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5 Recommendations to Speed Infrastructure Permitting Without Gutting Environmental Review

Getty/Justin SullivanWorkers construct scaffolding on a bridge in California, March 2014.

There is significant bipartisan agreement that the need to fix the nation’s crumbling infrastructure is critical. However, the environmental review process for permitting these infrastructure projects often becomes the scapegoat for any delays. Because of this, there have been a number of efforts to amend, weaken, and even scrap federal environmental review requirements over the years. But this review is critical—not only because it protects clean air and clean water for U.S. residents but also because it allows for public input to be collected and considered, ensuring that affected communities have a chance to weigh in on project alternatives.
Over the past six years, Congress has acted on three separate occasions to address common permitting challenges, passing the Moving Ahead for Progress in the 21st Century Act (MAP-21) in 2012, the Water Resources Reform and Development Act (WRRDA) in 2014, and the Fixing America’s Surface Transportation (FAST) Act in 2015. These bills provide the federal government with an array of tools to expedite permitting processes, without sacrificing environmental considerations and community input. But with President Donald Trump’s issuance of Executive Order 13807 in August 2017, environmental review is again on the chopping block.
Instead of asking Congress to cut corners and gut cornerstone environmental laws, here are five ways that federal agencies and their partners can use the tools already at their disposal to speed infrastructure permitting.

1. Fully implement existing permitting reforms and authorities that were enacted in the FAST Act, the WRRDA, and MAP-21
The three pieces of legislation noted above provided a number of new tools to federal agencies to speed environmental review. But the Trump administration continues to point to the permitting process as the main cause for project delays. Limited existing data, however, show that delays are more often the result of a lack of funding, failure to govern, and even politics.
As one way to address this, Congress directed the U.S. Department of Transportation to establish a public-facing online tracking system of projects in the permitting process. Project sponsors and the public are now able to use the tracking system—known as the Federal Infrastructure Permitting Dashboard—to expedite projects and understand the true causes of any delays. The permitting dashboard is still very much a work in progress, but it has significant untapped potential that could be improved through an investment in resources to ensure that it is upgraded on a regular basis.
Additionally, extensive and rigorous training components for subject matter experts across the government on how these new tools and authorities affect their work would ensure that the tools are being effectively employed. The Annual Report to Congress for Fiscal Year 2017 from the Federal Permitting Improvement Steering Council (FPISC) shows that each agency has at least one updated online training tool. Leaders of permitting in the Executive Office of the President (EOP) should prioritize developing a strong community of practice across the government so that practitioners can regularly share case studies, training tools, and data needs.

2. Appoint people with collaborative project implementation and permitting expertise across the government
It is impossible for environmental review, and therefore permitting, to be streamlined without appropriate staff to do the work. Yet President Trump has failed to appoint people to key positions that could help accelerate project delivery, including positions within the EOP that are integral to coordinating reviews. In 2015, the FPISC was established to bring agencies together to discuss review challenges and share best practices, as well as to provide a connection to the EOP and the president. Yet the Trump administration has still not appointed anyone to lead the FPISC, which indicates a lack of high-level investment in permitting. The administration should make it a priority to fill these positions if it wants to see expedited permitting timelines.

3. Fund environmental review through implementing existing fee authority for cost recovery and regular appropriations
The FAST Act allowed the FPISC to create “a fee structure for project proponents to reimburse the United States for reasonable costs incurred in conducting environmental reviews and authorizations” for certain projects. The FPISC, however, has taken far too long to begin implementing this provision given the relative priority the Trump administration claims to place on expedited permitting. This new source of funding could help substantially, as permitting under the FAST Act only applies to the most complex projects.

4. Study and collect data on environmental review contracting practices
Federal agencies frequently turn to outside firms to conduct environmental reviews. For example, the Bureau of Land Management (BLM) has contracted with Environmental Management and Planning Solutions Inc. to do the environmental review for oil and gas development in the Arctic National Wildlife Refuge in Alaska. The contract award is for $1,667,550.44, and information from the General Services Administration shows that the federal contractor bills $214 per hour for a senior scientist’s time. While this may be a bargain for taxpayers, it is difficult to say for certain given the lack of data and other information on the frequency, cost, or efficacy of outsourcing essential environmental analysis. To address this, Congress should work with the U.S. Government Accountability Office to study and gather information about federal contracting practices for environmental review across the federal government.

5. Remove political influence from the environmental review process
The permitting review process must be objective and free from the political interests and conflicts that can so easily stall, delay, or even derail infrastructure projects. But the administration’s handling of the Hudson Tunnel project, an infrastructure proposal to modernize the bridges and tunnels that ferry more than 200,000 commuters per day to and from New Jersey and Manhattan, lays bare the current level of political meddling in the review process. Since a bipartisan meeting in September 2017, the president has refused to fund the project unless the Senate agrees to fund the southern border wall. The Trump administration points to burdensome environmental reviews as the culprit for delay—yet recently, an administration official was quoted as saying that the administration is “slow-walking” the completed review’s release.

Already, there is evidence that these tools, when used, can ensure that environmental review of major infrastructure projects is efficient. Instead of rushing headlong into further gutting the statutes that provide for public input on infrastructure and that protect clean air, clean water, and wildlife, the administration should put its existing toolkit to use.
Christy Goldfuss is the senior vice president for Energy and Environment Policy at the Center for American Progress. This article was originally published by the Center for American Progress. 

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FERC Takes a Step Backward on Environmental Impacts

A 3-2 majority of the Federal Energy Regulatory Commission (FERC) unveiled a new policy last Friday that limits FERC’s analysis and disclosure of the environmental impacts of natural gas pipeline projects. The decision is a step backward for FERC, right when it is soliciting public comment on how to improve its pipeline project reviews.

FERC, which oversees the siting and approval of interstate natural gas pipelines, stated that it will no longer discuss upstream and downstream environmental impacts that it claims fall outside of its review requirements under the National Environmental Policy Act (NEPA). This included a declaration that FERC will no longer prepare upper-bound greenhouse gas emissions estimates for a proposed project when it asserts that those emissions fall outside of its NEPA requirements.

This is wrong for at least two reasons. First, as Commissioners Cheryl LaFleur and Richard Glick noted in dissent, FERC’s policy is circular, in that FERC often does not undergo the proper fact-finding and analysis to determine whether an environmental impact must be considered under NEPA in the first place. Second, FERC’s duties to consider environmental impacts extend beyond NEPA. If FERC ignores these environmental impacts, FERC also will be ignoring information that is essential to deciding whether the project is in the public interest—FERC’s mandate under the Natural Gas Act (NGA).

