NEPA Process

The White House Council on Environmental Quality or CEQ recently finalized reforms to the National Environmental Policy Act or NEPA that implement permitting efficiencies laid out in the Fiscal Responsibility Act of 2023, including setting clear deadlines for agencies to complete environmental reviews, requiring a lead agency and setting specific expectations for lead and cooperating agencies, and creating a unified and coordinated federal review process.

[Above photo by the White House]

The CEQ said the rule provides agencies with other new and faster tools to improve the efficiency and effectiveness of environmental reviews. For example, it creates new ways for federal agencies to establish categorical exclusions – the fastest form of environmental review.

The agency noted the new NEPA reforms will apply to projects beginning environmental reviews on or after July 1 this year, but will not disrupt ongoing environmental review processes.

The new NEPA reforms are intended to help accelerate reviews for projects that agencies can evaluate on a broad, programmatic scale, or that incorporate measures to mitigate adverse effects – helping the transportation industry and other sectors speed up environmental reviews and providing more certainty when they are designing projects.

Finally, the CEQ says the new rule promotes early public engagement in environmental review processes to help reduce conflict, accelerate project reviews, improve project design and outcomes, and increase legal durability, noted Brenda Mallory, CEQ’s chair, in a statement – helping accelerate permitting for everything from wildfire management and electric vehicle charging infrastructure to high-speed internet and semiconductor manufacturing.

“These reforms will deliver smarter decisions, quicker permitting, and projects that are built better and faster,” she noted. “As we accelerate our clean energy future, we are also protecting communities from pollution and environmental harms that can result from poor planning and decision making while making sure we build projects in the right places.”

The CEQ said it conducted a “robust review” of more than 148,000 public comments on the proposed rule, of which approximately 920 were unique comments.

The American Association of State Highway and Transportation Officials provided detailed feedback on CEQ’s then-proposed NEPA revisions in September 2023, noting in its comment letter that it “shares CEQ’s goals” of providing for efficient and effective environmental reviews, ensuring full and fair public involvement, providing regulatory certainty, promoting better decision-making grounded in science, and protecting the environment.

Key comments from AASHTO included that there should be no “one-size-fits-all” way to comply with NEPA. “Each transportation project is unique,” the group pointed out in its letter. “Flexibility [is needed] to tailor the NEPA process based on a particular project’s circumstances [so] agencies should be able to meet NEPA’s requirements in a way that minimizes the financial and administrative burdens, informs public decisions, protects the environment, and avoids unintended consequences such as public or agency uncertainty and increased litigation risk.”

AASHTO also said CEQ’s NEPA regulations should provide clear direction to agencies, project sponsors and applicants, and the public. “To improve agency and public understanding of the regulatory framework, CEQ should be clear about which aspects of the regulations are statutorily required,” the group emphasized.

“AASHTO is concerned that CEQ’s proposed regulations introduce new undefined terms and create new vague requirements, which will lead to delays in project delivery and increase litigation risk for projects,” the group said. “For example, in various areas throughout the regulations, CEQ proposes to replace the term ‘significant’ with the ambiguous and undefined terms ‘important’ or ‘substantial.’”

At a June 12 event, Governor Larry Hogan (R) said the Maryland Transportation Authority and the Federal Highway Administration are launching a $28 million Tier 2 National Environmental Policy Act study for an additional Chesapeake Bay crossing option.

[Above photo by the Maryland Governor’s Office]

“At my direction, we are immediately launching a critical Bay Crossing Tier 2 Study, which will not only study the new crossing but also look at solutions for the entire 22-mile corridor from the Severn River Bridge to the 50/301 split,” the governor said in a statement.

“This is the critical next step which is needed in order to move forward so we can make a new Chesapeake Bay crossing a reality in the years to come, and it is just one more way that together we are truly changing Maryland for the better,” he added.

He noted that, in April, FHWA approved a combined Final Environmental Impact Statement and a Record of Decision for the proposed bridge, with the Tier 2 NEPA study poised to identify and evaluate a “no-build alternative” as well as various crossing alignments and types – such as a new bridge, a bridge/tunnel or replacement of existing spans.

