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Remove Unnecessary Regulatory Burdens from Transportation Project Delivery

The Brief

This post is the first in a series on environmental review and permitting, guest-authored by experts from around the countryand intended to elevate differing perspectives and new ideas. The Bipartisan Policy Center has written extensively about the need for reforms to the federal permitting and environmental review process, outlining where we see room for improvement.  

Regulations play a vital role in protecting the public interest in the transportation project review and approval process. They provide a sense of predictability and ensure a balance between meeting our nation’s transportation needs and protecting our nation’s vital natural resources.   

These goals, however, do not have to be in conflict. The most successful transportation streamlining provisions have been process-oriented and find a way to fulfill regulatory requirements in a smart and more efficient manner. 

The transportation construction industry regularly and directly navigates the regulatory process to deliver transportation system improvements, and it has first-hand knowledge of which specific federal burdens should be eliminated. However, in recent years the rulemaking process for transportation projects has headed in the opposite direction, morphing from something intended solely to protect the public interest into a tool for achieving diverse policy and political objectives, many of which having nothing to do with improving our transportation system. Furthermore, this process has routinely ignored the affected interests, while often dismissing or undervaluing the actual costs of project delaysnot to mention compromises in safetywhich can result.   

According to a report by the Government Accountability Office issued prior to enactment of the Moving Ahead for American Progress in the 21st Century (MAP-21) surface transportation law, as many as 200 major steps were involved in developing a transportation project, from identifying the project need to the start of construction. This process involves dozens of overlapping state and federal laws and regulations, including the National Environmental Policy Act (NEPA); state NEPA equivalents; wetland permits; endangered species implementation; clean air conformity; and additional regulatory hurdles not related to the environmental review and approval process.  

Project delays carry severe financial consequences. According to a 2016 report by the Texas A&M Transportation Institute, project delays cost an estimated $87,000 per month for small projects like reconstruction, $420,000 per month for medium-sized projects like widening, and $1.3 million per month for large projects like new transportation improvements. Both political parties recognize that the current system is simply too long and expensive for delivering transportation projects that improve mobility and safety. As a result, finding meaningful ways to expedite this process has been a congressional priority for more than 15 years.    

Regulatory reform is an essential part of any effort to ensure that the federal government utilizes resources in the most efficient manner possible. Reducing unnecessary delays in the project delivery process will allow allocated funds to have the maximum possible impact in delivering projects. With that in mind, ARTBA recommends the following enhancements to the project delivery process: 

Full Utilization of Existing Project Delivery Reforms 

The past four federal surface transportation reauthorization laws have included significant provisions to expedite the review and approval process for transportation improvement projects. While these efforts have intended to cut red tape while preserving environmental protections, the permitting process time horizon has not substantially improved. There are several reasons for this outcome, but one major cause is the lack of utilization or awareness of these reforms by project sponsors.  

Examples of these tools include: 

  • The option for a state transportation department to request the federal Department of Transportation to impose a two-year time limit on completion of an Environmental Impact Statement (EIS) if the process has already taken at least two years (from MAP-21); 
  • Establishment of DOT as the lead agency for coordinated project reviews, although the department may not set a mandatory schedule for other agencies to follow (from MAP-21 and the FAST Act); and 
  • A provision calling for planning documents to be used in the NEPA process “to the maximum extent practicable and appropriate,” rather than generating the same or similar material all over again (from the FAST Act). 

Existing process reforms should be the new standard. Rather than the discretionary approach taken over the past 20 years, Congress should require their use. However, to preserve flexibility, states should be able to opt out of using reforms on a project if they provide DOT with a written explanation of their determination. 

The more that state and federal agencies use these reforms, the greater their impact will be. In fact, defaulting to the use of these reforms will better achieve Congress’ original intent in enacting them, provide a more accurate measure of their effectiveness, and help identify areas for further improvements in project delivery.  

Require Shorter, More Concise NEPA Documents 

An EIS is a resource for affected members of local communities to gain information about proposed projects. However, current EIS documents are so long and complex that many lawyers have difficulty understanding them, much less community members without any prior training in environmental law or consulting.  

Congress should direct DOT to survey current initiatives at improving clarity in NEPA documents (including NEPA “plain language” efforts within the current administration and a similar department-wide initiative within DOT dating back more than 20 years) and set standards to reduce unnecessary length and complexity. Improved EIS documents would reduce delays in the NEPA process by clearly communicating the impacts of a proposed project and how to mitigate them. 

Establish Clear Timelines for NEPA Reviews 

Past reauthorization bills have set enforceable deadlines for permitting decisions. However, there remains no set legislative time limit for the completion of NEPA documents. When initiating a NEPA review, project planners have no sense of when the process is going to be completed. Statutorily requiring timelines would add predictability to the NEPA process and allow project planners to more accurately plan schedules for environmental review. The lead agency and project sponsor should determine a realistic time frame for the project early in the planning process, allowing for project-specific flexibility and external agencies to fulfill the obligations with a clear deadline for all involved parties. 

Educate Project Participants on the Use of Dispute Resolution Boards 

Timely decision-making and resolution of claims are key factors in keeping transportation construction projects on schedule. Some states have used dispute resolution boards as part of their contract administration strategies. While procedures vary from state to state, generally these entities include expert members recommended by the project owner and contractor or industry. These boards can be specific to a project, with the members carefully following its progress, meeting regularly and resolving issues as needed. To cite one example, the transportation department and industry in Florida highly recommend this approach.   

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Conclusion

The transportation sector has made significant strides in the area of project delivery. Members of both parties have consistently worked together to ensure our nation’s infrastructure continues to improve at a pace matching the growth of our country. Continuing to streamline the delivery process for our nation’s infrastructure is essential to assuring the public that every tax dollar spent on transportation goes as far as possiblewithout sacrificing necessary regulatory safeguards.  

Nick Goldstein is Vice President of Regulatory and Legal Issues at the American Road and Transportation Builders Association.  

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