Background on NEPA Implementation for Highway Projects: Streamlining the Process

Congressional research reportAug 6, 2003

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Background on NEPA Implementation for

Highway Projects: Streamlining the Process

August 6, 2003

Linda G. Luther

Environmental Policy Analyst

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Background on NEPA Implementation for Highway

Projects: Streamlining the Process

Summary

Before a federally funded surface transportation project can proceed, the

Department of Transportation’s (DOT) Federal Highway Administration (FHWA)

must ensure compliance with all local, state, and federal legal requirements regarding

the environment, including the National Environmental Policy Act of 1969 (NEPA,

42 U.S.C. 4321 et seq.). NEPA requires all federal agencies to provide an

Environmental Impact Statement (EIS) for every proposed major federal action

significantly affecting the quality of the environment. Projects with uncertain or

insignificant impacts also require documentation. Such projects either require an

Environmental Assessment (EA) or are categorically excluded from requirements to

prepare an EA or EIS.

In addition to NEPA, any given transportation project may require compliance

with a wide variety of legal requirements, enforceable by multiple agencies. For

example, impacts of a highway project may trigger requirements under the National

Historic Preservation Act (16 U.S.C. 470) or the Clean Water Act (33 U.S.C. 1251).

FHWA regulations require that compliance with all applicable environmental laws,

executive orders, and other legal requirements be documented within the appropriate

NEPA documentation (a concept referred to as the “NEPA umbrella”).

There has been a long-standing perception that high-profile highway

construction projects have been delayed by implementation of NEPA’s requirements.

However, until recently, there was only anecdotal information directly linking the

“NEPA process” to widespread highway project delays. Several studies conducted

by the General Accounting Office and the FHWA have attempted to determine a

distinct connection between NEPA compliance and highway project delays.

In 1998, Congress passed the Transportation Equity Act for the 21st Century

(TEA-21, P.L. 105-178) that reauthorized the federal surface transportation programs

for highways, highway safety, and transit for fiscal years 1998-2003. To address

concerns regarding highway project delays, Congress included Section 1309 in TEA21, “Environmental Streamlining,” that required DOT to develop and implement a

“coordinated environmental review process” for projects having a significant impact

on the environment. That process was intended to encourage full and early

participation by all agencies required to participate in a highway project.

Since TEA-21 was enacted, numerous administrative activities have been

undertaken to facilitate streamlining. However, corresponding regulations have not

been finalized. Continued efforts to streamline the NEPA process are expected in

legislation to reauthorize surface transportation programs for fiscal years 2004-2009.

This report provides background on the NEPA process and discusses streamlining

activities to date. It does not cover current debate on streamlining efforts related to

the reauthorization legislation (see CRS Report RL32032, Streamlining

Environmental Reviews of Highway and Transit Projects: Analysis of SAFETEA and

Recent Legislative Activities). This report will be updated when changes to the

NEPA process are in place.

Contents

Overview of the National Environmental Policy Act . . . . . . . . . . . . . . . . . . 2

The “NEPA Umbrella” and Transportation Projects . . . . . . . . . . . . . . . . . . . 3

Additional Environmental Review Requirements . . . . . . . . . . . . . . . . . . . . . 5

Evaluation of Certain Cultural Resources . . . . . . . . . . . . . . . . . . . . . . . 5

Historic Preservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Dredge and Fill Permit Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Assessment of Threatened and Endangered Species . . . . . . . . . . . . . . . 7

Consideration of Social, Economic, and Environmental Impacts . . . . . 7

Consideration of Executive Order Requirements . . . . . . . . . . . . . . . . . 7

Appropriate NEPA Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Documentation Required When Impacts Are Significant . . . . . . . . . . . 9

Documentation Required When Impacts are Not Significant . . . . . . . 16

Documentation Required When the Significance of Impacts is Uncertain

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Determining NEPA’s Role in Transportation Project Delays . . . . . . . . . . . 19

Studies Examining NEPA’s Role in Project Delays . . . . . . . . . . . . . . 19

The Transportation Equity Act for the 21st Century . . . . . . . . . . . . . . . . . 25

“Streamlining” Provisions of TEA-21 . . . . . . . . . . . . . . . . . . . . . . . . . 25

Administrative Actions to Implement TEA-21 . . . . . . . . . . . . . . . . . . 26

Challenges to Streamlining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Establishing a Statutory Environmental Review Process . . . . . . . . . . 29

Establishing Lead Agency Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Establishing a Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Delegating Authority to States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

List of Figures

Figure 1. FHWA Projects by Class of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Figure 2. FHWA Project Funding by Class of Action . . . . . . . . . . . . . . . . . . . . . 18

List of Tables

Table 1. Laws, Regulations, and Executive Orders Potentially Applicable to the

NEPA Process for Transportation Projects . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Table 2. Potential Types of Environmental Consequences to be Considered for

Transportation Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Table 3. Estimated Time to Complete Federally Funded Highway Projects . . . . 20

Table 4. Environmental and Transportation Improvement Stakeholders’ MostFrequently Cited Aspects Adding “Undue Time” to Environmental Reviews of

Highway Projects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Background on NEPA Implementation for

Highway Projects: Streamlining the Process

Highway projects are generally initiated by state departments of transportation.

Before final design, property acquisition, or construction on a highway project can

proceed (if the project will receive federal funds) the U.S. Department of

Transportation’s (DOT) Federal Highway Administration (FHWA) must ensure

compliance with all applicable state and federal laws regarding protection of the

environment, including the National Environmental Policy Act of 1969 (NEPA, 42

U.S.C. 4321 et seq.). Numerous federal and state agencies have jurisdiction over

these laws and must interact with DOT and local transportation sponsors to

determine the impacts to the environment for particular projects.

There are a multitude of factors that impact the timing of transportation project

delivery. Factors that may cause delay include the state’s project planning and design

process, changes in the state’s funding priorities, construction complexities, local

controversy, or the environmental review process to name a few. In 1998, to address

delays resulting specifically from the completion of environmental reviews, Congress

included “Environmental Streamlining” requirements in Section 1309 of the

Transportation Equity Act of the 21st Century (TEA-21, P.L. 105-178). During the

reauthorization process, states reported to Congress that the numerous federal

environmental approvals and permits needed to build a highway were inefficient and

overly time-consuming. To address these concerns, Congress included Section 1309

in TEA-21. It was intended to better coordinate federal agency involvement in the

NEPA process.

FHWA defines environmental streamlining as the timely delivery of federallyfunded transportation projects, while protecting and enhancing the environment.

Because major transportation projects may be affected by dozens of federal, state,

and local environmental requirements, administered by multiple agencies, improved

interagency cooperation was identified by Congress as a critical element to the

success of environmental streamlining.

This report discusses the steps required to complete the environmental review

process for transportation projects. In particular, it provides an overview of NEPA

requirements, including elements that are unique to transportation projects and that

have been controversial or of concern to stakeholders with regard to streamlining the

process. This report also discusses transportation project delays and their relationship

to the NEPA process, streamlining provisions of TEA-21 and efforts undertaken by

the Administration to implement those provisions, and challenges to further

streamlining efforts.

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Overview of the National Environmental Policy Act

In the 1960s, the public was becoming increasingly aware of and concerned

about human impacts on the environment. In response, Congress attempted to

address the impact of federal actions on the environment by enacting the National

Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.). NEPA requires

all federal agencies to consider the environmental impacts of major proposed federal

actions. It also requires agencies to inform the public that it has indeed considered

environmental concerns in its decision-making process.

To ensure that environmental impacts were considered, before final decisions

were made, NEPA requires federal agencies to provide a detailed statement of

environmental impacts for every proposed major federal action that significantly

affects the quality of the human environment. The “human environment” is defined

as the natural and physical environment and the relationship of people with that

environment.1 The “detailed statement” was subsequently referred to as an

environmental impact statement (EIS) in regulations to implement NEPA.

Projects with less than significant impacts may require a certain level of

documentation. An Environmental Assessment (EA) is required if it is not clear

whether a project will have significant impacts. Projects that do not individually or

cumulatively have a significant social, economic, or environmental effect, and which

FHWA has determined from past experience have no significant impact, are

processed as Categorical Exclusions (CEs). According to the Federal Highway

Administration (FHWA), in 2001 approximately 3% of all highway projects required

an EIS, almost 7% required an EA, and just over 90% were classified as CEs.

Projects requiring an EIS accounted for 9% of the funds allocated by FHWA. While

such projects represent a small portion of the total projects and funds allocated, they

are often high-profile, complex projects that affect sizeable populations.

When conducting an environmental review under NEPA, agencies are not

required to elevate environmental concerns over other considerations. Rather, NEPA

requires only that the agency take a “hard look” at a project’s environmental

consequences before taking action.2 If the adverse environmental effects of the

proposed action are adequately identified and evaluated, the agency is not constrained

by NEPA from deciding that other benefits outweigh the environmental costs.

NEPA also established the Council of Environmental Quality (CEQ) in the

Executive Office of the President. CEQ formally promulgated regulations to

implement NEPA’s environmental review requirements in 1978.3 CEQ further

directed federal agencies to develop their own policies and procedures to implement

40 CFR 1508.14

The “hard look” requirement was specified by the U.S. Supreme Court in Kleppe v. Sierra

Club, 427 U.S. 390, 410, n. 21 (1976).

40 CFR 1500-1508. Note, Executive Order 11991, issued by President Carter in 1977,

amended CEQ responsibilities requiring it to issue regulations to federal agencies that

clarified the procedural provisions of NEPA.

