The Biden administration's Oct. 6 announcement that it will restore certain long-standing environmental reviews for infrastructure projects—rolled back by the Trump administration last year—won praise from environmental groups but has some in the construction sector wary of new project delays as a major federal funding push looms.
The 2020 changes to the application and enforcement of the landmark National Environmental Policy Act (NEPA) caused implementation challenges for agencies and generated confusion among stakeholders and the public, the White House said in launching rulemaking to cancel the Trump changes. “The basic community safeguards we are proposing to restore would help ensure that American infrastructure gets built right the first time and delivers real benefits—not harms—to people who live nearby,” said Brenda Mallory, chairman of the Council on Environmental Quality.
The administration proposes three critical changes to NEPA mandates: to restore the requirement that federal agencies evaluate all relevant environmental impacts of the decisions they make, including those that are indirect or cumulative; to restore full agency authority to work with communities to develop and analyze alternative infrastructure approaches that could minimize environmental and public health costs; and to establish regulations as a floor, rather than a ceiling, for environmental review standards agencies should meet.
The Trump cutbacks, intended to shrink reviews to expedite project construction and claiming the NEPA law does not cite need for indirect or cumulative pollution or climate change assessments, have been the target of numerous lawsuits by environmental and other groups.
“At a time when we are on the precipice of passing a once-in-a-generation investment in our nation’s infrastructure, the changes proposed today will improve certainty to avoid project slowdowns and litigation,” said Sen. Tom Carper (D-Del.), chairman of the Senate Environment and Public Works Committee.
Stephen Schima, a senior legislative council for EarthJustice, added that the proposed changes are “only a partial down payment on a more comprehensive and much-needed overhaul of the 2020 Trump regulations that sought to weaken NEPA and cut communities out of the decision-making process.”
The Council is set to publish the proposed changes in the Federal Register on Oct. 7 and will accept comments through late November, with virtual briefings set for Oct. 19 and Oct 21. The White House said the restored mandates would take effect early next year.
Industry groups are expected to offer significant comment on the rollback of Trump changes to NEPA, enacted in 1970.
“To set the stage, we have a bipartisan infrastructure legislation with historic investment with beneficial reforms to NEPA that set a two-year limit on reviews, so it’s not the best time for proposing regulations that go in the opposite direction,” Nick Goldstein, vice president of regulatory and legal issues for the American Road & Transportation Builders Association, told ENR.
The average NEPA review for a project takes seven years, according to Goldstein. “That’s too long,” he said, noting that regulations needed to be modernized. The 2020 changes were meant to eliminate “speculative” options for reviews, and limit options only to those that can be analyzed.
“How can we Build Back Better if none of us will be here to see any of the projects authorized or built in our lifetimes?” Associated General Contractors Vice President Brian Turmail told ENR.
He says The Trump administration sought to sensibly modernize NEPA regulations by making sure agencies conduct more concise and reasonable reviews of environmental alternatives that minimize bureaucratic process without sacrificing protections. “The threat of endless litigation forced federal agencies to analyze every conceivable alternative to make their NEPA analyses litigation proof,” he says, contending that the average length of a final environmental impact statement conducted by the Federal Highway Administration is 742 pages.
“The closer the Biden administration keeps to the prior administration’s rule, the better the balance will be between maintaining rigorous environmental protections while allowing for federal reviews that take place in months, instead of years,” Turmail says.
But others see the Biden rules restoring NEPA's original mission. “These changes bring the regs more in line with the historic interpretation of NEPA which has been upheld by courts over the years,” Larry Liebesman, senior advisor at government policy consulting firm Dawson & Associates and a former Justice Dept. attorney, told ENR.
While he says they could result in some delays to address indirect and cumulative environmental effects of projects, such as the downstream impacts of greenhouse gas emissions from power plants serviced by a pipeline, “there will be a lot of pressure on the Biden administration not to delay infrastructure projects.”
If taken at face value, the proposed changes would lengthen the approval process, but when coupled with new technologies, “we’ll see better environmental and community outcomes in essentially the same amount of time,” says Frank Sweet, president of AECOM's environmental business operation, who notes the firm's digital NEPA platform, which integrates all project data and analyses into an accessible website-based NEPA document.
AECOM is closely monitoring the NEPA revisions. “We fully support improved federal decision-making though increased community engagement in project alternative development and impact analysis, coupled with a return to comprehensive effects analyses, again including direct, indirect, and cumulative effects,” he says.
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