Federal Environmental Review and Permitting White Paper
Most large infrastructure projects must receive environmental reviews and approvals that involve many federal agencies and multiple levels of government. What is more, these projects generally do not qualify for efficient general permitting procedures and must obtain extremely costly and time-consuming individual permits, on a project-by-project basis. The Construction Advocacy Fund financed this white paper for AGC in an effort to reform the National Environmental Policy Act (NEPA) and the federal environmental permitting process to eliminate delays, unnecessary duplication, and frivolous litigation, and give worthy projects a timely green light.
The white paper outlines suggested actions for Congress. Specifically, it should strengthen and expand the time-limited schedules and other meaningful “streamlining” reforms in current law and impose action-forcing mechanisms as well as incentive programs to ensure agency-wide compliance. To avoid sequential and duplicative reviews that slow down many large infrastructure projects, Congress should require the issuance of Clean Water Act Section 404 permits in conjunction with the NEPA Record of Decision. To this end, it is critical that Congress require agencies to allow the monitoring, mitigation and other environmental planning work performed during the NEPA process, and included the final Environmental Impact Statement, to satisfy federal environmental permitting requirements.
In the white paper, AGC also points out why undisclosed environmental risk – as for managing and remediating unforeseen hazardous material – can unnecessarily drive up construction costs, particularly on public works projects, (due to added cost contingencies) and limit the universe of qualified, responsible construction firms (due to contractors dropping out of the procurement). Congress should require the government to bear such unquantifiable risk on public works projects and/or provide contractual relief through cost sharing mechanisms.
Importantly, the threat of endless litigation (with regard to environmental justice, climate impacts and other issues) is forcing agencies to try to make their NEPA analyses litigation-proof so they survive judicial challenges under NEPA’s well worn “hard look” standard. AGC herein makes the case for why Congress should work to remove the incentives for frivolous and obstructive litigation that are delaying, and sometimes defeating, proposed projects.
AGC also offers specific reforms to the NEPA process that would help to expedite project construction at a reduced price, while supporting the innovation needed to our nation’s infrastructure, include prohibiting the initiation of procurement prior to the NEPA approval and exempting de minimis changes formal NEPA re-evaluation. Specific to the 404-permitting process, reforms are needed to encourage advance mitigation planning and investment.
AGC of America