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the CEQ regulations.4 FHWA promulgated regulations to implement NEPA

requirements in 1987.5 In addition to its regulations, FHWA has issued a variety of

guidance documents and technical advisories to assist decisionmakers in completing

the NEPA process for transportation projects.6

The “NEPA Umbrella” and Transportation Projects

For any given transportation project, compliance with a wide variety of statutory

and regulatory requirements, enforceable by multiple agencies, may be required.

Depending upon the resources present at a project site, compliance with legal

requirements regarding any of the following may be required for a given

transportation project:

! Natural Resources

! Physical Resources

! Cultural Resources

! Community Impacts

! Special Status Land Use

Laws and executive orders potentially applicable to highway projects are listed

in Table 1.7 In addition to these requirements, there are state and local requirements

and myriad court decisions addressing virtually every element of NEPA

implementation. Under FHWA regulations, compliance with all applicable

environmental laws, executive orders, and other related requirements must be

documented within the appropriate NEPA documentation.8 In effect, FHWA

coordinates compliance with all applicable environmental requirements under the

“NEPA umbrella.” This means that, for any given transportation project, any study,

review, or consultation required by law that is related to the environment should be

conducted within the framework of the NEPA process. It does not mean that NEPA

itself requires compliance with these requirements. Hence, the NEPA process is the

means by which compliance with such requirements is coordinated, documented, and

proven. If, theoretically, the requirement to comply with NEPA were removed,

compliance with each applicable law would still be required.

40 CFR 1507.3

23 CFR 771

The FHWA Office of NEPA Facilitation maintains a website, “NEPA: Project

Development Process,” at [http://www.fhwa.dot.gov/environment/00001.htm], which

includes FHWA’s environmental policy, FHWA Technical Advisories, and a variety of

guidance materials to facilitate compliance with NEPA at all stages of the process.

This list is not necessarily exhaustive and does not include local or state legal requirements

potentially applicable to a given highway project. States may also have their own “NEPA”

statute that may substitute or overlap with the federal NEPA requirements.

23 CFR 771.133

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Table 1. Laws, Regulations, and Executive Orders Potentially

Applicable to the NEPA Process for Transportation Projects

Natural Environment

• Emergency Wetlands Resources Act

• Endangered Species Act

• Executive Order 11990, Protection of

Wetlands

• Executive Order 12962, Recreational

Fisheries

• Executive Order 13112, Invasive Species

• Fish and Wildlife Coordination Act

• Marine Mammal Protection Act

• Marine Protection Research and

Sanctuaries Act

• Migratory Bird Treaty Act

• Water Bank Act

• Wildflowers, Surface Transportation and

Uniform Relocation Act, Section 130

Physical Environment

• Clean Air Act, as amended

• Clean Water Act, as amended

• Comprehensive Environmental Response,

Compensation, and Liability Act, as

amended

• Federal Insecticide, Fungicide, and

Rodenticide Act

• Federal Land Policy and Management Act

(Paleontological Resources)

• Noise Control Act

• Pollution Prevention Act

• Resource Conservation and Recovery Act

(RCRA), as amended

• Safe Drinking Water Act, as amended

• Solid Waste Disposal Act (see RCRA)

Impacts to Communities or Individuals

• American Indian Religious Freedom Act

• Emergency Planning and Community Right

to Know Act

• Executive Order 12898, Environmental

Justice

• Executive Order 13175, Consultation and

Coordination With Indian Tribal

Governments

• Farmland Protection Policy Act

• Federal Transit Law, nondiscrimination (49

U.S.C. 5332) and relocation requirements

(49 U.S.C. 5324)

Community Impacts (continued)

• National Flood Insurance Act

• Public Hearings, 23 U.S.C. 128

• Title VI of the Civil Rights Act

• Uniform Relocation Assistance and Real

Property Acquisition Act

Cultural Resources

• Act for the Preservation of American

Antiquities

• Archaeological and Historical Preservation

Act

• Archeological Resources Protection Act

• Department of Transportation Act,

“Section 4(f)”

• Federal-Aid Highway Act, 23 U.S.C. 109,

sections (h) Economic, Social and

Environmental Effects, and (i) Noise

• Executive Order 11593, Protection and

Enhancement of Cultural Environment

(1971)

• Historic Bridges, Surface Transportation

and Uniform Relocation Act, Section

123(f)

• Historic Sites and Buildings Act

• National Historic Preservation Act,

Section 106

• Native American Graves Protection and

Repatriation Act

• Reservoir Salvage Act

Special Status Land Use

• Coastal Zone Management Act, as

amended

• Coastal Barrier Resources Act

• Executive Order 11988, Floodplain

Management

• Flood Disaster Protection Act

• Land and Water Conservation Fund Act, as

amended, Section 6(f)

• National Trails System Act

• Rivers and Harbors Appropriations Act, as

amended

• Wild and Scenic Rivers Act

• Wilderness Act

Source: Table prepared by the Congressional Research Service (CRS) based on data from FHWA and

the California Department of Transportation.

Note: Statues highlighted in bold italics are those most likely to apply to highway projects and to

affect highway project delivery.

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Additional Environmental Review Requirements

Congress has included environmental review requirements in statutes in addition

to NEPA. In this case, an “environmental review” refers to the need to show

evidence of formal consideration, evaluation, or analysis of the impacts of a

proposed federal action. Such requirements have been established by Congress to

provide additional protection to certain sensitive resources or communities. For

example, documentation may be required to show that the project has been evaluated

sufficiently to identify potential impacts to minority communities, publicly-owned

parkland, endangered species habitat, wetlands, floodplains, or historic sites.

Following is a summary of laws and executive orders that direct federal agencies

to conduct environmental reviews. This is not an exhaustive list, however; the

requirements listed below are those that have been of particular relevance to

transportation projects and that have received significant attention from stakeholders

in the streamlining debate.

Evaluation of Certain Cultural Resources. “Section 4(f)” of the

Department of Transportation Act of 1966 applies to the use of publicly owned parks

and recreation areas, and wildlife and waterfowl refuges.9 It also applies to public

or privately owned historic sites of national, state, or local significance. When a

project uses such resources, a separate “Section 4(f) evaluation” must be prepared

and included with the appropriate NEPA documentation.

Unlike NEPA, the “significance” of impacts to the resource is not necessarily

relevant. Under the law, any use of such a resource for a transportation project is

prohibited unless:

! There is no prudent and feasible alternative to using such land, and

! The project includes all possible planning to minimize harm to land.

To demonstrate that there is no feasible and prudent alternative, the Section 4(f)

evaluation must analyze alternatives and design shifts that avoid the protected

resource. If Section 4(f) land is chosen for use in a project, the evaluation must

demonstrate that the use of identified alternatives would have resulted in unique

problems. “Unique problems” are present when there are truly unusual factors or

when the costs or community disruption reach extraordinary magnitude.10

This provision was set forth at section 4(f) of the DOT Act, and printed in the United

States Code (U.S.C.) at 49 U.S.C. 1653(f). A similar provision is found at 23 U.S.C. 138.

In 1983, as part of a general codification of the DOT Act, 49 U.S.C., 1653(f), was formally

repealed and recodified with slightly different language in 49 U.S.C. 303. Given that over

the years, the whole body of provisions, policies, case law, etc., has been collectively

referenced as “section 4(f)” matters, DOT has continued this reference for this regulation.

This test of prudent and feasible alternatives was introduced in Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402 (1971), and subsequently referred to as “Overton Park

Criteria.”

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Historic Preservation. The National Historic Preservation Act (NHPA, 16

U.S.C. 470), declares a national policy of historic preservation to protect, rehabilitate,

restore, and reuse districts, sites, buildings, structures, and objects significant in

American architecture, history, archaeology, and culture. Section 106 of NHPA

mandates that federal agencies take into account a project’s effect on a property on,

or eligible for inclusion in, the National Register of Historic Places. NHPA does not

mandate preservation of such resources, but requires all federal agencies to consider

the impact of their actions on such properties and seek ways to avoid, minimize or

mitigate adverse impacts.

Section 106 also requires the agency to seek comments on the project from the

Advisory Council on Historic Preservation (ACHP). Under authority granted by

Congress, the ACHP has issued regulations that set forth procedures that explain how

agencies must take into account the effects of their actions on historic properties and

how the ACHP will comment on those actions.11

Section 106 is an integral part of Section 4(f) compliance whenever historic

properties are involved. Section 4(f) requires that the historic site be granted

protection if it is determined to be of local, state, or national significance. The

Section 106 process is the method by which that significance is determined.

While there are similarities between Section 4(f) and Section 106, there are also

important differences between the statutes. Section 106 of NHPA is primarily a

procedural statute that directs all federal agencies, as opposed to just DOT, to

consider project impacts on certain resources. Section 4(f) of the DOT Act

specifically prohibits the use of certain resources, except under extreme conditions,

and only if the project includes all possible planning to minimize harm to the site

resulting from its use.

Dredge and Fill Permit Evaluation. Section 404 of the Clean Water Act

(33 U.S.C. 1344) requires projects that involve the discharge of dredged or fill

material into waters of the United States to obtain a permit from the U.S. Army

Corps of Engineers. As part of the 404 permit evaluation process, the NEPA

documentation must demonstrate that an evaluation of the need for a permit has been

made. Other federal agencies may be involved in the 404 permit evaluation process,

such as the Department of the Interior’s U.S. Fish and Wildlife Service (FWS), the

Department of Commerce’s National Oceanic and Atmospheric Administration

(NOAA) Fisheries (previously named the National Marine Fisheries Service), or the

U.S. Environmental Protection Agency (EPA). EPA is the only agency with the

authority to veto a Corps 404 permit.

If the evaluation process determines that a “Section 404 permit” is needed,

obtaining the permit may take longer than completion of the NEPA process. (This

discussion addresses only the requirement to perform an environmental review to

determine if a Section 404 permit is required, not the subsequent compliance

36 C.F.R. 800

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requirements with a 404 permit.12 Also, it does not address requirements to comply

with other requirements under the Clean Water Act.)

