More than a year ago, Oregon Governor Kate Brown directed ODOT to “include a full review of congestion pricing” before deciding whether or not to do a full environmental impact statement for the proposed I-5 Rose Quarter Freeway widening project.
ODOT simply ignored the Governor’s request, and instead is delaying its congestion pricing efforts, and proceeding full speed ahead with the Rose Quarter with no Environmental Impact Statement that would include pricing.
ODOT has produced no analysis of the effects of pricing as part of its Rose Quarter environmental review, and has said “congestion pricing was not considered”
Congestion pricing could dramatically reduce congestion at the Rose Quarter according to ODOT’s own studies (which are not included in the project’s Environmental Assessment). Pricing is exactly the kind of effective and also reasonably foreseeable alternative that the National Environmental Policy Act (NEPA) requires be considered. ODOT has both disobeyed the Governor and violated NEPA.
A little background. In 2017, the Oregon Legislature passed HB 2017, transportation finance legislation that raised the state gas tax and vehicle licensing fees, and which authorized several freeway widening projects, and also directed the Oregon Department of Transportation to implement congestion pricing on Portland area freeways. Pricing the I-5 freeway, rather than expanding it, could reduce or eliminate traffic congestion faster, and at far lower cost. According to the National Environmental Policy Act, that’s exactly the kind of alternative that ODOT and the Federal Highway Administration are required to evaluate and discuss in the environmental review of a project. And ODOT’s own studies have shown that pricing the I-5 freeway would dramatically reduce traffic congestion. But there’s simply no mention of congestion pricing in the Rose Quarter freeway widening Environmental Assessment.
Governor Brown: “Include a full review of congestion pricing.”
In December, 2019, Oregon Governor Kate Brown instructed the Oregon Department of Transportation to include review of congestion pricing, in its decision on how to proceed with an environmental review of the proposed $800 million I-5 Rose Quarter Freeway widening project. In her December 16, 2019 letter to the Oregon Transportation Commission, Governor Kate Brown asked for a “full review of congestion pricing, and how its implementation would impact the Rose Quarter,” before the OTC made a decision on the environmental review path.
The environmental review path, in this case, consisted of a decision as to whether to move forward with a full Environmental Impact Statement, one which included a full and complete assessment of the effects of road pricing. Despite the Governor’s explicit instruction to undertake a “full review of congestion pricing” ODOT simply ignored this instruction, and said it would not undertake an Environmental Impact Statement at all.
ODOT: We’re not going to look at congestion pricing in the Rose Quarter environmental review
When ODOT and the Federal Highway Administration released their FONSI—Finding of No Significant Environmental Impact—they simply ignored the Governor’s instruction, and claimed that they weren’t required by federal law to consider tolling (untrue), and that they would look at the effects of tolling later—only after they move forward with the Rose Quarter project.
On October 30, 2020, ten months after the Governor’s letter, having neither published nor provided any additional information about the impacts of congestion pricing, ODOT and its federal Partners adopted a “Finding of No Significant Impact” (FONSI). In the FONSI, ODOT made it clear that it would not look at the impacts of tolling on the Rose Quarter, saying that this congestion would be the subject of “further study” with analysis “expected by the end of 2022.”
Tolling: Tolling (also referred to as congestion pricing or value pricing) on I-5 was not considered to be reasonably foreseeable at the time the Environmental Assessment was being prepared because tolling on I-5 was not included in the financially constrained project list in the 2014 Regional Transportation Plan (RTP), nor is it currently included in the financially constrained project list in the 2018 RTP. Congestion pricing on I-5 is currently (as of October 2020) being studied by ODOT, consistent with Legislative direction to the OTC in House Bill 2017 “to pursue and implement tolling on I-5 and I-205 in the Portland metropolitan region to help manage traffic congestion.” During the 2018 ODOT Value Pricing Feasibility Analysis, the I-5 corridor segment between SW Multnomah and N Going was identified for further study. Managing traffic congestion and mobility through tolling on this I-5 segment could provide one of the largest benefits to the most regional travelers and the state-wide economy. Further, additional traffic and mobility analysis will be initiated that will help identify where tolling would begin and end on I-5 and the type of tolling to be utilized; this planning work and technical analysis is expected to be completed by the end of 2022. The results of this analysis will inform the starting timeframe and alternatives for a formal environmental review process.
