By: CAGTC Staff

On July 31, the Council on Environmental Quality (CEQ) issued a new proposed rule, referred to as the Bipartisan Permitting Reform Implementation Rule, to accelerate environmental reviews under the National Environmental Policy Act (NEPA). According to CEQ, the proposed revisions to NEPA will improve the environmental review process by promoting better decision-making and providing regulatory certainty.

NEPA was first signed into law in 1970 to require federal agencies to assess the direct, indirect, and overall environmental impacts of federal actions, such as certain infrastructure projects receiving federal funding or projects requiring a federal permit. There have been few revisions to NEPA since its establishment, with some of the most recent changes occurring in May 2022 when CEQ implemented a new rule to reinstate regulations that were in effect since 1978 but were removed under the previous administration.

CEQ considers the Bipartisan Permitting Reform Implementation Rule as the second phase of its May 2022 rulemaking and proposes two types of revisions – those to implement reforms included in the Fiscal Responsibility Act and those to build on previous NEPA reforms.

Through the proposed rule, CEQ will implement several NEPA updates that were incorporated in the Fiscal Responsibility Act, including: setting procedures for determining a lead agency to carry out an environmental review, setting a 150-page limit for environmental impact statements (EIS), setting a 75-page limit for environmental assessments (EAs), requiring an EIS to be completed within two years, requiring EAs to be completed in one year, and allowing agencies to adopt a categorical exclusion listed in another agency’s NEPA procedures.

In addition to implementing the Fiscal Responsibility Act, the proposal modifies regulations that determine the level of environmental review necessary for a project. Under current NEPA regulations, agencies must evaluate whether a proposed action will result in “significant environmental effects," and if it will, the agency must prepare an EIS. However, the proposed rule modifies existing requirements so that an EIS is only required for projects with significant adverse environmental impacts. CEQ clarifies that projects with significant, long-lasting positive impacts do not warrant an EIS.

When conducting environmental reviews, the proposed rule clarifies that agencies must consider effects related to climate change. The proposal also requires an EIS for a project to discuss relevant resiliency measures and the potential for a disproportionate adverse effect on the environment and public health.

Further, the proposed rule directs agencies to consider environmental justice in environmental reviews and encourages agencies to incorporate mechanisms to reduce the disproportionate effects of an action on communities, such as the cumulative effects of pollution.

In order to provide additional mechanisms for agencies to establish categorical exclusions outside of their NEPA procedures, the proposed rule would allow agencies to establish categorical exclusions through a land use plan, a decision document supported by a programmatic EIS or EA, or other equivalent planning or programmatic decisions. Once established, agencies could apply categorical exclusions to future actions addressed in the plan. CEQ expects this change to help agencies increase the speed at which they can establish categorical exclusions and encourage the development of categorical exclusions that are tailored to specific types of projects. Additionally, CEQ’s proposal clarifies that agencies are allowed to establish joint categorical exclusions.

CEQ will accept public comments on the proposal until September 29 before moving to the next stages of the rulemaking process.

By: CAGTC Staff

When legislators return from August recess in early September, they will have two major, time-sensitive bills to negotiate and pass before the beginning of October – fiscal year 2024 (FY24) appropriations and the Federal Aviation Administration (FAA) Reauthorization.

A major priority for legislators will be to pass an appropriations bill for FY24 before the September 30 deadline. Each fiscal year, 12 appropriations bills must be passed through both chambers of Congress by September 30 to fund federal government operations.

Both the Senate and House Committees on Appropriations approved their respective FY24 appropriations bills, but neither chamber has voted or scheduled a vote. The Senate bill maintained funding for key USDOT grant programs, while the House bill made significant cuts. Under the Senate proposal, the Rebuilding American Infrastructure with Sustainability and Equity Program (RAISE), Consolidated Rail Infrastructure and Safety Improvements Program (CRISI), and Port Infrastructure Development Program (PIDP) received funding in addition to funds made available by the Bipartisan Infrastructure Law. However, the House proposal only provided additional funding for CRISI.

