The Importance of NEPA Review for Infrastructure Projects

In June 2017, President Donald Trump stood before a crowd at the U.S. Department of Transportation (DOT) to discuss the National Environmental Policy Act (NEPA) and declared, “Instead of rebuilding our country, Washington has spent decades building a dense thicket of rules, regulations and red tape.”¹ The president continued, “No longer can we allow these rules and regulations to tie down our economy, chain up our prosperity, and sap our great American spirit.”²

Missing from this threadbare caricature of Washington run amok is any recognition that federal environmental review exists as a response to a past littered with projects that were not studied in advance and thereby caused substantial social, environmental, and even economic harms.³ After all, infrastructure facilities are not an unalloyed good: They bring both benefits and burdens. A highway or rail line that connects people to opportunity may also tear up neighborhoods; degrade wetlands and rivers; destroy wildlife habitat; and generate air pollution, disruptive noise, and damaging vibrations, among other impacts.⁴

This issue brief uses the environmental impact statement (EIS) of the Charlotte Area Transit System (CATS) Blue Line light rail extension to demonstrate how NEPA strengthens infrastructure projects, as well as how federal environmental, civil rights, and historic preservation statutes guide the content of the review. The light rail line in Charlotte, North Carolina, also shows that meaningful enforcement of federal law requires federal agencies to review projects prior to construction given the threat of irreparable harm that major infrastructure facilities pose—harm that could not be sufficiently remedied through post-construction legal action. In addition to exploring the CATS project, the brief discusses the origins of NEPA and outlines the issue of permitting.

Origins of NEPA

In 1969, Congress passed NEPA in response to growing public concern about the social and environmental damage caused by federally funded economic development projects, including infrastructure facilities.⁵ NEPA requires federal agencies—and, where the federal government delegates NEPA responsibilities, state agencies—to study the potential environmental and related social and economic impacts of a proposed infrastructure project, both positive and negative, as well as individual and cumulative. The law also requires these agencies to consider reasonable alternatives to the proposed project before making a decision about whether or how to proceed.⁶

Negative impacts can include anything from habitat loss and water pollution to the destruction of historic buildings and the disproportionate condemnation of homes and businesses in low-income communities or communities of color. Only a small percentage of infrastructure projects—those likely to produce significant impacts—must undergo a full review.⁷ In these cases, the lead federal agency must weigh and balance the benefits and drawbacks based on sound analysis. After public review of and comment on the draft EIS, the agency responsible for deciding on the project publishes a final EIS that responds to the public’s comments.

Importantly, in the absence of environmental review, many negative impacts would become apparent only after the project sponsor completes construction, dramatically increasing the cost of remediation and resulting in certain irreversible harms. Moreover, eliminating review would close a vital pathway through which local residents are able to make their voices heard during the project planning and development process.

By comparison, requiring environmental review prior to construction ensures that government officials and the public know the potential harms associated with a proposed project, allowing for informed decision-making as well as the chance to develop effective design and operational mitigations. In short, NEPA and other protective federal statutes improve governance and make infrastructure projects better.⁸

NEPA as a framework for coordination across federal agencies

The NEPA process requires project sponsors to undertake a detailed study and solicit public input but does not mandate specific outcomes or mitigations. It is triggered when there is a proposal for federal action. Broadly speaking, such federal actions include projects and programs that federal agencies conduct, regulate, approve, or finance in whole or in part, as well as agency rule-making, plans, policies, procedures, and proposed legislation.⁹ Specifically, NEPA applies to “actions where the Administration exercises sufficient control to condition the permit or project approval.”¹⁰

Each federal agency has NEPA procedures consistent with the Council on Environmental Quality’s (CEQ) regulations.¹¹ For the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA), 23 C.F.R. 771.107(b) defines “action” for NEPA purposes as, among other things, “a highway or transit project proposed for FHWA or FTA funding. It also includes activities such as joint and multiple use permits, changes in access control, etc., which may or may not involve a commitment of Federal funds.”¹² For the light rail extension, CATS requested grant funding from the FTA through the New Starts program, triggering a NEPA review.¹³

Equally as important, NEPA serves as a framework that helps federal agencies coordinate review and enforcement of numerous federal environmental, civil rights, and historic preservation statutes. In other words, many federal laws apply to infrastructure projects, and NEPA helps bring order to the review and enforcement process. CEQ regulations require that federal agencies comply with other legal requirements concurrently with the NEPA process and that documentation—such as studies, surveys, and analyses that those other laws require—are integrated into the NEPA process. In fact, a draft EIS must list all federal permits, licenses, and other entitlements that must be obtained to implement the proposal.¹⁴ The value of this coordinating function cannot be overstated.

