Streetsblog Capitol Hill

Since 1970, the National Environmental Protection Act has required federal agencies to consider the impacts of their projects on air, water, and soil pollution — but not on climate change.

Until recently, carbon dioxide, which causes global warning, wasn’t classified as a pollutant and so couldn’t be regulated under environmental laws. The EPA in 2009 asserted its power to regulate carbon emissions but hasn’t applied it to NEPA analyses for infrastructure – until now.

President Obama hasn’t made the announcement yet, but Bloomberg reported Friday that he “is preparing to tell all federal agencies for the first time that they should consider the impact on global warming before approving major projects, from pipelines to highways.”

There’s more – projects could also be evaluated according to resiliency in the face of climate change. Would the new infrastructure be destroyed if faced with flooding, drought, or other severe weather? Bloomberg reports that the White House is also “looking at” requiring these climate adaptability and resiliency reports for projects “with 25,000 metric tons of carbon dioxide equivalent emissions or more per year, the equivalent of burning about 100 rail cars of coal.”

Does this mean no more highways?

The conservative National Review’s headline about the changes was, “Did Obama Just Block Keystone?” Columnist Stanley Kurtz speculated that Obama could publicly approve the Keystone XL pipeline and then let the new environmental review process rule it out.

Could the same go for highway projects?

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Bike and pedestrian funding got slashed. Federal assistance for transit operations was rejected. Even the performance measures – arguably the high point of the recently passed federal transportation bill – are too weak to be very meaningful. For Americans who want federal policy to support safe streets, sustainable transportation, and livable neighborhoods, there were few bright spots in the transportation bill Congress passed last month.

But state transportation departments are celebrating. They scored victory after victory, getting a bigger share of federal funding with fewer rules and regulations attached.

In the Senate, advocates were able to work some reforms into the bill and mobilize grassroots support for amendments like the Cardin-Cochran provision, which put funds for street safety projects in the hands of local governments, not state DOTs. But the House never managed to pass a bill of its own, and the opaque conference committee process was an exercise in horse-trading that advocates found difficult to penetrate.

The final product, which included measures like raising the federal contribution for certain highway expansions, seemed finely tailored to benefit DOTs in several ways. “This is a bill written by and for the benefit of state DOTs at the expense of both federal oversight and regional and community outcomes,” wrote David Burwell, director of the climate change program of the Carnegie Endowment for International Peace, in an email shortly after the bill passed. He said the policy changes “are too elegantly crafted and specific in their effect to have been written, or even conceived, by members of Congress or their staff.”

For state DOTs, access to lawmakers is a given. “We worked very closely with the House and Senate to craft those measures,” AASHTO Director John Horsley confirmed to Streetsblog in an interview yesterday. He said that while AASHTO offered recommendations, no text written by AASHTO made it into the bill verbatim, as far as he knows.

According to Horsley’s account, AASHTO followed a pretty standard script when it came to advocating for their interests on the Hill. Every stakeholder and special interest under the sun had its lobbyists knocking on lawmakers’ doors, offering their two cents – everyone from gravel producers to equipment manufacturers to environmentalists to free market fundamentalists. It’s just that the state DOTs seemed to get everything on their wish list.

Horsley said AASHTO had been laying the groundwork for many, many months before conference started, working with Republican House Transportation Committee staffers as well as aides of both parties in the Senate. (He didn’t mention working with House Democrats, who were shut out of the process from day one.)

The House is where the magic happened for AASHTO. “We’ve been very pleased with where the Senate bill started,” Horsley said. “And we were even more pleased when the House and the Senate in conference agreed to incorporate a lot of the House provisions that were even better for states.”

What were those House provisions? Horsley went through the list:

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The House of Representatives approved the transportation bill conference report this afternoon by a vote of 373 to 52. [UPDATE 4:00 PM: The Senate has also approved the bill, 74-19.] This is a bill that’s been called “a death blow to mass transit” by the Amalgamated Transit Union, “a step backwards for America’s transportation system” by the Rails-to-Trails Conservancy, “a retreat from the goals of sustainability and economic resiliency” by Reconnecting America, “a substantial capitulation” by Transportation for America, and “bad news for biking and walking” by America Bikes.