Due to the House and Senate advancing differing proposals, legislators must resolve the differences to approve a final bill by the October 1 deadline to prevent a government shutdown when they return from August recess. In previous years, Congress has been unable to meet the deadline, and instead, opted to enact temporary funding through continuing resolutions that support government activities until full appropriations packages are passed. Funding for FY23 was enacted nearly three months after the September 30 deadline, while FY22 funding was enacted five and a half months after the deadline.

Following this year’s debt ceiling negotiations, there is additional pressure on legislators to pass full appropriations by January 1, 2024, if they fail to meet the September 30 deadline. The debt ceiling negotiations resulted in a $1.59 trillion cap on base discretionary funding, allocating $886.3 billion to defense spending and $703.7 billion to non-defense spending for FY24. When compared to FY23 enacted discretionary spending levels, these caps represent a slight increase of 3.3 percent for defense spending and a decrease of 5.4 percent for non-defense spending. If Congress fails to enact a full-year appropriations law by January 1, spending caps would automatically be reduced to 1 percent below enacted FY23 discretionary levels across both defense and non-defense categories. However, a sequestration order would not be issued until April 30, 2024 – if Congress enacts an appropriations package before this deadline, the caps would still revert back to the original FY24 levels. The provision is intended to incentivize legislators to pass full appropriations rather than rely on continuing resolutions.

The FAA Reauthorization also has a September 30 deadline. While the House passed a five-year, $108 billion FAA bill on July 20 by a 351-69 vote, the Senate has been much slower to advance its proposal. The Senate Committee on Commerce, Science, and Transportation has not marked up its FAA reauthorization due to disagreements over provisions related to pilot training requirements. Since Senators do not return to Capitol Hill until September 4, there is a short timeframe for both chambers to pass a final bill before the deadline. As a result, Congress will likely enact an extension to support FAA operations until full funding is passed.

The U.S. Department of Transportation has launched the Project Delivery Center of Excellence to help recipients of federal infrastructure funds deliver projects more efficiently and effectively, from concept to completion. The Center will serve as a central resource for innovative practices and will bring project managers together to enable knowledge sharing and peer-to-peer learning.

“This USDOT Project Delivery Center of Excellence that we are launching is important because it is so important to deliver good projects well— meaning on time, on task, on budget,” said U.S. Transportation Secretary Pete Buttigieg. “I know that in the months ahead the Center of Excellence at Volpe will only continue to grow and evolve in this purpose of better supporting project delivery staff, project sponsors, and everyone working on this both inside and outside the department.”

Among the initial plans for the Project Delivery Center of Excellence:    

• Simplifying the contracting process by providing newer, less experienced grant recipients with an off-the-shelf, high-quality model that they can use to ensure consistency and quality in design and construction contracts.
• Centralizing Project Delivery Methods Best Practices and Convening Information Exchanges
• Providing a central repository and disseminate national best practices and case studies in successful, innovative project development, project delivery, and cost containment efforts.
• Working in partnership with the American Society of Civil Engineers and Association of Consulting Engineering Companies to develop and distribute templates and model language for transportation construction contracts.

Read the full release here. Learn more about the Project Delivery Center of Excellence here.

On August 14,  the Office of Management and Budget (OMB) released final guidance to boost the use of American-made goods in infrastructure projects — which will bolster American businesses, workers, and economic growth.

The final guidance will support implementation of the Bipartisan Infrastructure Law’s (BIL) statutory requirements that manufactured products, construction materials, and iron and steel used in federally funded infrastructure projects are Made in America. It also sets forth these standards for construction materials while serving as a guide to agencies in using taxpayer dollars to strengthen our economy by supporting the creation of good jobs in both construction and manufacturing by expanding domestic production through infrastructure investment.

Read the full release here. Read the full guidance here.