More NEPA streamlining probable in highway negotiations

By Ariel Wittenberg | 11/20/2015 07:05 AM EST

Congress will likely streamline at least some parts of the National Environmental Policy Act before the end of the year as members concentrate on more dire fiscal fights while they work to finalize a highway reauthorization package by early December.

Congress will likely streamline at least some parts of the National Environmental Policy Act before the end of the year as members concentrate on more dire fiscal fights while they work to finalize a highway reauthorization package by early December.

Legislation passed by both chambers contains language that seeks to eliminate delays in the federal environmental permitting process for large-scale infrastructure projects.

While members of both chambers are still ironing out the differences between the House and Senate bills, many of these reforms are expected to remain in the final conference report, in part because Democrats say they need to reserve their political capital to increase funding levels in the bill. Currently, Democrats in both chambers are pushing to shorten what is now a six-year authorization down to five years in an effort to boost funding during that period.


"Republicans worship at the altar of streamlining, so something will get in," said Rep. Jerry Nadler (D-N.Y.), a member of the House-Senate conference committee. "We’re still trying to get the Republicans to fund it. We are still pushing them to make it a five-year bill so we don’t have to rob Peter to save Paul."

At stake is language in both chambers’ bills written by Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Mo.) that limits NEPA’s reach for all infrastructure projects — not just transportation projects — costing more than $200 million.

The language would shorten the window for public comment on infrastructure projects; reduce the current six-year statute of limitations on NEPA lawsuits to two years; and establish a commission to create an interagency council that would serve as a one-stop shop for major infrastructure projects that require federal permits, setting deadlines and establishing best practices for permitting reviews.

House and Senate language related to NEPA only differs in that the Senate bill includes a member of the U.S. EPA on the interagency council, while the House bill excludes the agency.

While Republican attempts to weaken NEPA’s influence on transportation projects have been included in previous highway packages, including the Moving Ahead for Progress in the 21st Century Act (MAP-21), this is the first time that language in a highway bill would extend to such a wide variety of federal infrastructure, including energy projects.

The NEPA provisions in this reauthorization come as the Obama administration has been working to make the permitting process easier to navigate. In September, the Office of Management and Budget issued guidance explaining its efforts to modernize the process. The cornerstone of that effort has been the deployment of the online Federal Infrastructure Permitting Dashboard, which is meant to enable early collaboration between agencies performing environmental reviews and to reduce permit review time.

The Portman-McCaskill language is something the pair has been trying to pass for the past three years (E&E Daily, May 5). Its latest iteration, S. 280, was reported favorably out of the Senate Homeland Security and Governmental Affairs Committee in May with bipartisan support in a vote of 12-1. It was subsequently folded into the surface transportation and highway reauthorization package.

The pair said their bill is "perfect" for the legislation because it will hasten approval for a number of infrastructure projects. Portman also said he had already discussed the significance of preserving the language with Senate Environment and Public Works Chairman James Inhofe (R-Okla.).

"I think everybody understands the importance of this," he said.

More reform

In addition to the Portman-McCaskill language, the bills contain a number of other NEPA amendments. Both bills would combine environmental impact statements and records of decision into a single document, thereby limiting public comment on federally permitted infrastructure.

The House bill also contains a provision that would establish a pilot program authorizing states to conduct environmental reviews under state, not federal, environmental laws, and another that would direct commenting agencies to "afford substantial deference" to a lead agency’s preferred alternative instead of considering other options.

Rep. Sam Graves (R-Mo.), a House conferee who chairs the Transportation and Infrastructure Subcommittee on Highways and Transit, said that House Republicans hoping to maintain that language during conference had not encountered much resistance from Democrats.

"Everything is good on our side of the Capitol," he said.

Nadler agreed, saying most House Democrats don’t see the differences between the House and Senate bill as being big enough to fight for.

"I know our bill is a little worse than in the Senate, but something is getting in," he said.

Inhofe said last week he was fighting to adopt the House provisions, welcoming the stronger language.

"They are the most important provisions in the bill," he said. "Why wouldn’t I want them?"

While he acknowledged that the language may be a tough pill to swallow for Senate Democrats like Environment and Public Works Committee ranking member Barbara Boxer (D-Calif.), Inhofe said that the push to boost funding over a shorter period of time adds pressure to accept the NEPA provisions.

"We will be talking to Barbara, and we will see how far we can go," he said. "We are at the point now where we are going to have to get a little more in the House direction in order to get the bill passed, so that will make a difference to her, I’m sure."

Boxer, a leading environmentalist in the upper chamber, did not comment on the streamlining provisions during her remarks to a conference committee meeting Wednesday. She declined to comment on them when asked specifically, saying only, "We will make sure we have a good bill."