Congress Enacts Legislation Streamlining Environmental Review of Major Transportation Projects

by Holland & Knight LLP
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On July 6, 2012, President Obama signed the Moving Ahead for Progress in the 21st Century Act1 (MAP-21), P.L 112-141, passed by Congress on June 29, 2012, which reauthorizes funding for surface transportation projects through September 30, 2014. As stated by the Department of Transportation (DOT), "MAP-21 creates a streamlined, performance-based and multimodal program to address the many challenges facing the U.S. Transportation system."2 MAP-21 especially responds to the lengthy delays for federally funded transportation projects due to compliance with environmental laws.3 Congress included several provisions intended to hasten project approval through streamlining the environmental review processes under various federal environmental statutes, including the National Environmental Policy Act (NEPA).4 Several of these provisions codify initiatives that are already utilized by federal agencies, while other provisions are new. Whether the MAP-21 provisions will achieve the stated legislative goal of speeding environmental review of major transportation projects is unclear and will ultimately depend on the implementation of MAP-21 and other practical concerns.

Streamlined Environmental Review Under MAP-21

Subtitle C of MAP-21 contains provisions that will accelerate project delivery by streamlining environmental review.5 The new streamlining policy provides the option to set a limit on the length of time an environmental review process may take and enforces the limit through imposition of mandatory financial penalties on federal agencies that miss these deadlines. A 1994 government study found that the average length of environmental approval for highway projects exceeds four years.6 Under MAP-21, for projects that have been under development for over two years, states and other project sponsors have new authority to request additional federal assistance to complete environmental reviews in no more than four years. For approvals under other statutes, such as the Clean Water Act and Endangered Species Act, agencies face the threat of automatic monetary penalties for missing deadlines. These decreases in funding could hypothetically reach up to 7 percent of an agency's annual budget.

MAP-21 also contains several provisions that expand classes of projects that qualify as categorical exclusions (CEs) under NEPA. CEs cover actions that do not typically result in individual or cumulative environmental impacts requiring a preparation of environmental assessments or environmental impact statements. MAP-21 describes specific projects that satisfy the CE criteria under NEPA. These include projects that:

  • involve reconstruction of infrastructure that was damaged in a disaster
  • use less than $5 million in federal funding
  • are within an existing transportation right-of-way, providing the potential to accelerate numerous HOV and HOT projects

Further, the law requires DOT to propose additional CEs through the rulemaking process.

Finally, the law expands the existing NEPA delegation pilot program, authorizing states to assume responsibility for the Federal Highway Administration's (FHWA) role in the NEPA review process. This provision, however, is limited only to NEPA — and no other federal environmental statutes, such as the Clean Air Act, Clean Water Act and Endangered Species Act — and excludes certain processes from delegation to the states, such as planning and Clean Air Act conformity.

Implications of MAP-21's Major Environmental Review Streamlining Provisions

While MAP-21's environmental streamlining provisions have the potential to hasten project approval, it remains to be seen how effective these provisions will be in practice.

The financial penalties that agencies face for failing to complete environmental review in less than four years may serve as a powerful incentive for federal environmental agencies to meet deadlines. However, because Congress opted for discretionary financial penalties, rather than setting automatic firm deadlines for completion of review, the effectiveness of this provision may be limited. DOT may be reluctant to exercise its authority to impose financial penalties on federal agencies, fearing the political consequences and response to such harsh penalties. The efficacy of this provision in speeding environmental reviews is presently unknown and is likely to depend on the relationship between DOT and other federal environmental agencies such as the Fish and Wildlife Service that conducts review under the Endangered Species Act as well as the frequency with which DOT utilizes the authority at its disposal to impose financial penalties.

Similarly, it is unclear how effective MAP-21's expansion of CEs will be. The classes of projects that qualify as CEs under MAP-21 are quite limited. For example, the provision that provides a CE for projects repairing infrastructure damaged in a disaster is unlikely to apply to any reconstruction or repair that incorporates enhancements or improvements to the infrastructure — even those improvements that may make it less susceptible to future disasters. Additional DOT guidance is likely required for several of the other provisions that expand classes of CEs due to the statute's ambiguity. It is unclear whether the provision concerning projects within existing right-of-ways applies to transit projects, or whether it is constrained to highway projects.

Finally, the delegation pilot program expansion could be highly effective in streamlining review. By allowing states to assume responsibility for FHWA's NEPA review, states obtain the authority to directly coordinate with federal environmental agencies, potentially cutting out FHWA altogether. The effectiveness of this provision, however, largely depends on how many states choose to accept this additional responsibility that they ultimately may be reluctant to assume. Only a single state, California, opted to assume this responsibility under the pilot program that existed before MAP-21's expansion. Accordingly, this provision has potential to be helpful, but it requires the states to shoulder additional responsibility. Moreover, this provision applies only to NEPA, categorically excluding other federal environmental laws that states must also comply with.

Effectiveness of MAP-21 Provisions Not Yet Clear

These major provisions in MAP-21 have the potential to hasten the pace with which projects gain environmental approval to proceed. While these enactments are a step in the right direction, it is unclear how effective these provisions will be in practice. It is critical for stakeholders to continue to pay close attention to how federal agencies interpret and implement changes to the environmental review process within MAP-21.




Notes

1 Moving Ahead for Progress in the 21st Century Act, Pub. L. No. 112-141, 112th Cong. (2012), available at http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt557/pdf/CRPT-112hrpt557.pdf.

2 Fed. Highway Admin., "Moving Ahead for Progress in the 21st Century Act: A Summary of Highway Provisions," at 2 (July 17, 2012), available at http://www.fhwa.dot.gov/map21/docs/map21_summary_hgwy_provisions.pdf.

3 U.S. Gov't Accountability Office, GAO-94-211, Highway Planning: Agencies Are Attempting to Expedite Environmental Review, but Barriers Remain, at 3 (1994), available at http://www.gao.gov/assets/230/220051.pdf(finding that highway projects generally required 2 to 8 years to complete environmental requirements with an average length of 4.4 years).

4 National Environmental Policy Act of 1969, Pub. L. No. 91-190 (1969) (codified as amended at 42 U.S.C. §4321, et seq.).

5 See MAP-21, Pub. L. No. 112-141, §§1301–23.

6 GAO Report, supra note iii, at 3.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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