Tag Archives: NEPA

Relaxed Environmental Study Rules?

One of the most frustrating aspects of grant-funded projects for the public is that it takes years from the announcement that their neighborhood is covered by a grant until they see the new infrastructure. One of the reasons for these delays has been environmental studies that are mandatory when projects are funded by federal funds.

Environmental studies were first mandated for federal projects by the National Environmental Policy Act (NEPA) of 1969. This law required environmental studies for what was classified as a major federal action, which means any construction using federal funds, any construction built on federal land, or construction that requires a federal approval or permit. The type of proposed construction would trigger either an Environmental Assessment (EA) or an Environmental Impact Study (EIS). NEPA defined different kinds of activities that would require different types of assessment, with the two most common being impacts on the environment or on historic preservation.

On April 9, the Council on Environmental Quality issued a memorandum to all federal departments that suggests new guidelines for how to implement the NEPA laws. The issues covered in the memo haven’t been mandated by Congress, and don’t carry the force of law. However, it’s likely that most federal agencies will follow the new guidance.

The new guidance establishes what it calls categorical exclusions from the NEPA rules that would soften or eliminate the need for an environmental study if a project is not likely to “significantly affect the quality of the human environment”. It lists three types of categorical exclusions that can be considered:

  • The first categorial exclusion would apply if construction is to occur in an area that was already covered by a previously completed environmental review that did not trigger a full environmental study. Agencies would need to examine the previous environmental review to see if this warrants an exclusion today.
  • A federal agency can also look at other similar exclusions for environmental studies that have been granted in the past by the agency. If a new project is similar in nature to past cases where an environmental study wasn’t required, the agency can determine that a new review isn’t needed.
  • Finally, the agency can rely on the experience and expertise of its staff or outside experts who are familiar with the proposed project to determine if a review is needed.

What does all of this mean in practical application for broadband projects? This might eliminate the need to conduct environmental studies for construction done in the public rights-of-way of roads. The vast majority of fiber construction occurs by burying fiber on the shoulder of roads, which have been excavated in the past during road construction, or hanging fiber on poles that are in the public rights-of-way. It’s always seemed absurd to industry folks that there are any environmental issues from construction close by existing roads, since those areas have probably seen construction multiple times in the past.

The new guidelines would not change the requirements for a project that proposes to build fiber across wetlands or other areas that have never seen past construction. It probably doesn’t make it easier to build close to historic sites. But the new guidelines could eliminate the time and paperwork involved in conducting the environmental review for a majority of federal grant-funded projects. And that is not small thing. Construction can’t begin with grant dollars until environmental reviews are complete. The reviews can take from a few weeks to many months, and if a full environmental study is indicated, a project can be delayed by a year or two.

FCC Examines Environmental Rules

The FCC recently released a Notice of Proposed Rule Making where the agency is looking to relax some of the rules related to NEPA (National Environmental Policy Act), mostly related to wireless infrastructure. The NEPA rules were created in 1970 as a reaction to air pollution and acid rain. The Act created the Council on Environmental Quality (CEQ) that oversees the implementation of the NEPA rules. I have to warn you that this order is chock-fully of jargon and not easy to understand for those not familiar with environmental regulations.

The NEPA rules are being examined in light of Executive Order 14154, signed in January and titled “Unleashing American Energy”, which rescinded Executive Order 11911 from 1977 that required CEQ to issue regulations for federal agencies regarding the implementation of NEPA.

This particular docket examines environmental rules that apply to locating wireless equipment. In a related effort, NTIA has told State Broadband Offices that it will be relaxing the need for expensive environmental studies for winners of most BEAD grants. For now, environmental studies are still needed for other grants like ReConnect. The FCC says this docket applies to commercial spectrum license holders, utilities, public safety entities, railroads, mining companies, and tower owners.

The FCC adopted rules in the past that make it easy to do normal broadband construction of all types without jumping through a lot of paperwork hoops. The existing FCC rules say that extra NEPA compliance doesn’t broadly apply to projects that “individually and cumulatively to have no significant effect on the quality of the human environment and are categorically excluded from environmental processing.” In practical terms, that has meant that projects like building privately-funded fiber in existing rights-of-way doesn’t need an environmental study.

However, the current FCC regulations recognize that there are circumstances, which are defined by a NEPA Checklist, where additional environmental study is justified. One event that triggers the exception is communications projects constructed on federal lands or projects funded with federal or state grant money. Such projects typically require full NEPA compliance. Those who have had to go through the environmental studies complain that they are costly and can delay projects by as much as a year. Construction can’t proceed until an exhaustive environmental review has been completed, at a cost as high as several hundred thousand dollars.

The FCC NPRM is also exploring whether any changes should be considered for compliance with the National Historic Preservation Act of 1966 (NHPA). Those rules have often been invoked by localities to restrict placing wireless towers adjacent to historic sites.

The NPRM was initiated due to a petition from CTIA, the Wireless Association, that represents the largest cellular companies, that asked to modify the rules by imposing short deadlines on environmental and historic preservation reviews.

The NPRM asks when it is appropriate for the FCC to invoke NEPA rules for wireless tower placement. The FCC suggests that it is not responsible for invoking NEPA rules for wireless licenses that cover large geographic areas, and that local regulations would suffice for specific choices of where to put towers. The FCC suggests that NEPA still applies to wireless licenses that are site-specific.

The NPRM also asks what rules should apply for the location of satellite earth stations, which are currently not specifically covered by regulation. The NPRM asks if the FCC should continue to ask tower owners to register with the FCC. The NPRM also asks if there should be any environmental regulations that apply in space –  a fitting question for the ever-more crowded low-orbit paths.