In the first few weeks of 2018, the federal government released a series of memoranda officially announcing a host of significant changes in how it will enforce violations of environmental laws – ranging from restricting payouts to “settle” lawsuits outside of court, to deferring to states on enforcement matters, to limiting the practice of regulating through guidance. In addition, the U.S. Environmental Protection Agency (EPA) finalized its 2018 penalty rule that increased the maximum civil penalties per violation of an environmental statute or agency regulation.
鶹Ƶhas been involved in efforts to streamline the environmental review and permitting process since the late 1990s to allow transportation and other infrastructure projects to progress to construction quicker. While there have been many successes, the effort continues to today as 鶹Ƶworks with the Trump Administration and the Congress in an effort to remove bottlenecks and eliminate delays. In response to Congressional direction, the General Accountability Office (GAO) released a report this week assessing the use of these provisions and whether they have accelerated project delivery. GAO reports that since 2005, over 30 provisions have been enacted in law to speed up the delivery of highway and transit projects, mainly by streamlining the NEPA review process. These project delivery provisions included new categorical exclusions which allow for a less intense environmental review on certain projects, and a provision allowing US DOT to assign federal NEPA approval authority to states.
On Dec. 14, the U.S. Environmental Protection Agency (EPA) released its Semiannual Agenda of Regulatory and Deregulatory Actions and Regulatory Plan as part of the government-wide Unified Agenda—setting the path for the agency over the next year. Of particular interest to contractors, the Regulatory Agenda includes the repeal and replacement of the 2015 Waters of the United States Rule (see related article), which will remain a focus for the agency. 鶹Ƶalso notes that the agency is reworking the 2015 coal combustion residual disposal rule (e.g., fly ash).
On January 22, 2018, the U.S. Supreme Court issued a ruling that legal challenges to the 2015 Waters of the United States (WOTUS) rule belong in the district rather than appellate courts. In short, this Supreme Court decision will result in lifting an appellate court’s nationwide stay of the 2015 WOTUS rule that has been in effect since Oct. 2015. The definition of WOTUS dictates the scope of the federal government’s control and Clean Water Act permitting authority over construction work in water and wet areas. Whereas this ruling may be a victory for industry in the long term, the timing of the decision is unfortunate as the Administration is still working to repeal and replace the 2015 WOTUS rule. In the short term, we anticipate confusion as the process plays out.
House Transportation Committee Considers Environmental Streamlining
On Jan. 5, 鶹Ƶurged the U.S. Fish and Wildlife Service (FWS) to remove the goal of “net conservation gain” from the Service’s Mitigation Policy and Endangered Species Act (ESA)–Compensatory Mitigation Policy, finalized in late 2016. 鶹Ƶasserts that that the “improvement” goal is not supported under the ESA; the goal fails to provide a clear limit on how much mitigation is necessary and blurs the line between recommendations and requirements.
鶹Ƶcalled on the U.S. Environmental Protection Agency (EPA) to apply federally approved “Recommended Best Practices for Environmental Reviews and Authorizations for Infrastructure Projects” in delegated states that EPA has authorized to implement and enforce a federal environmental permit program. In response to EPA’s request for input, AGC’s Nov. 20 letter explains that where states have taken over the responsibility for executing federal authorizations and environmental reviews, the obligation to use best practices should transfer to the state permitting authority. A majority of states have been delegated authority to implement and enforce one or more provisions of the federal pollution control laws.
鶹Ƶcommented this week on three separate Federal Highway Administration (FHWA) regulatory proposals to expedite project delivery by streamlining the federal environmental review process. The FHWA proposals implement various 鶹Ƶsupported provisions in the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Fixing America’s Surface Transportation Act (FAST Act), intended to make the National Environmental Protection Act (NEPA) procedures work better. In one proposal, 鶹Ƶsupported the state of Arizona taking responsibility for undertaking part of the NEPA review process and in so doing eliminating federal review. Eight states have or are seeking assignment of this review authority and AGC’s comments pointed out that FHWA and these states report significant reduction in the time it takes to complete the NEPA process. FHWA’s report indicates that states that have undertaken this responsibility have, “a greater awareness, understanding, and opportunity for improving environmental outcomes.”
For AGC’s most recent episode of the ConstructorCast, we sit down with Leah Pilconis, AGC’s Senior Counsel of Environmental Law, to talk about the complex world of environmental permitting and what 鶹Ƶis doing to try to make it easier for construction companies. Our discussion examines the breadth of requirements, the opportunities to streamline regulations and make environmental protection more efficient, and where environmental regulations might be headed in the coming years.