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Transportation Agencies Issue Final Environmental Rule

Tuesday, January 5, 2021

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Last Monday (Dec. 28, 2020), the Federal Highway Administration, Federal Railroad Administration, Federal Transit Administration and the United States Department of Transportation issued a final rule regarding the DOT Program for Eliminating Duplication of Environmental Reviews (Pilot Program).

Specifically, the final rule further amends Section 1309 of the Fixing America's Surface Transportation Act.

According to the Federal Register, the pilot program was established to authorize up to two States to conduct environmental reviews and make approvals for projects under State environmental laws and regulations, instead of the National Environmental Policy Act, under certain circumstances.

Ruling History

Previously, Section 1308 of the FAST Act established a pilot program allowing the Secretary to approve up to five States (to include the District of Columbia and Puerto Rico) to use one or more State environmental laws instead of the NEPA process for a state's environmental review of surface transportation projects.

In September 2017, the collection of agencies published a Notice of Proposed Rulemaking, highlighting regulations to implement the Pilot Program and its application and stringency requirements, and proposed amending the corrective action period that the Agencies must provide to a State participating in the Section 327 Program.

Public comment on the matter closed two months later in November.

The following year, another NPRM was published (the FAA Reauthorization Act of 2018), reducing the number of states eligible to participate in the pilot from five to two. In addition, the NPRM also changed the statute of limitations from two years to 150 days and updated the regulations implementing NEPA.

Those changes officially went into effect on Sept. 14, 2020.

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Last Monday (Dec. 28, 2020), the Federal Highway Administration, Federal Railroad Administration, Federal Transit Administration and the United States Department of Transportation issued a final rule regarding the DOT Program for Eliminating Duplication of Environmental Reviews (Pilot Program).

The most recent establishment of the program was directed by the Secretary of Transportation, and in Section 1309(c) of the FAST Act, requires the Secretary, in consultation with the Chair of the Council on Environmental Quality (CEQ), to promulgate regulations to implement the requirements of the Pilot Program, including application requirements and criteria necessary to determine whether State laws and regulations are at least as stringent as the applicable Federal law.

Additionally, the final rule also implements Section 1308 of the FAST Act, which amends the corrective action period of the Surface Transportation Project Delivery Program (Section 327 Program).

The final rule is slated to go into effect on Jan. 27.

Environmental Review Revisions

Starting back in 2017, in order to comply with orders from President Donald J. Trump’s administration that the Environmental Protection Agency reduce its budget by 31%, a memo was issued proposing that two programs be eliminated, saving the budget $16.6 million.

One of the programs slated for termination is the Lead Risk Reduction Program, which requires professional remodelers to undergo safe-practice training before stripping lead paint. The program was set up under the Lead Renovation, Repair and Painting (RRP) rule in 2010.

As a result of cutting the program, $2.6 million would be saved, while the other $14 million was intended to be taken from grants to state and tribal programs that also address lead-based paint.

That summer, Trump issued an executive order on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure, which intended to streamline the environmental review process and effectively overturns flood regulations put in place by the previous administration.

In January 2018, the administration submitted a proposal, cutting safety regulations, repealing and revising some provisions of the Oil and Gas Production Safety Systems rule as a response to an earlier call to “reduce undue burden on industry.”

The Bureau of Safety and Environmental Enforcement said at the time that the proposed regulation rollbacks would remove unnecessary burdens on producers while “maintaining or advancing the level of safety and environmental protection.”

By February, the Trump administration announced the roll back of nearly 95 environmental rules. As part of the rollback, the EPA announced that it would be reducing the number of waterways receiving federal protection under the Clean Water Act.

The rule is slated to be replaced by Trump’s “Navigable Waters Protection Rule.”

That same month, the administration proposed another rule, modernizing and accelerating how environmental reviews are conducted under the National Environmental Policy Act.

As stated by the White House, the proposed rule allows for infrastructure projects to be “built in a timely, efficient, and affordable manner” and will also “help bring new infrastructure projects to our communities that benefit American workers, farmers and families.”

In reducing what the White House describes as unnecessary burdens and delays, the administration is now proposing that future time limits for completing environmental impact statements are limited to two years and that environmental assessments are to be completed within one year.

However, the proposed changes exempt projects that weren’t primarily federally funded.

Along with the adjusted timelines, the proposal also specifies page limits for these forms of documentation, and promotes information sharing through technology. The rule also states that agencies would be allowed to establish procedures for adopting another agency’s determinations.

While opposition followed the proposal from environmental advocates who expressed concern over the possibility that more projects will get pushed through that affect the climate crisis, the administration believes that the rule revisions, in addition to better defining environmental effects and other key terms, would help improve collaborative communication between state, local and tribal governments.

Some months later in July, President Donald J. Trump announced that his administration has finalized changes to NEPA that aim to not only reduce the number of projects that require federal review, but also narrow the scope considered under those reviews.

The action arrived after Trump signed an Executive Order in June advising federal agencies to expedite infrastructure investments and other activities as to accelerate the United States’ economic recovery from the COVID-19 pandemic.

The final rules don’t deviate much from the proposals in January, and note that federal agencies no longer have to factor in “cumulative impacts” of a project, such as impacts on the environment or climate.

It also keeps the proposals of a two-year deadline for environmental impact statements and a one-year deadline for other environmental assessments. The rule also changes standards for commenting on judicial review, adding that any comment must also give negative economic and employment impacts of a project alongside any environmental concerns.

Environmental Protection Agency Administrator Andrew Wheeler defended the policy at the time, saying, "It does not address any of the underlying regulations or policies, those are all still in place. The main factor is it puts a two year timeframe. If we can't work through the issues around a project within two years, then that's a problem because the private sector does that all the time.”


Tagged categories: Department of Transportation (DOT); DOT; Environmental Control; Environmental Controls; Environmental Protection; Federal Highway Administration (FHWA); Government; Health and safety; NA; North America; President Trump; Project Management; Rail; Regulations; Roads/Highways; Transportation

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