Assessment of Threatened and Endangered Species. Section 7 of the

Endangered Species Act of 1973 (16 U.S.C. 1536) requires federal agencies to insure

that actions they authorize, fund, or carry out are not likely to jeopardize the

continued existence of threatened or endangered species or result in the destruction

or adverse modification of designated critical habitat for these species. Such efforts

must be undertaken in consultation with the Secretary of the Interior or the Secretary

of Commerce, as appropriate. The FWS and NOAA Fisheries share responsibilities

for administering the Act.13

As part of the Section 7 consultation, a biological assessment is required when

the presence of threatened or endangered animals or plants are suspected to occur in

the vicinity of a project. The assessment must include an inventory of species in the

project area and report the potential for adverse impacts to the FWS or NOAA

Fisheries.

Consideration of Social, Economic, and Environmental Impacts.

The Federal-Aid Highway Act (23 U.S.C. 109(h)), requires that potential adverse

economic, social, and environmental effects of proposed Federal-aid highway

projects are identified and fully considered. The Act also requires that project

locations are fully considered and that final decisions on highway projects are made

in the best overall public interest. To accomplish these requirements, transportation

projects are required to eliminate or minimize the adverse effects of:

! Air, noise, and water pollution;

! Destruction or disruption of man-made and natural resources, aesthetic values,

community cohesion and the availability of public facilities and services;

! Adverse employment effects, and tax and property value losses;

! Injurious displacement of people, businesses and farms; and

! Disruption of desirable community and regional growth.

Compliance with these requirements should be demonstrated in the appropriate

NEPA documentation.

Consideration of Executive Order Requirements. Requirements of

three executive orders may apply to highway projects, with regard to environmental

review. First, Executive Order 12898, issued in 1994, directed every federal agency

to make environmental justice part of its mission by identifying and addressing the

effects of all programs, policies, and activities on “minority populations and lowincome populations.” Two executive orders issued in 1977 directed federal agencies

to avoid, to the extent possible, long and short term adverse impacts to floodplains

As specified under 40 CFR 230-233.

Regulations governing interagency cooperation under Section 7 are found at 50 CFR 402.

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and wetlands.14 Construction on, or modification to, such resources is to be avoided

wherever there is a practical alternative.

Compliance with each of the requirements listed above is required under

separate statutory or Executive authority, apart from NEPA. However, evidence of

compliance with each of these requirements is required by FHWA to be contained

in the appropriate NEPA documentation.

Of the legal requirements listed above, FHWA identifies the Endangered Species

Act, the Clean Water Act, Section 4(f) of the DOT Act, and the National Historic

Preservation Act as the statutes most likely to apply to all highway projects and most

likely to affect highway project delivery. Unlike NEPA, which is essentially a

procedural requirement, the “big four” statutes prohibit or limit activity, depending

upon the resource impacted.

Appropriate NEPA Documentation

FHWA regulations identify the following three classes of actions that will

dictate the NEPA documentation required for a highway project:15

! Actions with a significant environmental impact - such projects require the

preparation of an Environmental Impact Statement (EIS). When an EIS is

approved, a Record of Decision (ROD) is issued.

! Actions that have no significant individual or cumulative environmental

impacts - such actions are categorically excluded from the requirement to

prepare an EIS; whether and what types of documentation will be required

depends upon the complexity of the project and resources impacted.

! Actions for which environmental impacts are initially uncertain - such

projects require the preparation of an Environmental Assessment (EA) to

determine if an EIS is necessary. If no EIS is required, a Finding of No

Significant Impact (FONSI) is issued.

As illustrated by the classes of actions listed above, to determine the type of

NEPA documentation that is appropriate for any given project, it must first be

determined if the project’s impacts are “significant.” Almost every federal action has

some impact on the environment. CEQ regulations require federal agencies to

determine the significance of those actions by considering the project’s context and

intensity.16

Determining the context of a project involves analyzing impacts to society as a

whole, the affected region, or the locality. The degree of significance must be

considered on a project-by-project basis and will depend upon factors such as the

location and scope of the project. For example, a highway project that impacts one

Executive Order 11988: Floodplain Management and Executive Order 11990: Protection

of Wetlands.

23 CFR 771.115

40 CFR 1508.27

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acre of a 2,000-acre wetland may be insignificant, compared to a project that impacts

one acre of a two-acre wetland. The value and function of the impacted wetlands

would also be relevant.

The intensity of an impact refers to its severity. Factors used to assess intensity

will differ from project to project. Factors to consider may include unique

characteristics of the geographical area, the degree to which the action adversely

impacts endangered species or historic sites, or the degree to which the proposed

action affects public health or safety. To adequately determine an impact’s intensity,

more than one agency may need to be involved. For example, the Department of

Agriculture may need to determine the intensity of impacts from a project that would

cut through prime farmland.

Since degrees of impact, with regard to both context and intensity, must be

evaluated to determine project significance, such an evaluation may be highly

subjective.17 While court decisions have been rendered regarding most elements of

NEPA implementation, few federal courts have attempted to specifically define

“significance.” Most often, a court will determine whether the evidence for a given

project involved potentially significant environmental effects and then decide

whether the agency’s decision not to prepare an EIS was reasonable under

circumstances specific to that project.18

Documentation Required When Impacts Are Significant. If it is

determined that the impacts of a proposed project will likely be significant, an EIS

must be prepared. An EIS is a full disclosure document that provides a description

of the proposed project, and the existing environment, as well as analysis of the

anticipated beneficial and adverse environmental effects of all reasonable

alternatives. Preparation is done in two stages, resulting in a draft and final EIS.

As soon as practicable after its decision to prepare an EIS, the agency preparing

the EIS (in the case of highway projects the agency would be FHWA) is required to

publish a notice of intent (NOI) in the Federal Register.19 The NOI acts as the formal

announcement of the project to the public and to interested federal, state and local

agencies. For FHWA projects, this process generally begins in conjunction with the

preliminary design stage of a highway project.

As soon as possible after, or in conjunction with, the determination that an EIS

is needed, the FHWA is required to determine the scope of the project.20 The role of

other agencies and other environmental review and consultation requirements should

In determining a project’s significance, the cost of the project is not an element of

consideration.

Dinah Bear, “NEPA at 19: A Primer on an ‘Old’ Law with Solutions to New Problems,”

Environmental Law Review, 19 ELR 10060 (Feb. 1989). This article is posted on the CEQ

website under “CEQ Reference.”

40 CFR 1508.22

40 CFR 1501.7

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be established during the scoping process.21 It is during the scoping process that the

agency should determine which statutory requirements or executive orders will apply

(i.e., the applicant will review all laws and executive orders listed in Table 1 to

determine which, if any, will apply to the project). For example, it should be

determined early in the project whether property of historical significance is impacted

or if the project will raise environmental justice issues.

Once the initial scoping is complete, EIS preparation can begin. Significant

elements of an EIS include:

! Project Purpose and Need

! Project Alternatives

! Affected Environment

! Environmental Consequences

! Agency Comments and Coordination

! Public Comments

Each of these elements is discussed below.

Delineation of Project Purpose and Need. CEQ requires one section of

the EIS to be devoted to clarifying the purpose and need for the project. By virtue

of the fact that an EIS is being prepared, a transportation project is anticipated to

have significant environmental, social, or economic impacts. Such a project can be

expected to require the expenditure of a significant amount of funds. The public and

decisionmakers will require a clear, well-supported explanation for why such a

project should be built. When adverse environmental impacts are significant, it is

also important to justify why such impacts are acceptable in light of the

transportation needs being met by the project.

The Purpose and Need section is the foundation upon which subsequent sections

of the EIS are built. FHWA requires the discussion to be clear, specific, and support

the need for the project. A well defined and well justified purpose and need

evaluation will facilitate the development of reasonable project alternatives. For

example, if a project’s purpose involves addressing a traffic capacity problem,

potential means of solving that problem will be considered in the proposed

alternatives. Some of the common needs presented in FHWA EISs include: safety

improvements, increased highway capacity, urban transportation plan consistency,

and system linkage.

The clear delineation of project purpose and need is also necessary to meet the

requirements under Section 4(f), the Executive Orders on wetlands and floodplains,

and the Section 404 permitting requirements.

Development and Analysis of Alternatives. Once the purpose and need

for a project have been clearly delineated, the potential alternatives to meet that

CEQ has issued a variety non-regulatory guidance which is used by FHWA in preparing

and processing environmental documents during the scoping process (see the CEQ NEPA

Guidance web page at [http://ceq.eh.doe.gov/nepa/regs/guidance.html])

CRS-11

purpose and need can be evaluated and determined. CEQ regulations refer to the

Alternatives section of the EIS as the “heart” of the document.22 CEQ regulations

require agencies to discuss a range of alternatives that will include all “reasonable

alternatives” under consideration as well as any other alternatives that were

considered but subsequently eliminated from consideration (i.e., a mass transit

alternative may not be reasonable for a given project, but may still need to be

acknowledged). Reasonable alternatives include those that are practical or feasible

from the technical and economic standpoint and using common sense, rather than

simply desirable from the standpoint of the agency or a potentially affected

stakeholder.23

FHWA regulations require that alternatives considered ensure that the project:

connects logical termini; have independent utility; and not restrict consideration of

future transportation alternatives.24 The Alternatives section should begin with a

concise discussion of how and why the reasonable alternatives were selected for

detailed study and explain why other alternatives were eliminated. FHWA

specifically requires the following range of alternatives to be considered when

determining reasonable alternatives:

! “No-action” alternative: may include activities such as short-term minor

restoration activities (e.g., safety and maintenance improvements) that

maintain continuing operation of the existing roadway.

