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Senate seeks to expedite permitting, environmental review · Talking Michigan Transportation

• 0:07
  Jeff Cranson: Hello, welcome to the Talking Michigan Transportation Podcast.
• 0:10
  Jeff Cranson: I'm Jeff Cranson.
• 0:12
  Jeff Cranson: On September 30th, just before the Senate recessed ahead of the 2026 midterm elections, leaders of that body's environment and public works, EPW, and the Energy and Natural Resources Committee introduced what many are calling the most comprehensive permitting bill to date, the Bipartisan American Affordability and Jobs Act.
• 0:38
  Jeff Cranson: The chair of that committee, Shelly Moore Capitol of West Virginia, and the ranking member Sheldon Whitehouse of Rhode Island, along with the Energy and Natural Resources Chair Mike Lee of Utah and the Ranking Member Martin Heinrich of New Mexico, held the joint news conference to announce this long-awaited deal.
• 0:56
  Jeff Cranson: I spoke with Zach Rable, MDOT's federal policy analyst, about the highlights and challenges in the legislation and the anticipated difficulty of reconciling this with House priorities.
• 1:08
  Jeff Cranson: As always, he offered keen insights, so I hope you enjoy the conversation.
• 1:13
  Jeff Cranson: Okay, Zach Rable, who, as I mentioned in the introduction, is the federal policy analyst at the department.
• 1:22
  Jeff Cranson: I've always enjoyed talking with Zach about these things.
• 1:26
  Jeff Cranson: Some of these policies can be pretty complicated, and you have to delve into it.
• 1:31
  Jeff Cranson: Um, like everything, the cliche is true, the devil's in the details.
• 1:35
  Jeff Cranson: Zach, thanks for taking time to be here.
• 1:38
  Jeff Cranson: I set up in the intro once again uh the committee membership that passed this, both uh both EPW and ENR, Energy and Natural Resources, but maybe we should start high level with an explanation explanation of what NEPA is, the National Environmental Protection Act, um, which is 50-some years old now, and why it is that people are always saying it needs reform, but it never seems to reach any broad agreement.
• 2:10
  Zach Rable: Yeah, Jeff, thanks for having me.
• 2:12
  Zach Rable: I'm happy to be here and happy to dive into some of those details just because you know it can be confusing.
• 2:19
  Zach Rable: And so, you know, we're talking about the Bipartisan American Affordability and Jobs Act.
• 2:24
  Zach Rable: Um, and what it does is it really addresses NEPA, the National Environmental Policy Act, as you mentioned, which was passed in 1970.
• 2:35
  Zach Rable: So, you know, boy, it's been around for a little bit.
• 2:38
  Zach Rable: And this requires federal agencies to study and disclose a project's environmental effects before it funds, permits, or approves it.
• 2:49
  Zach Rable: So, really, this is a procedural process.
• 2:52
  Zach Rable: It looks at what's going on in the environment, not intending to predetermine a particular outcome.
• 2:58
  Zach Rable: And so it's supposed to work as this sort of umbrella where there are several other laws that um, such as the Endangered Species Act or wetlands protection or historical sites protection, that sort of require their own perm permits or consultations.
• 3:15
  Zach Rable: And NEPA is the umbrella that's supposed to pull all of these together under one coordinated review.
• 3:22
  Zach Rable: So for transportation, um, for something like a federally funded highway project, the lead agency for NEPA would probably be uh the Federal Highway Administration or FHWA.
• 3:34
  Zach Rable: And so FHWA as a lead agency would run the review with other federal agencies, sort of plugging in their own permits and consultations, um, using the same sorts of analyses instead of starting over from scratch.
• 3:49
  Zach Rable: And there are really three different types of reviews, um, sort of naming them from the least rigorous to the most rigorous.
• 3:56
  Zach Rable: These would be a categorical exclusion, which would cover projects that um are already found to have no significant impact, um, such as repaving or adding a turn lane.
• 4:08
  Zach Rable: There are sort of the mid-level environmental assessment, which sort of determines if there would be a significant impact or not.
• 4:18
  Zach Rable: Um then there are the most rigorous, the environmental impact statements, which is a full study for projects with significant impacts, and that sort of ends with a record of the decision, which is their formal process that ends everything.
• 4:35
  Zach Rable: Since about 2023, I think this came about as part of the Fiscal Responsibility Act that year.