The environmental review process creates a factual record upon which federal agencies with jurisdiction can determine if a project sponsor is complying with federal law. For instance, Congress passed the Civil Rights Act of 1964 to eliminate intentional discrimination based on race, color, or national origin related to public accommodations, voting, and federal programs, among other purposes.¹⁵ Title VI of the landmark bill states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”¹⁶ Over the years, the Supreme Court has held that projects and policies that appear neutral on their face may produce unconstitutional discriminatory effects.¹⁷ DOT states in its Title VI circular that “practices that result in discriminatory effects or disparate impacts violate DOT’s Title VI regulations.”¹⁸

Discriminatory effects can take many different forms. This makes the Title VI mandate crosscutting, as any negative impact has the potential to disproportionately affect a federally protected class of persons. To determine if a proposed infrastructure project would produce disparate impacts, the government sponsor—usually state or local—must compare the location and severity of impacts against demographic and socio-economic data for the project corridor. For example, if a rail line resulted in the condemnation of many homes, businesses, and social or religious institutions of people of color, the project may violate federal civil rights laws.¹⁹

Coordination in the CATS project

The CATS Blue Line light rail extension shows how the concept of prohibiting discrimination in federally funded projects becomes a substantive reality through environmental review. The Blue Line extends 9.4 miles northeast from downtown Charlotte to the University of North Carolina at Charlotte.²⁰ A review of census data by CATS revealed that only two of the 19 neighborhoods along the project corridor had median household incomes above the median for Mecklenburg County at the time of the analysis.²¹ Moreover, the share of residents of color in each neighborhood ranged from 36 percent to 98 percent.²²

After carefully reviewing the preliminary rail design in relation to the communities of concern, CATS found, “Portions of residential properties may be required for partial acquisition and/or easements; however, no residential uses would be displaced as a result of the Preferred Alternative.”²³ In total, construction of the extension required CATS to acquire 90 acres of land, resulting in the displacement of 14 commercial or industrial businesses. A review of these businesses found that none provided “a unique or special service to a community of concern.”²⁴ CATS conducted this same type of analysis for other impacts, including noise, vibration, safety, security, visual, and aesthetics.

Without prior study and review, CATS and the federal government would not have known about the potential for discriminatory effects of the rail extension. Through the environmental review process, CATS created a factual record regarding the demographics and socio-economics of the neighborhoods along the corridor and the resulting impacts from the project. With this information, the FTA was able to determine that the proposed extension complied with Title VI of the Civil Rights Act of 1964.²⁵

The environmental review process plays the same role for other federal laws. For example, in 1973, Congress passed the Endangered Species Act (ESA) to help protect endangered and threatened species and their habitats.²⁶ The act states, “It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purpose of this Act.”²⁷ CATS determined through its study that no mitigations were required for either plant or animal species. Additionally, “A population of Carolina birdsfoot-trefoil would be destroyed by the fill that is proposed within this area of the alignment as part of the Preferred Alternative. Although Carolina birdsfoot-trefoil is a FSC [federal species of concern], it is not rare in the southern Piedmont.”²⁸ As a result of this analysis, the U.S. Fish and Wildlife Service, acting as a resource agency for the FTA, was able to determine that the Blue Line extension complied with the ESA.²⁹

In total, the environmental review process allowed CATS to use its EIS to comply with all 13 applicable laws and executive orders, as well as with the relevant laws and procedures of the state of North Carolina. These laws and executive orders can be found in the sidebar.

