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Transportation Bill Would Streamline Environmental Review, Sponsors Say

Thursday, February 2, 2012

By Andrew Childers

The House Transportation and Infrastructure Committee Feb. 2 will mark up a transportation reauthorization bill that Republican sponsors say will streamline the environmental review process for new construction projects.

The American Energy & Infrastructure Jobs Act (H.R. 7) would impose new timetables on the environmental review process for transportation projects and give states broader authority to exempt projects from analysis.

Republicans said reforming the National Environmental Policy Act review process could halve the time to review and construct transportation infrastructure projects.

“The average federal highway project takes 15 years from concept to completion in the U.S. because of excessive regulations,” Rep. John J. Duncan Jr. (R-Tenn.), chairman of the Highways and Transit Subcommittee, said in a statement. “This is far more than any other nation. This bill will streamline the way we approach infrastructure projects by cutting red tape and reducing federal bureaucracy, all while creating millions of jobs for hard working Americans right here in the United States.”

Environmental and transportation groups criticized the bill for imposing artificial deadlines on the environmental review process and limiting public participation and judicial oversight of decisions.

House Transportation and Infrastructure Committee Chairman John Mica (R-Fla.) introduced the five-year, $260 billion surface transportation reauthorization bill Jan. 31 (20 DEN A-12, 2/1/12).

In addition to streamlining the environmental review process for new construction projects, the bill would reauthorize federal hazardous materials safety programs through fiscal year 2016 and require regulators to conduct more analysis before issuing safety rules. (See related story in this issue.)

Bill Adds New Deadlines

The bill would require federal agencies conducting environmental reviews to make a final determination for the project under review within 30 days of the final environmental impact statement or other assessment being made available. Projects would be automatically approved if that determination were not made within the required 30 days.

Federal agencies should combine the final environmental impact statement and record of decision if the preferred alternative is being approved rather than issue them separately, according to the bill. The bill also would limit federal agencies' abilities to consider alternatives for the project.

Deron Lovaas, transportation policy director for the Natural Resources Defense Council, told Bloomberg BNA Feb. 1 that the bill “hamstrings alternative analysis.”

“The whole idea of the National Environmental Policy Act is not to dictate certain outcomes but to require that state and federal bureaucrats scrutinize projects to make sure that you don't get undue community damage,” Lovaas said.

The House bill also would require all legal challenges to the project review to be filed in the U.S. Court of Appeals for the District of Columbia.

David Goldberg, a spokesman for Transportation for America, told Bloomberg BNA Feb. 1 that the expedited review could limit citizen oversight and participation in the review process.

“Establishing a more predictable review time has some merit, but the thing we're still looking at very closely is to what degree this leaves citizens out of the loop,” he said.

President Can Speed Review

The bill would include an expedited review process for any transportation infrastructure project “determined by the president to enhance the economic competitiveness of the United States.”

States would be able to nominate projects for the expedited review to the Transportation Department, which would forward the applications to the president. The president would then have 30 days to either approve or reject the project. Projects would be automatically approved if the president did not make a determination within those 30 days.

The bill also would allow states to repair any road or bridge damaged during a declared emergency and rebuilt in the same location at the same capacity without environmental review.

The bill would give states broader authority under 40 C.F.R. 1508.4 to determine which construction projects do not have a significant impact on the environment and would not require an environmental assessment or impact statement .

Lovaas said the previous transportation authorization bill created a five-state pilot program that allowed them to make their own categorical exclusions based on the sufficiency of their own state review process. To date, only California has initiated the pilot, he said.

Concerns Raised About ‘Minimal Oversight.'

Lovaas said he had concerns about the “minimal oversight” of state decisions because environmental laws can vary between states. The Republican bill would be “extremely damaging to the environment in many states because there's a patchwork of environmental law,” he said.

Under the bill, states also would be allowed to proceed with engineering and rights-of-way acquisition while the environmental review is still under way. States would be eligible to be reimbursed for the federal portion of transportation projects only if the project were subsequently approved.

The bill also would broaden states' ability to use funds intended to address air pollution from vehicles on new transportation capacity, including additional roadways. It would eliminate provisions in the Congestion Mitigation and Air Quality Improvement Program administered by the Transportation Department that limit how states can apply those federal funds.

The program originally was intended to help states attain the national ambient air quality standards established by the Environmental Protection Agency by reducing the reliance on single-passenger vehicles.

Use on New Roadway Projects

Goldberg said states have typically used the funds for shuttle buses, pedestrian links to public transit, and freeway signs warning drivers of upcoming delays. He said the House bill would allow those funds to be used on new roadway projects instead.

“The impulse here is to give states as much flexibility as possible,” Goldberg said. “That's not necessarily a bad thing except when you have a pot of funds whose purpose is to assist places in dealing with the impacts of one-passenger cars, then it doesn't make sense to open it up to highway construction.”