How FERC unveiled the new policy is also unsettling. FERC buried the announcement within an order upholding its approval of the under-the-radar Dominion New Market Project in New York. This is the second time in less than two months that FERC has buried a significant new policy within an otherwise routine order. Announcing such policies in this fashion undermines public trust in FERC and Chairman Kevin McIntyre’s claim that he views improving FERC’s transparency as a top priority. McIntyre joined Commissioners Neil Chatterjee and Robert Powelson in approving the policy.
Upstream, downstream, direct, indirect, and cumulative effects
To understand what FERC did, it’s important to understand the terminology. The energy world describes natural gas like a river. Production is upstream, transmission is midstream, and end-use is downstream. The emissions that are created through gas extraction are upstream effects because they happen before the gas is transported to the market. Emissions created through burning gas at power plants are downstream effects because they happen after the gas is transported. FERC generally regulates the midstream infrastructure that transports gas from production facilities to end-users.

Under NEPA, FERC is required to consider the direct and indirect effects and cumulative impacts of a proposed action, such as authorizing a new gas pipeline. Direct effects are effects directly caused by the action and occur simultaneously. Indirect effects are caused by the action and are reasonably foreseeable at the time of the action, but may occur later. Cumulative impacts are the impacts that result from the incremental impact of the proposed action when added to other past, present, and reasonably foreseeable future actions, be they federal, state, or private.

NEPA analysis is crucial because it not only requires agencies to review the costs and benefits of the project and its alternatives, but also requires them to disclose this information to the public. The public can then comment, which further assists FERC with its project reviews.

FERC historically resisted calls to include upstream and downstream environmental effects into its NEPA analyses, arguing they are not indirect or cumulative effects because they are not caused by FERC’s action and/or are not reasonably foreseeable. For example, since FERC does not decide whether to authorize the facilities that will use the gas, such as power plants—those decisions are left to the states—FERC has argued that its pipeline approvals do not cause the emissions. FERC also has argued that downstream greenhouse gas effects are not reasonably foreseeable, stating it is impossible to determine the gas’s end-users or how they will consume the gas.

Last year, the D.C. Circuit told FERC that, at least when the end-user is known, FERC must consider downstream greenhouse gas emissions under NEPA. Since then, FERC has included more information about upstream and downstream environmental impacts in its orders, even when it maintains that these effects do not qualify under NEPA. Further, on April 19, 2018, FERC opened a new proceeding requesting comments on how FERC can improve its pipeline review process and devoted an entire section to its treatment of environmental effects. These actions signified some recognition that environmental impacts are relevant not only to NEPA, but also to FERC’s public interest analysis under the NGA.
The new policy undermines that progress
In Friday’s order, FERC declared that it will no longer disclose or consider any environmental impacts outside of NEPA.

In dissent, LaFleur noted that the majority is “essentially arguing that we are not obligated to consider upstream and downstream impacts because there is a lack of causation and reasonable foreseeability,” while ignoring that “a key reason [why] the Commission lacks the specificity of information to determine causation and reasonable foreseeability is because we have not asked applicants to provide this sort of detail in their pipeline applications.”

Further, LaFleur stated that “NEPA does not circumscribe the public interest standard” under the NGA. She’s right. It is baffling how FERC can meet its obligation to consider the public interest without analyzing all environmental impacts.

Glick also challenged the majority’s contention that it did not need to consider “consequences beyond those of greatest concern to the public and greatest relevance to the agency’s decision,” questioning how climate change would not qualify under this standard.
We’re not looking for perfection
For FERC to ignore environmental impacts it determines to be too attenuated—a determination based on its own weak analysis—is short-sighted and misguided.

As Glick stated, there may be instances where, despite FERC’s best efforts, “it will not have sufficient information to assess the consequences that issuing a particular certificate may have for climate change.” But “it is the fact that the Commission made every effort” to identify the impacts that satisfies FERC’s statutory obligations.

Glick is right. FERC must make these efforts.

Gillian Giannetti is an Attorney for the Natural Resources Defense Council (NRDC). Her advocacy work focuses on regulatory issues at the Federal Energy Regulatory Commission, particularly when applied to natural gas infrastructure projects.

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Trump proposal to weaken project reviews threatens the ‘Magna Carta of environmental law’

Building the U.S. Interstate highway system in the 1950s and 60s is often cited as one of government’s great achievements. But it had harmful impacts too. Many city communities were bulldozed to make space for freeways. Across the nation, people vigorously objected to having no say in these decisions, leading to “freeway revolts.”

This outcry, coupled with the growing environmental movement, gave rise to the idea – revolutionary at the time – that agencies should take a hard look at the environmental impacts of their actions, consider reasonable alternatives and allow community input. The National Environmental Policy Act (NEPA), enacted in 1970, codified these principles and allowed citizens to sue if they believed government had not complied. Because it represents a turning point in thinking about environmental protection, NEPA has been called the “Magna Carta of environmental law.”

Despite NEPA’s demonstrated successes, critics have attacked it for years, usually based on anecdotes claiming that lengthy environmental reviews caused project delays. President Donald Trump’s infrastructure initiative is the latest example. And on May 3, 2018, the Trump administration announced that it will soon propose changes to the rules that guide federal agencies carrying out NEPA reviews.

As attorneys who held senior positions at the Environmental Protection Agency during the Obama administration, including managing the agency’s NEPA office, we have extensive experience with NEPA reviews. Expert studies reveal a vast disconnect between the evidence, which shows that NEPA is not the cause of project delays, and the sweeping changes that NEPA critics are proposing. This disconnect reveals that current proposals aren’t really about speeding up projects, but are instead part of a broad deregulatory agenda that prioritizes business interests over public benefits from environmental protection.

Poster opposing a planned freeway in Washington, D.C., that was ultimately canceled in 1977. Greater Greater Washington, CC BY
NEPA reviews aren’t the cause of project delays
Over more than four decades, NEPA has helped government agencies make smarter choices about public infrastructure, reducing damage to both natural environments and communities and avoiding the costs of correcting ill-considered projects.

For example, in the 1990s Michigan’s state transportation agency wanted to build a four-lane highway across a huge swath of important wetlands. Using NEPA, citizens forced the state to consider alternatives. Ultimately the state decided to expand an existing highway instead, dramatically reducing environmental harm and saving US$1.5 billion. Similar stories have occurred across the country.

Critics have long used “NEPA is slowing projects down!” as their rallying cry. Independent experts have looked at the evidence and reached a different conclusion.

The most authoritative independent studies were done by the Government Accounting Office in 2014 and the Congressional Research Service in 2011 and 2012. They found that the vast majority of projects have very streamlined reviews.

