By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA

The U.S. Department of Transportation (U.S. DOT) is trying to exceed its authority in implementing the National Environmental Policy Act (NEPA), ARTBA warned in Jan. 10 comments to the agency.

The agency’s proposed order explains how it will put into practice NEPA reforms contained in the “Moving Ahead for Progress in the 21st Century” (MAP-21) and “Fixing America’s Transportation (FAST) Act laws. While ARTBA supports NEPA reforms contained in those laws, U.S. DOT’s proposed order contains new policy objectives that are outside the scope of MAP-21, the FAST Act and NEPA itself.

Specifically, the U.S. DOT’s proposed language could limit the use of categorical exclusions, the lowest hurdle of environmental review available. It also mandates consideration of “historic divides created by previous transportation decisions,” a suggestion by outgoing U.S Transportation Secretary Anthony Foxx that highways and other legacy projects caused disproportionate displacement and other impacts to minority neighborhoods. Both of these requirements run counter to MAP-21 and the Fast Act’s goal of reducing delay in the project review and approval process.

As the Obama administration comes to a close Jan. 20., this is the second time this month U.S. DOT has used regulations to advance unrelated policy goals. ARTBA also criticized the agency earlier this week for including an unrelated greenhouse gas tracking measure in a recently issued MAP-21 performance measure.