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White House guidance stands to hamper transportation project permits

The American Road & Transportation Builders Association has asked the Federal Highway Administration to withdraw a proposal to measure greenhouse gas emissions from new transportation projects. The agency action is part of larger performance measures required under the 2012 Moving Ahead for Progress in the 21st Century (MAP-21) surface transportation reauthorization law, and follows the White House’s early-August release of “Final Guidance on Considering Climate Change in Environmental Reviews” for federal agencies.

The proposal “exceeds both the authority of the FHWA and the intent of MAP-21,” contends ARTBA, which warned as much three years ago when it urged the U.S. Department of Transportation not to jeopardize broad, bipartisan congressional support for MAP-21 by including extraneous issues—such as climate change—in the law’s implementation. A 2013 association task force urged federal authorities to “focus on the goals enumerated in the law. The authors of MAP-21 had the opportunity to include a host of external goals such as livability, reduction of transportation-related greenhouse gas emissions, reduction of reliance on foreign oil, adaptation to the effects of climate change, public health, housing, land-use patterns and air quality in the planning and performance process. The U.S. Department of Transportation should focus on implementing the goals and standards as spelled out in MAP-21.”

ARTBA notes that neither Congress nor the Obama Administration sought emissions measurements in the MAP-21 performance management process, and that such proposals were not included in the Fixing America’s Surface Transportation (FAST) Act reauthorization law passed in December 2015. The association also raises a variety of concerns about the FHWA system, as the proposal “does not define what exactly it will measure and how it will measure it … [It] is unfair to ask the regulated community to provide specific comments on such an abstract proposal.” Further, the association warns that the proposal could lead to “a cumbersome regulatory process that undercuts MAP-21 and FAST Act progress on expediting transportation project delivery.”

“It is hard to see this proposal as anything other than a maneuver to achieve a policy objective the administration failed to initiate during the MAP-21 and FAST Act deliberations,” ARTBA concludes.

WHITE HOUSE GUIDANCE

National Ready Mixed Concrete Association Government Affairs staff noted how the final guidance expands the National Environmental Policy Act (NEPA) for federal permits on road and bridge projects. NEPA mandates federal agencies review the impact a project may have through an Environmental Impact Statement (EIS) for all projects.

The final guidance compounds the NEPA permitting process by including direct and indirect greenhouse gas emissions in the evaluating and quantifying process, notes NRMCA, adding that an EIS is very detailed and complicated to review, and can take years or even decades to complete. Lawmakers are concerned that the new guidance to require direct, indirect and cumulative climate impacts to quantify the impact to the environment—along with the EIS—will only further delay certain projects or eliminate them all together.

“Final Guidance on Considering Climate Change in Environmental Reviews” was issued through the White House Council on Environmental Quality. Following years of engagement and after receiving public comments and other feedback from members of Congress, state agencies, tribes, corporations, trade associations, and other stakeholders, it represents what the White House calls “another big step in the Administration’s effort to consider how all types of federal actions will impact climate change and identify opportunities to build climate resilience … The guidance is intended to help agencies make informed and transparent decisions about the impacts of climate change associated with their actions.”

Under NEPA, federal agencies are required to consider and disclose the potential effects of their actions and decisions on the environment. In many cases, federal actions have the potential to contribute to climate change by producing greenhouse gas emissions or alternatively, be affected by many of the impacts of a changing climate, such as rising sea levels, extreme weather, drought and wildfires.

The final guidance provides a level of predictability and certainty by outlining how federal agencies can describe these impacts through quantifying greenhouse gas emissions when conducting NEPA reviews, the White House contends, adding: “This increased predictability and certainty will allow decision makers and the public to more fully understand the potential climate impacts of all proposed federal actions, and in turn, assist agencies in comparing alternatives and considering measures to mitigate the impacts of climate change.”

In addition to providing agencies with a reasoned approach as to how to describe climate change impacts, Administration official argue, the guidance: a) advises agencies to quantify projected greenhouse gas emissions of proposed federal actions whenever the necessary tools, methodologies, and data inputs are available; b) encourages agencies to draw on their experience and expertise to determine the appropriate level and the extent of quantitative or qualitative analysis required to comply with NEPA; c) counsels agencies to consider alternatives that would make the action and affected communities more resilient to the effects of a changing climate; and, d) reminds agencies to use existing information and science when assessing proposed actions.

This guidance builds on 2010 and 2014 draft versions, and reflects consideration of comments and feedback received on both documents. The 2014 draft guidance was revised and finalized per recommendations to President Obama by the State, Local and Tribal Leaders Task Force. Members requested the document to ensure that projects and investments include adequate and coordinated consideration of the design or alternatives in relation to climate impacts and greenhouse gas emissions.

Since 2010, the Administration cites a broad effort to modernize federal agencies’ NEPA implementation to improve environmental reviews’ transparency, efficiency and public involvement. Efforts include launching a NEPA pilot program to identify and promote more efficient ways to do effective environmental reviews that can be replicated across the federal government, forming rapid response teams to help expedite the review process for transportation, transmission and renewable energy projects, and most recently, implementing title 41 of the Fixing America’s Surface Transportation Act to expedite the permitting process for major infrastructure projects while improving environmental and community outcomes.