About 95 percent of all projects subject to NEPA go through a very short process called a “categorical exclusion” that usually takes from a few days to a few months. Another 4 percent have a short and straightforward review, called an “environmental assessment,” that usually takes between four and 18 months. Less than 1 percent of projects are subject to a full review, which is called an “environmental impact statement.”

Typically, these are large-scale initiatives such as a new highway, a major dredging project or a multistate pipeline. You wouldn’t know it from rhetoric in Washington, but the sweeping changes being proposed to NEPA are focused on less than 1 percent of projects.

These independent investigations also found that NEPA reviews are not the reason that the biggest projects take time. State and local issues, such as funding shortfalls, changing priorities and local controversy, are the most significant influence on whether a project moves forward quickly or takes longer than anticipated. Of course, there are examples where environmental reviews took too long, but in many cases these reviews started and stopped for reasons unrelated to environmental issues.
Not about efficiency
In fact, by requiring agencies to consider alternatives to their envisioned projects, environmental reviews can speed things up by identifying better options and solving problems that could be costly or cause delays in the long run – a common issue in highway construction, for example. As our shop teachers advised, “Measure twice, cut once.” This is one reason why federal agencies that use NEPA most, including the Department of Transportation, the U.S. Forest Service and the Department of Energy, have long voiced support for it.

Enshrining unsupported policy in statutes passed by Congress makes those choices much harder to fix. Here’s what the president wants to do that would require changing the law:

– Take environmental agencies out of NEPA reviews. Congress recognized that some federal agencies are focused on building things, like highways or energy projects, and that protecting the environment is not their mission or area of expertise. That’s why it gave EPA a central role in NEPA studies by other agencies.

EPA involvement has helped reduce adverse environmental impacts through early up front coordination, without adding time. The agency routinely produces its comments within 30 days. The Trump infrastructure plan proposes to eliminate EPA’s review role.

– Cut a huge hole in consideration of alternatives. The Trump proposal would insert waffle words, like provisions limiting alternatives to those that the applicant finds “economically feasible” or are within the applicant’s “capability,” into NEPA’s requirement for agencies to consider reasonable alternatives. This approach allows applicants to avoid considering options they don’t like.

Consideration of alternatives is the heart of NEPA. Thinking hard about how projects can be done with less environmental damage – for example, by reusing an already developed site instead of paving over open space – improves designs, saves money and builds public support.

– Set the stage for getting rid of NEPA completely. In case anyone misses the point, the Trump plan allows some projects to bypass all environmental reviews on a “pilot” basis. A recent report by the conservative Heritage Foundation follows the same playbook by calling for repeal of NEPA.

Pete Brunner of Falmouth, Maine, casts for Atlantic salmon on the Penobscot River in 2006. A NEPA review led to denial in 1997 of a permit for a major hydropower plant on the Penobscot after the study showed that it would harm salmon. AP Photo/Robert F. Bukaty, File
Change NEPA practice, not the law
Over the last 45 years federal agencies have improved their processes for carrying out NEPA reviews, through steps such as providing more up front consultation. The Obama administration was continuing that effort with a number of consensus efficiency improvements that show promise for speeding things up without undercutting NEPA’s important goals.

By requiring government agencies to think before they act, NEPA has avoided countless harmful and ill-considered ideas. As the secretary of energy said in 1992, after halting a project that would have cost billions, “[T]hank God for NEPA because there were so many pressures to make a selection for a technology that might have been forced upon us and that would have been wrong for the country.”

Federal agencies should keep finding ways to implement NEPA more efficiently. What the federal government shouldn’t do is make enormous statutory changes based on incorrect claims about a fraction of 1 percent of projects – or disregard the lesson of the last 45 years that the most efficient choice is to build things right the first time.
About the authors: Janet McCabe served as Deputy Assistant Administrator for the U.S. Environmental Protection Agency’s Office of Air and Radiation (OAR) from 2009 to 2013, and as Acting Assistant Administrator for OAR from 2013-2017. She is a senior law fellow at the Environmental Law and Policy Center and a member of Duke Energy’s Indiana Citizens Advisory Board. Cynthia Giles served as Assistant Administrator for the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance from 2009 to 2017. She is currently the Director of Strategic Initiatives and Executive Fellow at the Energy & Environment Lab at the University of Chicago.
This article was originally published on The Conversation. To read the original article, please click here.

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What Happens When NEPA Is Ignored: The Oroville Dam

The Oroville Dam Case Study is a good example of the harm that can be caused when courts, agencies and developers fail to take the National Environmental Policy Act (NEPA) seriously.
A Short Background on the Historic Roots of NEPA
Passed into law with an overwhelming bipartisan majority in Congress and signed by President Nixon on January 1, 1970, the National Environmental Policy Act is often characterized as an environmental impact review law, and it is that—but it is much more than that. It is a law that has made informed decision-making about the environment a key component of every major federal action.

Although the passage of NEPA is often directly attributed to the devastating 1969 Santa Barbara blowout and oil spill, that overly simplistic explanation obscures the law’s far more democratic roots. Its passage was also prompted in reaction to the construction of the Interstate Highway System in the 1950s and 1960s, a process that ripped apart many inner cities and turned existing racial borders into concrete with little regard for those who lived there.

NEPA brought a new level of transparency and accountability to government decision-making. No longer was the federal government allowed to say “we know best” and simply pave over entire communities.

An essential part of this process is NEPA’s mandated public comment period. Before a project is started and throughout its development, the federal government must ask the public—including local communities—to voice concerns. They must also ask for local expertise regarding the project. This is arguably the most important pillar of NEPA; it draws on our democratic values to ensure that projects are undertaken with the benefit of our communities in mind.
California’s Oroville Dam
Nowhere is the importance of ensuring public participation in government decision-making better illustrated than California’s Oroville Dam. Built in the 1960s, the Oroville Dam is the tallest dam in the United States at a height of 230 meters (750 feet).

Located 75 miles north of Sacramento, the dam holds back a reservoir containing 1.1 trillion gallons of water, supplying farms and cities across the state.

After enduring five years of brutal drought, California went from one extreme to the other—from too little water to too much water. By February 2017, the Oroville Reservoir was operating at 151 percent of normal capacity and still rising.

In order to prevent the dam from overflowing, operators were forced to release the excess water through a process of controlled discharges through the spillway.

There was only one problem. On February 7th, the dam’s main spillway cracked in two, prompting a temporary shutdown of the structure just as another major rainstorm rolled through Northern California. Lake Oroville filled so high that water flowed over the emergency spillway for the first time ever. After another major release of water on February 12th, dam engineers discovered that the spillway’s condition had worsened—erosion on the hillside was compromising the integrity of the entire spillway.

