In an effort to impose new environmental constraints on transportation infrastructure development prior to the start of the new Administration on January 20, the federal highway Administration (FHWA) issued final rules on performance measures for congestion and freight movement that include requirements for states to measure and report CO2 (Greenhouse Gas- GHG) emissions from on-road vehicles for projects receiving federal funding. MAP-21 directed DOT to establish performance measures on a variety of different factors to determine if federal investment in infrastructure was achieving its goals and how to target future investments. However, MAP-21 specifically limited the items that DOT was to include in these measures and did not include GHGs. AGC and numerous other groups and Members of Congress advised FHWA in formal comments on the proposal that it lacked authority to expand into CO2 emissions but FHWA said it didn’t agree. In one victory for AGC, the performance measures do not require measuring emissions from off-road construction vehicles and equipment as had been suggested by FHWA and opposed by AGC. AGC will be discussing reconsideration of this rule when the new DOT Secretary is confirmed.
In a separate action, the Department of Transportation (USDOT) released updated implementation procedures for states to use to comply with the National Environmental Policy Act (NEPA). Not only did USDOT rush these procedures out for publication with limited (21 days) for comment, the document adds a new level of oversight to the environmental review process. This undermines efforts by Congress in the past three transportation authorization bills and previous administrations to streamline environmental review and shrink the time it takes for project approval. In addition, the document limits the use of “categorical exclusions” which provide an expedited review process for the everyday transportation projects expected to have limited environmental impact. The new procedures also expands requirement for states to consider climate change as part of the review process. USDOT also references in the document that it will be developing additional guidance documents but chose to not wait until these were completed so as to gather additional public comment. AGC provided written comments on these proposed procedures but believes that more informed comments could have been submitted if the normal 60 day comment period was provided as is called for in an Executive Order issued by President Obama.