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Streamlined Environmental Review for Adaptive Rebuilding of Transportation Assets

Description:

Sea-level rise, increased precipitation, and increased storm severity resulting from a changing climate will increase the vulnerability of transportation assets to flooding and other physical stressors. Recent extreme weather events from Hurricane Katrina to Superstorm Sandy have demonstrated the vulnerability of our transportation system to impacts. These losses come at a time when transportation agencies are already faced with having to maintain aging infrastructure in an era of declining transportation funding. Climate adaptation presents an opportunity to increase transportation resilience and protect critical infrastructure. Adapting a transportation facility could include relocating the facility inland, elevating or retrofitting the facility, or protecting the facility with a sea wall or other engineered structures. Because of fiscal constraints, the perfect time to implement these types of adaptations is when using disaster relief money to rebuild or restore a facility after it has been damaged. However, the environmental review requirements triggered by the National Environmental Policy Act (NEPA) present time and money constraints that may discourage state Departments of Transportation (DOTs) and Metropolitan Planning Organizations (MPOs) (collectively “transportation agencies”) from implementing adaptation measures.

All major federal actions, including any project funded through disaster relief statutes, must comply with NEPA. NEPA directs federal agencies to thoroughly assess the environmental consequences of "major federal actions significantly affecting the environment." NEPA provides three main pathways for complying with environmental review requirements: (1) statutory exclusions, (2) categorical exclusions, and (3) Environmental Impact Statements (EIS). Actions that do not significantly affect the quality of the human environment may be statutorily or categorically excluded from NEPA review. All other actions that do not fit into one of the two exclusions must complete an EIS. This can be problematic because EISs require lengthy and sometimes expensive analysis and processes such as the identification and evaluation of alternatives, disclosure of environmental impacts, and public scoping and comment periods.

Under the Stafford Act and emergency relief provisions of the Federal Aid Highway Act, most emergency relief projects are excluded from environmental review requirements and can proceed with little time and expense. These exclusions, however, are limited to assistance that has the effect of restoring a transportation facility to its pre-disaster condition in its pre-disaster footprint. Adaptive measures often do not qualify for one of the streamlined exclusions because such measures often result in alterations in the size, capacity, or location of the facility. Thus, adapting facilities will most often require the completion of full-blown EIS. When pressed with the need to repair and rebuild critical transportation infrastructure quickly after a disaster, the additional time and expense associated with environmental review may discourage transportation agencies from adapting a facility.

NEPA, however, may provide opportunities for agencies to proactively leverage environmental review in a way that will allow them to channel disaster relief funding and allow for adaptation during the rebuilding process. Agencies could consider developing Program Environmental Impact Statements (PEIS) as part of transportation plans to analyze adaptation alternatives. PEISs are regionally focused documents that assess the environmental impacts of broad sets of policies, programs and alternatives. Through a PEIS, agencies can assess the vulnerability of their transportation system to climate impacts, identify a range of adaptation alternatives for particular assets (such as relocating, elevating, or protecting assets), and begin the process of evaluating the environmental impacts of different alternatives. Then if a disaster strikes and disaster relief funding becomes available, transportation agencies could then “tier” off of a previously prepared PEIS truncating the environmental review process required to implement selected project alternatives. By conducting the environmental analysis during a pre-disaster planning phase, communities will be in a better position to quickly direct disaster relief funding.

The purpose of this research would be to analyze whether PEISs can be used as an effective tool to streamline and front load the environmental review process so that communities are better positioned to implement adaptive measures when rebuilding after a disaster. The research would be designed to identify potential legal and administrative barriers to using PEISs for these purposes, such as challenges defining the appropriate scope and scale of the PEIS, problems with document staleness (outdated or changed environmental conditions) if the information is developed too far in advance of project implementation, and potential challenges tiering off of a PEIS to implement specific projects.

