Untitled Texas Attorney General Opinion

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
repaym~nt 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 tumpike~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).

1
See Letter from Honorable Joseph C. Pickett, Chair, House Comm. on Envtl. Regulation, to Honorable Ken
Paxton, Tex. Att'y Gen. at I (Oct. 31, 2017), https://texasattomeygeneral.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).
The Honorable Joseph C. Pickett - Page 2 (KP-0194)

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 ofDe 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 ifwe 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. TRAN SP. CODE §§ 201. 7 51-
.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 ofTransp., Envtl. Review ofTransp.
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 lNT'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

3
Similarly, the Federal Highway Administration adopted rules to implement NEPA, found at 42 U.S.C.
§§ 4321-4370m-\2. 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 #(15051 (Sept. 28, 2017), available at
https://publicdocs.txdot.gov/minord/MinuteOrderDocLib/115051.pdf.
The Honorable Joseph C. Pickett - Page 3 (KP-0194)

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. ADM IN.
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

5
Brieffrom C. Brian Cassidy, Locke, Lord, LLP, for Alamo Regional Mobility Authority at 3-4 (Dec. I,
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.).
The Honorable Joseph C. Pickett - Page 4 (KP-0194)

finding of no significant impact" (quotation marks omitted)); 40 C.F.R. 1508.9(a)(l ). 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.l0S(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.
The Honorable Joseph C. Pickett - Page 5 (KP-0194)

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