With the federal transportation funding bill set to expire on June 30, 2012, federal lawmakers are negotiating the details of new legislation that could affect the environmental review of many highway, bridge and other surface transportation projects.  The United States House of Representatives and Senate passed differing transportation bills earlier this year and recently appointed a committee of legislators charged with reconciling those differences.

Federal transportation programs are currently funded under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”), enacted in August 2005.  While that bill was set to expire in late 2009, Congress passed a series of temporary extensions while considering more substantive changes in longer-term reauthorization bills.

In April 2012, the House of Representatives passed a new transportation bill (H.R. 4348), with a series of provisions intended to streamline and reduce the review of transportation infrastructure projects under the National Environmental Policy Act (“NEPA”).  In its declaration of policy, the legislation states: “[I]t is in the national interest to expedite the delivery of surface transportation projects by substantially reducing the average length of the environmental review process.” (§ 602.)  Thus, the bill provides that if NEPA review is not completed with 270 days of the notice of project initiation, “the project shall be considered to have no significant impact to the human environment for purposes of the National Environmental Policy Act.”  (§ 618.)  The bill further limits the alternatives required to be considered for transportation projects, and states that federal funding of less than $10,000,000, or less than 15 percent of a transportation project’s anticipated costs, shall not trigger NEPA review.  (§ 608.)

The Senate version of the transportation bill (S. 1813) does not include those broad NEPA changes.  It does, however, require agencies with permitting authority over transportation projects to render decisions within 180 days of a completed application or the lead agency’s final determination under NEPA, whichever is later.  (§ 1313(6).)  Agencies that miss that deadline could be required to transfer $20,000-$100,000 per week to the agency charged with rendering an ultimate decision on the underlying project.  (Id.)  Like the House bill, the Senate version also authorizes certain pre-construction activities prior to the completion of NEPA review.

The committee of lawmakers tasked with crafting a consistent transportation bill began formal negotiations on May 8, though their differences between the House and Senate legislation extend far beyond their environmental review provisions.  For more information on the federal or state environmental review of transportation projects, contact David Paget or Mark Chertok.