. The AG advised that a change in a project's level of review from an environmental impact statement to an environmental assessment is probably not the "commencement" of a new review process, in part because federal rules favor a single coordinated process.

What about a change in the project's end points?
NEPA is triggered by a major federal action significantly affecting the environment. Whether a change in the termination point of an existing project qualifies as such an action is, again, a fact question outside an AG opinion.

Background and statutory framework

As amended by Senate Bill 312, Transportation Code subsection 222.103(a) lets the Department participate in the cost of a toll facility but directs the Commission to require repayment of any money spent, and subsection 370.301(c) similarly requires repayment of the Department's contributions to a turnpike project. Subsection 372.002(d) carves out the exception: notwithstanding those provisions, a toll project entity need not repay funds if it commenced the environmental review process on or before January 1, 2014. The request had cited subsection 366.301(c), but because the entity here is a regional mobility authority under chapter 370 rather than a regional tollway authority under chapter 366, the AG analyzed subsection 370.301(c). The opinion read the statutes for the Legislature's intent under Tex. Lottery Comm'n v. First State Bank of De Queen, 325 S.W.3d 628, 639 (Tex. 2010), and took the ordinary meaning of "commence" from State v. Sanchez, 135 S.W.3d 698, 699 (Tex. App.-Dallas 2003), aff'd, 138 S.W.3d 324 (Tex. Crim. App. 2004).

The state environmental review process lives in subchapter I-1 of chapter 201 (Tex. Transp. Code §§ 201.751-.762; § 201.752(a); § 201.604) and the Commission's rules in title 43, chapter C (43 Tex. Admin. Code §§ 2.1-.308), which provide three levels of review: categorical exclusion (§ 2.81), environmental assessment (§ 2.83), and environmental impact statement (§ 2.84). The federal NEPA rules mirror those levels (23 C.F.R. §§ 771.115, 771.117, 771.119, 771.123-.125; 42 U.S.C. §§ 4321-4370m-12; 40 C.F.R. § 1500.3). The opinion explained that an assessment can lead to an impact statement or a finding of no significant impact, citing City of Dallas v. Hall, 562 F.3d 712, 717 (5th Cir. 2009), 40 C.F.R. § 1508.9(a)(1), and Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir. 1994). It treated coordination of reviews as favored under 23 C.F.R. § 771.105(a). Because the timing question and the new-termini question both turned on disputed facts, the AG declined to resolve them, citing Tex. Att'y Gen. Op. No. KP-0091 (2016), and noted NEPA's trigger in 42 U.S.C. § 4332(C).

Citations

Cases:

• Tex. Lottery Comm'n v. First State Bank of De Queen, 325 S.W.3d 628, 639 (Tex. 2010)
• State v. Sanchez, 135 S.W.3d 698, 699 (Tex. App.-Dallas 2003), aff'd, 138 S.W.3d 324 (Tex. Crim. App. 2004)
• City of Dallas v. Hall, 562 F.3d 712, 717 (5th Cir. 2009)
• Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir. 1994)

Statutes and regulations:

• Tex. Transp. Code §§ 201.604, 201.751-.762, 222.103(a), 370.301(c), 372.002(d)
• 43 Tex. Admin. Code §§ 2.1-.308, 2.81, 2.83, 2.84
• 23 C.F.R. §§ 771.101, 771.105(a), 771.115, 771.117, 771.119, 771.123-.125
• 42 U.S.C. §§ 4321-4370m-12, 4332(C)
• 40 C.F.R. §§ 1500.3, 1508.9(a)(1)

Prior AG opinions:

• Tex. Att'y Gen. Op. No. KP-0091 (2016)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0194
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0194.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 23, 2018

The Honorable Joseph C. Pickett Opinion No. KP-0194
Chair, Committee on Environmental Regulation
Texas House of Representatives Re: Applicability of amendments to the
Post Office Box 2910 Transportation Code made by Senate Bill
Austin, Texas 78768-2910 312, 85th Regular Session, to the Loop 1604
toll project in Bexar County (RQ-0190-KP)

Dear Representative Pickett:

    You ask about the applicability of amendments to the Transportation Code by Senate Bill 312, 85th Legislature, to the Loop 1604 toll project ("Project") in Bexar County. [1] Citing three specific provisions that were amended to require repayment of Texas Department of Transportation ("Department") highway funds, you ask us to opine on whether the Project is subject to the repayment requirements. See Request Letter at 1.

    As amended, Transportation Code subsection 222.103(a) provides that

             [t]he department may participate, by spending money from any available source, in the cost of the acquisition, construction, maintenance, or operation of a toll facility of a public or private entity on terms and conditions established by the [Texas Transportation] commission. The commission shall require the repayment of any money spent.