After more than 1,000 days of waiting since the last transportation bill expired, the nation’s new transportation policy is a grave disappointment to people seeking to reform the current highway-centric system.

The fact that the House GOP tried and, for the most part, failed to reverse the progress made under presidents Reagan and Bush the elder offers a small degree of consolation. “Some of the worst ideas pushed initially by House Republicans went nowhere – funding the highway system with new oil drilling revenues, taking transit out of the highway trust fund, de-federalizing transportation funding – to mention some of the most radical proposals that were seriously being put forward,” wrote Deron Lovaas of NRDC this morning. “But… that pretty much exhausts the good news.”

So what does the bill actually do? Overall, it doesn’t change a whole lot, and the most significant changes tend not to benefit livable streets or sustainable transportation. Here’s a breakdown.

Length and funding. The bill lasts a year longer than the Senate bill would have, expiring at the end of September 2014. That gives states, cities, and the construction industry substantially more stability and allows them to move forward on projects that have been delayed for years because of the uncertainty surrounding federal funding. It maintains funding levels at around $54 billion a year, as did the Senate bill, which is roughly current levels plus inflation.

While some have criticized the complex funding mechanisms that prop it up and its departure from a user-pays model, the Congressional Budget Office reported this morning that the bill actually reduces the deficit by $16.3 billion.

Everyone seems to understand that Congress won’t be able to pull this kind of magic for long and will soon have to deal with the long-term insufficiency of current Highway Trust Fund revenues to cover the nation’s transportation needs. However, the gas tax was not raised, and at the same time the House passed this bill, it also approved an appropriations bill that prohibits even studying the possibility of moving toward a VMT fee.

Non-transportation-related items. The Keystone XL pipeline and the EPA’s ability to regulate coal ash as a hazardous substance, introduced into the transportation negotiations by the House Republicans, were stripped out of the bill. The RESTORE Act to spend BP oil spill fines on Gulf Coast restoration is included.

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A coalition of civil rights and environmental groups is crying foul over proposed changes to an important environmental protection as lawmakers attempt to hammer out a last minute deal on the transportation bill.

The weakening of the National Environmental Policy Act, or NEPA, would disproportionately harm minority groups, according to a statement from The Leadership Conference on Civil and Human Rights. This law requires agencies to solicit public feedback and consider less damaging alternatives before moving forward on federally funded transportation projects.

NEPA is perhaps the most important tool local residents have in fighting unwelcome highway projects — which have disproportionately affected communities of color.

The environmental reviews required by NEPA have been a target of some conservative actors who see it as an onerous layer of bureaucracy that slows the delivery of transportation projects. But the NAACP, the Alliance for Biking and Walking, the American Public Health Association and dozens of other groups say these processes have often resulted in major cost savings and major project improvements.

These groups point out that, following public outcry, NEPA allowed for the overhaul of a highway project on Michigan’s US 23. The changes resulted in the preservation of important wetlands — and a savings of $1.5 billion.

“While we agree that transportation project delivery needs to move as efficiently as possible, it is important that in our eagerness to facilitate project development, we do not sacrifice the democratic tool available to communities that ensures full and fair participation in the decision making process of the federal government,” the groups wrote in a letter to members of the conference committee working on the bill.

Advocates for keeping the NEPA requirements say that the concern over delays is overblown. Ninety-six percent of federal transportation projects fall under the categorical exclusion of NEPA and don’t require any reviews. Three percent get an environmental “assessment” but not a full review. That leaves just one percent of the very biggest and most complex transportation projects that must undergo a full environmental impact review.

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When the Senate Environment and Public Works Committee unanimously passed a two-year transportation reauthorization bill last month, it quickly became clear that bipartisan support was coming at a price. First, we learned that the Transportation Enhancements bike/ped programs would lose their dedicated funding. Now, we learn that Transportation Infrastructure Finance and Innovation Act (TIFIA) loans will no longer hold applicants to as high an environmental standard — or any standard, really.

TIFIA is a popular program, receiving $14 billion in loan requests despite only being able to loan about $1 billion in total this year. And under current law, the extent to which the project “helps maintain or protect the environment” makes up 20 percent of a project’s evaluation. In the EPW bill, the program is expanded by a factor of nine, but most evaluation criteria — including environmental protection — are omitted.

