Transportation construction and environmental stewardship are connected in numerous ways. Every transportation project must undergo environmental review and approval processes before construction is allowed to proceed. This includes, but is not limited to, issues dealing with the federal Clean Air Act (CAA), the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA) and climate change. Currently, the environmental review and approval process for a transportation project can take up to 19 years. This process, however, can be improved in a manner that reduces delay for transportation projects while maintaining necessary environmental protections.
Major federal environmental statutes need to be updated in order to reflect a balance between necessary transportation development and sensible environmental protections. Curbing development simply for the sake of curbing development is not the same thing as protecting the environment. As such, these statutes should be modified to ensure the integrity of our natural resources without imposing ineffectual bureaucratic layers. ARTBA’s specific policy statements and goals in the five major areas of environmental regulation (NEPA, Clean Air, wetlands, ESA and climate change) are as follows:
NEPA and Transportation Development
NEPA is triggered any time an action by the federal government would result in an “environmental impact.” The White House Council on Environmental Quality defines an “environmental impact” as any impact on the environment or historic and cultural resources. Agencies such as: the U.S. Army Corps of Engineers (Corps) for wetland and water permits; the U.S. Fish and Wildlife Service (FWS) for Endangered Species Act compliance; the Advisory Council on Historic Preservation (ACHP) for historic preservation laws; the U.S. Environmental Protection Agency (EPA); and many others are commonly involved in this process. NEPA does not mandate specific outcomes. It simply governs how the process must take place. NEPA is activated by federal actions taken as part of the transportation construction planning process and when federal funds are used to finance the project.
According to a report by the U.S. Government Accountability Office (GAO), as many as 200 major steps are involved in developing a transportation project from the identification of the project need to the start of construction. According to the same report, it typically takes between nine and 19 years to plan, gain approval of, and construct a new major federally funded highway project. This process involves dozens of overlapping state and federal environmental statutes, including NEPA, state NEPA equivalents, wetland permits, endangered species implementation, clean air conformity, etc. Often times these procedures mask disparate agendas or, at a minimum, demonstrate an institutional lack of interagency coordination that results in a seemingly endless string of delays. NEPA was meant to be a a vehicle to promote balance between necessary environmental protections and responsible development, not a statute that enabled delay. While consideration of environmental effects is a key element of that decision making process, economic, safety and mobility factors must be considered as well. When NEPA is used as a method of preventing a chosen outcome by those who disagree with that decision, its purpose as a balancing statute is defeated.
ARTBA recognizes the importance of environmental stewardship and supports the principle that transportation systems must be socially, economically and environmentally sustainable.
ARTBA believes NEPA plays a valuable role in facilitating the integration of environmental regulations, natural resource and social issues, and stakeholder concerns regarding the planning, design and delivery of transportation projects.
In too many instances, the NEPA process has become inefficient in the timely resolution of environmental concerns, unpredictable and inconsistent in its application to projects, and too cumbersome to allow meaningful public participation and informed decision-making. As such, ARTBA pursues NEPA reforms with the intent to create a more predictable, equitable and efficient environmental review process.
ARTBA NEPA Reform Priorities
Amend NEPA to include various favorable provisions found in SAFETEA-LU, including:
- 180-day statute of limitations on all lawsuits challenging federal environmental decisions made during the NEPA process.
- Concurrent environmental reviews by federal agencies for projects during the NEPA review process in order to reduce overall project delay.
- Mandated agency coordination plans allowing agencies to work together and produce a coordinated timeline for project reviews. Such a plan would ideally allow for all permitting decisions and reviews to be done at the same time, reducing overall project delay.
- Deadlines for decision making under other environmental statutes.
Amend FHWA/FTA NEPA Guidance including:
- Delegation of categorical exclusions (CEs) to states.
- Delegation of NEPA review to states (Expansion of the SAFETEA-LU five state pilot program).
Implement NEPA regulatory reforms including:
- Page limits on environmental impact statements (EISs) and environmental assessments (EAs).
- Clarification of the definition of “major federal action” in order to allow the regulated community to know what does and does not trigger NEPA.
- Improved guidance on what constitutes a “reasonable alternative” to a preferred course of action on a project and on how to quantify the “cumulative impacts” of a project.