! Transportation System Management (TSM) alternative(s): activities which

maximize the efficiency of the present system. Possible subject areas to

include in this alternative are options such as ride-sharing, the addition or

designation of high-occupancy vehicle (HOV) lanes on existing roadways,

and/or traffic signal timing optimization.

! Mass Transit alternative(s): reasonable and feasible transit options (e.g., bus

systems, rail) even though they may not be within FHWA funding authority

(when such an alternative is considered, FHWA coordination with the Urban

Mass Transportation Administration is necessary ).

! Build alternatives: construction activities such as the improvement of existing

highway(s) or alternatives in a new location.25

A discussion of the “no-build” alternatives (no-action, TSM, or mass transit

alternative) can serve as a baseline against which “build” alternatives are compared.

It provides an agency with an opportunity to explore and discuss options such as the

designation of HOV lanes, changes in mass transit, or the creation of ride-sharing

40 CFR 1502

From response to question regarding the “Alternatives Outside the Capability of

Applicant or Jurisdiction of Agency” in Forty Most Asked Questions Concerning CEQ’s

National Environmental Policy Act Regulations, published in the Federal Register at 46 FR

18026, March 16,1981.

23 CFR 771.111(f)

These choices are specified in FHWA Technical Advisory T6640.8A, October 30, 1987,

entitled “Guidance for Preparing and Processing Environmental and Section 4(f)

Documents,” available online [http://www.fhwa.dot.gov/environment/nepa/ta6640.htm].

CRS-12

programs. Also, in instances where impacts are particularly adverse, the no-build

alternative may prove to be a viable alternative if the need is relatively minor.

With regard to the “build alternatives,” large, complex projects may have the

potential for a large number of reasonable alternatives. Where this is the case, CEQ

suggests that only a representative number of the most reasonable examples, covering

the full range of alternatives, should be presented.26 The determination of the number

of reasonable alternatives in the draft EIS, therefore, depends on the particular project

and the facts and circumstances in each case.

Identification of the Affected Environment. CEQ regulations require that

one section of the EIS be devoted to describing the environment of the area affected

by each alternative under consideration.27 FHWA guidance suggests that this section

includes a description of the existing social, economic, and environmental setting of

the area potentially affected by all alternatives presented in the EIS.28 Data to include

in this section may include demographics of the general population served by the

proposed project, as well as an identification of socially, economically, and

environmentally sensitive locations or features in the proposed project area. For

example, the EIS should identify the presence of impacted minority or ethnic groups,

parks, hazardous material sites, historic resources, or wetlands.

Identification of Environmental Consequences. One section of the EIS

must identify the specific “environmental consequences” (i.e., impacts or effects) of

each alternative. It is within this section that methods of compliance with applicable

legal requirements may be discussed and demonstrated.29 An explanation of

environmental consequences involves a discussion of the probable beneficial and

adverse social, economic, and environmental effects of each alternative. Also

included would be a description of the measures proposed to mitigate adverse

impacts.

CEQ regulations specify minimum criteria for evaluating environmental

consequences.30 For example, this section must include, where applicable, a

discussion of both the direct and indirect effects of each alternative and the

significance of those effects.

FHWA also has identified 25 environmental consequences potentially applicable

to highway projects (see Table 2). For example, one potential environmental

consequence regards “Historic and Archeologic Preservation.” If a project alternative

results in such an environmental consequence, the draft EIS may require a discussion

From responses to questions regarding the “range of alternatives” in Forty Most Asked

Questions Concerning CEQ’s NEPA Regulations.

40 CFR 1502.15

See FHWA Technical Advisory T6640.8A, October 30, 1987, Section V.F.

The environmental consequences potentially relevant to a given transportation project

would be regulated under the statutes and executive orders listed Table 1.

40 CFR 1502.16

CRS-13

demonstrating that such resources have been identified and evaluated in accordance

with all legal requirements under Section 4(f) or Section 106 of NHPA.

FHWA recommends that the environmental consequences section be devoted

largely to a scientific analysis of the direct and indirect environmental effects of the

proposed action relative to each alternative. The FHWA may need input from other

federal, state, or local agencies with expertise on the environmental consequences

under review. For example, FHWA may need assistance in determining

environmental consequences to threatened or endangered species, coastal zones,

floodplains, or air quality.

Table 2. Potential Types of Environmental Consequences to be

Considered for Transportation Projects

•

Land Use Impacts

Farmland Impacts

Social Impacts

Relocation Impacts

Economic Impacts

Joint Development

Considerations Relating to Pedestrians

& Bicyclists

Air Quality Impacts

Noise Impacts

Water Quality Impacts

Permits

Wetland Impacts

Water Body Modification & Wildlife

Impacts

•

Floodplain Impacts

Wild & Scenic Rivers

Coastal Barriers

Coastal Zone Impacts

Threatened/Endangered Species

Historic & Archeological Preservation

Hazardous Waste Sites

Visual Impacts

Energy

Construction Impacts

Relationship of Local Short-term Uses vs.

Long-term Productivity

Irreversible & Irretrievable Commitment

of Resources

Source: Table prepared by the Congressional Research Service (CRS) based on data from the FHWA

Technical Advisory T6640.8A

Agency Comments and Coordination. NEPA projects involve the

participation of a “lead agency” and “cooperating agencies.” The lead agency is

defined as the federal agency that has taken responsibility for preparing the NEPA

documentation.31 For federally funded highway projects, the lead agency will usually

be FHWA. State or local agencies, such as state DOTs, will likely act as joint lead

agencies. The project applicant will initially develop substantive portions of the

environmental document, while FHWA will be responsible for its scope and

content.32 FHWA requires that the draft and final EIS demonstrate that appropriate

comments and coordination were solicited from relevant federal, state and local

cooperating agencies.

Cooperating agencies required to provide input on an EIS are those that are

obligated to provide comments within their agency’s jurisdiction, expertise, or

authority. This means that the federal agency with jurisdiction over or expertise

40 CFR 1508.16

23 CFR 771.109(c)

CRS-14

regarding any identified environmental consequence is required to provide FHWA

with the appropriate input. For example, if historical and archeological preservation

consequences are identified, the Advisory Council on Historic Preservation will

likely be included as one of the cooperating agencies during the NEPA Process. If

farmland impacts are identified, the draft EIS should summarize the results of

comments and coordination with the U.S. Department of Agriculture (USDA) and,

as appropriate, state and local agriculture agencies.

If a cooperating agency, or any other federal, state or local agency participating

in the NEPA Process, comments on a NEPA document, FHWA is required to assess

and consider those comments and respond in one of the following ways:33

! Modify proposed alternatives.

! Develop and evaluate alternatives not previously considered.

! Supplement, improve, or modify its analyses.

! Make factual corrections to the EIS.

! Explain why the comments do not warrant further agency response from

FHWA, citing the sources, authorities, or reasons which support the agency’s

position and, if appropriate, indicate those circumstances which would trigger

agency reappraisal or further response.

Under CEQ regulations, lead agencies are required to invite comments,

cooperating agencies have a duty to respond to environmental documents, and lead

agencies are required to respond to those comments. However, as illustrated in the

choices listed above, the lead agency is not precluded from moving forward with a

project if it explains why a cooperating agency’s comments do not warrant further

response.

Public Involvement. One of the primary goals of NEPA is to allow the

public a meaningful opportunity to learn about and comment on the proposed actions

of the federal government. It is the intent of NEPA that agencies encourage and

facilitate public involvement in decisions that affect the quality of the human

environment and make a diligent effort to involve the public in preparing and

implementing their NEPA procedures. To meet these goals, agencies are required

to provide public notice of NEPA-related hearings, public meetings, and the

availability of environmental documents so as to inform public stakeholders that may

be interested in or affected by a proposed project. Any documentation related to the

public’s participation in the NEPA process (i.e., comments or hearings transcripts)

must be included in the final EIS.

Stakeholders who may comment on surface transportation projects will vary

according to the impacts of each project. They may include individuals or groups

expected to benefit from or be adversely impacted by the project, or special interest

groups with concerns about the project’s impacts on certain affected environments.

For example, consider a highway project that involves upgrading existing roadways,

the construction of which would impact adjacent homes or businesses. Such a

project may elicit comments from the local business community (e.g. individual

40 CFR 1503.4

CRS-15

businesses, the Chamber of Commerce, or local development organizations) or area

home owners. A project with impacts to sensitive environmental resources, such as

wetlands or endangered species, may generate comments from local or national

environmental organizations.

If a stakeholder has concerns about a project’s impacts, their comments may be

directed at virtually any element of the NEPA process or related documentation.

While not an exhaustive list, following are examples of topics on which a stakeholder

may comment:

! Purpose and need determination – stakeholders may assert that a project’s

purpose and need discussion was not sufficiently broad, meaning the scope of

the purpose and need was so narrow that only a limited number of alternatives

could be chosen.

! Alternatives selection – stakeholders may assert that all “reasonable”

alternatives were not considered. They may assert that additional alternatives

exist that were not considered. This may be the case particularly for

controversial projects that are not welcomed by impacted communities or

special interest groups.

! Alternatives analyses – stakeholders may assert that proposed alternatives

were not analyzed sufficiently to determine all potential environmental

consequences.

! Issues with documentation – a stakeholder may assert that all regulatory

requirements were not fulfilled. For example, they may assert that required

findings were not documented (e.g., proof of compliance with all applicable

laws was not documented) or that required evaluations or reviews were not

sufficiently illustrated (e.g., the presence of endangered species or impacts to

historic sites was not properly evaluated, or consideration of social and

economic impacts was not demonstrated).

