December 21, 2020

Rachel Granneman

NEPA rollbacks will harm communities, not advance transportation projects

An effective environmental review process is critical for protecting our environment, and it does not cause transportation project delays. DOT must halt its NEPA rulemaking which threatens Great Lakes and Midwestern communities.

On their way out the door, the Trump Administration is rushing through more environmental rollbacks, this time using transportation development as an excuse. Transportation projects certainly face delays all the time, but the leading causes are lack of community consensus and funding challenges, not environmental review. The National Environmental Policy Act (NEPA) was intended to ensure sound decision-making and protect our environment. Rushing to weaken the Department of Transportation (DOT)’s NEPA process will not improve transportation, it will only waste time and resources and put our communities at risk.

The U.S. DOT should halt this rulemaking process, which is flawed in both substance and process. In this letter, several Midwest & Great Lakes organizations provide comments on the flaws with this proposal while also requesting an extension to the comment period and for public hearings, including at least one hearing in the Midwest region. Contrary to its own requirements and in the middle of a public health crisis DOT only provided the public a very short 30 day public comment period which closes on December 23^rd.

We are deeply concerned about how the proposed regulatory changes will impact the Midwest region’s communities and natural resources. The Great Lakes comprise the largest freshwater ecosystem on Earth—containing 20% of the world’s freshwater supply—and provide drinking water to over 40 million people. The watershed supports wildlife and plants that depend on clean water, and fishing here alone injects over $5 billion a year into the economies of the surrounding states. Our region is already feeling the impacts of climate change, affecting water levels, encouraging invasive species, and spreading toxic algae, in addition to record flooding and crippling drought in our nation’s breadbasket. The NEPA process is critical to ensure transportation projects do not exacerbate the numerous environmental challenges faced by the Midwest, to protect the economy and our vital natural resources.

Our letter raises makes three main points with respect to this deeply problematic rulemaking:

1. Environmental impact –

U.S. DOT states that it “does not anticipate any environmental impacts from this proposal.” The undersigned organizations wholeheartedly disagree with this assessment, as the rule is virtually guaranteed to negatively and significantly affect the environment. The proposed regulation would drastically affect the scope of NEPA and how NEPA processes and analyses are carried out by the numerous operating agencies within U.S. DOT. Transportation infrastructure can shape housing, development, and pollution patterns for generations; it requires careful deliberation for healthy communities and weakening that process will not benefit anyone. 

“The rule is virtually guaranteed to negatively and significantly affect the environment.” 

Under DOT’s existing NEPA procedures, the agency is required to develop a full Environmental Impact Statement (EIS) for this rulemaking. Moreover, DOT should provide the public with sufficient time to comment and must provide analysis and documentation to support the modifications to categorical exclusions. 

2. Flawed foundation –

This whole mess was instigated by another one of Trump’s many environmental rollbacks. The overarching NEPA alterations from the Council on Environmental Quality (CEQ) went into effect in September, undermining bedrock environmental protections and requiring federal agencies to respond with complementary policies within a year. Not only are these underlying regulations deeply flawed, but now DOT is rushing to rewrite the rules by December 23, amid the holidays, with no public hearings. 

Many of the Trump Administration’s deregulation efforts have already been overturned by the courts, and we expect the same fate for CEQ’s NEPA regulations, which are arbitrary and capricious and undermine the core purposes of NEPA. Additionally, President-elect Biden will take office in less than one month and is likely to take a drastically different approach. Devoting time and resources to a complete rewrite of U.S. DOT’s regulations in these circumstances is inefficient and a waste of resources. 

One of the most egregious NEPA changes in DOT’s proposed rule would limit alternatives analysis. This means if there are better alternatives to a proposed transportation project, “particularly those that might enhance environmental quality or avoid adverse environmental effects,” DOT couldn’t care less. The proposed rule would subvert this analysis, encouraging agencies to limit the alternatives considered, and even allow agencies to reject any alternative that does not meet the goals of the applicant. This would render the alternatives analysis meaningless—an applicant could simply narrowly define their own purposes and preclude any alternatives beyond the “no action” alternative. We would be left with the proverbial hammer seeing only nails as alternatives.   

The proposed rule would also eliminate references to secondary impacts and cumulative impacts, which are crucial to understanding how a project will actually affect the environment and communities. The rule also attempts to undermine public input and judicial review, violating the separation and balance of governmental powers. 

3. Additional harm –  

The proposed rule goes even beyond the rollbacks called for in the CEQ NEPA regulations, further undermining the purpose and processes of NEPA. 

• Making environmental considerations optional – By eliminating the “policy and intent” section of existing decades-old procedures, DOT is trying to implement a policy where environmental concerns may be considered but are overridden by any other conflicting concern or policy. 
• Locking us into outdated analysis – The rule would allow an environmental impact statement to stand for 5 years instead of 3 before revaluation is required. A lot can change in five years. We are seeing during the current pandemic just how quickly traffic patterns can shift, not to mention constant shifts in population, technology, and community needs. 
• Weakening protections on public land – The rule would also eliminate the discussion on Section 4(f) and impacts on publicly owned parklands, recreation areas, wildlife and waterfowl refuges, and historic sites required by the 1985 guidance. 
• Eliminating valuable guidance – The new rule provides no justification for eliminating valuable guidance on considering things like community disruption and relocation, impacts on pedestrian and bicycle access, and impacts from construction. 
• Expanding loopholes – Currently, minor maintenance and upgrades to existing buildings are exempt from extensive assessment, but the new rule would expand this category to apply to large infrastructure projects like highways, airports, or railroad stations. This defeats the purpose of having environmental review at all if major projects are exempt. 

Conclusion 

An effective NEPA process is critical to protecting the Great Lakes and communities throughout the region. Environmental review is critical to advancing smart transportation, and it does not cause delays in development projects. NEPA must be fully implemented to protect the Midwest’s farms, drinking water, economy, and recreation opportunities. U.S. DOT should halt this rulemaking process until after litigation has resolved and after the administration has had an opportunity to provide guidance to the agencies. The proposed rule incorporates numerous problems in the CEQ NEPA rules, which are being challenged in federal court and may be revised by the incoming administration. This proposal also goes even further than the flawed CEQ NEPA rules in undermining NEPA in several respects. Given the status of the rule and the timing, this accelerated process is a waste of valuable staff and public resources. Finally, this process is being rushed and U.S. DOT has failed to undertake an appropriate NEPA review of this proposal. U.S. DOT should halt this rulemaking process and leave its current guidance in place.