Guest Op-Ed: CEQ’s Proposed NEPA Regulations: Are They Really That Terrible or So Very Helpful for Surface Transportation Projects?
February 21, 2020|Edward V.A. Kussy, Nossaman LLP, Partner
As part of our focus on People & the Environment, Eno will be having a Point-Counter Point Series for Eno Transportation Weekly on environmental issues. This article is part one of Edward V.A. Kussy’s guest op-ed on the proposed NEPA regulations.
On January 10, 2020, the Council on Environmental Quality (CEQ) issued the long awaited Notice of Proposed Rulemaking (NPRM) to amend its regulations implementing the National Environmental Policy Act (NEPA). Comments on the proposed regulations are due March 10, 2020. The current regulations are still in effect and will remain so until a new regulation becomes effective. The Administration has indicated that it would try to issue final regulations by the end of the summer. Whether this is realistic remains to be seen. Business interests and others have lauded the time saving elements of the NPRM. Many environmental groups have expressed deep concern about many of the proposed changes. For surface transportation projects there is surprisingly little that will change.
The NPRM draws from three existing factors. First, the NPRM draws on court decisions that largely support the proposed changes. NEPA gains its substance almost entirely from thousands of federal court decisions made of the last 60 years. These decisions are not entirely uniform, but interpret the law as it applies to an array factual situations, took differing views of various provisions, and reflect the changes in the understanding of various provisions over time. Thus, these cases provide a range of legal interpretations and therefore allow for the flexibility to make changes to the current rules. However, all these cases are still based on the statute, and do not complete freedom to create an utterly different set of NEPA regulations.
Second, Presidents Bush, Obama, and Trump have all issued executive orders and presidential memoranda designed to make the NEPA process more efficient. CEQ would argue that the sum of these mandates is reflected in the NPRM.
Third, all recent surface transportation reauthorization statutes, beginning with the Transportation Equity Act for the 21st Century (TEA-21) through the current statute, the Fixing America’s Surface Transportation Act (the FAST Act), have introduced measures to make the NEPA process more efficient for highway and transit projects. Federal Rail Administration projects were added to these provisions by the Moving Ahead for Progress in the 21st Century Act (MAP-21). Most are captured in 23 U.S.C. §139. In addition, the FAST Act extended many of these reforms to all federal agencies in Title 41 of the FAST Act for projects in excess of $200 million. Title 41 also created a “Federal Permitting Improvement Council” to act as a repository of EISs, with authority to review EISs for quality and be a continuing source of proposals to improve the NEPA process.
Many of these provisions are reflected in the modifications proposed by the NPRM. Thus, the NPRM, like section 139, focuses heavily on improving interagency review process through requiring the use of agreed upon schedules for the issuance of documents and responding to requests for comment, and putting greater emphasis on complying with agreed upon schedules. With these ideas in mind, the following is a summary of the major provisions of the NPRM with a focus what they could mean for surface transportation projects:
Designation of a Senior Agency Official
The NPRM would require each agency to designate a “Senior Agency Official” to oversee NEPA compliance, approve deviations from the time and page limits, and represent the agency’s analyses when appropriate. Senior means an assistant secretary rank or equivalent in the agency. This is an interesting idea, which could give the time and page limits some teeth as it would require agencies to make a coherent, project-specific case for exceeding them. For FHWA and FTA projects, it is likely that the Senior Official would be a USDOT Assistant Secretary.
Proposed Time Limits for EAs and EISs
In FY2018, the median time to complete an Environmental Impact Statement (EIS) from the start of the process (publication of the Notice of Intent (NOI)) to the issuance of the Record of Decision (ROD) was 47 months. This is a bit less than the government-wide average time for completing the EIS process. CEQ clearly felt this was still too long. CEQ was guided by President Trump’s Executive Order 13807, which instructed agencies to set a goal of completing the EIS process within an average of two years. In fact, CEQ would go further than this Order by requiring completion of the EIS within two years (one year for an environmental assessment (EA)/finding of no significant impact (FONSI)). As noted above, the time limit for a project could only be extended by the Senior Agency Official.
A significant difference in the NPRM is how it starts the clock on these time limits. Currently, the NOI is issued before the start of scoping, an early phase of environmental studies and interagency coordination. The NPRM would move the NOI to when the proposed action is “sufficiently developed to allow for meaningful public comment and the agency has decided to prepare an EIS,” after the initiation of the scoping process. In my experience, this could be some time after the start of scoping.
To be eligible for federal funding, surface transportation projects must be identified by or “come from” an urban or state-wide transportation planning process. Since the enactment of SAFETEA-LU in 2005, FHWA and FTA having strongly encouraged their grantees to make better use of the planning process in defining the scope of the NEPA process. Thus, the purpose and need, scope of alternatives, impacts arising from the project setting, and many other issues should have been dealt with, at least partially, during planning. Linking the transportation planning and environmental processes (Planning and Environmental Linkage or “PEL”) continues to be a major agency initiative. Agencies that have embraced PEL develop better data during planning and thus are able to initiate the NEPA process with more information about the issues involved in a particular project.
A challenge to meeting the deadlines in the NPRM is the direction in Executive Order 13807 that all federal approvals for a project should be completed within 90 days of the issuance of the ROD, FONSI, or Categorical Exclusion (CE). This has been referred to as “One Federal Decision” or “OFD.” It includes permits such as those required under Section 404 of the Clean Water Act, coordination required by the National Historic Preservation Act, and other actions. The Executive Order also applies to states that have been assigned NEPA and related environmental law responsibilities. Transportation agencies, such as the FHWA, have adopted policies designed to achieve OFD, but not within the context of a strict one or two year deadline. Previously, for transportation projects, section 404 of the Clean Water Act (section 404) and other permits were often first addressed at later stages of project design when more precise information was available. Including OFD principles will make EISs and interagency coordination more difficult because of the additional information required earlier in the process.
Proposed Page Limits
The NPRM seeks to revitalize a provision of the current regulations (section 1502.7) that establishes page limits for EISs of 150 pages and 300 pages for EISs of unusual scope and complexity. The NPRM would require the Senior Agency Official to approve exceeding these limits. Currently, section 1502.7 is routinely ignored. Instead, the focus has been to anticipate controversy and document compliance with the various legal requirements that might apply to a particular project. Projects for which EISs are prepared tend to be large, complex and controversial, often with extensive environmental impacts and an array of alternatives. Legal challenges are common. For example, about one fifth of all of FHWA’s EISs continue to be the subject of litigation. Thus, this care would seem to be warranted, making the average EIS is about 600 pages long, and many much longer.
It is difficult to gauge the impact of a strict page limit. For example, neither the existing rules nor the NPRM limit the size of technical reports, studies, and appendices that might be incorporated by reference into the EIS. The typical transportation EIS already incorporates many such documents. Would the NPRM result in genuine changes making EISs easier to read or simply increase the number of documents incorporated by reference?
This concludes part one of Edward V.A. Kussy’s analysis of the proposed changes to the CEQ’s NEPA regulation. Next week, Kussy will address some of the more controversial parts of the NPRM.
The views expressed above are those of the author and do not necessarily reflect the views of the Eno Center for Transportation.
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