the pipeline

reforms to nepa process finalized by trump administration

By: dan kennedy, director of environmental & utility operations

In the February 2020 installment of this column, we reported on proposed amendments to the National Environmental Policy Act (NEPA). As a reminder, this is a foundational environmental law enacted in 1970 (exactly 50 years ago during the Nixon Administration) with a mission to enhance the environment by requiring Federal agencies to evaluate environmental effects of proposed projects prior to construction.

We are happy to report that the rulemaking initiated in late 2019 by the White House Council on Environmental Quality (CEQ) has been adopted. UTCA submitted support of this proposal, and our national partners, the American Road & Transportation Builders Association (ARTBA) and the Clean Water Construction Coalition (CWCC), amplified our support. Support from the business community, especially construction, was essential for pushing past the opposition from the environmental community. Opposition to this effort was misguided, as it represents the first significant revision of the NEPA regulations since the original regulations were promulgated in 1978. With changes in technology and communications, the revisions are targeted at streamlining processes that have become mired down over the decades.

UTCA, ARTBA, and the CWCC view these revisions as an effort to modernize the NEPA regulations and facilitate more efficient, effective, and timely environmental reviews. As we all know, projects that trigger NEPA reviews are not put out to bid until its processes and any litigation play out. Streamlining and modernizing environmental rules is often discussed but seldom accomplished. These changes are long overdue and welcomed by the construction industry.

What’s Next?

The NEPA revisions took effect on September 14th. ARBTA summarized the new rule in their July-August magazine, reporting that it:

• Sets both page and time limits for an environmental impact statement (EIS) and environmental assessment (EA).

• Requires a single, final environmental document for projects involving multiple agencies. This mirrors Trump’s 2017 “One Federal Decision” executive order.

• Allows a lead agency to set a schedule for projects involving multiple agencies. The lead agency will also develop the “purpose and need” and “alternatives” for the project review.

• Requires all issues in litigation be raised during the comment process.

• Clarifies that the effects of a project must be “reasonably foreseeable and have a close causal relationship to the proposed action,” meaning that a project is only responsible for the impacts it directly causes as opposed to potential impacts that might occur in the future.

• Requires that alternatives to a project be “technically and economically feasible.”

• Allows for private entities to prepare an EIS under the supervision of a federal agency.

• Excludes non-federal projects and those with “minimal federal involvement” from NEPA review.

• Allows projects to “cure” NEPA violations while continuing to move forward, rather than be halted.

As ARTBA reports, there is still work to be done. They appropriately point out that projects that will benefit the most from these reforms are large, multi-year projects such as new roads, bridges, and transit systems. Such projects cannot be undertaken, however, until Congress passes a multi-year surface transportation bill and agrees on a stable funding source for the Highway Trust Fund. Without a reliable source of federal funding, states will not be able to undertake the types of projects these NEPA reforms are designed to help.

Battlelines Hardened

A coalition of 27 states (including New Jersey), commonwealths, territories, counties, and cities have filed a federal lawsuit against the Trump Administration for, in their words, “illegally gutting the nation’s bedrock environmental law.” They claim the changes to NEPA will eliminate or reduce environmental scrutiny for a wide range of major federal decisions and will harm the most susceptible communities.

These actions are predictable and expected. Partisan environmental lawsuits against the Trump Administration are, at last count, over 70 cases with 45 cases awaiting a judicial ruling. UTCA, ARBTA, and the CWCC will remain supportive of this proposal and take appropriate actions to see that this rule remains in place. This 50-year-old construct needed modernization and no governmental process should be exempt from improvement. The stakes are too high to leave any critical law unimproved for over five decades without a critical eye.

UTCA is both supportive of action taken by the Trump Administration and the need for informed public engagement. When done correctly, informed and organized public engagement can produce better design, more community value, and fewer issues during construction. The government and its consultants do not have all the solutions. Designing and approving critical or costly infrastructure in a complete vacuum has negative consequences to taxpayers and rate payers alike. A reformed NEPA process can help save money and accelerate the construction schedules of infrastructure projects that we know are needed to improve public health and safety.

Congratulations to Jim Coddington, Hank Dobbelaar and Ed Nyland MONTANA

CONSTRUCTION

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