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Final Transportation Bill Includes Provisions To Streamline Environmental Review Process

Friday, June 29, 2012

Surface Transportation Reauthorization Bill

Key Development: House and Senate conferees submit a final surface transportation conference report that would streamline the environmental project review process.

What's Next: Both chambers plan to take up the legislation before current funding expires June 30.

By Anthony Adragna  

House and Senate conferees have filed a final surface transportation conference report that would streamline the environmental review process for projects by expanding categorical exclusions and assigning financial penalties to federal agencies that fail to meet review deadlines.

The conference report also includes a $2.4 billion transfer from the Leaking Underground Storage Tank (LUST) fund, a provision that would allocate 80 percent of the fines related to the 2010 Gulf of Mexico oil spill to restoration projects for the Gulf Coast, and several other environmental provisions.

The conference report, filed late June 27 and announced June 28, reflects the House-Senate agreement on the transportation reauthorization bill (H.R. 4348).

Provisions on the Keystone XL pipeline and coal ash regulation were excluded from the final agreement. The legislation also did not include $1.4 billion in funding for the Land and Water Conservation fund.

Sen. Barbara Boxer (D-Calif.), who chaired the conference, and Rep. John Mica (R-Fla.), announced the agreement and said both chambers anticipate voting on the measure before the June 30 deadline.

Categorical Exclusions Expanded.

Under the streamlining provisions, transportation projects could qualify for a categorical exclusion from the environmental provisions of the National Environmental Policy Act through a number of new avenues. Infrastructure repair or construction projects would be exempted after a natural disaster. Operational “right-of-way” projects, which are sited within property already dedicated to transportation projects, also would be exempted.

Projects with less than $5 million in federal funding, or those under $30 million with less than 15 percent of federal funding, also would qualify for exemptions. Another provision would enable stakeholders to limit the length of environmental impact statement preparation to four years.

Project Streamlining Reforms in Bill

Categorical Exclusions: The bill would expand categorical exclusions for projects after natural disasters, for those receiving less than $5 million in federal funding, and for “right-of-way” projects.

Stricter Timeframes: The bill would enable stakeholders to limit the environmental impact statement process to four years.

Financial Penalties: Federal agencies could face financial penalties of up to 2.5 percent of their budgets for failing to meet project review deadlines.

Other streamlining provisions would push federal agencies to work together on project reviews and would fine agencies that did not complete their reviews within specified deadlines.

Nick Goldstein, vice president of environmental and regulatory affairs at the American Road and Transportation Builders Association, said the group was pleased with the final provisions and called them a compromise between the House and Senate.

“There are a lot of improvements,” he told BNA June 28. “They expanded categorical exclusions, and they applied them to things where they really ought to be applied.”

Deron Lovaas, transportation policy director for the Natural Resources Defense Council, said the Senate conceded too much to the House and said the bill would bring about unintended consequences.

He said the expanded categorical exclusions and deadlines for completing project reviews were the most troublesome parts of the provisions.

LUST Fund Transfer Approved.

House conferees also agreed to a provision in the original Senate bill that would transfer funds to the Highway Trust fund from the LUST fund, which provides resources to clean up federally regulated underground storage tanks. However, the amount of the transfer was reduced from $3 billion to $2.4 billion.

The bill did not include a proposed diversion of one-third of future LUST fund revenues that had been included in the Senate bill.

The Society of Independent Gasoline Marketers of America and the Petroleum Marketers Association of America told BNA in separate interviews they were extremely disappointed that the provision was included, but they were relieved the transfer was less than originally proposed.

“It's just wrong,” Sherri Stone, vice president of PMAA, told BNA. “It's bad public policy. I know a number of conferees were well-versed on the issue.”

RESTORE Act Praised.

The transportation legislation also contains a largely unchanged version of the RESTORE Act on Gulf Coast restoration, which had been included in both the original House and Senate bills. The RESTORE Act would “invest in projects and activities to restore the long-term health of the coastal ecosystem and local economies in the Gulf Coast Region,” according to an executive summary of the transportation bill.

Senators from the Gulf region, which includes Florida, Alabama, Mississippi, Louisiana, and Texas, praised the provision and said it would promote economic recovery.

“Communities affected by the Deepwater Horizon oil spill have waited long enough for relief and should not be subject to the whims of future Congresses,” Sen. Richard Shelby (R-Ala.), a conferee, said in a June 27 statement. “I am pleased that the committee saw the wisdom in ensuring that a dedicated pipeline of funding is ready once a legal settlement is reached.”

Sen. Bill Nelson (D-Fla.), also a conferee, said the provision could bring as much as $20 billion to the Gulf states.

“This is something the Gulf Coast very badly needs,” he said in a June 27 statement.

Disappointment, Relief on Coal Ash.

Rep. David McKinley (R-W.Va.), who sponsored the coal ash amendment in the House bill that would have prevented the Environmental Protection Agency from regulating the residue from coal-fired power plants as a hazardous waste, expressed “deep disappointment” at the provision's exclusion from the final bill.

“It's a shame our colleagues in the Senate wanted to make this more of a political statement in their ongoing War on Coal rather than an issue about jobs and the environment,” McKinley said in a June 27 statement. “For the first time in all these years, Congress actually had a solution and one which included federal EPA oversight.”

As recently as June 26, senior Senate aides told BNA a bipartisan group of legislators was working on a compromise on the coal ash language.

In a series of June 28 statements about the bill, environmental groups said repeatedly the legislation could have been much worse.

“The Senate rightly rejected attempts by House Republicans to attach unrelated and damaging poison pills to this bill that would have gutted coal ash safeguards and approved of the dangerous Keystone XL pipeline,” Michael Brune, executive director of the Sierra Club, said in a June 28 statement.

Earthjustice and NRDC echoed similar sentiments in their own statements.

Other Environmental Provisions.

The final bill includes language that ties Harbor Maintenance Trust Fund spending to the receipts it takes in each year. The fund supports harbor infrastructure projects and enjoyed bipartisan support.

Along with the harbor funding, conferees asked for a full study of the impacts of Asian carp to be completed within 18 months. Local residents fear the invasive fish species could enter the Great Lakes and cost millions of dollars to contain (43 ER 1223, 5/11/12).

Another provision in the bill would cap abandoned mine reclamation payments to states that have completed high-priority abandoned coal mine reclamation projects at $15 million annually.

The legislation also contains a title on hazardous materials transportation safety improvements.

Some Environmental Provisions Excluded.

A number of environmental provisions from the original bill did not make the final conference report.

The Senate bill contained $1.4 billion over two years for the Land and Water Conservation Fund, which would have been used for the acquisition of unique lands that need protection, and would have reauthorized the program through 2022. The Nature Conservancy condemned the provision's exclusion.

“It is [our] belief that the actions taken by the House do not reflect the views or long-term interests of the American people,” Bob Bendick, director of government relations at The Nature Conservancy, said in a June 28 statement. “Polls consistently show broad and deep public support for land and water conservation.”

A provision that would have eliminated the annual cap on how much cities and towns may raise through private, tax-exempt bonds for sewer and water projects until 2018 also was excluded.

Conferees also rejected a provision that would have required the Transportation Department to develop design standards to help transportation infrastructure withstand extreme weather events.

By Anthony Adragna  


The Surface Transportation Extension Act of 2012 is available at http://www.rules.house.gov/Media/file/PDF_112_2/LegislativeText/CRPT-112hrpt-HR4348.pdf.

An executive summary of the bill is available at http://www.rules.house.gov/Media/file/PDF_112_2/PDF/HR4348crJES.pdf.

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