In short, instead of including congestion pricing in the Rose Quarter environmental review, ODOT simply announced that it would proceed with the Rose Quarter as is, and address road pricing only after the Rose Quarter project moves forward.
ODOT is delaying action on congestion pricing until after Rose Quarter starts construction
ODOT is dragging its feet on a 2017 legislative mandate to implement congestion pricing. And contrary to the claims made in the FONSI, ODOT has no plans to even finish planning for congestion pricing before 2023. Just weeks after issuing the FONSI, on December 10, 2020, ODOT Director Kris Strickler and ODOT Manger Brendan Finn presented a schedule to the Oregon Legislature showing that the congestion pricing planning phase would continue until the end of 2023. The schedule also shows that the agency plans to commence construction on the I-5 Rose Quarter project a year before it even completes planning for congestion pricing in the Portland Area.
Under this schedule, Rose Quarter construction (the diagonally shaded section) would start as early as 2022, while the planning for congestion pricing would not be complete until 2024. There’s also an ambiguous “design/build, test and implement” phase that lasts until 2027.
Congestion pricing is highly foreseeable: It’s mandated by law
Notice that ODOT’s explanation simply ignored the Governor’s explicit instruction, and instead makes the assertion that due to federal regulations, ODOT need not address pricing, because somehow it was not “reasonably foreseeable.” That of course, is nonsense: congestion pricing has been mandated by state law since 2017, well before the completion of ODOT’s Environmental Assessment. It’s simply false to claim that it isn’t foreseeable. Whether or not a project is listed in the Regional Transportation Plan or not does not determine whether it is “reasonably foreseeable.” The legal standard under NEPA is much broader as the Environmental Protection Agency says:
The critical question is “What future actions are reasonably foreseeable?”. Court decisions on this topic have generally concluded that reasonably foreseeable future actions need to be considered even if they are not specific proposals. The criterion for excluding future actions is whether they are “speculative.” The NEPA document should include discussion of future actions to be taken by the action agency.
ODOT has been directed by law to adopted congestion pricing; it is not in any sense speculative, and it is plainly a “future action to be taken by the action agency” and needs to be addressed in the environmental review, whether or not its part of the Regional Transportation Plan.
ODOT’s other studies show pricing would reduce congestion at the Rose Quarter
The studies undertaken by the Oregon Department of Transportation conclude that congestion pricing could measurably reduce traffic congestion on I-5. The analysis concludes that the project would reduce congestion and improve travel time reliability on I-5. It would save travel time for trucks and buses. It enables higher speeds and greater throughput on the freeway–because it eliminates the hyper-congestion that occurs when roads are unpriced. Here’s an excerpt from page 17, of the report. We highlighted in bold the most salient bits of the analysis:
Overall, Concept 2 – Priced Roadway, will reduce congestion for all travelers on the priced facility. This will produce overall improvement in travel time reliability and efficiency for all users of I-5 and I-205. [Concept 2 is] Likely to provide the highest level of congestion relief of the initial pricing concepts examined. [It] Controls demand on all lanes and, therefore, allows the highest level of traffic management to maintain both relatively high speeds and relatively high throughput on both I-5 and I-205. Vehicles 10,000 pounds and more (such as many freight trucks and transit vehicles) would benefit from travel time improvements on the managed facilities. Pricing recovers lost functional capacity due to hyper-congestion, providing greater carrying volume with pricing than without. This means that diversion impacts may be minimal, but still warrant consideration and study.
This concept is relatively inexpensive to implement, and significantly less expensive than concepts that include substantial physical improvements to the pavement and bridge infrastructure.
Oregon Department of Transportation,, (2018). Portland Metro Area Value Pricing Feasibility Analysis Final Round 1 Concept Evaluation and Recommendations Technical Memorandum #3, 2018. [Emphasis added].