On September 28 and 29, 2017, the U.S. Department of Transportation (“DOT”) published  Notices of Proposed Rulemaking to commence a public comment period on proposed regulations governing DOT’s Program for Eliminating Duplication of Environmental Reviews, established by Section 1309 of the Fixing America’s Surface Transportation Act (“FAST Act”).  Section 1309 directed the U.S. Secretary of Transportation to establish a pilot program authorizing up to five states to conduct environmental reviews and provide approvals for projects utilizing state environmental laws and regulations, rather than subjecting such projects to the review process of the National Environmental Policy Act (“NEPA”).

The FAST Act, signed into law by President Obama on December 4, 2015, was the first federal law in over a decade to provide long-term funding certainty for surface transportation infrastructure planning and investment.  It authorized $305 billion over fiscal years 2016 through 2020 for various critical transportation projects.

For a state like New York, which has long had its own state corollary to NEPA (the State Environmental Quality Review Act - “SEQRA”), this may be an opportunity to explore taking the lead on the environmental review of federally-funded transportation projects.  Historically, federally-funded projects that required a combination of state and federal authorizations (as nearly all do) have required parallel state and federal environmental reviews, tending to bog down the approval process.  If New York can convince the Trump Administration that SEQRA can provide a complete and expeditious environmental review for major transportation projects, without the need for an overlapping NEPA review, it may be positioned to seek a larger share of federal transportation dollars.

This could be an important opportunity to better position New York in its pursuit of projects of major regional importance, such as the state’s desire to replace the antiquated rail tunnels and bridges crossing the Hudson River between New York and New Jersey.  Leading politicians such as Governors Cuomo and Christie and Senator Schumer have recently lobbied the Trump Administration to provide the federal funding needed for the project. So far, nothing has been committed.

The notices require that comments be received on or before November 27, 2017.