TEX. TRANSP. CODE § 222.103(a). Similarly, subsection 370.301(c) [2] provides, with respect to the Department's contributions to a turnpike project, that "[a]n obligation or expense incurred by the commission or department under this section is part of the cost of the turnpike project for which the obligation or expense was incurred. The commission or department shall require money contributed by the commission or department under this section to be repaid." Id. § 370.301(c).

    Yet, amended subsection 372.002 provides that "[n]otwithstanding any other law, including Sections 222.103(a), ... and 370.301(c) ... , a toll project entity is not required to repay ... funds contributed by the department for a project if a toll project entity commenced the environmental review process for the project on or before January 1, 2014." Id. § 372.002(d); see Tex. Lottery Comm'n v. First State Bank of De Queen, 325 S.W.3d 628, 639 (Tex. 2010) ("[W]e construe statutes by first looking to the statutory language for the Legislature's intent, and only if we cannot discern legislative intent in the language of the statute itself do we resort to canons of construction or other aids such as which statute is more specific."). Your question requires a determination whether the Project is one in which the environmental review process commenced prior to January 1, 2014.

    The State's environmental review process for a transportation project is found in subchapter I-1, of chapter 201 of the Transportation Code. See TEX. TRANSP. CODE §§ 201.751-.762. Subchapter I-1 requires the Texas Transportation Commission ("Commission") to "establish standards for processing an environmental review document for a highway project." See id. § 201.752(a); see also id. § 201.604 (requiring the Commission to provide for the environmental review of transportation projects that are not subject to review under the National Environmental Policy Act ("NEPA")). Accordingly, the Commission adopted rules providing for the environmental review process in title 43, chapter C of the Texas Administrative Code. [3] See 43 TEX. ADMIN. CODE § 2.1; see also id. §§ 2.1-.308 (Tex. Dep't of Transp., Envtl. Review of Transp. Projects).

    The exception to repayment in Transportation Code subsection 372.002(d) applies only if the environmental review process "commenced" prior to January 1, 2014. TEX. TRANSP. CODE § 372.002(d). Commence means to "begin, start" or "to initiate formally by performing the first act." State v. Sanchez, 135 S.W.3d 698, 699 (Tex. App.-Dallas 2003), aff'd, 138 S.W.3d 324 (Tex. Crim. App. 2004) (citing WEBSTER'S THIRD NEW INT'L DICTIONARY 456 (1981)). Thus, an environmental review process "commences" upon the performance of a first act of the actions identified in title 43, chapter C of the Texas Administrative Code.

    In your request letter, you tell us that the recent grant to the Alamo Regional Mobility Authority ("Authority") includes "funds for the environmental review and development costs." Request Letter at 1 (citing Transportation Commission Minute Order #115051 [4]). The Minute Order states only that the funds are provided, in part, for "environmental review work." Minute Order #115051, at 1. It does not explain whether this refers to a new environmental review process or to the work of the environmental review process already begun. The Alamo Regional Mobility Authority informs us that the environmental review process for the Project began in 2009 with the hiring of an environmental services consultant to prepare an environmental impact statement. [5] It also informs us that the Federal Highway Administration subsequently classified the Project as an environmental assessment in 2013 and that the agreement with the environmental services consultant was then modified to require an environmental assessment. See Authority Brief at 3. The Authority asserts that both environmental review actions occurred prior to the January 1, 2014 deadline in subsection 372.002(d) such that the exclusion applies to the Project and no repayment of funds is required. Id. at 3-5.

    We consider the environmental review process. Transportation Code subsection 372.002(d) does not specifically define "environmental review process," but title 43, chapter C of the Texas Administrative Code, promulgated under Transportation Code, subchapter I-1 of chapter 201, provides for three levels of environmental review: a categorical exclusion, an environmental assessment, and an environmental impact statement. See 43 TEX. ADMIN. CODE §§ 2.81 (categorical exclusion), 2.83 (environmental assessments), 2.84 (environmental impact statements). Likewise, the federal set of rules governing an environmental review process under NEPA provides for the same three levels of review. [6] 23 C.F.R. §§ 771.115 (classes of action which prescribe the level of documentation), 771.117 (categorical exclusions), 771.119 (environmental assessments), 771.123-.125 (environmental impact statements). A categorical exclusion "is a category of actions that have been found to have no significant effect on the environment, individually or cumulatively." 43 TEX. ADMIN. CODE § 2.81; see also 23 C.F.R. §§ 771.115(b), .117(a) (categorical exclusions are actions which "do not involve significant environmental impacts"), 771.117(c)(7) (listing landscaping as a type of categorical exclusion activity). An environmental assessment applies to a project that is not classified as a categorical exclusion and that does not clearly require the preparation of an environmental impact statement. See 43 TEX. ADMIN. CODE § 2.83; 23 C.F.R. §§ 771.115(c), .119. An environmental impact statement is required if the action is likely to cause significant impacts on the environment. See 43 TEX. ADMIN. CODE § 2.84; 23 C.F.R. §§ 771.115(a), .123(a).

