AASHTO Comments on CEQ’s Proposed NEPA Revisions

The American Association of State Highway and Transportation Officials recently submitted a six-page comment letter to the Council on Environmental Quality or CEQ regarding proposed revisions to the National Environmental Policy Act or NEPA.

[Above photo by AASHTO]

The CEQ issued a notice of proposed rulemaking in July in which the agency seeks to create a more “effective environmental review process” that promotes better decision making; ensures full and fair public involvement; provides for an efficient process and regulatory certainty; and provides for sound decision making grounded in science, including consideration of relevant environmental, climate change, and environmental justice effects.

AASHTO noted 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.

To that end, AASHTO offered a slate of comments regarding CEQ’s proposed rule:

  • The group supports provisions in the 2020 regulations that modernized the NEPA process, improved efficiency, enhanced accountability, and encouraged interagency coordination on compliance with NEPA and the requirements of other environmental laws and supports their retention in CEQ’s proposed rule.
  • AASHTO said CEQ’s NEPA regulations should be legally sound, grounded in the statute – as recently amended by the Fiscal Responsibility Act and recent case law – and build upon well-established principles developed through decades of agencies’ experience implementing NEPA. “The significant regulatory changes over the past few years have caused uncertainty, additional work, delays in project delivery, and litigation risks for projects,” the group said in its letter. “Another significant upheaval to the NEPA process and regulatory requirements will only compound these problems.” 
  • AASHTO noted 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 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. For example, in various areas throughout the regulations, CEQ proposes to replace the term ‘significant’ with the ambiguous and undefined terms ‘important’ or ‘substantial.’”

Maryland Initiates Tier 2 NEPA Study for Bay Crossing Project

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.

AASHTO’s CEE Hosting Virtual Peer Exchange

The American Association of State Highway and Transportation Officials Center for Environmental Excellence will host a virtual peer exchange discussing alternative project delivery and the National Environmental Policy Act or NEPA process on March 8 from 2:00 pm to 4:00 pm eastern.

That exchange will feature representatives from Minnesota, Pennsylvania, and Utah sharing their experiences using alternative project delivery methods, such as public-private partnerships or P3s and design-build contracts.

The discussion will highlight best practices when using alternative delivery methods as well as discuss the experiences of those states navigating the NEPA process when using an alternative delivery method.

The exchange also includes a question and answer session once the state presentations conclude.

To register for this virtual peer exchange, click here.

AASHTO’s CEE Hosting Virtual Peer Exchange

The American Association of State Highway and Transportation Officials Center for Environmental Excellence will host a virtual peer exchange discussing alternative project delivery and the National Environmental Policy Act or NEPA process on March 8 from 1:30 pm to 4:30 pm eastern.

That exchange will feature representatives from Minnesota, Pennsylvania, and Utah sharing their experiences using alternative project delivery methods, such as public-private partnerships or P3s and design-build contracts.

The discussion will highlight best practices when using alternative delivery methods as well as discuss the experiences of those states navigating the NEPA process when using an alternative delivery method.

The exchange also includes a question and answer session once the state presentations conclude.

To register for this virtual peer exchange, click here.

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.