The Federal-Aid Highway Construction Process: Procedures, Cases, and Plaintiff Strategies

The Federal-Aid Highway Act, enacted in 1956 as the result of demand for increased highway construction, is now coming under scrutiny. This article discusses the development of federal highway legislation, the procedural requirements, including current case law, and potential strategy for future litigants. The procedure by which states are reimbursed for their highway construction is in five stages: program approval, route location approval, design approval plans, specification and estimate approval and construction approval. Each of these stages is carefully regulated. Plaintiffs in federal-aid highway cases have been successful; however, only successful in getting the highway department to comply with procedure not in stopping the highways. In the future they may have more substantive success in light of the NEPA requirement for environmental impact statements and the requirement of public hearings. Not only do these require more forethought in the planning stages but some courts construe NEPA as conferring substantive as well as procedural rights. Plaintiffs will also have more success if they begin their attack as soon as location approval is given. Then they can focus attention on the entire route of the highway and bring their case under all applicable statutes. Public awareness of the administrative procedure of the federal aid highway, and continuing involvement at every state of the process can bring economic, environmental and social impacts into focus without litigation.