NPCA analysis of the Trump Administration's infrastructure legislative proposal, as reported by the Washington Post, found the outline aims to accelerate infrastructure projects, at the cost of clean water, clear air, expertise of federal agency staff, judicial review, longstanding bedrock environmental laws such as the National Environmental Policy Act (NEPA).
Dismantling the NEPA process
In general, the Council on Environmental Quality (CEQ) is tasked with an undefined but overarching mandate to revise regulations to streamline NEPA.
Timelines for examining environmental impacts are significantly reduced
- Findings and decisions completed in less than two years, 21 months.
- Significant Impact (FONSI) or a Record of Decision (ROD).
- Administration creates a “Permitting Council” of unknown composition that would retain power to grant extensions or reassign lead agency should aforementioned deadlines be missed.
- FEIS and ROD are combined for all infrastructure projects, eliminating the 30-day waiting period that previously allowed for interagency dispute resolution or additional needs from the decision maker.
- Final design of projects may be completed before NEPA is actually completed and permits are issued.
- Allows for advance railroad rights-of-way and acquisition before NEPA is actually completed and permits are issued.
Assuming a single “lead Federal agency” leaves federal experts behind
- Purpose and need of projects are no longer fully cooperative.
- Instead they are determined with only limited consultation of cooperative parties, while a single and final purpose and need to be decided upon by “lead Federal agency” for the Environmental Impact Statement (EIS) and all permitting reviews.
- Likewise, project alternatives are determined by the lead Federal agency, with only coordination with cooperating agencies and no legal obligations to fulfilling those cooperators interests or concerns.
- Limits federal agencies engagement during NEPA review to their “areas of special expertise or jurisdiction” but does not define either or discuss how this would be enforced.
- Eliminates consensus by cooperating agencies for transportation planning as laid out in the Moving Ahead for Progress in the 21st Century Act (MAP-21), a funding and authorization bill to govern federal surface transportation spending.
- Mitigation banking projects would no longer require the review of the Interagency Review Team that includes agencies, tribal nations and the mitigation banking sponsor.
- ALL federal lead agencies may all opt to use general streamlining provisions as allowed for under U.S. code that was designed explicitly for highway projects completed by the Department of Transportation, not all federal agencies at large.
Industry and states interests are prioritized
- The private sector may provide funding to support the review of permit applications and environmental review/NEPA process.
- Proposal would allow for across the board delegation of environmental review to the states by federal agencies (similar to existing Department of Transportation (DOT) delegation to states with Memorandum of Understanding).
- States assume federal authority for approving rights-of-way and highway and transit projects.
- States assume federal authority to determine flood plain protections and noise policies.
Limiting alternatives expands environmental impacts and harm.
- Proposed project alternatives are limited to what is considered “legally, technically, and economically feasible,” though none of these terms/criteria are defined.
- Categorical Exclusions (CEs) are transferrable between agencies.
Dismantling federal laws
Provided that Judicial review is the idea, fundamental to the U.S. system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary, the proposal:
- Disallows courts from intervening in FONSI or ROD decisions if the lead agency put in “good faith effort.” Though this term is undefined.
- Forces Fixing America’s Surface Transportation Act (Fast 41) projects to bypass normal judicial action and immediately be sent to Court of Appeals.
- Eliminates judicial review unless project impacts fall under extraordinary or exceptional circumstances.
- Limits legal challenge to filing within 150 days, rather than 5 years.
- States that CEs are not subject to judicial review.
- Disallows courts from enforcing that best available science be consulted during review.
Clean Air Act
Provided that the Clean Air Act (CAA) is the comprehensive federal law that regulates air emissions from stationary and mobile sources, the proposal:
- Effectively eliminates legal application of Sec. 309 of the CAA that requires the Environmental Protection Agency (EPA) to review and comment on any matter relating to their duties and responsibilities; this includes legislation, federal projects or regulations.
