Demolishing Public Participation and Environmental Reviews: The Six Worst Ideas in H.R. 7

"I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion."
- Thomas Jefferson (quote I kept handy when I served as a state gov't bureaucrat)

The National Environmental Policy Act (NEPA) was enacted in 1969 by overwhelming bi-partisan majorities, and is one of the only laws guaranteeing oversight citizens like you and me over government bureaucrat and industry decisions that affect our communities’ social, economic, and environmental health. 

Under the law, agencies including the Department of Transportation (DOT) must fully assess the environmental effects of actions funded by our taxpayer dollars that may significantly affect the human environment. Critically, the process provides citizens an opportunity to learn about the actions federal agencies are proposing and offers agencies, in turn, an opportunity to receive valuable input from the public, state, and local governments. Although the law does not require the most environmentally friendly option, it does require that agencies “look before they leap,” make decisions in a transparent manner, and that the effects will not be overlooked or underestimated.

There is no evidence that environmental reviews are the cause of most project delays. The most common reasons for delay based on what little study has been done are: lack of funding, low project priority, and local controversy. And in fact only 4% of all transportation projects require the most extensive review – an Environmental Impact Statement or EIS. 92% of all projects are categorically excluded from review. H.R. 7 ignores such facts and eviscerates core protections of NEPA and fails to address real causes of transportation project delay.

Here are the worst of the provisions in this section of the House Republican transportation bill (Thanks to Stephen Schima at the Save Our Environment Action Center for compiling it, a full list is available by writing him at [email protected]):

  1. Arbitrarily and Entirely Waives Reviews For Projects (Sec. 3009) – would waive environmental reviews of projects which cost less than $10,000,000 or where the federal funding is less than 15% of the entire project. There is no reason to shut stakeholders like us out of decisions where tens of millions of dollars are spent affecting the safety, health, and environment of their communities.
  2. Imposes Severe Limitations on Consideration of Alternatives (Sec. 3010) – would limit the range of alternatives, which could preclude efficient land-development, transit-friendly, cheaper or no-build alternatives.
  3. Mandates Severe Limitations on Judicial Review (Sec. 3010)– the bill further  reduces the time to file a complaint from what was originally six years to 90 days, places extreme limitations on venue and standing, and prevents agency review of alternatives, the heart of the process, from court review by imperiously deeming them “legally sufficient.”
  4. Commands Short, Arbitrary Timelines for Environmental Review With Default Approvals (Sec. 3019) – limits all environmental reviews to 270 days and provides that, if the deadline is not met, the project is approved by default – regardless of harmful environmental, economic, or health effects on our communities.
  5. Carves Out New, Extremely Broad Categorical Exclusions (Sec. 3018) – eliminates reviews of projects within a right-of-way or any activity carried out under the Title 23 – an extreme provision that slashes reviews for all highway projects.
  6. Mandates Unnecessary Exemptions During Emergencies (Sec. 3004) – would exempt any road, highway or bridge reconstruction from environmental review under NEPA and several other laws if rebuilt in the wake of an emergency. Such an exemption is unnecessary, as the quick rebuilding of Minneapolis’ I-35W bridge indicates, because regulations already provide for expedited NEPA review.

The hot air about this section is that it's supposedly about "streamlining" project delivery; however wrongheadedness and overreach shows it's actually "EXTREMElining."

Time for Congress to vote NO on H.R. 7.

About the Authors

Deron Lovaas

Senior Policy Adviser, Urban Solutions

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