    Over the course of its duration, any given project may include more than one level of review. For instance, an environmental assessment is sometimes required to determine whether the action will have a significant impact and thus necessitate the preparation of an environmental impact statement. See City of Dallas v. Hall, 562 F.3d 712, 717 (5th Cir. 2009) (defining an environmental assessment as a "concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact" (quotation marks omitted)); 40 C.F.R. § 1508.9(a)(1). In the event the environmental assessment yields a finding of no significant impact, an environmental impact statement is not required. See Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir. 1994).

    A court could conclude that the hiring of an environmental services consultant to perform an environmental assessment or an environmental impact statement is among the first acts of the environmental review process. However, as we have no guidance from the Legislature or from the Department's rules regarding what constitutes the commencement of a project, we cannot determine when this Project commenced. Your question ultimately involves disputed issues of fact and thus is one that this office cannot determine as a matter of law. See Tex. Att'y Gen. Op. No. KP-0091 (2016) at 2 ("[f]act finding is beyond the scope of an attorney general opinion"). We can advise you, however, that the change in the Project's level of environmental review from an environmental impact statement to an environmental assessment is likely not the "commencement" of a new environmental review process for purposes of subsection 372.002(d). See generally 23 C.F.R. § 771.105(a) (requiring that to the extent possible the "environmental investigations, reviews, and consultations be coordinated in a single process").

    You also suggest that a new termini (or project limits) is a change in the scope of the Project for which NEPA requires a new environmental impact statement or environmental assessment. See Request Letter at 2. NEPA is triggered upon a "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). Thus, to the extent the change in termination point, considered by itself, qualifies as a "major Federal action[] significantly affecting the quality of the human environment," it would trigger NEPA and a new environmental impact statement. See id. Whether such a change in an existing project qualifies as such an action is a fact question that is outside the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. KP-0091 (2016) at 2.

                                  SUMMARY

                  Transportation Code, subsection 372.002(d), as amended by Senate Bill 312, provides that an entity constructing a toll project is not required to repay funds provided by the Department of Transportation "if a toll project entity commenced the environmental review process for the project on or before January 1, 2014." A change in a project's level of environmental review from an environmental impact statement to an environmental assessment is likely not the "commencement" of a new environmental review process for purposes of subsection 372.002(d). However, the question whether the environmental review process for the Loop 1604 toll project in Bexar County commenced prior to January 1, 2014, involves disputed issues of fact and thus is one that this office cannot determine as a matter of law.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Joseph C. Pickett, Chair, House Comm. on Envtl. Regulation, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 31, 2017), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] You specifically refer us to Transportation Code subsections 222.103(a), 366.301(c), and 372.002. See Request Letter at 1. Because the entity pursuing the Project is a regional mobility authority regulated under chapter 370 of the Transportation Code and not a regional tollway authority governed by chapter 366 of the Transportation Code, we consider subsection 370.301(c), which was similarly amended by Senate Bill 312. See TEX. TRANSP. CODE § 370.301(c).

[3] Similarly, the Federal Highway Administration adopted rules to implement NEPA, found at 42 U.S.C. §§ 4321-4370m-12. See 23 C.F.R. § 771.101 (stating that the purpose of the regulation to "prescribe[] the policies and procedures of the Federal Highway Administration ... for implementing [NEPA] ... [,] supplement[] the NEPA regulation of the Council on Environmental Quality [and] set forth all ... requirements under NEPA for the processing of highway and public transportation projects"); see also 40 C.F.R. § 1500.3 (rules implementing NEPA adopted by the Council on Environmental Quality).

[4] Tex. Transp. Comm'n Meeting Minute Order #115051 (Sept. 28, 2017), available at https://publicdocs.txdot.gov/minord/MinuteOrderDocLib/115051.pdf.

[5] Brief from C. Brian Cassidy, Locke, Lord, LLP, for Alamo Regional Mobility Authority at 3-4 (Dec. 1, 2017) (on file with the Op. Comm.) (hereinafter "Authority Brief").

[6] Under the Surface Transportation Project Delivery Program created by SAFETEA-LU and continued under MAP-21, federal transportation law authorizes delegating the NEPA review and approval processes to state Departments of Transportation. See Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. No. 109-59, 119 Stat. 1144 (2005); Moving Ahead for Progress in the 21st Century Act, Pub. L. No. 112-141, 126 Stat. 405 (2012). The Federal Highway Administration has delegated to the State of Texas the U.S. Department of Transportation Secretary's responsibilities for environmental review, consultation, or other actions required under any Federal environmental law with respect to highway, public transportation, railroad, and multimodal projects within the State. See Memorandum of Understanding Between the Federal Highway Administration and the Texas Department of Transportation Concerning State of Texas' Participation in the Project Delivery Program Pursuant to 23 U.S.C. 327 (on file with the Op. Comm.).