The study would take about four to five years to complete. If it recommends a “build alignment” alternative, another Record of Decision for Tier 2 would be required before proceeding to final design, right-of-way acquisition, and construction. Meanwhile, a “no-build” recommendation means taking no action of any kind.

The initial Tier 1 study evaluated a range of “modal and operational alternatives” or MOAs, including ferry service, rail, bus, and transportation system management/transportation demand management, and found they could not function as stand-alone options. Subsequently, the Tier 2 study will re-analyze the use of buses, ferries, and transportation system/demand management, especially in conjunction with other mobility alternatives.

The American Association of State Highway and Transportation Officials sent a 35-page letter to the Council on Environmental Quality (CEQ) on November 18 in support of changes to the National Environmental Policy Act or NEPA proposed in early October.

[Above image via the White House]

AASHTO also included several recommendations in its letter regarding those proposed changes, especially in terms of “respecting the need for agency flexibility” and the special statutory frameworks that apply to many transportation projects.

“AASHTO is generally supportive of the changes in the notice of proposed rulemaking [as] CEQ proposes to restore the provision on purpose and need in the 1978 NEPA regulations,” the organization said in its letter. “AASHTO supports this change because it clarifies that lead agencies have considerable discretion to determine the purpose and need of a proposed action and it provides greater flexibility to lead agencies in carrying out NEPA.”

AASHTO noted that CEQ proposes to delete provisions in the 2020 NEPA regulations that collectively provide a “ceiling,” rather than a “floor,” for NEPA implementing procedures by other federal agencies.

“Restoring the substance of the 1978 NEPA regulations would allow other federal agencies to develop procedures beyond the requirements of CEQ’s NEPA regulations while still in conformity with NEPA,” the organization said. “AASHTO supports this change. In addition to providing regulatory certainty, CEQ’s NEPA regulations should give agencies flexibility to carry out the NEPA process in light of variations in the legal requirements applicable to different agencies and project types.”

The Federal Highway Administration and the Arizona Department of Transportation are proposing to renew Arizona’s participation in the “categorical exclusion” program for environmental impact planning purposes where federal highway projects are concerned.

[Photo courtesy of the Arizona Department of Transportation.]

That program allows states to assume decision-making and legal responsibilities for meeting the National Environmental Policy Act or NEPA requirements for federal highway projects.

The Arizona DOT is seeking to renew an agreement finalized with the FHWA in early 2018 that gives it responsibility for categorical exclusions involving projects that do not pose significant environmental impacts. The agency is welcoming public comments on its renewal document through January 3, 2021

In 2019, the Arizona DOT finalized separate agreement with the FHWA that gave it expanded NEPA authorization for five years – making it the seventh state to achieve full NEPA assignment approval.

The Arizona DOT noted that attaining full NEPA assignment responsibilities will help it complete required environmental studies more efficiently while maintaining the same degree of rigor required for projects receiving federal funding, including local projects administered by the agency.

Congress originally authorized NEPA assignments – formally called the “Surface Transportation Project Delivery Program” – as pilot projects under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users or SAFETEA-LU passed in 2005. It then allowed such assignments to be more broadly used on a permanent basis with the Moving Ahead for Progress in the 21st Century Act or MAP-21 signed into law in 2012. NEPA assignments recognize that states are able to comply with federal environmental requirements on their own, allowing them to streamline processes – saving time and money – while waiving their sovereign immunity in relation to federal court jurisdiction.

The National Environmental Policy Act of 1969 or NEPA for short established regulations and processes for project planning and implementation to ensure the consideration of environmental impact and sustainability from transportation projects. The term “NEPA assignment” refers to the transfer of the Federal Highway Administration’s role for NEPA environmental reviews to a state department of transportation.

In this video from the AASHTO Center for Environmental Excellence, Kyle Schneweis – the outgoing executive director of the Nebraska Department of Transportation – explains how NEPA assignment’s work to streamline the environmental review process without sacrificing environmental protections; saving both time and taxpayer dollars.