NEPA Compliance For Projects Funded Under The American Recovery And Reinvestment Act Of 2009: Is Your Project 'Shovel Ready'?
The American Recovery and Reinvestment Act of 2009
("ARRA"), provides a $787 billion economic stimulus
package with funding for investments in infrastructure, energy,
healthcare, education and science, among other sectors. With
billions of dollars in federal stimulus funds available, the ARRA
presents private firms with opportunities for financing eligible
projects. For example, federal stimulus funds are available for
certain affordable housing projects, as well as transportation
infrastructure, including highway, bridge, road, transit, and rail
improvements that may be associated with a development project.
Stimulus funds are also available for wastewater and drinking-water
projects, as well as environmental clean-up and remediation, and a
wide range of other construction projects.
ARRA-Funded Projects Require NEPA Compliance
The award of any discretionary grant, loan, loan guarantee or
other funding requires the federal agency granting the assistance
to comply with the National Environmental Policy Act
("NEPA"), the federal environmental review statute. NEPA
compliance will be required for projects involving federal funds,
even if the project has already completed environmental review
under an earlier verson of NEPA or an equivalent statewide program.
Depending on the scope of the project, obtaining NEPA compliance
could seriously delay construction of the project and potentially
subject the project to more delay from litigation challenging the
adequacy of environmental review. Because one of the primary goals
of ARRA is to inject federal stimulus funds into the economy as
quickly as possible, Congress considered exempting ARRA projects
from NEPA compliance. The final bill, however, does not contain a
NEPA exemption. Instead, section 1609(b) of ARRA requires that
federal agencies devote "adequate resources" to ensure
that NEPA review of ARRA projects is "completed on an
expeditious basis" using the "shortest existing
applicable process." ARRA requires certain projects,
particularly those involving renewable energy, to commence
construction by September 30, 2011.
Streamlining The NEPA Process
The requirement that environmental review be
"expeditious" and use the "shortest" applicable
process is a direct signal to federal agencies to use a streamlined
environmental review process. Therefore, the ARRA appears to favor
and encourage Categorical Exclusions ("CatEx") of
Projects from NEPA, or initiation of Environmental Assessments
("EAs")...
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