- Suggests instead that EPA would still be empowered with limited regulatory responsibility to comment during EIS phase on issues related to agency’s jurisdiction. This allows EPA extensive flexibility to choose where to engage in NEPA review, rather than requiring it. Providing this “flexibility” puts EPA’s responsibility to ensuring public health, communities and our natural resources remain unharmed at great risk.
- Amends law such that only the most recent National Ambient Air Quality Standard (NAAQS) for ozone is required for conformity (assuming same pollutant). By removing the former standard, you’re effectively removing the safety net for clean air. Simply because a new standard is finalized does not mean a locale is ready to implement it.
- Amends law such that transportation conformity would apply one year after EPA establishes emissions budgets/nonattainment areas, rather than complying within one year.
Clean Water Act
Provided that the Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating water quality standards for surface waters, the proposal:
- Eliminates U.S. Army Corps of Engineers (USACE) review of other agency 404 nationwide permit applications (permit to discharge fill or dredged material into Waters of the United States), allowing agencies to move forward with nationwide permit projects with no oversight.
- Eliminates EPA authority to review discharge of fill material by delegating all final jurisdictional determinations to USACE.
- Likewise eliminates EPA’s ability to absolutely ensure discharge of fill materials does not unlawfully occur (commonly known as EPA’s “veto authority”).
Rivers and Harbors Act
Section 14 of the Rivers and Harbors Act of 1899, as amended, and codified in 33 USC 408 (Section 408)(provides that the Secretary of the Army may, on recommendation of the Chief of Engineers, grant permission for the alteration of a public work so long as that alteration is not injurious to the public interest and will not impair the usefulness of the work) is essentially eliminated with reviews required by CWA Section 404 to be used in its place.
Marine Mammals Protection Act
Extends National Oceanic and Atmospheric Administration’s (NOAA) incidental take (death of threatened or endangered species) to essentially any geographical area.
Endangered Species Act (ESA)
Provided that the ESA allows for conservation of species that are endangered or threatened throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend, the proposal:
- Eliminates environmental review requirements of Biological Opinion’s (BiOp) Reasonable and Prudent Alternatives (RPAs), documents to ensure species health and survival and weakens U.S. Fish and Wildlife Service’s (USFWS) expert findings.
- Allows for undefined adjustments to review timeline of listing petitions by agencies, potentially unnecessarily accelerating or derailing reviews of listing petitions in a timely manner.
- Provides for non-federal decision makers to complete reviews of petitions to delist species, discounting the value of USFWS expertise.
- Turns over planning and permits related to incidental take to states.
- Allows USFWS and NOAA to issue incidental take permits during informal consultation, an early procedural stage of review, without adequate species or environmental review.
- BiOps cannot to be legally challenged, disallowing a critical legal review opportunity for species protection in the case of poorly drafted opinions.
Magnuson Stevens Act
Threatens expertise of National Marine Fisheries Service (NMFS) by accelerating the timeframe for consultation to only 30 days and bypasses NMFS evaluation of impacts to Essential Fish Habitat if the agency does not respond.
Federal Highway Administration
Eliminates Section DOT Act 4(f) that provided for additional agency expertise and review by Department of the Interior (DOI), U.S. Department of Agriculture (USDA) and U.S. Department of Housing and Urban Development (HUD) of DOT projects on parklands or historic sites.
Land and Water Conservation Fund (LWCF)
Eliminates the consulting role of the National Park Service (NPS) in considering conversions of properties from public outdoor recreation uses for LWCF-procured sites. Engaging NPS ensures accountability by the federal government for taxpayer-funded grants.
NPS Organic Act
Allows for gas pipelines to be permitted across NPS lands, per the discretion of the Secretary of the Interior, rather than Congress, threatening park landscapes with unmonitored pipeline infrastructure.
National Historic Preservation Act is no longer consulted for installation of small cells and WiFi.
For More Information
Ani Kame’enuiFormer Deputy Vice President, Government Affairs