! Issues regarding project significance – stakeholders may disagree with the lead

agency’s determination of the project’s significance. For example, they may

assert that a project for which an EA was prepared should have required an

EIS, or they may feel that a project approved as a categorical exclusion was

questionable and required the more in-depth review of an EA.

Any one of the topics listed above could be the subject of legal action, and has

been in the past. For example, FHWA personnel have indicated that a recent court

decision is now commonly used as the benchmark in developing the appropriate

purpose and need statement and resulting scope of project alternatives during the

NEPA process.34 Plaintiffs in this case were affected landowners who brought suit

against the U.S. Army Corp of Engineers in response to their issuance of a permit to

build a dam. In his decision, the judge stated, “One obvious way for an agency to

slip past the strictures of NEPA is to contrive a purpose so slender as to define

competing ‘reasonable alternatives’ out of consideration (and even out of existence)

... If the agency constricts the definition of the project’s purpose and thereby excludes

what truly are reasonable alternatives, the EIS cannot fulfill its role.”

See Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664 (1997).

CRS-16

To a large degree, the manner in which FHWA implements NEPA is dictated

by such judicial decisions. To avoid conflict after a project has reached an advanced

stage of development, FHWA recommends that continuous contact with non-agency

stakeholders be maintained throughout the decisionmaking process– from the earliest

project planning stages, as one or more transportation problems are identified,

through defining purpose and need, through the development of a range of potential

alternatives, and up to the decision to select a particular alternative.

Record of Decision. Not less than 30 days after publication of the final EIS

notice in the Federal Register, a Record of Decision (ROD) is signed. The ROD will

present the basis for the Agency’s final decision, summarize any mitigation measures

that will be incorporated in the project, and document any approval of resources

regulated under Section 4(f). Final design activities, property acquisition, purchase

of construction materials, or project construction cannot begin until the ROD has

been signed.

Documentation Required When Impacts are Not Significant.

Transportation projects that do not individually or cumulatively have a significant

social, economic, or environmental effect, and which FHWA has determined from

past experience have no significant impact, are excluded from the requirement to

prepare an EIS or Environmental Assessment (discussed below). Such actions are

processed as categorical exclusions (CEs) and make up almost 91% of the projects

processed by FHWA. Even if a project’s impacts are not significant, CEQ and

FHWA regulations may require a certain degree of documentation to prove that the

highway project is undertaken in compliance with all applicable environmental

requirements (see Table 1).35

Even though categorically excluded projects have insignificant environmental

impacts, depending upon the action, some documentation may be required to prove

that the CE determination is appropriate and that any required environmental review

or analysis has occurred. As discussed previously, statutory requirements to conduct

certain environmental reviews may still be required, regardless of whether impacts

are deemed significant under NEPA. For example, any impacts to a 4(f) resource

must be evaluated. Also, documentation regarding the assessment of impacts to

endangered species habit may be required.

FHWA regulations specify two groups of activities that experience has shown

would meet the definition of a CE. Whether and what type of documentation will be

required, before the project could be approved by FHWA, would depend on within

which of the two groups the action falls.36

The first group includes projects that call for no or limited construction.

Examples include the construction of bicycle and pedestrian lanes, paths, and

facilities, landscaping, the acquisition of scenic easements, emergency repairs, and

the installation of fencing, signs, pavement markings, small passenger shelters, or

traffic signals. Normally such projects do not require any further NEPA approvals

23 CFR 771.133

Each group of potential CEs is listed under 23 CFR 771.117(c) and (d).

CRS-17

by FHWA. However, requirements of other laws may still apply. For example,

construction of a bicycle path or installation of traffic signals in a historic district may

require compliance with Section 106 or Section 4(f). While requirements under

NEPA indicate that such a project has no significant impact, documentation of

compliance with additional statutory requirements may be required to approve the

project’s CE status.

The second group of projects consists of actions with a higher potential for

impacts than the first group, but which still meet the criteria for a CE because

environmental impacts are minor. An example of such a project is the modernization

of a highway through resurfacing, reconstruction, adding shoulders, or adding

auxiliary lanes. Whether or not such actions will have a significant impact on the

environment depends largely on where they are located. Where adverse

environmental impacts are likely, FHWA recommends that the level of analysis be

sufficient to define the extent of impacts, identify appropriate mitigation measures,

and address known and foreseeable public and agency concerns. At a minimum,

documentation must include a description of the proposed action and, as appropriate,

its immediate surrounding area, a discussion of any specific areas of environmental

concern (e.g., historic sites or wetlands), and a list of other federal actions required,

if any, for the proposal.37

Documentation Required When the Significance of Impacts is

Uncertain. An environmental assessment (EA) is prepared when it is uncertain

whether a project’s impact will be significant. The EA should briefly provide

evidence and analysis for determining whether to prepare an EIS (i.e., whether the

project’s impacts are significant).38 If at any time during preparation of the EA, it is

determined that a project’s impacts are significant, EIS preparation should begin.

There is no standard format for EAs required by either CEQ or FHWA

regulations. FHWA suggests that the process for developing an EA should be similar

to developing an EIS.39 For example, the applicant should consult interested agencies

to scope the project to determine the potential for social, economic or environmental

impacts; briefly discuss the project’s purpose and need; identify project alternatives

and measures to mitigate adverse impacts; and identify any other environmental

review requirements applicable to the project (i.e., section 4(f) or 404 permitting

requirements).

The EA and other relevant documents (e.g., public comments or hearing

transcripts) must be submitted to the FHWA with a request for a Finding of No

Significant Impact (FONSI). FHWA requires that the basis for the FONSI request

be clearly and adequately documented. Like an EIS, the EA or FONSI is required to

clearly document compliance with NEPA and all other applicable environmental

laws, executive orders, and related requirements. An approved FONSI serves the

same purpose that a ROD serves with an EIS. Similarly, final design activities,

This guidance is provided in FHWA Technical Advisory T6640.8A

40 CFR 1508.9

See FHWA Technical Advisory T6640.8A, Section II, “Environmental Assessments.”

CRS-18

property acquisition, purchase of construction materials, or project construction

cannot begin until the FONSI has been approved.

FHWA estimates that projects requiring an EA, and no subsequent EIS,

accounted for almost 7% of highway projects approved in 2001. Coupled with

categorically excluded projects discussed above, this means that close to 97% of all

projects approved by FHWA are determined to have no significant impact on the

environment. Figures 1 and 2 illustrate the percentage of FHWA projects by the

threes classes of action discussed above and by funding amounts for 1998 through

2001. Note that while projects requiring an EIS are often the most complex and

costly, on average, such projects still account for less than 10 percent of total FHWA

project funding.

Figure 1. FHWA Projects by Class of Action

Figure 2. FHWA Project Funding by Class of

Action

Source: FHWA, available at [http://www.fhwa.dot.gov/environment/strmlng/projectgraphs.htm].

CRS-19

Determining NEPA’s Role in Transportation Project Delays

The process of both compliance with and documenting compliance with all

environmental statutes, regulations, executive orders, and court decisions potentially

applicable to a highway project is complicated. As has been discussed, even those

projects with no or minor environmental impacts must demonstrate that potential

impacts to certain types of resources (i.e., public parkland, historic sites, land with

threatened or endangered species, or property in minority neighborhoods) have been

considered and that compliance with applicable requirements documented.

The perception that NEPA results in extensive delays and additional costs to the

successful delivery of transportation projects can be magnified when compliance with

multiple environmental laws and regulations is required (as would likely be the case

with large, complex highway projects). FHWA has asserted that many delayed

projects or failed processes can be traced back to a disintegrated and disconnected

approach to meeting NEPA and other requirements. FHWA asserts that their

experience in administering NEPA has shown that many practitioners do not fully

understand or practice the approach to using the NEPA process as an umbrella for

integrating all required studies, reviews, or consultations.40

The sometimes extensive reviews required by agencies such as the Army Corps

of Engineers, the Fish and Wildlife Service, the Coast Guard, or EPA, as well as

various state regulatory and review agencies, add further to the perception that

extensive delays are related to the “NEPA process.” Such delays may actually be a

result of an agency’s need to complete a permitting processes or other analyses under

separate statutory authority (e.g., the Clean Water Act or Endangered Species Act),

over which FHWA has no authority.

A project with significant impacts would likely be a large, high-profile, complex

project costing millions of dollars. Delays of such projects are well-known among

transportation professionals and have garnered significant public attention in the past.

For example, in the Washington, D.C. area, replacement of the Woodrow Wilson

Memorial Bridge is a well-known FHWA project. Challenges to the NEPA

documentation for that project resulted in delays to the project. However, much of

the delay was only indirectly related to the NEPA process, in that the project has

highly visible and generated significant public interest. Often, similar high-profile

projects have been delayed by public challenges to elements of the NEPA

documentation. However, until recently, there was only anecdotal information

directly linking the “NEPA process” to widespread highway project delays.

Studies Examining NEPA’s Role in Project Delays. Federal and state

governments do not routinely maintain information on the time it takes to complete

highway projects. Therefore, gathering accurate data specific to the time it takes to

prepare NEPA documentation is difficult. For example, document preparation under

NEPA is generally done concurrently with preliminary project design. If a project

undergoes specification changes, those changes may necessitate changes in NEPA

documentation. Consequently, the time to complete the NEPA process may be

Notice of Proposed Rulemaking, 65 FR 33965, page 33976.

CRS-20

extended. However, determining if such delays can be directly attributed to the

NEPA process itself may be difficult. Several studies, conducted by both the General

Accounting Office (GAO) and FHWA have attempted to define that connection. The

findings of these studies are discussed below.

