Over the years, more and more environmental laws have been enacted by States as well as the Federal government.[430] These various laws each have separate requirements, separate priorities, and separate processes. Additionally, the USDOT recently published a notice listing Federal environmental laws and Executive Orders applicable to the development and review of transportation infrastructure projects.
One of the major environmental laws that must be addressed is the NEPA. The NEPA establishes a national environmental policy and provides a framework for environmental planning and decisionmaking by Federal agencies. It also directs Federal agencies, when approving projects, making approvals, or issuing permits, to conduct environmental reviews to consider the potential impacts on the environment by their proposed actions.
Since transportation projects vary in type, size and complexity, their potential to affect the environment varies. To account for the variability of project impacts, there are three basic "classes of action," which determine how compliance with NEPA is carried out and documented. An Environmental Impact Statement (EIS) is prepared for major Federal actions where it is known that the action will have a significant effect on the environment. An Environmental Assessment (EA) is prepared for actions in which the significance of the environmental impact is not clearly established. Should environmental analysis and interagency review during the EA process find a project to have no significant impacts on the quality of the environment, a Finding of No Significant Impact (FONSI) is issued. Alternatively, after conducting an EA, the project sponsor may decide that an EIS is needed. Finally, Categorical Exclusions (CEs) are applied to actions that do not individually or cumulatively have a significant effect on the environment.
Significant time and financial risk are associated with obtaining the proper environmental clearances and permits, particularly if an EIS is required.[431] In FY 2003, the median time for completing EISs for highway projects was slightly over five and one-half years. However, court challenges concerning the EIS process for a particular project can add time and cost to a project. In addition to the length of time, the uncertainty surrounding the amount of time to complete an EIS discourages the private sector from pursuing public-private partnerships.
Part of the complexity of the NEPA process is due to the fact that it is also used to document compliance with the myriad of other environmental laws that apply to any given project. Also, in many ways, the NEPA process has become the vehicle through which broad scale project decisions are made and controversies about the project are identified and resolved. Thus, the NEPA process is a useful, even critical part of the project development process. This importance is why reform efforts have focused on making the NEPA process more efficient and streamlined, rather than advocating wholesale changes.
Many of the other environmental laws provide their own uncertainties that can discourage private sector interest in public-private partnerships. Although it is true that compliance with many of these laws is documented as part of the NEPA process, compliance with each of these laws can be complex. Whereas NEPA only requires adherence to a process and does not dictate an outcome, some other environmental laws have substantive requirements, which, if not met, can prevent the project from going forward. For example, any project sponsor that intends to construct a project affecting wetlands will need to obtain a Section 404 permit under the Clean Water Act from the U.S. Army Corps of Engineers. The Corps may deny a permit if the project does not meet standards set forth in the regulations implementing the Clean Water Act, effectively stopping the project from proceeding. A particular challenge in the context of public-private partnerships is that decisions on applications for environmental permits are often not ripe until the project is far enough along in development that the environmental impacts can be clearly ascertained. Appendix G provides a table of the major environmental laws applicable to the Federal-Aid Highway Program, and the basic requirements that each entails.
To alleviate this burden, it has been suggested that the public sector obtain all necessary environmental permits (pre-clearance) before the private sector invests substantial equity in a project.[432] Pre-clearance would add certainty to the process and help the private sector better assess the time and cost associated with a transportation project. This process would also reduce the risk of forfeiture of significant private sector funds should the project not survive the amendment phase.