As water began pouring over the top of the “emergency” spillway, a new an even more worrisome dilemma presented itself. The 30-foot-high concrete barrier at the top of emergency spillway was in danger of failure.

Some 180,000 residents were forced to evacuate, faced with the prospect of 30-foot high wall of water headed their way that would flood dozens of towns downstream. It would have been the worst environmental disaster in the history of Northern California.

Disaster was ultimately averted when dam engineers decided the damaged main spillway was still capable of handling larger water releases.

Although residents were eventually told they could return home on February 13th, the evacuation had real consequences. Forced to close their doors for days at a time, small businesses were particularly hard hit. Miner’s Alley—a local Oroville bar—estimated it lost close to $10,000.

The almost-disaster could have been avoided altogether if state and federal officials had heeded the warnings of environmental groups over a decade ago.

In accordance with the Federal Power Act, hydropower projects that are not owned by the federal government undergo relicensing of their facilities every 30 to 50 years, a process that requires completion of a new Environmental Impact Statement (EIS). First licensed back in 1957, the Oroville dam began this relicensing process in December 2000 at the request of the Federal Energy Regulatory Commission (FERC).

In 2003, three environmental groups—Friends of the River, the South Yuba Citizens League, and the Sierra Club—filed a motion with the federal government to make FERC’s renewal of the operating license conditional on lining and reinforcing the dam’s emergency spillway.

“At present, the ungated spillway at Oroville Dam consists of a spillway lip only—and utilizes a hillside as the project spillway,” the groups wrote in 2003 to the Federal Energy Regulatory Commission (FERC). “Utilizing such a spillway has the potential to cause severe damage to the downstream hillside, project facilities and downstream environments located in the path of the flood release.”

The Yuba County Water Agency—which owns transmission lines and other infrastructure in the area—also noted serious concerns in a 2002 memo. “The discharge area below the emergency spillway is not armored, and extensive erosion would take place if the emergency spillway were used,” the memo stated. “The spillway road and possibly high voltage transmission towers would be impacted.”

Unfortunately, the motion to intervene was dismissed and the environmental groups’ comments to FERC’s draft EIS were brushed off by both state and federal agencies. An independent report published in January 2018 suggested that the concerns of environmentalists in 2005 were shaken off in part because the agency was concerned about the costs the improvements would incur.

The city of Oroville filed a lawsuit in January 2018 alleging that the crisis at the dam was the result of “decades of mismanagement and intentional lack of maintenance” by the Department of Water Resources and said the agency “buried its head in the sand” after being made aware of problems in the early 2000s.
Ensuring citizen’s access to the courts
As climate change makes extreme weather events like hurricanes more frequent, isolated incidents like the one that occurred at Oroville dam in 2017—made possible by a “perfect storm” of prolonged drought followed by a period of heavy rain—are likely to occur with increasing frequency across the county. In the case of the Oroville dam, disaster was ultimately averted. The next community downstream, however, may not be as lucky.

Over the past four years in Congress, 150 pieces of legislation have been introduced seeking to undermine, weaken, or waive NEPA. Current legislative proposals in Congress, made bolder by the election of Donald Trump, are even more alarming. If passed, the government would be able to rubber stamp permits for corporations to build oil pipelines and toxic waste dumps without any environmental review.

If President Trump and opponents in Congress are successful in their war on NEPA, the ability of local citizens groups like the South Yuba Citizens League and Friends of the River to take the federal government to court and hold federal agencies accountable for dangerous or rushed projects would be severely restricted.

This campaign to eliminate NEPA is based on the demonstrably false claims that NEPA is both a major cause of project delay and a tool for frivolous litigation.

The facts tell a different story. The federal government undertakes 50,000 actions every year subject to NEPA review, but only 200 draft EISs are prepared annually. A Federal Highway Administration study found that from 1998 to 2004, no more than 3.5% percent of all proposed transportation projects required a detailed environmental study. 

The volume of litigation under NEPA is also low: fewer than 100 NEPA cases are filed in district court annually, about half of which involve challenges to EISs.

Bulldozing public input and citizen’s access to the courts under NEPA will not speed up infrastructure projects. As the Oroville dam demonstrates, gutting NEPA will only result in construction of major infrastructure projects like bridges and dams without full consideration of the long-term impacts on people and ecological environments.

Any law that provides broad opportunities for public participation in government decisions that affect the environment and local communities shouldn’t be rolled back, it should be embraced. Rather than weakening NEPA—a law that is essential to ensuring government transparency and accountability—Congress should provide additional funding for full-time technical staff at the state and federal levels to ensure timely completion of environmental review.

[1] “Engineers have known for decades that Oroville’s backup spillway was unreliable.” Sacramento Bee, 2/13/2017. Available at:

[2] “Motion to Intervene of Friend of the River, Sierra Club, and South Yuba River Citizens League.” Available at:
[3] “Authorities were warned that the Oroville Dam was at risk of collapse 16 years ago.” Quartz. 2/14/17. Available at:

Authorities were warned that the Oroville Dam was at risk of collapse 16 years ago

[4] “Comments on the Notice of Preparation, Yuba River Flood Protection Program.” Friends of the River. 9/23/2001. Available at:
[5] “Independent Forensic Team Report: Oroville Dam Spillway Incident.” 1/5/2018. Available at:
[6] “The Oroville Dam 2017 Spillway Incident and Lessons from the Feather River Basin.” September 2017. Available at:
[7] “Draft Environmental Impact Statement for relicensing of the Oroville Facilities Project No. 2100.” Federal Energy Regulatory Commission (FERC). September 29, 2016. Available at:

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Preserving Local Voices in Broadband Deployment

I’m not a telecommunications lawyer and don’t usually follow what’s happening at the Federal Communications Commission, but this week I am. At its March 22 meeting, the Commission is set to vote on rule changes that would remove the deployment of small wireless facilities from public participation and environmental review currently in place. NRDC opposes the changes.
What the FCC’s Order Does

The FCC published its Wireless Streamlining Report and Order on March 1, 2018. The Commission will vote on whether to approve the order on March 22.
The Order makes two changes to the FCC’s rules implementing the National Environmental Policy Act (NEPA). First, the Order excludes facilities placed in a floodplain as long as they are placed at least one foot above the base flood elevation from NEPA review. Previously, any facility located in a floodplain required at least an Environmental Assessment (EA) under NEPA. Second, the Order changes the rule requiring an EA to exclude: (1) the construction of mobile stations; and (2) small wireless facilities meeting certain criteria.
The Order also excludes the deployment of wireless communication facilities from the definition of “undertaking” under the National Historic Preservation Act (NHPA). Section 106 of the NHPA requires that “the head of any Federal department or independent agency” shall take into account the effect of any proposed undertaking on historic properties.