2002 GAO Report. In the absence of data to determine project development

time frames, GAO compiled data based on the professional judgement of FHWA

staff, staff of state departments of transportation, and transportation associations.41

FHWA estimated that it typically takes from 9 to 19 years to plan, gain approval for

and construct a new major, federally-funded highway project that has significant

environmental impacts (i.e., requires an EIS). Such projects were completed in four

phases as outlined in Table 3.

Table 3. Estimated Time to Complete Federally Funded Highway Projects

Phase

Time to Complete (years)

Planning

4-5

Preliminary design and environmental review

1-5

Final design and right-of-way acquisition

2-3

Construction

2-6

Total

9-19

Source: FHWA, as quoted by GAO.

GAO noted that the wide range in time for each phase is attributed to the

inherent variations in project size, complexity, and public interest in the project. In

the study, FHWA noted that the “preliminary design and environmental review”

phase often overlapped with the “final design and right-of-way acquisition” phase.

Federal and state officials reported that larger, more controversial projects were likely

to take longer because they generally required compliance with more federal and state

requirements and because of the public interest they may generate.

Federal and state transportation officials and transportation engineering

organizations contacted by GAO identified the timely resolution of environmental

issues as providing the greatest opportunity for reducing the time it takes to complete

highway projects. Those officials generally stated that environmental reviews

resulted in better project decisions; but reaching those decisions was difficult and

time consuming. Factors that could make the process more difficult included:

incomplete permit applications, limited resources at environmental agencies, and

public opposition to projects.

General Accounting Office, Highway Infrastructure: Preliminary Information on the

Timely Completion of Highway Construction Projects, GAO-02-1067T, September 19,

2002.

CRS-21

FHWA NEPA Baseline. Among the data used in the 2002 GAO report,

referenced above, was information from an FHWA study completed in 2001.42 In

that study, FHWA undertook an analysis of the direct effect that compliance with the

requirements of NEPA has on the ultimate schedule and cost of delivering a

completed transportation project. The report is to be used to establish a baseline

against which progress on its streamlining initiatives will be gauged. The study was

also intended to provide a better understanding of the impacts of the NEPA process

on the total time involved in completing a Federal-aid highway or bridge project, as

well as individual factors influencing the time required to complete the NEPA

process in order to develop performance measures for future improvement.

In the baseline study, FHWA acknowledged the perception that NEPA is the

cause of delays and additional cost to the delivery of transportation projects. FHWA

asserted that what was missing from the discussion was an analysis of the direct

effect that compliance with the requirements of NEPA has on the ultimate schedule

and cost of delivering a completed transportation project. The baseline study

attempted to determine or define that connection. Following are significant

conclusions drawn by the FHWA study:

! For projects requiring an EIS, the mean time required for the entire project

development process was approximately 13.1 years.

! For projects requiring an EIS, the NEPA process generally comprises

approximately 27% to 28% of that total project development period (from the

time that either preliminary engineering or the NEPA process begins,

whichever is first, to the end of construction).

! The time to prepare an EIS has increased from a mean of 2.2 years in the

1970s to a mean of 5.0 years in the 1990s.

! The time to prepare an EIS increased by almost two years when a Section 404

permit or Section 4(f) approval was also required (e.g. the average time to

complete an EIS was 4. 3 years when a Section 404 permit was involved, but

only about 2. 4 years when no Section 404 permit was involved); the increase

when a Section 106 approval was required was negligible.

! The length of time to prepare an EIS varied between regions, with the greatest

time required in the Northeast (with a median value of 4.5 years) and the least

time required in the Northwest (with a median value of 1 year).43

During Congressional oversight hearings on streamlining, transportation

stakeholders have noted the increase in time to complete an EIS from the 1970s to

the 1990s.44 In its baseline study, FHWA does not comment on the cause of this

See FHWA’s Evaluating the Performance of Environmental Streamlining: Development

of a NEPA Baseline for Measuring Continuous Performance, May 8, 2001, available at

[http://www.fhwa.dot.gov/environment/strmlng/baseline].

The value of quoting “mean” versus “median” number of years, in looking at a given

statistic, was discussed in the survey. It was determined that, since NEPA data were not

normally distributed, the mean, or average, value was not always a good indicator of central

tendency. Therefore, in some instances, it was determined that the median, or mid-point

value, was the most relevant value.

See testimony of John C. Horsley, Executive Director of the American Association of

State Highway and Transportation Officials; Brian Holmes, Executive Director, Maryland

Highway Contractors Association, on behalf of the American Road & Transportation

Builders Association; and Hal Kassoff, Vice President, Parsons Brinckerhoff, on behalf of

(continued...)

CRS-22

increase. However, there are a variety of factors that contribute to lengthened

reviews. For example, the process for completing an EIS in the 70s differs

substantially from the process undertaken in the 90s. Until November 1978, there

were no CEQ regulations outlining EIS requirements. While an EIS may have been

completed relatively quickly during the 70s, compared to the 90s, it may not have

withstood judicial review. FHWA did not promulgate its own regulations until 1987.

Such regulations may have served to make the process take longer, but may have

resulted in fewer overall project delays, in situations where adherence to the

regulations resulted in a more legally sound EIS. Also, the complexity of projects in

the 1970s are not comparable to those of the 1990s and public is more involved in

the highway construction process in the 1990s than was the case in the 1970s.

The difference in time to complete projects from region to region may be

attributed to differences in the types of projects likely to occur in those regions. For

example, projects in the Northeast that simply expand or upgrade existing highway

systems, but occur in the heavily-developed regions, may involve a wide range of

significant impacts. While projects in the less-developed Northwest may generate

fewer overall impacts and be easier to implement.

FHWA Study of EIS Delays. In September 2000, FHWA issued a study that

explored causes of delay of certain projects requiring an EIS.45 This study was done

in response to a question submitted by the House Committee on Transportation and

Infrastructure in March 2000 regarding causes of delay for highway projects that had

not had a ROD approved after five years. FHWA identified 89 projects that fit the

specified criteria.

Survey respondents were asked to provide a brief assessment of the reasons that

each project had taken more than five years to complete the NEPA process. In the

study, over 60% of project delays could be attributed to lack of funding, low priority,

local controversy, or project complexity. The results of this report were often quoted

by interested stakeholders as evidence that neither NEPA, nor any environmental

issues related to NEPA compliance, was a significant cause of transportation delays.

At the request of Representative Don Young, GAO reviewed the FHWA study’s

methodology to determine the usefulness of its results.46 In the report, released in

January 2003, GAO determined that some elements of the study’s methodology

called into question the usefulness of the final results. For example, if respondents

provided more than one cause of project delays, only one response was included,

typically the answer written first. It could not be definitively determined if the one

(...continued)

the American Council of Engineering Companies, before the Subcommittee on Highways

and Transit Committee on Transportation and Infrastructure, United States House of

Representatives, October 8, 2002.

FHWA, Reasons for EIS Project Delays, available

[http://www.fhwa.dot.gov/environment/strmlng/eisdelay.htm#image].

General Accounting Office, Federal Highway Environmental Analysis, GAO-03-338R,

January 16, 2003.

CRS-23

answer chosen was the most serious cause of delay, or if multiple causes were

similarly relevant.

In the 2003 report, GAO concluded that, by relying on often general narrative

responses, without directing its division offices to indicate the relative importance

of responses, FHWA limited its ability to provide useful insights. Furthermore, by

not describing its methodology, FHWA limited the ability of the Congress and the

public to evaluate the strengths and weaknesses of the study in order to understand

its reliability. In response to the GAO report, FHWA has updated its study results

to explain the survey methodology.

2003 GAO Reports on Stakeholder Views of the NEPA Process.

Perceptions regarding the time it takes to conduct required environmental reviews for

highway projects vary among stakeholders. This is the finding of a May 2003 GAO

report that looked at the views held by environmental stakeholders and transportation

improvement stakeholders.47 “Environmental stakeholders” included resource

agencies, state historic preservation agencies, and environmental advocacy

organizations. “Transportation improvement stakeholders” included state

departments of transportation, FHWA division offices, and transportation advocacy

organizations.

Stakeholders of highway construction projects contacted by GAO identified 43

aspects that they said added undue time to complete an environmental review of

federally funded highway projects. “Undue time” was considered more time than the

stakeholder viewed as necessary to complete the review. Of the 43 total aspects

identified, five were identified by one or both groups of stakeholders as occurring

most frequently (see Table 4). Each group of stakeholders disagreed on the degree

to which each of those five aspects impacted the review process.

Table 4. Environmental and Transportation Improvement Stakeholders’

Most-Frequently Cited Aspects Adding “Undue Time” to Environmental

Reviews of Highway Projects.

Environmental

Stakeholdersa

Transportation

Stakeholders

State DOTs do not consider environmental and

historic preservation impacts early enough in

the highway planning process.

70%

13%

State DOTs do not include important

stakeholders early enough in the process.

State DOTs lack sufficient staff to perform

responsibilities in a timely manner.

Aspect Identified

General Accounting Office, Highway Infrastructure: Stakeholders’ Views on Time to

Conduct Environmental Reviews of Highway Projects, GAO-03-534, May 23, 2003.

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Requirements under “Section 4(f)” are

burdensome.

Obtaining wetlands permits under Section 404

of the Clean Water Act is time consuming.

Values listed represent the percentage stakeholders in each category that chose this aspect as one

that added undue time to the environmental review process.

Source: Table prepared by the Congressional Research Service (CRS) based on data from the GAO

analysis of stakeholder response presented in GAO-03-534, pg. 6.

