US Department of Transportation Proposes Updated NEPA Procedures Adding Streamlining and Efficiency Measures

The United States Department of Transportation (DOT) recently issued a notice of proposed rulemaking to update its environmental review procedures to include streamlining and other efficiency provisions. The new rules propose a comprehensive update of DOT Order 5610.1C, “Procedures for Considering Environmental Impacts,” which sets forth the agency’s responsibilities and procedures for complying with the National Environmental Policy Act (“NEPA”). DOT Order 5610.1 was issued in 1979 and last updated 35 years ago in 1985. The new proposed rule was issued on November 23, 2020 and public comments are due December 23, 2020.

DOT Policy Alignment
The proposed rule updates DOT’s NEPA procedures to align with current DOT organization, practice and policies. Reflecting congressional declarations of policy, the proposed rule seeks to incorporate into DOT’s NEPA environmental review procedures the streamlining, cost-saving and accelerating provisions of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Fixing America’s Surface Transportation (FAST) Act. The proposed rule also would update DOT’s NEPA procedures in response to the Council on Environmental Quality’s (“CEQ”) recent final rule updating its NEPA procedures, which took effect on September 14, 2020.

Proposed Significant Changes
The proposed new rule streamlines the NEPA process and narrows the scope of federal review. The rule includes the following important changes.

• Eliminates definitions for “cumulative effects” and “indirect effects”. This is consistent with the recent CEQ final rule where a cumulative impacts section is no longer required in NEPA documents. This change may make it more difficult to challenge projects in court as project opponents often focus on the cumulative effects of projects.
• Incorporates definitions for “effects”, “impacts” and “major federal action”. The proposed rule incorporates these three definitions from the new CEQ rule. The result is that (1) “effects” and “impacts” would be limited to changes to the human environment that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives and (2) “major federal action” would be modified to mean that non-federal projects with minimal federal funding or minimal federal involvement are excluded from NEPA review.
• Adds several new categorical exclusions for routine operational activities. The rule also allows DOT sub-agencies to apply the categorical exemptions of another agency which may introduce more flexibility in excluding actions from NEPA review.
• Sets new time lines. A time limit of one year for environmental assessments (EA) and two years for environmental impact statements (EIS) would be established. Written approval from the Assistant Secretary would be required for additional time.
• Sets new page limits. The proposed rule includes an EIS page limit of 150 pages (300 pages if the project is complex).
• Changes supplementation. The proposed rule requires supplementation of a NEPA document only if sufficient federal control remains.
• Clarifies NEPA policy. The proposed rule declares DOT policy is to use the NEPA process as an umbrella to achieve a single, integrated and concurrent review process for major federal projects.

Next Steps and Outlook for Proposed Rule
Although the proposed rule has not been finalized, the recent CEQ rule is applicable to DOT projects that commenced after September 14, 2020. The proposed DOT regulations may also be challenged in court, like the CEQ rule, which has been challenged by coalitions of environmental organizations. The U.S. Chamber of Commerce and a coalition of business associations have sought to defend the CEQ rule in court and industry groups likely will also support the proposed DOT rule because it streamlines the NEPA process and narrows the scope of federal review. According to media reports, transportation industry experts have cautioned the Biden administration could rescind the new DOT rule.

Public comments to the proposed rule are due by December 23, 2020. This is a short time frame and may represent the current administration’s goal to finalize the rule before the January 20, 2021 inauguration.