On October 1, 2012, the 2012 federal surface transportation reauthorization law, known as “Moving Ahead for Progress in the 21st Century” (or MAP-21), goes into effect. The legislation was passed after intense partisan negotiations and signed into law by President Obama earlier this year. It includes several provisions, such as new categorical exclusions, intended to speed environmental reviews for federal transportation projects under the National Environmental Policy Act (NEPA). These streamlining provisions respond to a perception that federal transportation projects have been bogged down in multi-year environmental review processes, which have only grown slower over the years. Most of the streamlining provisions revise 23 U.S.C. § 139 governing environmental review of Department of Transportation (DOT) projects, so MAP-21 applies primarily to road projects requiring DOT approval.

MAP-21 grants DOT substantial authority to push for faster reviews and permit decisions, particularly where the NEPA process has already been ongoing for more than two years, and for projects within existing operational rights-of way or utilizing limited federal funding. This authority may allow DOT to drive other federal agencies to complete these lengthy processes more quickly by use of deadlines and the threat of funding cuts for agencies who issue late decisions.

New categorical exclusions -

The MAP-21 legislation contains two notable new categorical exclusions (CEs) from NEPA review. The first directs DOT to designate any project “within an existing operational right-of-way” as categorically excluded under NEPA, meaning an environmental impact statement (EIS) or environmental assessment (EA) need not be prepared if the CE applies. Operational right-of-way is defined broadly to include “all real property interests acquired for the construction, operation, or mitigation of a project … including the locations of the roadway, bridges, interchanges, culverts, drainage, clear zone, traffic control signage, landscaping, and any rest areas with direct access to a controlled access highway.”