Findings in the May 2003 GAO report were consistent with findings in an April

2003 GAO report on stakeholder perceptions of the most promising approaches to

to reduce completion time for highway projects (as opposed to perceptions of causes

of delays).48 The April 2003 GAO report looked at all aspects of a highway project

from planning through construction. In this report, survey respondents were from

organizations representing a wide range of federal, state, tribal, and advocacy

interests. Following are approaches identified by a majority of respondents that were

deemed most promising with regard to improving the environmental review process:

! Establish early partnerships and coordination among stakeholders so that

technical, environmental, policy, and other issues can be resolved in a timely

and predictable manner (identified by 90% of all respondents).

! Revise Section 4(f) – use Section 106 procedures for consideration of historic

properties and other historic resources (70%).

! Use programmatic agreements as a means of delegating review or permitting

authority to states for routine projects or commonly occurring resource effects

(68%).

! Establish time frames for environmental reviews (60%).

! Use interagency funding agreements to provide staff at resources agencies

(59%).

! Prepare a preliminary environmental assessment report that will provide

information on any environmental conditions and constraints before

determining project costs or schedule (53%).

! Unify NEPA and Section 404 reviews so that Section 404 reviews are

addressed concurrently with other environmental issues (58%).

In the April report, GAO recommended that FHWA consider the benefits of the

most promising approaches and act to foster the adoption of the most cost effective

and feasible approaches. FHWA generally agreed with this recommendation and

stated that most, if not all, of the most promising approaches coincide with its current

streamlining activities.

General Accounting Office, Highway Infrastructure: Perceptions of Stakeholders on

Approaches to Reduce Highway Project Completion Time, GAO-03-398, April 2003.

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The Transportation Equity Act for the 21st Century

In 1998, Congress passed the Transportation Equity Act for the 21st Century

(TEA-21, P.L. 105-178) that reauthorized the federal surface transportation programs

for highways, highway safety, and transit for the fiscal years 1998-2003. During the

reauthorization process, states reported to Congress that the numerous federal

environmental approvals and permits needed to build a highway were inefficient and

overly time-consuming. To address these concerns, Congress included in TEA-21

Section 1309, “Environmental Streamlining,” which was intended to better

coordinate federal agency involvement in the NEPA process. Although not

specifically defined in TEA-21, FHWA defines environmental streamlining as the

timely delivery of federally-funded transportation projects, while protecting and

enhancing the environment. A summary of the streamlining provisions of TEA-21

and the Administration efforts to implement them are discussed below.

“Streamlining” Provisions of TEA-21. The streamlining provisions in

Section 1309 of TEA-21 were intended to better coordinate federal agency

involvement in the NEPA process. Following are key elements of Section 1309:

! Directs the Secretary of Transportation to establish a “coordinated

environmental review process” that, among other provisions, establishes time

frames for completion of the environmental review process;

! Directs the Secretary to resolve interagency disputes when established time

limits are not met;

! Allows state DOTs to direct relevant state agencies to participate in the

coordinated environmental review process; and

! Provides state DOTs with the ability to request funds to reimburse agencies

for expenses associated with expediting environmental reviews.

Coordinated Environmental Review Process. Subsection 1309(a) and

(b) of TEA-21 outlined provisions regarding the development and implementation

of a “coordinated environmental review process.” The Secretary of DOT was

required to develop this process for any project requiring an EIS or EA under NEPA.

The Secretary may, however, choose not to apply this review process to EAs or other

environmental documentation (i.e., reviews, analysis, or permits) required by law.

The coordinated review process may be delineated in a memorandum of

understanding. TEA-21 specified elements to be included in the coordinated review

process. At a minimum it was required to provide:

! The early identification of federal or state agencies with jurisdiction over

environmental issues related to the project or that may be required by law to

participate in the environmental review process;

! The establishment of time frames for completion of any agency comments or

other environmental requirements (i.e., reviews, analyses, opinion, permits,

licenses or approvals), to be determined jointly by DOT and the agencies

identified for participation; and

! A requirement that time frames for completion of requirements be undertaken

by all agencies concurrently, unless the agency can show that the concurrent

review would alter operation of federal law, would result in a significant

CRS-26

adverse impact to the environment, or would not be possible without

information developed as part of the environmental review process.

Established time frames were required to be consistent with current Council of

Environmental Quality (CEQ) regulations and any other environmental regulations.

DOT was directed to set time limits for the proposed project as long as the limits are

consistent with the purposes of NEPA.49

Dispute Resolution Procedures. Section 1309(c) allows the Secretary to

close the record on an activity, after notice and consultation with the affected

agency, if the agency has not completed it by an established deadline. If an

unresolved matter involves an activity required by law, the Secretary and the agency

are directed to resolve the matter within 30 days. However, this section does not give

the Secretary additional authority over agencies outside DOT. Consequently, the

requirement for an agency to meet the 30-day time period would not supersede

statutory responsibilities under other laws (e.g., the Endangered Species Act or Clean

Water Act).

State Agency Participation. Under Section 1309(d), a state may require that

all state agencies, with jurisdiction over environmental issues potentially applicable

to a project, be subject to the coordinated environmental review process unless the

Secretary of DOT determines that a state’s participation would not be in the public

interest. For a state to require state agencies to participate in the review process, all

affected agencies of the state would be subject to the review process.

Financial Assistance and Judicial Review. Section 1309(e) provides

states with the authority to request funds to reimburse affected agencies for expenses

associated with meeting time limits for environmental review, if those time limits are

less than usual. Section 1309(f) specifies that nothing in Section 1309 will affect the

reviewability of any final federal agency action in a U.S. district court or state court,

affect the applicability of NEPA or any other environmental statute, or affect the

responsibility of any federal officer to comply with such statutes.

Of the provisions discussed above, TEA-21's streamlining requirements did not

permit the Secretary to override the authority of another agency to conduct

environmental reviews. For example, the U.S. Fish and Wildlife Service would not

be required to complete biological assessment of an impacted endangered species

within a time frame that would not allow it to meet its own statutory obligations

under the Endangered Species Act.

Administrative Actions to Implement TEA-21. DOT has undertaken a

variety of actions to meet the goals of TEA-21's streamlining requirements.

However, no final regulations have been implemented. In May 2000, under the

Clinton Administration, FHWA submitted a proposed rule on “NEPA and Related

Time limits are to be consistent with requirements stipulated under 40 CFR 1501.8 and

1506.10

CRS-27

Procedures for Transportation Decisionmaking.”50 Some commenters indicated that

the proposed rule failed to streamline the review process. Elements of the rule

presented an increased burden of paperwork and procedural requirements, they

argued, and increased the potential for litigation. There was also a concern that the

proposed rule lacked specific provisions addressing the establishment of timeframes,

comment deadlines, dispute resolution, and “closing the record” on decisionmaking

at an appropriate stage. Due to these concerns, the proposed rule was withdrawn by

FHWA under the Bush Administration in September 2002.51

Since withdrawal of the proposed rule came within a year of the legislative

reauthorization of federal surface transportation programs, the agency stated that it

would wait for the outcome of the legislative process to see what further regulatory

changes were needed. In lieu of final regulations, DOT has implemented a variety

of administrative actions in response to TEA-21's streamlining requirements.

Selected actions are described below.

Executive Order Implementation. In September 2002, President Bush

signed Executive Order 13274, “Environmental Stewardship and Transportation

Infrastructure Project Review.”52 The Order established a policy that directed federal

agencies to “take appropriate actions, to the extent consistent with applicable law and

available resources, to promote environmental stewardship in the Nation”s

transportation system and expedite environmental reviews of high-priority

transportation infrastructure projects.” To meet this policy, agencies were required

to formulate and implement administrative, policy, and procedural mechanisms to

enable each agency required to participate in the environmental reviews process to

ensure that completion of such reviews occur in a “timely and environmentally

responsible manner.”

Among the criteria required for a project to be designated a “high-priority

project” are whether it is of national or regional significance and whether it may

experience delays from lack of federal interagency coordination. To date, 13 FHWA

projects (10 highway and 3 transit projects) have been chosen for priority review.

As required by the order, an “Interagency Transportation Infrastructure

Streamlining Task Force” was created that is chaired by the Secretary of

Transportation. Task Force members are from federal agencies likely involved in

environmental project reviews. Members include the Secretaries of Agriculture,

Commerce, the Interior, and Defense, the Administrator of EPA, Chairman of the

Advisory Council on Historic Preservation, and Chairman of the CEQ, or their

designee. The Task Force monitors work on expedited projects, reviews the list of

suggested projects, and identifies and promotes policies that aid in streamlining. The

Task Force reports to the President through the Chairman of the CEQ.

65 Federal Register 33960.

67 Federal Register 59225.

This Executive Order is available at [http://www.fhwa.dot.gov/stewardshipeo/index.htm].

CRS-28

Reports to Congress. Conference report language (H.Rept. 108-10) for the

Consolidated Appropriations Resolution for 2003 (P.L. 108-7) directed FHWA to

provide the House and Senate Appropriations Committees with a report, by April 15,

2003, summarizing FHWA’s streamlining efforts. In April 2003, FHWA submitted

its Report to Congress, providing an update on the status of the accomplishments in

the following areas:53

! Solidifying interagency partnerships

! Re-engineering the environmental review process

! Issuing guidance to enhance process predictability

! Evaluating the performance of environmental streamlining

! Institutionalizing dispute resolution

! Supporting state environmental streamlining efforts

! Sharing information on best practices

FHWA issued a similar Report to Congress in 2002 for environmental

streamlining activities during 2001.54 The 2002 report detailed state streamlining

activities and interagency cooperative efforts to facilitate TEA-21's streamlining

requirements.

Dispute Resolution Procedures. FHWA developed the National Dispute

Resolution System, one element of which was the development of guidance to be

used to manage conflict and resolve disputes between state and federal agencies

during the transportation project development and environmental review process.55

Workshops in the application and use of alternative dispute resolution procedures are

currently being scheduled and will use the guidance as the principal reference

document.