Why the FCC’s Order Is a Bad Idea
1. We can rapidly deploy broadband technology without shutting local voices out. The radio spectrum provides for numerous types of wireless communication. The FCC licenses this spectrum for various uses. Currently, a voracious demand for wireless access to the internet (aka “broadband”) dominates such uses. 

The next generation of wireless technology—5G—offers faster data speeds and more reliable service. Rather than large, widely-spaced towers, the new 5G technology requires distributed antenna services and small cell facilities sited much more closely together. 

While the smaller size of these facilities may limit their impacts on a community’s historic, cultural and natural resources, the dramatic increase in their numbers mean more sites will be affected and cumulative impacts could be significant. Involving local elected officials and community members in the planning decisions will help ensure wiser and less controversial decisions.

2. The FCC’s Order discourages collaboration. Numerous stakeholders worked diligently over many months and years to develop a system of review that preserves local voices while allowing rapid deployment of broadband facilities. Like NEPA, the NHPA provides for limited review where impacts are limited.  The FCC has developed Programmatic Agreements with the Advisory Council on Historic Preservation and others to provide for streamlined review of impacts on historic and cultural resources. The FCC tosses these collaborative efforts aside.  As a result, diverse stakeholders oppose the Order including: the National Congress of American Indians and the National League of Cities, as well as individual tribes and cities across the country.

3. The FCC’s Order is unlawful. The plain language of both NEPA and the NHPA applies these laws to the FCC licensing at issue here. Courts have consistently treated licensing as both a “major federal action” under NEPA and an “undertaking” under the NHPA. The Commission can adjust the amount of review based on the minimal impacts of a licensed activity, but it cannot avoid review all together.

While Congress has encouraged the rapid deployment of wireless technology, it has mandated that it be done in a way that protects the environment as well as historic and cultural resources. NRDC supports the rapid deployment of wireless technology especially to remote communities which currently lack service. Future progress, however, does not require that we forget our past or sacrifice a healthy, vibrant and secure environment.

Sharon Buccino is NRDC’s Land and Wildlife Program Director. Prior to joining NRDC, she practiced environmental and administrative law with a private firm in Washington, D.C. and worked for the Alaska Supreme Court.


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Trump’s Infrastructure Scam Will Gut Environmental Protections To Benefit Corporate Polluters

In his first State of the Union address, President Donald Trump is expected to announce a long-awaited plan to upgrade the nation’s infrastructure and call on the U.S. Congress to work with his administration on related legislation. Leaked versions of the infrastructure proposal, however, show that this is not a plan to put Americans to work rebuilding crumbling infrastructure. Instead, it’s a full-scale gutting of environmental protections to benefit corporate polluters and steamroll American communities.

As detailed in the leaked proposal, the Trump administration’s plan would require fundamental changes to no fewer than 10 bedrock environmental laws that protect the nation’s clean air, clean water, wildlife, and national parks. The plan would hollow out the National Environmental Policy Act (NEPA), the law that requires federal project sponsors to consult with stakeholders who would be affected by new projects and identify ways to reduce their impact on the environment, public health, and cultural resources. The Endangered Species Act is also in the crosshairs, as several provisions would prioritize new development over the protection of wildlife that is on the brink of extinction. The Trump administration proposes significant changes to the Clean Air Act and Clean Water Act to make it easier for corporations to break ground and avoid inconvenient air and water quality protections. The proposal even includes some mystifying provisions, such as one to give Secretary of the Interior Ryan Zinke unilateral authority to site natural gas pipelines in national parks.

The Trump administration will attempt to brand these environmental attacks as an effort to improve the infrastructure permitting process. In actuality, they are attempting to steamroll hardworking Americans by silencing or disregarding communities’ voices in determining where pipelines, highways, and other large projects should be built. Example after example shows the foolishness of that approach for the environment and public health. One only needs to look at certain communities that were built 50 years ago—before NEPA and other environmental laws existed—to see the detrimental impacts of this type of decision-making. In a particularly stark example, a low-income community in Orlando, Florida, continues to suffer the consequences of short-sighted transportation policy decisions that left the neighborhood surrounded by highways, isolated from the rest of the city, and trapped in a haze of air pollution.

While the Trump administration is proposing measures to sell out our air, water, and national parks to corporate polluters, it is ignoring tangible steps that it could take without gutting environmental protections. An important first step would be to implement laws already on the books. In 2012 and 2015 respectively, Congress enacted two pieces of legislation—the Moving Ahead for Progress in the 21st Century Act (MAP-21) and Fixing America’s Surface Transportation (FAST) Act—that contain provisions aimed at expediting the permitting process that are not fully implemented, such as measures to reduce duplication; track the progress of project delivery; integrate mapping and other data tools with fiscal management systems; and facilitate efforts to align historic preservation regulations. Congress also created the Federal Permitting Improvement Steering Council to manage the permitting process for certain complex projects.

Implementing new laws takes time, and layering new provisions only makes it harder. In March 2017, the Department of Transportation’s (DOT) inspector general found that DOT delayed implementing a significant number of MAP-21’s reforms because they had to stop midstream and comply with additional provisions mandated in the FAST Act. Rather than understanding and deploying the tools it already has, the Trump administration has jumped to the nuclear option—radical environmental rollbacks that grease the process for corporations at the expense of air and water quality and wildlife.

The best way for the Trump administration to speed up permitting without sacrificing environmental protection is to adequately fund the relevant federal agencies involved in the permitting and environmental review process. Without funding, the federal agencies cannot hire and train staff to complete environmental reviews or invest in technology that provides efficiencies. In DOT’s “how-to” guide for environmental reviews, the agency notes that limited budgets and staff resources preclude many regulatory and resource agencies from assigning staff to work on reviews when they may already be strained to process pending workload in a timely manner. Instead of funding these professionals to provide the best information to make informed decisions, the Trump administration has proposed slashing agency budgets and undertaken the greatest assault that has ever been seen in the history of this country on these agencies that protect clean air, clean water, wildlife, and national parks.

With such a public record of promoting the interests of corporate polluters over communities and the environment, no one should be fooled by Trump’s infrastructure scam. It is little more than a Trojan horse designed to gut the environmental protections that are necessary for the clean air, clean water, wildlife, and national parks that truly make America great.

Christy Goldfuss is the senior vice president for Energy and Environment Policy at the Center for American Progress. Alison Cassady is the managing director for Energy and Environment Policy at the Center

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Earthjustice: The Trump Administration Wants to Roll Back Fracking Standards

Fracking has disrupted the landscape and the life of North Dakota. Theodora Bird Bear has lived in the town of Mandaree on the Fort Berthold Indian Reservation for most of her six decades. When the retiree moved into her current home in the ‘80s, she found juneberries, plums, buffalo berries, chokecherries and turnips growing wild on her property.

