This article is focused on aspects of Eno’s latest report: Saving Time and Making Cents: A Blueprint for Building Transit Better. For more information about community engagement, register today for Eno’s Transit Cost and Delivery Symposium on October 18-21, 2021. At the event, we will share findings from Eno’s transit cost and delivery report, and include panel discussion on best practices in permitting reform and other project delivery themes among transportation professionals, policymakers, and researchers.

Environmental permitting and review processes in the United States are important checks for ensuring that communities’ voices are heard before projects are built and that the resulting projects do not harm natural or social resources. Yet the pendulum may have swung too far on how review processes work for projects that are beneficial to the climate and the environment, like rail transit that is designed to carry more people in less space. Luckily there are several reforms that can maintain the necessary environmental protections while still allowing climate-friendly projects, like public transit, to proceed.

To build infrastructure projects, project sponsors in the United States must obtain permits from a host of agencies at all levels of government. For rail transit, this process requires transit agencies building new projects comply with the National Environmental Policy Act (NEPA) by preparing and coordinating documents to adhere to more than two dozen federal statutes that span several federal agencies and conduct similar processes to meet state and local environmental laws.

In practice, the permitting process is long, complex, and can result in costly delays. It can be difficult for project sponsors to know which federal, state, and local laws and regulations apply before beginning the environmental review and permitting process. Once the process is underway, tasks and documents are often siloed between the various agencies and duplicative. And there is limited internal capacity at transit agencies to conduct reviews and coordinate the documentation, leading to overreliance on costly private sector contractors.

Because of these issues and others, permitting reform is a perennial topic among infrastructure stakeholders. In the recent Bipartisan Infrastructure Deal, for example, there are provisions to make FAST-41, the element of the Fixing America’s Surface Transportation (FAST) Act that established a Federal Permitting Improvement Steering Council to convene agencies sooner in the permitting process, permanent.

Yet it is unclear whether recent attempts at better federal coordination, like the ability for states to assume NEPA authority, have been successful. In a 2018 Government Accountability Office report that surveyed state DOTs and transit agencies, respondents were not sure if provisions sped up transit project delivery and some indicated that most of these provisions have had no effect.

International Best Practices

The U.S. can look to international peers for examples of best practices, as highlighted in a recent Eno report investigating transit project delays and cost overruns attributed to key elements of project delivery. Although environmental rules, regulations, and requirements in other countries are as just as elaborate, the environmental review processes are generally better streamlined, and approval is obtained faster than in the United States.

For instance, steps taken by the provincial (statewide) government of Ontario, Canada, to create a separate, expedited environmental review process for transit have cut timelines on major projects. This Transit Project Assessment Process established in 2014 is primarily driven by the project sponsor and begins with a selected project rather than an alternatives analysis. Several interviewees felt that this shorter environmental review process and mandated time limits has helped minimize conflict and expedite project approvals. The entire process is completed within two years.

Many of the challenges with NEPA in the United States are attributed to misunderstandings and conflicts between agencies. The following efforts specifically aimed at early coordination—between permitting agencies and between planning and environmental staff—might help to mitigate a number of risks that, if unaddressed, may result in time consuming litigation associated with the NEPA process.

The federal National Environmental Policy Act (NEPA) statute does not need to be reformed, but the processes by which federal agencies reach a record of decision does.

Following the example of specialized environmental reviews for transit projects in Ontario, Congress should create a pilot program to allow the federal transportation secretary to exempt select public transportation projects from NEPA if sponsors are able to demonstrate that they conducted robust community engagement and evaluation of project alternatives through the planning process. FTA should monitor this pilot program to measure its effectiveness at saving time as well as ensuring environmental protection. Further, through the Council on Environmental Quality, the Biden Administration should issue an executive order focusing on better coordination and consolidation of disparate timelines and processes under NEPA.

States and project sponsors also need to invest in the staff and processes for their own permitting and environmental review.

Highway project sponsors interact with the environmental review process more regularly given how routinely the United States builds roadway projects. To lean on their deep expertise, transit project sponsors should borrow staff from state DOTs and the FHWA to assist with preparing environmental documents. Transit project sponsors should take advantage of revised federal regulations to no longer require the evaluation of “all reasonable alternatives” and instead examine only those alternatives deemed feasible from the original planning process.

Congress should also dedicate more resources to the FTA to increase staffing in their regional offices and help assist transit agencies with preparing and coordinating environmental documents. But since state laws and regulations are often as complicated and suffer from the same siloed nature as federal permits, states should set up their own entities similar to the Federal Permitting Improvement Steering Council to help local agencies navigate state environmental regulations and coordinate between various state and federal staff.

For more information, register today for Eno’s Transit Cost and Delivery Symposium on October 18-21, 2021.