Objective:

The objectives of this research would be to help transportation agencies identify opportunities for streamlining the NEPA process after natural disasters. PEIS could serve as a mechanism to eliminate redundancy and inefficiency in the environmental review process, and encourage use of the NEPA process as a method of identifying a range of alternatives to adapt vulnerable transportation assets. This approach would also ensure that environmental review is not circumvented due to exigencies posed by disaster recovery. Instead, by using PEISs agencies can work within existing NEPA frameworks in a way that fully explores environmental impacts but front loads the review so that environmental review does not delay post-disaster recovery.

Benefits:

The results of this project will allow transportation planners to better allocate disaster relief funds to the assets most vulnerable to the effects of climate change, increasing the long-term sustainability of public investments. By coupling the environmental review process with long-term vulnerability assessments of priority assets before a disaster, transportation planners will be armed with a plan for implementing adaptation measures during the rebuilding process. This will ease the administrative and time burdens typically imposed during the environmental review process, as transportation planners can “tier” off of the previously prepared PEIS with smaller, more streamlined environmental assessments. By using the NEPA process to develop long-term adaptation alternatives, communities will be in a better position to direct emergency relief funding toward rebuilding assets that are resilient to the effects of climate change, resulting in long-term cost-effective use of disaster relief funds.

Related Research:

Memorandum from Nancy H. Sutley, Chair, Council on Envtl. Quality, to the Heads of Fed. Dep'ts & Agencies, Improving the Process for Preparing Efficient and Timely Environmental Reviews Under NEPA (Mar. 6, 2012), available at

Executive Order 13604, Improving Performance of Federal Permitting and Review of Infrastructure Projects (Mar. 22, 2012).

Linda Luther, CRS Report for Congress RL34650, Implementing the National Environmental Policy Act (NEPA) for Disaster Response, Recovery, and Mitigation Projects.

Memorandum from Nancy H. Sutley, Chair, Council on Envtl. Quality, to the Heads of Fed. Dep'ts & Agencies, Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions (Feb. 18, 2010).

Mark Squillace & Alexander Hood, NEPA, Climate Change, and Public Lands Decision Making, 42 Envtl. L. 469 (2012).

Amendments to FHWA regulations for Categorical Exclusions, 23 C.F.R. Part 771 (Feb. 2013).

Tasks:

Conduct legal and policy analysis and draft a report analyzing whether PEISs can be used to satisfy NEPA requirements to allow for expedited adaptive rebuilding after a disaster and guidance on how DOTs can use PEISs as a tool for promoting adaptation. Issues analyzed will include: (1) staleness (the risk of changed environmental conditions because of long lapses in time); (2) segmentation (dividing projects into smaller, discrete actions to avoid disclosing significant impacts); and, (3) pre-selection of alternatives (premature selection and commitment to a proposed action to avoid consideration of environmental effects and public input into the decision making process). In analyzing the questions we would consult with transportation and disaster relief experts from state and federal agencies, metropolitan planning organizations, and the Council on Environmental Quality.

Implementation:

FHWA is partnering with state DOTs, MPOs, and Federal Land Management Agencies (FLMAs) to pilot approaches to conduct climate change and extreme weather vulnerability assessments of transportation infrastructure and to analyze options for adapting and improving resiliency. Pilot projects could be used to test the PEIS model and to evaluate the administrative feasibility and cost effectiveness of using Program EISs and transportation plans to adapt transportation infrastructure. More details about the pilot programs can be found at: http://www.fhwa.dot.gov/environment/climatechange/adaptation/ongoingandcurrentresearch/vulnerabilityassessmentpilots/index.cfm

Sponsoring Committee:A0020T, Special Task Force on Climate Change and Energy
Research Period:12 - 24 months
Research Priority:Medium
RNS Developer:Jessica Grannis, J.D.
Source Info:The user community includes State DOTs, MPOs, Regional Transit Authorities, the Federal Highway Administration, US Department of Transportation, Federal Transit Administration and the Council on Environmental Quality.
Date Posted:01/12/2015
Date Modified:04/14/2015
Index Terms:Infrastructure, Asset management, Environmental policy, Environmental impact statements, Disaster relief, Reconstruction,
Cosponsoring Committees: 
Subjects    
Planning and Forecasting
Transportation (General)
Policy
Environment

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