Transportation and Air Quality
Transportation is also helping to achieve cleaner air. As the United States Environmental Protection Agency ( EPA) reported April 30, 2007: “Between 1970 and 2006, gross domestic product increased 203 percent, vehicle miles traveled increased 177 percent, energy consumption increased 49 percent, and U.S. population grew by 46 percent. During the same time period, total emissions of the six principal air pollutants dropped by 54 percent.” Specifically, there has been a decline in the overall concentration level of criteria pollutants for one-hour ozone concentrations of 29 percent and for eight-hour ozone concentrations of 21 percent in the past 26 years.
Ground level ozone (as opposed to the ozone in the upper atmosphere or “ozone layer,” which occurs naturally) is formed by the combination of the oxides of nitrogen (NOx) and volatile organic compounds (VOCs) in sunlight. NOx and VOCs are referred to as the “criteria pollutants” for ozone. As levels of NOx and VOCs decline, so will the amount of harmful ground level ozone. Since 1970, NOx levels have decreased by 33 percent and VOC levels have decreased by 55 percent. This decline in pollution is being heavily driven by improvements in the transportation sector. Specifically, NOx emissions from motor vehicle emissions have gone down 41 percent since 1970, while VOC emissions from motor vehicles have declined by 73 percent.
Today’s average motor vehicle produces 80 to 90 percent less emissions than it did in 1967. Clearly, the transportation community is playing a vital role in reducing vehicle emissions and is continuing to take steps to build on this success by further reducing all forms of air pollution. As better motor vehicle and fuel technologies develop, vehicle emissions will continue to go down with increased automobile usage.
ARTBA recognizes the importance of clean air to a healthy and livable society. This belief guides ARTBA members in consistently looking for cleaner and more efficient methods of transportation construction.
ARTBA believes the CAA is an essential tool for enacting nationwide standards necessary for achieving the air quality needed for a healthy and livable society.
Furthermore, there have been significant improvements in both the overall air quality of the nation as well as emissions from the transportation sector. Recent implementation of CAA regulations has not properly recognized this progress and has moved away from considerations based on science and public health and safety. As such, ARTBA pursues reform of the CAA with the intent to create a more workable, less bureaucratic system for protecting the nation’s air quality, properly balancing existing progress in emissions reductions with public health and safety.
ARTBA Clean Air Act Policy Priorities
Amend the CAA to allow consideration of the cost of implementing regulations as well as the effect of such regulations on public health and safety.
Repeal the “transportation conformity” provisions of the CAA. The existing conformity process has become a top-heavy bureaucratic exercise that puts more emphasis on “crossing the t’s and dotting the i’s” than on engaging the public in true transportation planning that is good for the environment and the mobility of a region’s population. Very few conformity lapses occur because a region has a major clean air problem. They occur because one of the parties involved cannot meet a paperwork deadline.
In the event transportation conformity is not repealed, the following significant changes must be made to make the conformity process more effective:
- Conformity determinations are based on assumptions and “modeling of future events,” not often reflecting reality. The air quality modeling process used in determining conformity levels needs to be reformed to utilize the most recent air quality data available, rather than prediction-based models
- Emissions budgets must have a built in level of flexibility (preferably a 10 to 15 percent cushion) for counties. This will prevent the conformity process from degrading into a “race for the courthouse door” every time a local or regional government experiences a momentary up-tick in emissions levels.
- “Hot-spot,” or project-level, conformity should be repealed. This practice provides a false picture of air quality levels by focusing on emissions caused by specific transportation construction projects. Most infrastructure improvement projects are going to necessarily cause a temporary rise in emissions due to the construction associated with building the transportation improvement. However, the finished project often leads to an overall decline in emissions levels for the county in question. “Hot-Spot” analysis serves no functional purpose in accurately determining long-term air-quality levels and is an unnecessary impediment to transportation improvement projects only serving to increase costly litigation.
Cease any tightening of the current National Ambient Air Quality standards (NAAQS) for monitored pollutants such as particulate matter (PM) and ozone until existing regulations have had a chance to take effect. Many local and regional governments are still attempting to meet existing NAAQS standards and making real progress towards improving air quality. Imposition of new standards while local and regional governments are still trying to meet existing requirements serves only to “move the goalposts” and impedes current progress.
