Modernizing NEPA: Comments to the Council on Environmental Quality

By at 9 March, 2020, 9:25 am

Mr. Edward A. Boling

Associate Director

National Environmental Policy Act

Council on Environmental Quality

730 Jackson Place, NW

Washington, D.C. 20503


ATTN: Docket No. CEQ-2019-0003


Dear Mr. Boling:

On behalf of the Small Business & Entrepreneurship Council (SBE Council) and our small business supporters nationwide, I am pleased to submit comments in support of modernizing regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA).

It is vital to all Americans that U.S. infrastructure have the capacity to meet the demands of our modern economy. When inefficient rules and red tape get in the way of building modern infrastructure in a timely and affordable way, it is in the national interest to address refinements that align with current needs. That effort has been successfully accomplished by the Council on Environmental Quality (CEQ) in modernizing NEPA provisions, where proposed rules have struck a balance between protecting the environment and reintroducing the importance of ensuring reviews are executed in a cost-effective and timely manner. Reducing NEPA delays, red tape, and costs will allow the public and our economy to more quickly reap the benefits of modern infrastructure, which will save time and money for individuals and small businesses alike, and improve environmental conditions through less congestion, faster routes and the projects that promote energy efficiency and alternatives.

Entrepreneurs and small business owners, like most Americans, support rules that promote the environment. They support regulatory efforts that facilitate conversations between government regulators and stakeholders to produce positive outcomes for the environment, as well as in a host of areas like human health, safety and consumer welfare. Over time, dated statutes and systems often move away from their intended purpose, or become too convoluted and impractical. That has become the case with NEPA’s environmental review process.

America’s small businesses and entrepreneurs have a direct stake in modernizing NEPA, as poor and dated infrastructure impacts their day-to-day operations, their employees’ quality of life, and their ability to compete and grow. Transportation and traffic congestion undermine small business productivity and employee morale, and higher costs and lost time are a drag on optimism and health.

The 40-year old NEPA regulations are one major cause of unreasonable delays on timely construction of needed infrastructure projects throughout the United States. And again, this causes significant damage to our economy and degrades the quality of life for many Americans. NEPA’s lengthy review process for infrastructure projects can take many, many years and is laden with red tape and provisions that allow projects to be delayed without end.

As noted by the CEQ’s timeline report published on December 14, 2018, current guidance suggests that an environmental impact statement (EIS) should be completed under a year or less. However, the average time for federal agencies to complete an EIS was much longer – 4.5 years. In addition, a subsequent CEQ report published on July 22, 2019 found the paperwork involved with an EIS to be excessive, with an average length of over 600 pages. According to CEQ, the EISs should be “normally” less than 150 pages and, at most, less than 300 for larger or more complex projects.

The excessive time, paperwork and costs associated with NEPA reviews adds to the uncertainties and costs of projects, which has a direct impact on local communities and their residents. For example, our review of various projects that have been delayed, cancelled or impacted by the NEPA review process demonstrate the harsh realities of this broken and antiquated system:

● A Colorado project slated to bring needed and reliable water supply to 15 municipalities and water districts is now going on 16 years, along with a delayed investment of $1.5 billion dollars. According to the Northern Integrated Supply Project page, “Aside from needed water storage, the project will incorporate an array of environmental and wildlife mitigation aspects, and bring additional recreational opportunities to the region.”

In August 2004, the U.S. Army Corps of Engineers published their Intent to Prepare an Environmental Impact Statement for the project.  As of January 2020, 16 years after the first publish of intent, the Corps has not released its Record of Decision on the permits for the project.

●  The Headquarters Road Bridge Project in Tinicum Township, PA continues to be a long-term project due to NEPA and legal action. The 200-year old bridge was closed to traffic in 2011, with PennDOT’s replacement design efforts lasting 5 years. In September 2018, the project was granted, “categorical exclusion,” which is a “class of actions that a Federal agency has determined, after review by CEQ, do not individually or cumulatively have a significant effect on the human environment.”

In October 2018, the Delaware Riverkeeper Network challenged the Federal Highway Administration’s approval of the categorical exclusion, arguing, “PennDOT did not fully consider all alternatives when it opted to demolish and replace” the existing bridge. As of December 2019, the lawsuit is currently ongoing.

●  The $1.2 billion I-70 expansion project seeks to reduce the severe traffic congestion of a highway near Denver, CO by widening the highway. The Environmental Impact Statement for the project had taken 13 years, involving hundreds of public meetings, with a record 15,951 pages. In 2017, following 13 long years, the final NEPA permit was approved and the expansion projects is now under construction.

●  Improvements to the M-231 bypass located in the Lower Peninsula of Michigan took 20 long years to approve and begin construction. In April 2010, the Federal Highway Administration issued a “record of decision” following almost 20 years of debate and the completion of an environmental assessment. Based on the findings of a 1990 engineering report, the Michigan Department of Transportation (MDOT) began developing a Draft Environmental Impact Statement (DEIS) in 1993, and the project’s Notice of Intent was published in the Federal Register in May 1994. Between 1999 and 2010, MDOT evaluated the DEIS comments and financial constraints determining F/J-1 was the preferred alternative, developing priority segments and needs in partnerships. The modified alternative was formally presented in November 2006 and was approved by the Federal Highway Administration (FHWA) in March 2009. The Final Environmental Impact Statement was signed by the FHWA in February 2010. A portion of M-231 opened to traffic in October 2015, twenty five years following the initial engineering report.

The costs and long delays of these projects, and countless others, hurt local communities, the economy and the environment. Traffic congestion, or being forced to take extended routes around unsafe bridges and roads that are closed, burns more gas and is not good for the environment. More pollutants are emitted into the air. Furthermore, even projects that work to bring alternative energy to the market are being delayed by convoluted and lengthy NEPA delays.

SBE Council supports the common-sense changes to NEPA’s procedural implementing provisions, including:

●  A two-year limit to complete the EIS and a 300-page limit for the document. For projects that require a less rigorous assessment, the page limit would be 75 with a time limit of one year.

●  Greater authority of the lead agency when multiple agencies are involved, which is often the case with EISs.

●  Public comments would be solicited earlier in the process to help accelerate the review and encourage early engagement.

●  A reduction in the number of reasonable alternatives that must be considered to those that are economically and technically feasible.

The proposal will modernize and accelerate environmental reviews under NEPA so that infrastructure can be built in a timely, efficient, and affordable manner. This is a positive outcome for every American, small businesses, workers, the economy and the environment.

SBE Council appreciates the opportunity to provide comments on this important national matter. Entrepreneurs and small business owners look forward to a final set of rules that meet America’s timely infrastructure needs while protecting our environment.


Karen Kerrigan. President & CEO


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