Seeing red

THE NATIONAL Environmental Policy Act (NEPA) needs to be revised so that decisions made by federal, state, and local government agencies aimed at adding new highway capacity are not subject to endless legal challenge by project opponents.

That was the message from the American Road and Transportation Builders Association (ARTBA) in recent testimony before a congressional panel. NEPA is a 1969 law that regulates the environmental review process all transportation projects must undergo before construction can begin.

NEPA's original intent was to protect the environment by ensuring the public has a role in the decision-making process and providing a coordinated process for different federal agencies involved in environmental decisions. Provisions in the law, however, have been increasingly manipulated by anti-growth groups to shut down or delay transportation improvement projects through litigation, ARTBA said.

Nick Goldstein, ARTBA staff attorney, represented the association at a hearing called by a House Resources Committee task force, which is considering targeted reforms to NEPA. ARTBA was the only construction-related association to testify.

Goldstein cited a Government Accounting Office (GAO) report showing that as many as 200 major steps are involved in developing a transportation project from the identification of the project need to the start of construction.

The report found that it typically takes between nine and 19 years to plan, gain approval for, and construct a new major federally-funded highway project. This process involves dozens of overlapping state and federal laws, including NEPA.

The ARTBA attorney presented several recommendations to reform and improve NEPA:

  • Give appropriate consideration to the many benefits of transportation improvements as well as the negative environmental impacts of not initiating such projects.

  • Establish a 180-day time limit on project-related NEPA lawsuits so there is more certainty in the transportation planning process.

  • Limit NEPA litigation to those issues that have been fully raised and discussed during the public comment period. This will help ensure that litigation over projects is a last resort, rather than a first stop for opponents of a transportation project.

“NEPA should be improved in a manner that allows its regulations to be crafted by policymakers in Congress and the Executive Branch, rather than being defined on a case-by-case basis through lawsuits initiated by anti-growth groups opposed to highway improvement projects,” Goldstein said.

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