“These natural foods which our tribe relied on prior to the 1950s are important to me as a tribal member in our original homelands,” Bird Bear wrote last year. “This landscape is the last of our historic pre-treaty lands.”

Now, nearly 1,000 active oil and gas wells have industrialized the delicate, semi-arid ecosystem all around Bird Bear.

“Sadly, there are very few butterflies visible, especially the monarch butterfly, in the past nine years of the intensive mineral extraction all around my home,” says Bird Bear, who is a member of Fort Berthold Protectors of Water and Earth Rights (POWER). “There are also fewer birds around. The continuous jet-like sound from the frack well sites around my home drowns out the bird songs in the spring and early summer.”

“I am worried about the cumulative and adverse impacts to air and water in Mandaree and Fort Berthold,” she adds. “The secret, proprietary nature of fracking means tribal members like myself aren’t able to fully protect our tribal lands in the event of a toxic fracking spill.”

This week, Earthjustice and our clients, including Fort Berthold Protectors of Water and Earth Rights, went to court to push for more information and more protection for Bird Bear and others living amid fracking operations. We challenged a Trump administration effort to roll back common sense standards around fracking.

These standards were adopted in 2015 by the Bureau of Land Management to protect places like Fort Berthold from the chemical contamination and water pollution that can result when fracking goes awry.  The agency crafted this rule after five years of research and conducting public and tribal outreach sessions across the country—including in North Dakota, where Bird Bear testified. It was the first federal effort since the 1980s to update the agency’s standards for the thousands of fracking operations that occur each year on federal and Indian lands.

But the regulation never went into effect. Litigation by industry groups and some states delayed it. And at the end of 2017, under new leadership from the Trump administration, BLM nixed its own rule.

“BLM recognized in 2015 it needed to take these basic safety precautions in order to meet its responsibilities as the steward of public lands,” said Michael Freeman, one of the Earthjustice attorneys bringing the lawsuit.  “By repealing the rule, BLM is abandoning its duties to the American public as well as to native American communities facing the threat of fracking.”

Earthjustice attorney Mike Freeman at an oil rig in Erie, Colorado


The Trump administration justified the repeal in part by arguing that states and tribal are doing an adequate job of managing oil and gas development by themselves.  But the reality is that fracking policies vary widely from state to state, and particularly from tribe to tribe, Freeman says. Many tribes don’t have fully-developed tribal regulatory systems to address oil and gas development, or the resources to hire experts who can assess whether a fracking operation is likely to contaminate groundwater or cause a well blowout.

Bird Bear testified that she does not believe the Fort Berthold Tribal Council has the clout to enforce regulations concerning oil and gas extraction based on her experience with lax enforcement of a tribal regulation governing the wasteful flaring of natural gas produced at oil wells.

“After 10 years of oil and gas revenue received by the tribal council, it’s also unlikely they will have political will to stand up for the health of tribal members on Fort Berthold when it comes to oil and gas pollution,” she said.

Several federal laws—including the Federal Land Policy and Management Act, the Mineral Leasing Act—charge BLM with ensuring that development on federal lands benefits the public welfare and prevents unnecessary degradation of resources like water quality.  And under the Indian Mineral Leasing Act, the Secretary of the Interior also has a trust responsibility to ensure that oil and gas extraction on tribal lands is in the best interest of tribes and individual tribal members like Bird Bear.

The 2015 fracking rule set several commonsense standards to protect groundwater, surface water, wildlife, and public health and safety. It would have required oil and gas companies to disclose the chemicals they used in fracking. Companies would have had to store fracking waste in closed tanks, not pits—the latter method can kill livestock or wildlife that mistake the pit for a convenient water source, Freeman says. And the operators would have had to ensure the structural integrity of their wells, in addition to mapping nearby wells to ensure that they wouldn’t hit them while drilling.

Fracking on BLM land in the Colorado River Valley Field Office of western Colorado


On behalf of our clients—which also include Diné Citizens Against Ruining Our Environment, Center for Biological Diversity, Earthworks, Sierra Club, Southern Utah Wilderness Alliance, The Wilderness Society, and Western Resource Advocates, Earthjustice’s lawsuit asks the court to reinstate the 2015 rule on the grounds that its rollback was arbitrary and capricious.

Thanks to BLM’S abrupt reversal of its own fracking laws, tribal land owners are denied the right to assure protection of their ground and surface water in the semi-arid lands of Fort Berthold.  Bird Bear says BLM’s failure to enforce strong regulatory protections on nearby wells has endangered her health. But she’s not giving up on protecting Fort Berthold.

“We have consistently remained anchored here in our pre-treaty homelands,” she testified. “We stayed true to our land and ourselves – and this is our strength.”

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The Charlotte Blue Line Light Rail Extension

The Charlotte metropolitan area is one of the fastest-growing and most economically dynamic regions in the United States. Since 1990, the area has grown from 1 million residents to its current population of more than 2.3 million. With this growth, however, has come additional congestion. In response, the Charlotte Area Transit System (CATS) has sought to expand public transportation services, including the construction of light rail transit. 

The National Environmental Policy Act (NEPA) provided CATS with a process to identify the most appropriate route and transit technology combination as well as other design elements and construction practices to meet local mobility needs while minimizing social and ecological impacts.

In 2007, after years of planning and building political support, CATS opened its first light rail segment known as the LYNX Blue Line, which extends south 9.6 miles from downtown Charlotte. Within the first year of service, ridership doubled the preconstruction forecast, providing more than 18,000 weekday trips.

Following the success of the first segment, CATS and local elected officials pushed to extend the Blue Line 9.4 miles northeast to the University of North Carolina at Charlotte. Upon completion in 2018, the Blue Line extension will provide more residents with a safe, affordable, and efficient alternative to driving. Additionally, the extension will support increased residential and commercial density along the corridor, as called for in the city’s updated land use plan.

Before deciding to extend the Blue Line, however, CATS conducted a full alternatives analysis as required under NEPA. This included a review of a wide range of options, including rapid bus, light rail, streetcars, and commuter rail. From this broad set of possibilities, CATS narrowed its analysis to those options that were not “fatally flawed from an engineering or environmental perspective or would be unlikely to meet project goals and objectives.”

