President Trump bragged about “massively streamlining” the approval process for infrastructure projects such as bridges and roads with the Ohio River as a backdrop as steel company executives, labor leaders and local and federal officials looked on.
Mr. President: This is not a new issue, as I know all too well from my work on it over the past 15 years. And there’s a lot of policy on the books for addressing it.
Of course, history goes much further back, namely to an elegantly simple set of protections signed into law in 1970 by the Nixon administration. That law, the National Environmental Policy Act (NEPA) simply requires the federal government to examine the potential environmental impact of federally funded activities and share its findings with the public so we have a say in the process. This commonsense law has been fundamental to our success in cleaning up the environment. Under NEPA, the Department of Transportation and other agencies are afforded the opportunity to fix problems with environmental compliance and review before decisions are finalized.
And the reality is that projects requiring time-consuming EISs have plummeted and only a fraction of these are challenged in court. According the Council on Environmental Quality at the White House, as quoted in a 2014 Government Accountability Office report, 95 percent of NEPA-required analyses are short and simple because the project is “categorically excluded” from more comprehensive review. About four percent go through a more rigorous “Environmental Assessment” and just one percent are subject to the most thorough review, an “Environmental Impact Statement” or EIS. The dramatic reduction in EISes filed in the Federal Register is shown below (Source: EPA).
Pulling back the lens to consider all the steps in project development, including for example getting design right, dealing with local controversies, lining up adequate funding or even simply moving a project up on the priority list of a government bureaucracy, it’s clear that environmental reviews have been unfairly singled out for holding up projects. Instead, delays are usually due to funding decisions or opposition from a community or politician.
And there are other perverse incentives at work in infrastructure project development, explaining why consultants and engineers tend to find ways to stretch time frames and expenses of projects. Professional Engineer Chuck Marohn pulls back the curtain on some of these dynamics in a trenchant piece on the strongtowns.org web site.
But it’s easy to scapegoat environmental reviews as the cause of delay or expense.
Never mind that these reviews help boost public involvement in project design, as per the original purpose of these reviews. As Texas Tech Assistant Professor Kristen Moore found in a recent paper examining the work of a communications firm in the Midwestern U.S., in order to engage the public in the review of a large rail project, the company reached more than 1,000 people through activities including public open house events where affected citizens could talk with subject matter experts about their concerns and questions. And we’ve collected many similar stories of how projects were improved thanks to public involvement.
There is, on the other hand, ample evidence of the costs and consequences paid by communities and the environment in the absence of the protection offered by this important law, as described vividly by Kevin DeGood of the Center for American Progress.
While undue attention is paid to these useful reviews, I recognize that there are nonetheless issues that need to be untangled. Longstanding CEQ guidance says EISs should be less than 150 pages long, except in the case of complex ones which should span fewer than 300 pages (CEQ, 1978). There are, however, EISs that span thousands of pages and are therefore unlikely to be read by the public as originally intended.
Thankfully, the Executive Branch now has ample tools for getting the job done. I know this well, because I’ve been working on this issue for a long time now. In fact, I first testified in front of a Congressional subcommittee about a bill that proposed to expedite project delivery in 2002. Due to Congressional interest in the issue, the 2005 transportation law included several provisions aimed at “streamlining” the process. After that law expired, Congress passed Moving Ahead for Progress in the 21st Century (MAP-21) which contained a raft of additional streamlining provisions as I wrote about here. And then in 2015, Congress passed the Fixing America’s Surface Transportation Act (FAST Act) which included the largest-ever number of streamlining provisions. And not just on transportation, but on most other infrastructure categories as described in this Environmental Law Institute paper.
With this huge statutory box of tools available, what’s needed now is savvy management of federal agencies implementing the law effectively. As a seasoned NEPA practitioner quipped in a recent Duke University report based on interviews of 15 experts in a dozen federal agencies, “Lack of communication and collaboration between federal agencies, with the public, and among decision-makers is 95% of what is wrong with NEPA implementation…”
Among the sensible, specific recommendations in that report are improving information technology at agencies so that there is one database of NEPA documents, with a public-facing component (like this dashboard) as well as Decision-Support Systems to improve work within and between agencies as well as the public, and making use of technology to expand the use of programmatic reviews which apply to sets of federal actions and which can therefore reduce the review burden for each one (and despite recent CEQ guidance encouraging this according to the Duke scholars only 7 of the 12 agencies they surveyed use this tool).
The simple truth is that it’s time to stop scapegoating NEPA. We must instead tackle real problems in transportation.
That includes rooting out perverse incentives for consultants and engineers to stretch out project time frames and costs.
And it includes delivering actual funding for projects, which Congress has balked at repeatedly. Funding is the dog that wags the tail here, and as such deserves renewed focus.