Environmental review process being hijacked by groups opposed to adding transportation capacity

News ARTBA November 18, 2005
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The National Environmental Policy Act (NEPA) needs to be revised so that decisions made by federal, state and local government agencies aimed at adding new highway capacity are not subject to endless legal challenge by project opponents, the American Road & Transportation Builders Association (ARTBA) said Nov. 17 in a testimony before a congressional panel.

NEPA is a 1969 law that regulates the environmental review process all transportation projects must undergo before construction can begin. NEPA's original intent was to protect the environment by ensuring the public has a role in the decision-making process and providing a coordinated process for different federal agencies involved in environmental decisions. Provisions in the law, however, have been increasingly manipulated by anti-growth groups to shut down or delay transportation improvement projects through litigation.

Nick Goldstein, ARTBA staff attorney, represented the association at a hearing called by a House Resources Committee task force, which is considering targeted reforms to NEPA. ARTBA was the only construction-related association to testify.

Goldstein cited a U.S. Government Accountability Office (GAO) report showing that 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. The report found that 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 laws, including NEPA.

A nearly yearlong delay in construction of U.S. 95 in Las Vegas, Nev., resulting from a NEPA-related litigation illustrates the problem,
Goldstein said. At issue was a 2002 lawsuit filed by the Sierra Club claiming the Federal Highway Administration (FHWA) failed to consider alternatives to widening U.S. 95 from six to 10 lanes, and that the project's 1999 Environmental Impact Statement was inadequate. In March 2004, the U.S. District Court for the District of Nevada ruled in favor of the FHWA. The Sierra Club appealed the ruling to the Ninth Circuit Court of Appeals. Construction work already underway was halted in August 2004 while the court considered the case.

"Allowing a transportation project to be stopped four years after meeting all of the federal environmental review requirements is not sound policy or in the public interest," Goldstein said. "The delays had negative impacts on local businesses, traffic congestion, air pollution and highway safety."

The ARTBA attorney presented several recommendations to reform and improve NEPA:

• Give appropriate consideration to the many benefits of transportation improvements as well as the negative environmental impacts of not initiating such projects;

• Establish a 180-day time limit on project-related NEPA lawsuits so there is more certainty in the transportation planning process; and

• Limit NEPA litigation to those issues that have been fully raised and discussed during the public comment period. This will help ensure that litigation over projects is a last resort, rather than a first stop for opponents of a transportation project.

"NEPA should be improved in a manner that allows its regulations to be crafted by policymakers in Congress and the Executive Branch, rather than being defined on a case-by-case basis through lawsuits initiated by anti-growth groups opposed to highway improvement projects," Goldstein said.

Goldstein's testimony marked ARTBA's second appearance before the House NEPA Task Force this year. In June, Kathleen Craft of the Frehner Construction Co., based in Las Vegas, represented ARTBA at field hearing in Arizona and provided a "real world" account of how
NEPA-related litigation was impacting the U.S. 95 project.

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