CATS conducted detailed analysis of several rapid bus and light rail alternatives as well as one streetcar option. The analysis determined that “The BRT [bus rapid transit] alternatives would serve existing land use patterns better than the light rail alternatives, but light rail would have more potential to support the desired shape of future development.” Thus, CATS used the transportation and land use goals established by the city of Charlotte to inform its NEPA purpose and need statement, which—along with other factors such as cost and ridership—served as the basis for analyzing project alternatives.

Initially, CATS selected a light rail alternative that would have included 13 stations, extending 10.6 miles northeast from downtown. However, due to the severe economic slowdown created by the Great Recession, CATS decided to reduce project costs by cutting two stations, scaling back structured parking, and shortening the line by 1.2 miles. In 2011, CATS adopted the revised light rail design, finding that it caused “the least damage to the biological and physical environment, while best protecting, preserving and enhancing historic, cultural and natural resources.”

As intended, the NEPA alternatives analysis process allowed CATS to answer the macro question of what project should be built to advance the defined local purpose and need. Next, CATS used NEPA to answer the micro question of how to deliver the project in a sustainable manner.

As part of the review process, CATS conducted a detailed traffic impact analysis of 55 intersections along the rail route in order to identify where the line should be grade-separated from existing roadways. For urban rail lines, grade separations affect safety, train run times, cost, intersection delays, and traffic spillover to adjacent intersections. The CATS analysis determined that the extension should include grade separations at all major intersections, railroad crossings, and entry and exit points for U.S. Route 29.37 In total, the Blue Line extension includes 11 new grade separations. For instance, the inclusion of a grade separation of the light rail line with 36th Street will allow intersection performance—known in traffic engineering terms as “intersection level of service”—to remain unchanged at the intersection of 36th and North Davidson. 

To understand the importance of including multiple grade separations, one must consider how the Blue Line extension might have looked if CATS engineers had focused narrowly on delivering fast train run times in the most cost-effective manner possible. For starters, grade separations are expensive compared with standard at-grade crossings, which only require the installation of a flashing gate. CATS could have chosen to construct the line at grade, granting trains travel priority and forcing vehicles to wait throughout the day. This approach would have saved the agency money without sacrificing train run times.

However, while at-grade crossings may save the project sponsor money in the short run, they increase roadway delay and air pollution from idling vehicles traveling within the rail corridor. As a result, the Charlotte region would suffer from reduced economic productivity and more polluted air. Fortunately, NEPA requires project sponsors to take into account how new facilities will affect safety, air quality, and roadway conditions, among other measures of community and environmental impact.

Safety is another core community impact under NEPA. This means that project sponsors must consider how a new facility may increase injuries and fatalities. A portion of the Blue Line will travel along roadways with numerous cross streets that are not signalized, meaning that pedestrian and vehicle movements are not controlled by traffic lights but by stop signs and individuals’ discretion. For roadways with few pedestrians and low traffic volumes, this approach works well. However, the presence of a new light rail line would increase development, travel demand, and pedestrian use. In response, CATS added traffic lights to fully control vehicle and pedestrian movements along U.S. Route 29, Orr Road, Arrowhead Drive, Owen Boulevard, Orchard Trace Lane, and at the University City Station. CATS notes in the environmental impact statement: “With light rail transit running in the median, safety requires traffic signals at all median openings.”

Lastly, NEPA requires project sponsors to look at how a proposed facility will affect low-income communities and communities of color. This mandate stems from a sober and honest recognition that the location, scale, and design of infrastructure facilities have historically affected poor or otherwise disadvantaged neighborhoods at disproportionately high rates.41 In short, the choice to build an infrastructure project can itself be a form of discrimination. This impact may take the form of increased pollution and noise; increased household costs; reduced transportation access; or the loss of local businesses, housing, religious institutions, and social service providers through eminent domain, among other impacts.

As part of the environmental review process, CATS was required to conduct both a demographic analysis based on census data and an extensive inventory of community assets. The Blue Line extension will run through several neighborhoods in which residents are predominantly people of color with incomes that fall substantially below the area’s median household income.

In order to construct the Blue Line, CATS had to acquire 90 acres of land, resulting in the displacement of 14 commercial or industrial businesses but no residential displacement. CATS found that none of the businesses “provide a unique or special service to a community of concern.” Therefore, the project’s most significant impact would be increased noise and vibrations. Eleven residential homes were expected to face a significant increase in noise or vibration. These impacts are considered adverse “due to the intensity of the impacts and disproportionate as no residential noise impacts would occur outside of minority and low-income communities of concern.” In response, CATS made changes to the project design to include the installation of “an automated friction modifier, noise barriers, sound insulation, specially-engineered track work and vibration isolation treatments.”

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A World Without NEPA: Uranium Mining in Utah

The National Environmental Policy Act (NEPA) was passed in 1969. NEPA requires government agencies to assess significant environmental and public health impacts of major federal actions before the decisions are finalized, to inform the public of those impacts and to solicit input on the proposal and reasonable alternatives. NEPA accounts for the fact that while corporations may profit from major project approvals, it’s the public, and the environment, that must live with the consequences. It is the law that ensures that informed decision-making, public engagement and accountability are components of a huge range of federal actions from managing our public lands and approving massive projects like dams and logging operations to insecticide and chemical permitting. These types of decisions often dramatically impact the health and resilience of human communities as well as threatened and endangered species and other wildlife.
But NEPA’s requirement for transparency, for consideration of public input and project alternatives doesn’t sit well with everyone. Over the last several years, hundreds of pieces of legislation have been introduced that would weaken NEPA or waive it entirely. The 115th Congress alone has already been the source of over 40 such proposals that would waive NEPA or limit the scope of its analyses. The bills have attacked NEPA in different realms — sometimes for highway projects and dams, other times for logging projects. The strategy of slowly eroding the core provisions of NEPA is troubling. Now, under the guise of “modernizing NEPA” the Chairman of the House Natural Resources Committee, Rep Rob Bishop of Utah — an avid opponent of NEPA and the Endangered Species Act — is holding a hearing targeting the NEPA as a whole.
If this agenda succeeds, millions of Americans and scores of local governments could lose notice about impacts that projects will have on their communities and lose their voice in federal decisions.
The Cautionary Tale of Uranium Mining in Utah

If there is one example that clearly illustrates the value of subjecting agency decision-making to public scrutiny, it is the impact and clean-up of the Atlas Uranium Mill tailings, a waste by-product of uranium mining, on the banks of the Colorado River in Chairman Bishop’s home state of Utah.

