AASHTO Comments on Proposed NEPA Changes

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.”

Arizona DOT Seeks to Renew NEPA Assignment

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.

Video: How State DOTs Work to Ensure NEPA Compliance

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.

Trump Administration Formally Overhauls NEPA Rule

The White House’s Council on Environmental Quality formally implemented a final rule on July 15 aimed at updating and modernizing National Environmental Policy Act or NEPA regulations.

[President Trump, above left, watches Georgia DOT Commissioner Russell McMurry speaking at the NEPA overhaul announcement in Atlanta on July 15. Official White House photo by Joyce N. Boghosian.]

“The final rule will make the NEPA process more efficient and effective, ensure consideration of environmental impacts of major projects and activities, and result in more timely decisions that support the development of modern, resilient infrastructure,” explained Mary Neumayr, the CEQ’s chairman, in a statement.

Signed into law in 1970, the CEQ noted that NEPA rules require federal agencies to assess the potential environmental impacts of proposed major federal actions and that the NEPA process can apply to a variety of activities, including transportation infrastructure projects such as the construction of roads, bridges, highways, public transit, and airports.

The agency said the reason for the NEPA overhaul – which has been in the works since 2018 – is that the average length of an environmental impact statement is more than 600 pages, with the average time required for federal agencies to complete NEPA reviews now four and a half years. The CEQ added that NEPA reviews for highway projects currently take more than seven years, and in some cases take a decade or more, to complete and are also the most litigated area of environmental law.

The agency added that the modernization of NEPA regulations also incorporate key elements of the Trump Administration’s One Federal Decision policy, which includes a two-year goal for completing environmental reviews.

President Trump himself highlighted the NEPA overhaul during a press event July 15 at the United Parcel Service Hapeville Airport Hub in Atlanta.

“For decades, the single biggest obstacle to building a modern transportation system has been the mountains and mountains of bureaucratic red tape in Washington, D.C.,” the president said in his remarks. “At the same time, we’ll maintain America’s gold standard environmental protections.”

“[This is] another environmental process improvement that will make life much easier for people like us at [state] departments of transportation across the nation,” noted Russell McMurry, commissioner of Georgia Department of Transportation, at the event.

The NEPA overhaul will also help “to deliver infrastructure projects like the I-75 commercial vehicle lanes, to move that freight out of Savannah to Atlanta and beyond, while providing a safe corridor for the many families that travel on I-75,” McMurry added.

Some Congressional leaders and environmental organizations, however, expressed concern over the long-term impact of the administration’s revision of NEPA regulations.

“The NEPA process is critical to accounting for the impacts of climate change when considering federally funded infrastructure projects,” noted Rep. Peter DeFazio, D-Ore., chairman of the House of Representatives Committee on Transportation and Infrastructure in a statement. “Ignoring those impacts is a mistake that will result in limited taxpayer dollars being spent on projects that cannot withstand future storms and other impacts of climate change,” he added.