Training and Guidance Materials. FHWA has sponsored training,

seminars, and workgroups, and issued a variety of guidance documents aimed at

assisting state DOTs or other federal agencies in implementing the NEPA process

more efficiently. FHWA sponsored workshops with the U.S. Army Corps of

Engineers, EPA, FWS, and NOAA Fisheries. Workshops identified innovative

streamlining practices as well as issues that cause interagency conflict.

In January 2003, FHWA issued interim guidance to help state DOTs analyze

indirect and cumulative impacts and streamline the NEPA process.56 In February

2003, FHWA guidance documents to assist state DOTs in using interagency funding

The report is available at [http://www.fhwa.dot.gov/environment/strmlng/final02rpt.htm].

This report is available at [http://www.fhwa.dot.gov/environment/strmlng/ssprtcr.htm].

“Collaborative Problem Solving: Better and Streamlined Outcomes for All,” February

2003, is available at [http://www.fhwa.dot.gov/environment/strmlng/cmgtnepa.htm].

The guidance, “Interim Guidance: Questions and Answers Regarding Indirect and

Cumulative Impact Considerations in the NEPA Process,” January 2003 is available at

[http://www.fhwa.dot.gov/environment/guidebook/qaimpact.htm] and .

CRS-29

agreements to hire additional staff at state and federal resource agencies to speed up

the environmental review process.57

Support of State Streamlining Initiatives. In 2002, the American

Association of State Highway and Transportation Officials (AASHTO) launched the

“Center for Environmental Excellence” with technical and financial assistance from

by FHWA. The Center is intended to assist its members in promoting “innovative

streamlining” of the project delivery process. FHWA is also supporting individual

states in implementing their own streamlining initiatives by providing program

funding and technical support.

Challenges to Streamlining

Late in the 107th Congress, hearings on the streamlining issue were held by the

Senate Environment and Public Works Committee and the House Subcommittee on

Highways and Transit of the Committee on Transportation and Infrastructure. In

conjunction with those hearings, two bills were introduced to address the

streamlining issue, but neither was enacted. Representative Don Young introduced

the Expediting Project Delivery to Improve Transportation and the Environment Act

(H.R. 5455) on September 25, 2002. Senator Baucus introduced the Maximum

Economic Growth for America Through Environmental Streamlining Act (S. 3031)

on October 2, 2002. Both the hearings and proposed bills highlighted a variety of

streamlining issues that some Members of Congress felt needed further attention.

Included among those issues was the need to:

! Better coordinate the NEPA process on a nationwide basis (as opposed to

achieving varying levels of success from state-to-state);

! Establish DOT as the definitive decision maker when determining a project’s

purpose and need and project alternatives;

! Establish a statute of limitations on judicial review of final agency actions;

and

! Delegate more power to the states.

House or Senate versions of legislation reauthorizing surface transportation

programs may include elements of some or all of the provisions listed above. Such

provisions may serve to streamline the NEPA process for certain projects. For

reasons presented below, however, challenges to streamlining highway projects may

still exist.

Establishing a Statutory Environmental Review Process. Some

Members of Congress have expressed frustration that DOT has not promulgated

regulations to implement a coordinated environmental review process as required

under Section 1309 of TEA-21. In lieu of regulations, some Members of Congress

have expressed the desire to create such a process in statute. The inherent variability

among highway projects may make the creation of a single environmental review

process difficult to implement. The more significant a project’s environmental

“Interagency Guidance: Transportation Funding for Federal Agency Coordination,” is

available at [http://www.fhwa.dot.gov/environment/strmlng/igdocs/index.htm].

CRS-30

impacts, the more complicated the environmental review process will likely be for

any given highway project. Methods that are effective in streamlining one project

may not be as effective in another. For example, one project may require minimal

input from participating agencies, and hence little coordination among agencies,

while another project may require assistance from a variety of agencies in evaluating

impacts to certain resources or communities (e.g. minority neighborhoods or

endangered species habitat).

Considering this variability between projects, the establishment of provisions

applicable to all highway projects, such as the establishment of specific deadlines,

may be difficult to implement while remaining compliant with all applicable legal

requirements. Also, a participating agency may be required to provide consent to

allow certain activities to proceed (i.e., they may be required to issue permits for

certain activities) or to specify how certain impacts must be mitigated. Such actions

are required pursuant to separate statutory authority over which the FHWA has no

control. An environmental review process that allows for flexibility to respond to

these various legal requirements may allow for more efficient implementation of the

NEPA process.

Finally, any statutory changes that would result in changes to the way NEPA is

implemented would likely generate substantial attention from a variety of

stakeholders. If a coordinated environmental review process were implemented

through the regulatory process, the public and interested stakeholders would be

allowed to comment on the proposed process. Depended upon the changes

suggested, such a process may generate significant opposition among affected

stakeholders.

Establishing Lead Agency Authority. NEPA does not specify lead agency

authority. However, CEQ regulations implementing the NEPA process do specify

the authority and requirements applicable to both the lead agency and participating

agencies. In his capacity as the Chairman of the Interagency Transportation

Infrastructure Streamlining Task Force (see discussion regarding Executive Order

Implementation on page 26, above), Transportation Secretary Norman Mineta sought

guidance from CEQ Chairman James Connaughton regarding one element of agency

authority under current regulations. The Secretary asked for clarification regarding

the role of lead and cooperating agencies with regard to developing a highway

project’s “purpose and need.”58 Secretary Mineta referred to the sometimes extended

interagency debates over purpose and need statements as a reason for delay in

highway project development.

In his response, Chairman Connaughton references current CEQ regulations

specifying that the lead agency has the authority for and responsibility to define the

a project’s purpose and need. Further, Chairman Connaughton referenced previous

federal court decisions giving deference to the lead agency in determining a project’s

purpose and need. While not addressed in this correspondence, CEQ regulations also

Text of Secretary Mineta’s May 6, 2003 letter, and Chairman Connaughton’s May 12,

2003 response, are available at [http://www.fhwa.dot.gov/stewardshipeo/minetamay6.htm].

CRS-31

specify the selection of reasonable alternatives as within the authority of the lead

agency.

The establishment of lead agency authority in law may serve to reassert this

authority to participating agencies. However, since this is a right already afforded

DOT under current regulations, it may not significantly streamline the NEPA

process.

Establishing a Statute of Limitations. It is generally the large, complex,

high-profile projects that would benefit the most from an efficiently coordinated

environmental review process. However, such large highway projects are also more

likely to generate public interest, and possibly public opposition. If members of the

public or a private interest group are adamantly opposed to a project, they may pursue

all possible legal recourse to stop or change it. NEPA, and the regulations

implementing it, currently contain no express provision for judicial review of agency

action, and hence, no deadline on petitions for review. The absence of such a

limitation has resulted, in some cases, in courts recognizing the statute of limitations

used for judicial review under the Administrative Procedure Act. That statute, 28

U.S.C. Section 2401, mandates broadly that civil actions against the United States

must be filed within six years after the right of action first accrues.

If a statute of limitations were established, there is no guarantee that special

interest groups would not file suit within the newly specified period of time.

However, establishment of a statute of limitations may streamline the NEPA process,

insofar as it would require judicial action to be taken earlier in the process, when

changes could be made more easily, as opposed to further along in the construction

process when changes may be more costly and take a greater amount of time to

address. Some environmental groups have argued that previously-suggested statutes

of limitation (i.e., as specified in H.R. 5455, 107th Congress) were too restrictive and

may, in fact, lead to preemptive suits in an effort to preserve their right to sue.

Delegating Authority to States. One element of the NEPA process that has

been identified by some transportation stakeholders as a potential cause for delay is

the added step of obtaining FHWA approval of NEPA documentation. Some

transportation stakeholders argue that some federal environmental responsibilities

should be delegated to states. For example, AASHTO has asserted that project

review may be quickened if states were give the authority to process categorical

exclusions, meet endangered species requirements, meet historic preservation

requirements, meet wetlands requirements, and meet Section 4(f) requirements.59

Such stakeholders argue that delegation of such authority to the states could speed

up the environmental review process for highway projects by eliminating a

significant layer of bureaucracy that federal approval entails.

This approach is not endorsed by environmental stakeholders who have

expressed concern that the delegation of authority to the states would create a “fox

guarding the henhouse” scenario. They argue that if a state, which has a vested

“Delegation of Federal Environmental Responsibilities for Highway Projects,” prepared

for AASHTO by TransTech Management, Inc., April 2002.

CRS-32

interest in moving a project forward, is allowed to make certain determinations, those

determinations would not have the level of scrutiny that would be provided with

federal oversight.

One potential challenge to state delegation of authority includes a possible lack

of staff qualified to process potentially complex documentation. As discussed in the

May 2003 GAO report regarding stakeholders’ views on the time to conduct

environmental reviews, staff shortages have been identified by transportation

improvement stakeholders as a significant cause of highway project delays. If a state

does not have sufficient staff to accommodate its needs, the delegation of additional

authority to state or local transportation department staff may serve to slow the

NEPA process instead of streamline it. Staff at the state or local level may have

difficulty determining all environmental requirements applicable to their project

which could further slow the NEPA process if it takes longer to ensure that NEPA

documentation is complete. For example, it may be a difficult task for a highway

project sponsor to review and approve the documentation that will ultimately

demonstrate that all environmental requirements have been met. In the past, a state

may have had a consultant to prepare NEPA documentation for an EIS, but it may

have relied on FHWA oversight for more simple documentation, such as CE

determination documentation.

The issues above are not an exhaustive discussion of the challenges to

streamlining. They are also not likely to be factors in all projects. However, these

examples are intended to illustrate that there are many complexities inherent in the

NEPA process for highway projects.

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