Permitting

Beyond NEPA, project sponsors must also frequently secure federal permits before beginning construction. A federal permit is a written authorization to undertake a specific activity. For example, in addition to complying with NEPA, CATS was required to obtain a Clean Water Act Section 404 permit from the Army Corps of Engineers. The permit authorized CATS to discharge fill materials into U.S. waters.

This raises a basic question: If environmental review is intended to discover project impacts, why must a state or local government sponsor also obtain a separate permit for a certain subset of impacts? Review and permitting are separate for two reasons. First, the environmental review and permitting requirements stem from different federal statutes. NEPA requires environmental review, while the Clean Water Act mandates that project sponsors must secure a permit for activities that affect U.S. waters. Second, and more importantly, permit applications typically require more detailed analysis than would otherwise come from an EIS. In other words, the dual requirement reflects the fact that certain impacts are more complex than others and therefore necessitate additional analysis prior to federal approval. The analyses conducted for the permit application can be folded into an EIS, presented as an appendix to an EIS, or incorporated by reference to avoid duplication.

The 404 permit submitted by CATS determined that the rail corridor would affect 14 jurisdictional streams and nine jurisdictional wetlands, as well as a number of plants and animals subject to various state and federal protections.³¹ Under the Clean Water Act, the Army Corps of Engineers has jurisdiction over waters that are, have been, or may be used in international or interstate commerce, as well as the wetlands and tributaries that feed such waters.³²

Each stream and wetland within the CATS project corridor received an alphabetical label and a detailed description of mitigations and unavoidable impacts. For instance, “Impacts to Perennial RPW [relatively permanent water] Stream F will be avoided through the construction of a 3-span concrete bridge over the stream channel. The piers for the proposed bridge will be placed outside of the top of banks to ensure that no impacts will occur to this stream.”³³ CATS was not able to avoid all impacts. In order to accommodate the light rail line, CATS had to relocate an existing freight rail spur. This negatively affected 32 feet of Perennial RPW Stream C. The permit notes, “Since the alignment has been placed between the existing townhomes and existing freight railroad tracks, no other feasible alternatives exist to avoid this impact.”³⁴

Additionally, the application details indirect cumulative effects from the proposed rail line. The permit notes that the line would “shape the location and intensity” of growth over the next several decades around proposed station areas. As a result, the light rail line would produce “fewer overall effects on water resources and water quality in the project corridor than the No-Build Alternative.”³⁵

Details of the Charlotte Blue Line EIS

The scope and content of each EIS differs depending on the project in question. The CATS Blue Line EIS contains 22 chapters that respond to 13 federal laws and executive orders.³⁶ Table 1 in the PDF details each chapter, including the applicable federal laws and executive orders, as well as selected findings. Some federal laws are fully covered by a single chapter. For example, Chapter 8 covers cultural resources, including buildings, structures, sites and objects that are included or eligible for inclusion on the National Register of Historic Places.

Other federal laws, such as the Civil Rights Act of 1964, are crosscutting, as any negative project impact could have discriminatory effects depending on its relation to federally protected classes of persons. The crosscutting laws are not listed for every chapter but are listed instead for the most relevant chapters. The table does not include state laws and regulations.

Each chapter in the CATS EIS is the fulfillment of the public’s collective political will. Over many years, the public has again and again affirmed that federal policies, programs, and spending should not be used to discriminate, degrade the environment, or harm endangered species—to name only a few federal protections. NEPA translates this desire into a concrete process for ensuring that infrastructure facilities adhere to these protections while also generating economic, social, and environmental value. In the end, the Blue Line extension will exist essentially in perpetuity. Taking the time necessary to study its potential impacts was a small price to pay to allow for informed decision-making and fulfill the protections codified within federal law.

Conclusion

The environmental review process improves governance, increases transparency, and makes infrastructure projects better by reducing environmental and community impacts through public participation and mitigations. Moreover, NEPA provides a uniform process by which substantive federal environmental, civil rights, and historic preservation statues can be enforced effectively. Scaling back or eliminating NEPA would undermine the protections enshrined in federal law as a result of decades of Americans expressing their collective political will.

Kevin DeGood is the director of Infrastructure Policy at the Center for American Progress.