Steamrolling Environmental Reviews in the Transportation Bill


Here’s the state-of-play with the transportation bill:

The Senate and House have appointed conferees from leadership and the various committees with jurisdiction over the bill, 14 from the Senate (8 Democrats and 6 Republicans) and 33 from the House (20 Republicans and 13 Democrats), yielding a grand total of 47 members of this group tasked with reconciling differences between these two bills. This is an important set of elected officials, since conference committees can technically also re-write portions of the bill so long as there’s confidence the final product can pass both chambers and be signed into law by the President.

Politico has a stable of excellent reporters who are covering the horse-race aspect of the conference, quoting Senator Rockefeller especially who claims that two of the biggest, worst non-transportation riders won’t make it into the final bill: Approval of the controversial Keystone pipeline and eviscerating regulation of toxic coal ash disposal.

The Senate should definitely stick to its guns, and has a lot of leverage to do so given the passage by a whopping 74-22 margin of MAP-21.

There’s another issue on the table that’s a bit more complicated, however. It has to do with delivering transportation projects in a timely manner, or at least that’s the claim. The U.S. is a democracy, and there are various laws and regulations that allow opportunities for citizens and communities to have a say in the development of transportation projects. One of the lesser-known ones, it seems, is the National Environmental Policy Act or NEPA. This 40-year-old statute is just a few pages long, but it has a potent effect on recipients of federal assistance – our taxpayer dollars. It requires, basically, that they look before they leap when designing projects, especially big highway and transit projects. It doesn’t mandate specific outcomes, it just requires those who get our taxpayer dollars to consider impacts and alternatives carefully.


This has improved transportation project design across the country, for example in Colorado where I-70 was designed to “fit” in the context of the Rockies, with one specific 12.5-mile segment routed to reduce environmental damage. It is also a beautiful, scenic road through Glenwood Canyon. My wife and I have vacationed in that area and I can attest to its beauty. NEPA helped make that happen. This is true of other projects too, as you can see from this report I co-authored several years ago More recently, the Council on Environmental Quality found that projects receiving Recovery Act support have benefited from environmental reviews:

"The Federal Highway Administration has processed or is currently processing ARRA-funded projects in many States that demonstrate the benefits provided by the NEPA analysis and documentation.  The involvement of stakeholders and collaboration with resource agencies have resulted in projects which incorporate features such as context sensitive solutions and non-motorized facilities into the improvements to highway facilities.  For example, on the Yuma Pivot Point Plaza project in Arizona,the NEPA process led to the recognition of the importance of protecting the Swing Span project, a historic feature of the transcontinental railroad system, as well as connecting the Plaza with the adjacent Gateway Park.  In the case of the U.S. 33 Nelsonville Bypass in Ohio, the NEPA process led to mitigation measures during and after construction… (2011 CEQ report)

This shouldn’t surprise anyone who has worked with transportation planners and engineers, many of whom can be pretty rigid in their approach to projects. After all, less than 15 years ago here in my hometown of College Park, Maryland officials from across the country gathered for a landmark conference called “Thinking Beyond the Pavement.” This conference showed that a concept called “context-sensitive design” is finally filtering into the mainstream in the transportation world. Oddly, designing projects so they fit contexts cuts against the grain, which is why we need rules.

This is not to say that there aren’t regulatory challenges. For example, a recent NRDC analysis identified a transit rule that should be rescinded so those projects are on an even footing with highway alternatives. As the High Street Consulting author put it, “FTA [Federal Transit Administration] should first eliminate the requirement to prepare a separate, duplicative alternative analysis and Environmental Impact Statement for the National Environmental Policy Act (NEPA). Such a change would level the playing field between transit projects and highway projects…” The Obama Administration, and the Bush Administration before it, issued executive orders focusing on a subset of large project delays. Those approaches make some sense, although the Environmental Defense Fund and NRDC issued a report card on implementation of the Bush executive order and it got mixed grades (not surprising considering that Administration’s broader environmental track record). NEPA is a few pages long, while a lot of rules have been promulgated over the years pursuant to it. And concerns about projects that may be delayed due to environmental reviews are limited to the tiny fraction that must generate a lengthy environmental impact statement (that’s about two percent of projects reviewed) and that are subject to some sort of conflict.

Small number of projects of concern. Administrative rules that may require revision. Clearly it makes sense to make changes, if necessary, in a laser-like fashion. Unfortunately, Congress is threatening to take a butcher knife to NEPA in its transportation bill.

The House provisions on streamlining are the garishly extreme. The march of horribles includes six provisions from H.R. 7 (the "worst transportation bill ever") I described in an entry a few months ago:

1. Arbitrarily and Entirely Waives Reviews For Projects (Sec. 3009)
2. Imposes Severe Limitations on Consideration of Alternatives (Sec. 3010)
3. Mandates Severe Limitations on Judicial Review (Sec. 3010)
4. Commands Short, Arbitrary Timelines for Environmental Review With Default Approvals (Sec. 3019)
5. Carves Out New, Extremely Broad Categorical Exclusions (Sec. 3018)
6. Mandates Unnecessary Exemptions During Emergencies (Sec. 3004)

While it appears that some of the anti-judicial review provisions have been pared back, the rest still apply. And they would have awful real-world effects, as Transportation for America helpfully described in a blog entry this week.

While it pales in comparison to House extremism, even the Senate bill goes too far with its eagerness to cut into environmental reviews. There are several harmful provisions, and one is worth singling out in particular. Section 1313 includes a nasty, punitive measure that fines federal agencies $10,000 or $20,000 a week should there be delay. In an era of fiscally constrained agencies with overworked environmental and natural resource agency staff already under pressure from transportation officials, this is a recipe for hasty and damaging project decisions.

As conferees gather to hammer out a new transportation law, they should make sure that provisions affecting important environmental reviews, which give we the people opportunities to influence transportation projects in our communities, are written with care. Our neighborhoods and families deserve no less.