The United States’ first commercially operated uranium mill was built on the bank of the Colorado River near Moab, Utah in 1956 and expanded by the Atlas Minerals Corporation beginning in 1961. This facility extracted yellowcake uranium for nuclear bombs and reactors from ores trucked from over 300 mines on the Colorado Plateau.
Without the National Environmental Policy Act (NEPA) and its mandated review process, the mine’s potential impacts on the environment and community health were not made public when the government approved the project, and the public was given no opportunity to weigh in on alternatives or propose mitigation options.
Since then, the slime-like wastes from the mill, laced with radium, uranium, thorium, polonium, ammonia, molybdenum, selenium and nitrates, were slurried into an unlined pond in the floodplain of the river. As the need for a larger waste site grew, contaminated soils were bulldozed up to raise the sides of the tailings impoundment. By 1984, when the mill was finally put on standby, the pile of radioactive wastes had grown to 12 million tons, covering 130 acres to a depth of 110 feet.

The Atlas site is the fifth largest uranium tailings pile in the United States and by far the most dangerously polluted. Today’s discharge of contaminated groundwater into the river is estimated at 110,000 gallons per day.
The removal of the radioactive waste from Moab is expected to take in excess of 10 years to complete. The cost of the relocation was originally estimated to be $300 million, but 2008 Department of Energy estimates are in excess of $720 million. Groundwater treatment will continue for approximately 75 years to the cost of $70 million. Atlas Corporation, the former owner, left behind a painfully underestimated reclamation bond of $4.5 million.

While the mill’s initial approval was not subject to NEPA, thankfully, the decision of what to do with the contamination was. On April 6, 2005, Energy Secretary Spencer Abraham announced that the Final Environmental Impact Statement (FEIS) for the Moab mill site recommended moving the 12 million tons of radioactive waste by train to a new site in Crescent Junction thirty miles north of the Colorado River — finally limiting further damage to the environment and public health.
This victory was made possible through NEPA and the forum it provided for the remarkable outpour of public comments during the draft Environmental Impact Assessment (EIS) stage to be heard. This public involvement included comments from a bipartisan coalition of western Governors from Arizona, California, New Mexico, Nevada and Utah, who together sent a strongly worded letter to the Department of Energy stating that the only solution acceptable to them was the removal of the wastes to a safe location. A bipartisan western congressional coalition, which included members of the House Resources Committee, also participated in the NEPA process by submitting similarly strong letters, as did several major downstream water districts.
The successful use of NEPA in facilitating the Atlas mill cleanup, is a great example, but it is hardly unique. Examples from across the country show that when NEPA is adequately employed, it faithfully protects our health, our homes, our treasured public lands and wildlife and our environment generally.
So why should we care if NEPA is under attack?
We should care what happens to NEPA because our right to be informed of significant impacts to the environment and to our communities is on the line, along with our ability to have a say and hold the government accountable for major federal decisions. In short, we should care because the health and safety of our communities, our air and water, our public lands and wildlife and our environment are on the line. The National Environmental Policy Act may be a law you have never heard of, but it makes a big difference in keeping our communities and our environment safe.

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Everglades Parkway: the I-75 extension through Alligator Alley

Following the passage of the Federal-Aid Highway Act of 1956, the United States began a national program of highway construction to facilitate more efficient connections between metropolitan areas and provide farmers with better access to local markets. The act authorized the construction of a 41,000-mile system. In 1968, Congress passed another highway bill to expand the interstate system by an additional 1,500 miles. The legislation included an authorization to extend Interstate 75 (I-75) south and east from Fort Myers on the Gulf Coast to an area west of Fort Lauderdale on the Atlantic Coast. The 114-mile extension would become known as the Everglades Parkway.

In 1969, the Florida Department of Transportation (FDOT) began to study alternative routes. Unlike the planning for earlier interstate segments, FDOT was required to comply with the newly-passed National Environmental Policy Act (NEPA). As a result, the I-75 extension included numerous design elements tailored to minimize impacts on the natural environment. Importantly, none of these design elements undermined the original goal of the project: to construct a limited-access, four-lane, divided highway that would connect Gulf and Atlantic Coast population centers, providing increased travel speeds and reduced travel times. 

Large infrastructure projects such as the I-75 extension present states with many technical challenges. Engineers must determine everything from pavement type and interchange design to the sharpness of curves and how to prevent rainwater from forming unsafe pools on the roadway. These challenges share a common thread: They are all related to the design of the roadway. Prior to NEPA, engineers focused narrowly on how to design a facility as opposed to how that facility would affect the surrounding community or natural environment. Part of NEPA’s value is that it requires planners and engineers to widen the aperture of concern. Environmental review necessitates that state and local governments solve the engineering puzzle in a way that minimizes the negative spillover that often accompanies major infrastructure projects. 

Improving flow involved several design modifications. According to FDOT design policy at the time, highways were required to provide at least 100 feet of land between the edge of the roadway and any adjacent body of water. This requirement was intended to reduce the risk of passengers drowning in the event that a driver loses control of a vehicle. In effect, the 100-foot buffer provided a chance for a driver to slow the vehicle and regain control, hopefully avoiding entering the water. In the case of the Everglades Parkway, complying with this requirement would have meant draining additional wetland on either side, further impairing critical habitats and the sheet flow of fresh water. Instead, FDOT chose to waive this policy and add a cable barrier where necessary. The cable barrier would stop wayward vehicles before they reached the water. 

FDOT’s final significant modification dealt with the channels running parallel to the highway on either side as well as the connections spaced at regular intervals that connected the channels on the north and south side of the highway. Experience with the channels along the original State Route 83 showed that the state needed to both modify their depth and regularly remove aquatic vegetation that could reduce sheet flows by as much as 90 percent. FDOT also scheduled construction activity to avoid the heaviest seasonal rains. By adjusting the sequence and timing of work, the state was able to significantly reduce sedimentation—rainwater carrying dirt, rocks, and other loose debris from the construction site into the wetlands.

The environmental review process provided FDOT with the information necessary to make smart and effective changes to the design, construction, and maintenance of the Everglades Parkway, all with an eye toward reducing harmful impacts on the surrounding ecosystem. Far from being a burden, NEPA brought forward the technical expertise of scientists across numerous fields to help the state build a fundamentally better, more sustainable facility that continues to provide benefits to this day.


[1] “Environmental/Section 4(f) Statement Interstate Route 75: State Road 82 near Ft. Myers in Lee County to U.S. Route 27 at Andytown in Broward County” Florida Department of Transportation. August 25, 1972.

[2] Florida Wildlife Federation v. Goldschmidt, 506 F. Supp. 350 (S.D. Fla. 1981). Available at:

[3] August Burghard. Alligator Alley: Florida’s most controversial highway. (Washington: Lanman Company, 1969).

[4] “Final List of Nationally and Exceptionally Significant Features of the Federal Interstate Highway System.” U.S. Department of Transportation, FHWA. Available at:


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