Transport Contractors Urge White House to Revamp Enviro Review Rules

The trade group representing private-sector transportation contractors is urging the Obama administration to change the way environmental reviews are conducted for infrastructure projects, proposing to favor "categorical exclusions" (CEs) from federal review rules over the lengthier process of measuring the environmental impact of construction work.

protected_bike_lane.jpgEnvironmental reviews added an estimated $1 million to the cost of San Francisco’s recent bike lanes, seen above. (Photo: Streetsblog SF)

In a letter sent Friday to the White House Council on Environmental Quality, which released new guidance on CEs [PDF] earlier this year, the American Road & Transportation Builders Association (ARTBA) lamented that the existing law governing federal environmental reviews — the National Environmental Policy Act, or NEPA — is too vague on the circumstances that would require infrastructure project planners to pursue a quicker CE as opposed to the costlier option of a full-scale review.

As a result, ARTBA President T. Peter Ruane wrote, local planners often "opt for the more time consuming [environmental review] in order to avoid potential litigation at a later time." Legal challenges citing NEPA, filed by green advocates as well as their conservative critics, have delayed work on transportation projects of all stripes in recent years.

Ruane continued in his letter to the White House:

For this reason, ARTBA also strongly supports the creation of unambiguous environmental review criteria that would favor the CE process (over a far more time consuming EA or EIS) where environmental impacts are clearly minimal unless there is “compelling” evidence warranting a different course of action. Ensuring project planners know when it is appropriate to use a CE without fear of possible legal recourse would help reduce delay in the NEPA process.

In its guidance on exclusions from environmental review rules, the White House noted "an expansion of the number and range of activities" for which CEs were being chosen, adding that "inappropriate reliance on categorical exclusions may thwart the purposes of NEPA."

All projects using federal funding or on federal land are subject to NEPA rules, extending the law’s reach past the U.S. DOT into most other government agencies. Congressional Republicans have frequently called for changes that would make NEPA more easily circumventable, whether by waiving it for stimulus projects or preventing climate change from becoming a factor in the rules.

Whether ARTBA’s pitch for a standard "that would favor the CE process" over a full-scale environmental review catches on among GOP lawmakers remains to be seen.

7 thoughts on Transport Contractors Urge White House to Revamp Enviro Review Rules

  1. From Planning Magazine, the trade publication of the American Planning Association.

    “Is CEQA out of control? Go to almost any planning conference in California, and you are likely to find sessions about how CEQA prevents good planning. Viewed exclusively through an EIR, a high-density infill project often looks worse than a low-density greenfield subdivision.”

    “Mark Winogrond, FAICP, who has served as the planning director of several Southern California cities, including Los Angeles, concedes that many planners do not even read the EIRs for projects in their jurisdiction. While pertinent information is still buried in all the paperwork, “it’s very difficult for a layperson or even an experienced professional to decipher it,” he says.”

    “Maureen Gorsen, an attorney with Alston & Bird in Sacramento and a former Schwarzenegger administration appointee, says CEQA is a good idea, but “it’s only a tool, and it’s not necessarily the best tool in the toolbox.” She asks whether a CEQA document really helps a city council to make the most environmentally beneficial choice and concludes, “probably not.””

    The issue is not the intent of the original law, but the lawsuits that followed and the lawsuits that followed those. You have 1950s-style shopping mall owners suing under the rules to keep out competitors, driven by nothing but self-interest.

  2. And when it’s all said and done, a lot of the environmental impacts predicted can be incorrect, and unforseen things can happen.

    Witness the difference between the bike plan EIR, and the proposed methodology on the Noe Valley Plaza. $1 Million for the bike plan EIR and a 4 year delay, vs just plopping down the paint, seeing what happens, and defining a metric for plan reversal. Obviously this won’t work for a condo instead of painted white lines, but the whole thing is just inefficient government.

    For less than the cost of an EIR, Noe Valley could put in the plaza, test it out in practice, decide whether it was worth keeping or just drag the stuff back out and open the road back up.

  3. There are three fundamental flaws of environmental reviews under NEPA and its offspring.

    First existing conditions are always grandfathered. So you have motor vehicle traffic congestion with level of service D at an intersection already. No problem, says CEQR. But add one bicycle, and you’d better be prepared to spend $6 million on reports and $20 million on mitigation.

    Second only local impacts are considered, not regional and global impacts. Those living at higher density experience more traffic, noise, and parking problems than those living on two-acre lots. But they contribute far less to the overall problem.

    Third lawsuits can be undertaken with the intention of stalling as a strategy, not getting a fair decision, and the lawsuits can go on for years. There is as I recall a legal finding that a litigant doesn’t have an honest intention, but it is almost never used.

    The question is whether any or all of these can be fixed.

  4. “There are environmental review laws in countries other than the US, you know.”

    But perhaps not injunction and stall-based environmental litigation. In California, they are proposing eliminating access to the courts for environmental lawsuits. That probably wouldn’t be neccessary if such lawsuits were adjudicated in three months and not ten years.

  5. I would add an additional flaw to NEPA and its offspring, including CEQA, to Larry L’s list of three:

    It’s an approach that is fundamentally backwards looking. The status-quo is presumed to be good, and new projects of any sort are presumed to be bad, at worst, or tolerable, at best. Methodologies such as LOS analysis have a built-in bias against ANY sort of new undertaking, even ones such as multimodal street improvements that have the potential to dramatically improve how the whole system works. Sure, LOS or similar metrics can be replaced, but only after expensive, time-consuming studies that take years to effectuate. (Another built-in bias against change.)

    A legalistic framework is great for administering existing rules, but terrible for fostering innovations, such as the livable streets changes that we desperately need to be building. That’s what we’re left with, since it’s left to the courts to police compliance with NEQA or CEQA.

    (There’s also a false assumption embedded in NEPA and CEQA that it’s even possible to accurately measure future changes in human behavior within the world’s most complex systems, urban areas. But that’s a whole other discussion.)

    We’ll never cut GHG emissions stemming from poor land use in time if we stay with this current system.

    The environmental/livable streets community needs to support complete, categorical exemptions (with NO strings attached) for certain projects. If any strings are allowed to creep in, then caution reigns and every public agency will always decide to do an EIR, because of the fear of lawsuits.

    There’s an argument to keep environmental review for large subdivisions, or huge infrastructure projects. But not for urban infill affordable housing projects, and certainly not for adding bike lanes.

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