More than any sector of the U.S. economy, the transportation industry has benefitted from legislation and interpretative agency guidance focused on improving the environmental review and permitting processes. Twenty years ago, the Safe, Accountable, Flexible, Efficient Transportation Equity Act (SAFETEA-LU) introduced 23 U.S.C. Section 139, a detailed smorgasbord of procedural reforms focused on expediting project delivery while promoting positive environmental outcomes. (Recent amendments to the National Environmental Policy Act (NEPA) mirrored many of these reforms.)

Subsequent surface transportation bills built upon the success of Section 139. The Moving Ahead for Progress Act (MAP-21), the Fixing America’s Surface Transportation Act (FAST Act), and the Infrastructure Investment and Jobs Act (IIJA) all reflected a general policy consensus: delivering projects efficiently is an imperative. Planning and permitting, when done effectively (always the hallmark of surface transportation) should neither delay project delivery nor drive up construction costs.

But the transportation community always strives to innovate. Previous authorization bills left excellent ideas on the cutting room floor. Now, with both sides of the political aisle focused on an “abundance” agenda, our next surface transportation law can incorporate even more creative ways to efficiently plan and build good projects. Congress can accomplish this lofty goal in the following ways.

• The Planning & Environmental Linkages (PEL) concept has consistently promised more than it has delivered. Ideally, the PEL process should streamline subsequent NEPA reviews. Too often, NEPA reviews fail to acknowledge that planning decisions are just that – decisions that should not be second guessed in the context of a project-specific permitting effort. Congress should clarify that successfully completed local planning reviews are appropriate and sufficient and therefore eliminate the need for detailed NEPA alternatives analysis. Moreover, impacts assessments from prior studies need only be updated consistent with the “re-evaluation” standard. A community-based process to identify and prioritize transportation projects, modal selections, and proposed alignments must be honored in the NEPA/permitting process.
• The NEPA Assignment program has been an overwhelming success. It should be expressly expanded across the transportation sector to include eligible transit and commuter rail agencies, major city transportation agencies, as well as port and airport authorities. This would require a purposeful conversion of the federal role from the existing oversight/legal sufficiency model to that of a best practice/teaching model. Congress should fund regional “centers of excellence” to support NEPA Assignment jurisdictions and agencies across the country. The partnership created between these new centers and state/local transportation agencies could be a successful laboratory for further innovation.
• Congress should eliminate obvious areas of regulatory overlap. The most obvious involves Section 4(f) of the Transportation Act. Section 4(f) was first enacted to protect publicly owned parkland. It has succeeded. But for too long, Section 4(f) reviews have also covered cultural and historic resources that are already protected under another federal statute, the National Historic Preservation Act (NHPA). Agencies conduct the Section 106 consultation process under the umbrella of NEPA review. But Section 4(f) creates a different standard and mandates a different process to protect those identical resources. Congress should divest protection of historic and cultural resources from the purview of Section 4(f). One process is sufficient.
• Mandate programmatic NEPA reviews and inter-agency programmatic agreements that cover proven and effective mitigation measures to address standard transportation project impacts (construction, noise, stormwater runoff, etc.). These documents should be prepared and then updated regularly on an appropriate basis. Once in place (and as amended), a project proponent’s utilization of measures included in such documents would be presumed effective for eligible projects. This reform would codify the “avoidance, minimization, mitigation” standard for project development. More important, it could lead to preparing fewer full environmental impact statements in lieu of environmental assessments and “mitigated Findings of No Significant Impact.” This would effectively marry streamlined project delivery with improved environmental outcomes as a matter of law.
• The early acquisition of project right-of-way (ROW) is both economical and logical. But that authority is managed inconsistently across USDOT modal administrations. Some permit ROW acquisition in limited circumstances; others have a hard restriction until project-level NEPA review is completed. The underlying assumption restricting acquisition of ROW is erroneous. The ownership of potential alignment ROW does not prejudice NEPA analysis. In contrast, delayed ROW acquisition drives up project cost, often dramatically. Even worse, failing to protect an alignment corridor or locations for public transit stations could result in planned development becoming unavailable. This penalizes good planning. Congress should uniformly permit early acquisition of property for all modes on the condition that a state, regional, or local agency has public plans identifying a proposed corridor and/or transportation facilities.
• Finally, let’s be candid about litigation. Challenges to project approvals cost time and money. More importantly, litigation risk creates uncertainty for project development, especially for those supported by private sector investment. Reauthorization is not the best vehicle to debate how much or how little litigation should be permitted. But Congress could create a streamlined litigation process for challenges to surface transportation projects. The statute of limitations for lawsuits addressing projects funded by federal aid should be 150 days, without exception. Legal challenges should skip federal trial court and go directly to the federal appellate court, like most major rulemaking challenges. Even these modest reforms could reduce the uncertainties created by litigation.

What’s missing from this list? Adding more NEPA categorical exclusions (CEs) or complete exemptions. The transportation world already has plenty of those, along with recently added authority to “borrow” CEs from other agencies. This administrative tool is effective and already exercised broadly. Don’t change a winning game.

This list omits other promising ideas. But it does focus on sources of industry frustration that have persisted even with multiple beneficial reforms embedded in two decades of reauthorization law. Transformational? The better word may be “evolutional.” Innovation that builds on success has the greatest likelihood of achieving consensus in the upcoming legislative debate.