Transportation and Wetlands Management
Transportation projects are improving the environment every day as they make the nation’s infrastructure stronger and better. According to an April 2008 report issued by the President’s Council on Environmental Quality (CEQ), the Federal-Aid Highway Program has achieved over 52,000 acres of wetlands mitigation since 1996. This represents almost a 2.75 to 1 ratio of wetlands mitigated versus wetlands impacted by transportation projects. In other words, transportation projects have not only mitigated all of the wetlands they have impacted, they have exceeded that amount and added more than 33,000 acres of new wetlands. However, overly restrictive wetlands regulation can threaten this progress by restricting the ability of transportation projects to create flexible solutions allowing for preservation of wetlands without delaying projects.
ARTBA supports the reasonable protection of environmentally sensitive wetlands with policies balancing preservation, economic realities, and public mobility requirements. ARTBA believes that the CWA plays a valuable role in protecting our nation’s water resources by establishing a unique partnership between the federal government and the states allowing for an appropriate balance of environmental protection and state and local authority regarding transportation and other land use decisions.
The transportation construction industry and state departments of transportation have been grappling with wetlands issues for years. Project planners and regulators often face confusing and conflicting interpretations on the scope of federal jurisdiction, such as not knowing what is or is not a federally jurisdictional wetland. This confusion complicates long-term transportation planning because planners can never be sure where CWA permits will or will be not required. ARTBA shall pursue CWA reform with the intent to create a more predictable, equitable and efficient wetlands permitting process.
ARTBA CWA Policy Priorities
A legislative or regulatory prohibition on further use of the so-called “migratory bird rule,” which was being used by the Corps to assert jurisdiction over intrastate wetlands based on the flight patterns of migratory birds. Further, legislative or regulatory exclusion of isolated wetlands and man-made ditches or remote wetlands with finite connections to navigable waters from federal wetlands jurisdiction.
Oppose any efforts to extend federal regulation to isolated areas that have no environmental value. Protecting an area simply for the sake of protection adds little from the standpoint of environmental quality, but can create needless, time-consuming regulatory complications.
Work towards a definition of “wetlands” that would be easily recognizable to both landowners and transportation planners. Such a definition will recognize if a land area is saturated with water at the surface during the normal growing season, has hydric soil and supports aquatic-type vegetation, and is a functioning wetland. A definition should also be the basis for a federal classification system for wetlands which will add clarity to the wetlands permitting process.
Designation of a “de minimis” level of wetlands impacts acknowledging that there is an amount of impact insignificant enough not to warrant federal or state intervention.
Development of an efficient wetlands permitting process allowing for necessary protection of ecologically sensitive resources without excessive delay for transportation improvement projects. Specific improvements include:
- Time limits for agency permitting decisions.
- Designation of the Corps as the “lead agency” in permitting decisions. The United States Environmental Protection Agency should be removed from the wetlands permitting process.
- Removal of mandatory notification requirements on Nation Wide Permits (NWPs) and repealing of recent acreage limitations on NWPs reducing the limit from 10 acres to ½ an acre.
Encouragement of mitigation banking as the preferred method of wetlands reclamation. Mitigation banking is particularly beneficial to the highway construction industry as it allows project developers flexibility in meeting wetlands restoration obligations by allowing the choice of a mitigation site based on environmental value rather than proximity to a highway project.
Encourage the innovation of methods to share resources with the Corps focusing on the reduction of permit backlogs and delays.
Transportation and Endangered Species Protection
The ESA is a valuable tool in helping to deliver transportation projects in a manner that is most beneficial to both the environment and the communities served by those projects. In its current state, however, the ESA has achieved less than a one percent rate of success for species recovery. At the same time, it has resulted in multi-year delays for transportation construction projects. According to a survey of state departments of transportation conducted by ARTBA, in the year 2000 alone, 175 different transportation projects were delayed by the ESA at a cost to the nation of $652 million. Delayed transportation improvements contribute to greater congestion on existing roads which leads to detrimental public health and safety effects, including reduced air quality and increased motor vehicle accidents.
