William Eliopoulos was quoted in Law360 that ran February 24, 2017, discussing future investment in the nation’s infrastructure and measures some states are taking to extend their authority under the National Environmental policy to expedite infrastructure projects while they await President Trump’s plan to increase investment in this area.
The program, known as The Surface Transportation Project Delivery Program or NEPA Assignment Program, allows states to assume the responsibility, normally reserved for the U.S. Department of Transportation, for reviewing projects to make sure they align with NEPA and moving them more quickly through the required review process.
Florida is the most recent state to gain approval for a NEPA assignment from the DOT’s Federal Highway Administration (FHWA). California, Texas and Ohio have also applied. According to the FHWA, under a NEPA assignment, states become legally responsible for ensuring that all federally funded highway projects comply with all aspects of NEPA prior to approving any related NEPA documents.
“In California, we’ve waived our immunity before, and Caltrans has viewed it as very important to have some control in the environmental review process for Caltrans projects, so they willingly waived immunity,” said Eliopoulos. “It’s saying, hey, instead of us putting disputes in state court, we’ll put it in federal court. I don’t think that’s been a major issue – the part of waiving immunity.”
Some concern is mounting within the industry that Trump, facing budget pressures, will not make his campaign promise to invest in the nation's aging roads, bridges, highways, airports, waterways and other infrastructure a priority.
“We haven’t seen any real detail for that plan [and] we’re all waiting to see that. At some point, that plan is coming and states that don’t have enabling legislation to allow them to take advantage of public-private partnerships are going to be sitting outside being spectators instead of players,” Eliopoulos said.