May 02, 2024
NEPA Rule Raises Concerns for Infrastructure Development
BY AsphaltPro Staff
In a recent development concerning infrastructure regulations, the Biden Administration’s White House Council on Environmental Quality (CEQ) finalized its phase two National Environmental Policy Act (NEPA) rulemaking on May 1. This decision has sparked significant concerns among various groups, including the American Road & Transportation Builders Association (ARTBA), regarding its potential impact on infrastructure projects across the nation.
One of the primary concerns raised by ARTBA and others pertains to the removal of references to the procedural nature of NEPA permitting. This alteration grants regulators the authority to seek indefinite extensions, potentially leading to substantial delays in the permitting processes. Moreover, the new rule introduces additional complexities by mandating the consideration of factors such as climate change, environmental justice, and cumulative impacts, which are often difficult to measure and evaluate effectively.
Despite calls for moderation, CEQ’s final rule did not incorporate substantial changes from its initial proposal. While the agency accepted recommendations not to include previous greenhouse gas emissions (GHG) guidance, it introduced new, undefined parameters for environmental analyses and may require mitigation measures beyond existing federal statutes.
ARTBA President and CEO Dave Bauer emphasized the contradictory nature of the administration’s approach, stating, “The administration cannot have it both ways – it can either help rebuild and renew the nation’s infrastructure, or it can keep imposing new and expanded regulations.” Bauer underscored the necessity for CEQ to align with the objectives of the Fiscal Responsibility Act (FRA), which mandates streamlining the NEPA process rather than complicating it further.
The implications of these regulatory changes extend beyond administrative procedures. The potential for heightened litigation risks from external groups seeking to disrupt progress on infrastructure projects poses a significant challenge to project proponents. Such challenges could further impede the timely completion of essential infrastructure developments critical to national growth and prosperity.
Looking ahead, ARTBA plans to provide a detailed summary of the rule to shed light on its potential ramifications. However, legal challenges loom on the horizon, indicating that the finality of CEQ’s decision may not be set in stone. With the rule set to take effect on July 1, the window for addressing concerns and implementing revisions is narrowing.