Infrastructure Done Right: A Voice for Those Affected

The House of Representatives should strip the infrastructure bill of the provisions that shut the public out.
I-81 construction, Syracuse, NY - Source: New York Civil Liberties Union

“Today, we proved that democracy can still work.” President Biden’s words inspire hope. But only if we sustain meaningful public participation in the decisions our government makes. Unfortunately, the $1 trillion infrastructure bill that the Senate passed last week doesn’t. 

The bill, HR 3684, provides for funding that states desperately need for rebuilding roads, broadband internet, water pipes and public works systems. Lost in the dollar figure is what the bill does to silence the voices of those most affected by building projects. 

Here are the top three ways HR 3684 curtails public participation:

1. Limits consideration of alternatives

As a result of President Nixon signing the National Environmental Policy Act (NEPA) in 1970, federal agencies must consider alternatives to what is being proposed to be built. For example, the Department of Transportation should consider transit options in addition to a highway expansion to meet transportation demands. Or the Federal Energy Regulatory Commission should consider energy efficiency or renewable energy options in addition to a proposed new natural gas interstate pipeline. Federal courts have described this requirement to evaluate alternatives as “the heart” of NEPA.

The Senate-passed infrastructure bill allows agencies to focus their attention on the preferred alternative. While other alternatives must provide sufficient detail to “enable the public to comment,” this does not substitute for an agency’s obligation under existing law to fully consider alternatives. (HR 3684, §70801(d)(3)).

2. Excludes harmful projects from environmental review

NEPA applies to “major federal actions.” A federal agency must analyze the environmental impacts of its major actions in Environmental Impact Statement (EIS) if the action will significantly affect the environment. If the agency is uncertain about whether its action will significantly affect the environment, it can prepare an Environmental Assessment (EA) to determine whether a Finding of No Significant Impact (FONSI) is justified. 

An agency can avoid preparation of an EIS or an EA through the use of a categorical exclusion. The White House Council on Environmental Quality has defined a categorical exclusion as “a class of actions that a Federal agency has determined, after review by CEQ, do not individually or cumulatively have a significant effect on the human environment.”

Categorical exclusions provide a useful mechanism to focus limited agency resources on actions that matter most to the public. No one wants paper for paper’s sake. No one wants to waste time on agency actions that cause little harm. The problem is when agencies try to use categorical exclusions for activities that can cause significant environmental harm like logging and oil and gas drilling. 

The Senate-passed infrastructure bill categorically excludes from environmental review several activities that may have destructive impacts including “gathering lines” transporting natural gas, oil and wastewater (§11318); and the use of pesticides on the national forests (§40806). Under the bill’s language, the public will not even get notice of pipeline construction or pesticide use.

3. Allows speed to trump protection

An environmental review conducted under NEPA can help collect the information necessary to comply with the Clean Water Act, the Clean Air Act, the National Historic Preservation Act and other environmental protections. Agencies like the U.S. Fish & Wildlife Service and the U.S. Environmental Protection Agency have the expertise and legal responsibility to ensure that a proposed project complies with federal environmental protections. 

The Senate-passed infrastructure bill takes authority away from agencies with environmental expertise and gives it to the Office of Management and Budget (OMB). Decisions by OMB regarding permitting timetables are “final” and shall “not be subject to judicial review.” (42 U.S.C. §4370m-2(c)(2)(C)(iii)). While originally intended to terminate at the end of 2022, the Senate bill makes OMB’s authority permanent. (§70801(h)).

The Senate bill also dramatically restricts public access to the courts to ensure government agencies have complied with requirements to engage the public and protect communities. Injunctions halting construction while a court reviews claims that an agency acted unlawfully are already extremely hard to get. The Senate bill makes them even harder by eliminating the existing presumption that environmental harm is irreparable. It also cuts the time the public has to file a claim in court by more than half. (42 U.S.C. §4370m-6). While originally intended to terminate at the end of 2022, the Senate bill makes these limits on judicial review permanent. (§70801(h)).

Having worked with NEPA as a practicing lawyer for over 30 years, I more than anyone want broadband, lead-free water pipes, wind energy and other projects that will serve communities built quickly. But I want them built right—both for today and for tomorrow. This requires taking the time up front to listen to the communities most affected. 

The House of Representatives should strip the infrastructure bill of the provisions that shut the public out.