As Matt Sledge wrote in the Huffington Post:

Phineas Baxandall, a senior analyst at U.S. PIRG, said he thinks [EPW Chair Senator Barbara] Boxer may have cut a bad deal. He argues that doing away with TIFIA’s selection criteria means the U.S. Department of Transportation will be forced to give money to any transportation project that meets bare-bones financial eligibility requirements [...] Toll roads, backed by private investors looking to make a buck off of “public-private partnerships,” will be first in line, he argued, since they have plans that are “just ready to go off the shelf.” [...]

Los Angeles hopes it will get some of that TIFIA money. Not so fast, Baxandall said. “Places like Atlanta and L.A. are hoping that the new bounty of TIFIA will allow them to finance public transit expansions, but they are likely to find the money already claimed by private toll road projects in places like Florida and Texas.”

An LA Metro spokesperson told HuffPo he’s still “pretty confident” they’ll get TIFIA funds.

It’s hard not to see this as a step backwards, despite the funding increase. It wasn’t long ago that transit advocates were celebrating an end to the Bush-era’s “cost-effectiveness-above-all-else” rule in the Federal Transit Authority’s New Starts program. Now, Baxandall says, “at a time when the nation’s transportation system is starved for funds and there is a consensus that dollars need to be spent more wisely, it is outrageous that the one program that would be massively increased would no longer try to deliver the best bang for each buck.”

The good(-ish) news is that there’s still time to make changes to the bill. The Senate Banking Committee still has to work on a transit portion, the Senate Finance Committee still has to figure out how to come up with another $12 billion, the whole Senate still has to debate it all, and the House still has to do… anything.

Highway projects can take 10 to 15 years from planning through construction. The length of the process leads to cost overruns, some due to inflation, some from having to pay engineers and contractors for years on end. No matter how you feel about the worthiness of road capacity expansion, if a project gets built it doesn’t do anybody any good to have that project cost twice what it ought to because of delays. Plus, reducing delays is going to be a key element in upcoming debates over cost-effectiveness in the transportation sector.

House Transportation Committee Chair John Mica (R-FL) has pressed the issue, insisting that the industry, together with government, must find ways to streamline to process to save money. He’s hinted that environmental reviews might, at times, be too burdensome.

Rep. John Duncan (R-TN) says U.S. projects take two to three times longer to get off the ground than other developed countries, and he chaired a Transportation Committee hearing today on project delivery delays.

Lawmakers and witnesses from transportation companies focused on the National Environmental Policy Act (NEPA) as a cause of the delays. NEPA was enacted in 1970 and in many ways still serves as the foundation for environmental review policies throughout the nation.

Thomas Margro, CEO of Transportation Corridor Agencies, which builds toll roads in California, testified, “Our agency completed the first 51 miles of our planned 67 [mile] toll road system in 12 years. However, we have spent the last 15 years trying to accomplish and finish the last 16 miles, as it has been mired in the federal environmental review process.”

The first stage, to develop a Purpose and Need statement and the Alternatives for initial evaluation, took four years to accomplish, according to Margro. (Note: his written testimony says it took 28 months.) The second stage, preparing technical studies and environmental measures, he says, took six years.

In the end, the National Marine Fisheries Service agreed that the SR 241 project “would not likely adversely affect endangered or threatened fish species” but at the first hint of controversy, they backtracked. Margro says the process has failed them.

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Republicans on the Senate environment committee, who months ago began criticizing the Obama administration for evaluating federally funded infrastructure projects for their impact on climate change, today introduced legislation that would bar the White House from making climate a factor in environmental reviews.

The GOP senators said their bill was aimed at ensuring the government could not delay new road and power-plant construction to gauge its climate impacts under the precepts of the National Environmental Policy Act (NEPA). That 40-year-old statute that requires local planners to conduct reviews of any transport project that could significantly impact the health of surrounding areas.

"As it stands, NEPA is subject to frequent abuse by radical environmentalists who want to use litigation to impose their agenda on federal agencies," Sen. David Vitter (R-LA), one of the measure's sponsors, said in a statement. "Our bill seeks to prevent that abuse."

