The Act includes a provision that will reduce a major risk associated with development of transportation projects - namely, the possibility of an action to enjoin the project based on alleged flaws in the NEPA approval process. In the past, project opponents have often waited until construction was underway, when the cost of stopping work is high, before filing an action to contest the validity of environmental approvals. The prospect of such an action presents a risk that impacts the plan of finance for project revenue financed projects, increasing the cost of such projects even if no action is filed.
Under Section 6002 of the Act, any claim seeking judicial review of a permit, license or approval issued by a Federal agency for a highway or public transportation capital project must be filed within 180 days after the approval is published. For many projects, the risk of an injunction will be eliminated entirely as a result of this limitation. For others, the risk of an injunction will remain a concern, since there can be no guaranty that the litigation will be concluded before the scheduled date for start of construction. However, the project owner/developer will be able to take steps to mitigate the effect of an injunction, such as changing its procurement schedule, delaying the start of construction, or phasing construction so as to reduce the potential cost associated with an injunction. The provision is not limited to NEPA - it applies to lawsuits based on other federal approvals as well.
Other Environmental and Planning Changes. The bill provides a streamlined environmental approval process that addresses agency coordination, public involvement, dispute resolution, and comment deadlines. It also establishes a project delivery pilot program for the states of Alaska, Ohio, Oklahoma, Texas and California, under which all USDOT environmental responsibilities under NEPA and Section 4(f) can be delegated to the State DOTs. All States will be eligible to obtain a delegation of environmental responsibilities for categorical exclusions (CEs).