ARTBA pursues ESA reform with the intent to allowing the ESA to be used where it is truly needed, rather than as a tool to delay and stop transportation projects.
ARTBA ESA Policy Priorities
Remove the ESA’s “critical habitat” provisions and replace it with a less expansive habitat preservation system that focuses on preserving essential species habitat without imposing unnecessary and excessive restrictions on development.
Establish a standard to define the “best available” scientific data in decisions concerning endangered or threatened species. This standard should provide for independent peer review of all ESA determinations.
Reform the species listing process to discourage listing of species not actually threatened. Specifically, species should not be able to be listed based on potential threats, only actual impacts. Also, the de-listing process should be streamlined to allow for easier removal of species once they are no longer threatened.
Curb unnecessary ESA litigation by disallowing litigation based on possible development occurring as the result of a proposed transportation project. Only disputes involving the effects of the potential project itself should be considered.
Transportation and Climate Change
The ongoing scientific and public policy debate surrounding “global climate change” is examining the “greenhouse gas” contribution of many sectors of the nation’s economy, including transportation. However, the dialogue to date has overlooked the contributions made by the transportation sector in reducing the greenhouse gas emissions associated with climate change. As better motor vehicle and fuel technologies develop, vehicle emissions will continue to decline despite increased automobile usage.
One of the leading causes of greenhouse gasses is not transportation itself, but congestion. Over the past quarter century, the number of new lane miles in the United States has only increased by six percent. In contrast, vehicle miles traveled (VMT) has grown by 157 percent, while the number of vehicles and licensed drivers on the road has increased by 112 percent and 73 percent, respectively, and Gross Domestic Product has grown by 167 percent.
As a result of road capacity not keeping up with demand, congestion levels grew continuously between 1982 and 2005. A recent study shows that the average annual hours of delay experienced by commuters increased from 14 hours per year to 38 hours over that period. At the same time, travelers are wasting an estimated 4.2 billion gallons of fuel due to congestion. Simply put, the nation’s road system is not keeping up with growth in system usage and is resulting in an ever growing congestion problem.
Insufficient system-wide capacity produces specific bottlenecks that are reported to cause 50 percent of total congestion on the nation’s freeways. In 2004, a study of the nation’s most severely congested highways highlighted the fact that significant reductions in emissions require a reduction in vehicle time traveled, not vehicle miles traveled. The study concluded that modest improvements to traffic flow at 233 bottlenecks would reduce carbon dioxide emissions by as much as 77 percent and conserve more than 40 billion gallons of fuel over a 20-year period. Addressing congestion will also lead to reduced levels of CO, VOCs, and NOx, since vehicles caught in stop-and-go traffic emit far more of these pollutants than they do operating without frequent braking and acceleration.
ARTBA recognizes the nationwide debate concerning the issue of climate change. This debate is currently focusing on federal regulation of “greenhouse gas” emissions from multiple sectors of our nation’s economy.
The transportation sector is an important element of the climate change discussion and an efficient national infrastructure is essential to the reduction of “greenhouse gas” emissions.
ARTBA pursues intermodal transportation solutions to help reduce the overall emissions of “greenhouse gasses.”
ARTBA Climate Change Policy Priorities
Recognition that congestion reduction is essential to reducing “greenhouse gasses.” Congestion levels are increasing in metropolitan areas all over the nation. Emissions from vehicles stuck in traffic are much greater than those on roads where traffic is free flowing.
Full implementation of the ARTBA “Critical Commerce Corridors” program establishing a nationwide freight distribution system as it is a required element of any plan to reduce both congestion and “greenhouse gasses.”
Reform of the Clean Air Act’s Congestion Mitigation Air Quality (CMAQ) program to allow program funds to be used for congestion reduction activities, including new roadway capacity.
Direction of any funds collected as part of a “carbon tax” or other user-based fee to address climate change into the federal Highway Trust Fund, as these funds are being levied on those using the nation’s transportation system and, in turn, should be used to improve that same system.
Recognition that if there is to be additional “greenhouse gas” regulation that such regulation should be implemented on a uniform basis and not in a patchwork, state-by state fashion.
(Revised October 2008)