The White House Council on Environmental Quality (CEQ), responding to a petition from green groups, issued draft guidance in February that asked agencies to evaluate the climate impacts of new projects estimated to increase emissions by 25,000 metric tons or more of CO2 -- the same level that the Environmental Protection Agency (EPA) used for its rule on mandatory reporting of greenhouse gas production.

As the EPA noted in its explanation of the 25,000 metric ton threshold, such a level of emissions would be equivalent to 4,600 new passenger cars or the energy use of 2,3000 new homes.

The CEQ's guidance is not set to become final until after a period of public comment ends next month.

Writing at the Heritage Foundation's blog, Nick Loris says that the White House's pending decision on whether to consider climate change in federal environmental reviews amounts to "more green tape."

Citing Republican senators' concerns that existing National Environmental Policy Act (NEPA) requirements have caused lengthy delays in transportation project planning, Loris writes that adding climate change to NEPA will

guarantee that the billions in infrastructure spending in this stimulus bill will not be spent till years after the economy has already recovered. The money that will be spent in the near-term won’t be spent efficiently; it will be spent overcoming unnecessary regulatory hurdles ...

One wonders if Heritage would describe the three-year delay in San Francisco's planned bike lanes, caused by local bike critic Rob Anderson's request for a full environmental review, qualifies as an "unnecessary regulatory hurdle." Streetsblog San Francisco reported that the final price tag for the city's review topped $1 million.

Or how about the opponents of a car-free trial in New York's Prospect Park, who attempted to delay the project by pushing for an environmental review? Their efforts would hardly meet Heritage's definition of "green tape" promoted by environmental advocates.

Perhaps Loris would take a different position on the northeast corridor's failure to secure federal high-speed rail money thanks to the burdensome length of environmental reviews. Since Heritage had previously blasted the entire high-speed rail program as "fiscal waste on the fast track," the group might hail any "regulatory hurdle" that standing in the way of rail expansion.

The moral of the story: NEPA-mandated reviews can be utilized successfully by liberals, conservatives, green groups, highway boosters, and just about every constituency under the sun. That's an argument for streamlining the environmental review process, not eliminating it.

The Municipal Art Society came out with a report yesterday urging New York State to start analyzing greenhouse gas emissions in its environmental review process (SEQRA). MAS argues that the policy could be adopted without changing existing laws, which raises an interesting question to ponder on this Earth Day afternoon: Would the State Senate's latest MTA funding plan pass muster if it were subject to an EIS that factors in climate change?

The MTA rescue package does not, in fact, fall under the purview of SEQRA, even though it's probably the most important piece of climate policy that the state legislature will consider this year. The Senate's latest stab would keep the trains and buses running for a few more months, but it's an eco-stinker compared to the Ravitch plan and any other package that includes road pricing or tolls on currently free bridges.

Let's go back to the spring of 2008. Remember all the carping from Richard Brodsky and other state legislators about congestion pricing not going through the SEQRA process? That was regarding a policy projected to take 112,000 cars off the road each day. Now we have an MTA funding plan getting serious consideration that would create worse traffic bottlenecks and more incentives to drive, but so far not even a peep about environmental consequences from Albany.

The final draft of the Senate's economic recovery bill will require all projects funded by the stimulus to have approval under the National Environmental Protection Act, or NEPA. Sponsored by Barbara Boxer, the NEPA amendment (full text after the jump) was adopted late Thursday following Republican attempts to exempt highway projects from environmental oversight.

For advocates of green transportation, NEPA protection will help deter the construction of additional road capacity, but it does come with a potential downside.

The provision should assist the Tri-State Transportation Campaign, for example, in its fight against the widening of the Garden State Parkway, a project on New Jersey's stimulus wish list. The state has tried very hard to avoid federal oversight for this massive highway expansion project, going so far as to attempt funding it completely with toll revenue. Paying for the added lanes with stimulus cash should only be possible if the project can skirt NEPA.

While many are breathing a sigh of relief that the Senate fended off an end run around NEPA reviews, the application of 1970s-era environmental legislation could produce unintended consequences for deserving projects. Similar laws have been invoked to delay the implementation of San Francisco's bicycle network for three years and to impede car-free parks in New York.

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