• 4:42
  Zach Rable: An environmental assessment and an EIS have been given deadlines of one year and two years respectively.
• 4:50
  Zach Rable: So these clocks cover the NEPA document process only.
• 4:55
  Zach Rable: Um, but in practice, there are many delays that come from the start.
• 4:59
  Zach Rable: So when the clock begins and when it ends.
• 5:02
  Zach Rable: And these delays have, you know, classically caused a lot of um consternation.
• 5:07
  Zach Rable: You know, why are projects taking so long?
• 5:09
  Zach Rable: Why are things being delayed?
• 5:11
  Zach Rable: We want to improve um, you know, our more mobility options or improve, you know, transportation for safety, whatever it may be.
• 5:19
  Zach Rable: And you know, NEPA gets the blame a lot of times.
• 5:22
  Zach Rable: Um, and so, anyways, uh that's NEPA.
• 5:26
  Zach Rable: And now that we've sort of set that baseline, we could talk through what this new bipartisan law would change, but um, you let me know, Jeff, if that's where you want to go next.
• 5:36
  Jeff Cranson: Yeah, no, it is.
• 5:37
  Jeff Cranson: I think uh to back up though to some of what you talked about, categorial exclusions is a major component of this.
• 5:44
  Jeff Cranson: They're trying to part of expediting this is being able to decide early on that something meets the criteria for a categorial exclusion and which would uh make it much easier to move forward, right?
• 5:59
  Zach Rable: Yes, that's absolutely right.
• 6:00
  Zach Rable: That's absolutely right.
• 6:01
  Zach Rable: It's the fastest pathway um to ensuring that your project can get going.
• 6:07
  Zach Rable: Doesn't have to go through a rigorous leeper review at all.
• 6:11
  Jeff Cranson: So beyond that, you talked about both the EIS and the environmental assessment, the EA.
• 6:17
  Jeff Cranson: Break that down a little bit for people so they understand the difference between those two.
• 6:21
  Zach Rable: Again, it an EA, an environmental assessment, is really that um mid-level review to decide whether or not a project would um the effects of a project would be significant.
• 6:33
  Zach Rable: And so there there are two findings here.
• 6:36
  Zach Rable: There's either a finding of no significance or significant impact, uh otherwise known as a Fonzi, not quite the one.
• 6:42
  Zach Rable: By the way, yeah, not quite the guy from Happy Days, but you know, similar, right?
• 6:47
  Zach Rable: And then there, you know, if they do find that there is an um significant impact, then it moves forward into an EIS or an environmental impact statement.
• 6:56
  Zach Rable: And so this is really that full NEPA study um for projects, and it will include alternatives analyses and it includes public comment, and at the end of it, there's a record of decision on whether or not the project in question can move forward, and if so, what sort of strings are attached to it?
• 7:14
  Jeff Cranson: So, what's your take after you read Ashdo's summary and analysis, and then you kind of kind of overlaid your own on top of that?
• 7:24
  Jeff Cranson: On the surface, it sounds great to say that there's going to be fewer NAPA reviews.
• 7:29
  Jeff Cranson: Um, but it's explain.
• 7:31
  Jeff Cranson: I mean, there's always two sides to these things.
• 7:34
  Jeff Cranson: So it explain what that really could mean.
• 7:37
  Zach Rable: Yeah, so AASHTO is taking um the position that this is um a good thing.
• 7:43
  Zach Rable: It's advancing, you know, a long-standing concern with permitting delays, and it's um trying to sort of unravel a process that can become a little bit complicated.
• 7:56
  Zach Rable: But you know, there are some caveats to it so that um changing what can be sued in court.
• 8:05
  Zach Rable: And when that occurred, when that sort of gets introduced as a bill, oftentimes that then itself gets challenged in court.
• 8:12
  Zach Rable: So some of the underlying certainty that the bill is hoping to resolve may actually come with some midterm uncertainty.
• 8:21
  Zach Rable: I don't know if that makes any sense, but that's the way I've sort of conceptualized it.
• 8:26
  Zach Rable: AASHTO believes that, you know, this is one of those things where like delays are costing everyone, right?
• 8:33
  Zach Rable: And that improving processes that would expedite projects is a good thing.
• 8:39
  Zach Rable: Um, this is, in their mind, a compromise on something that has taken a really long time.
• 8:44
  Zach Rable: There have been several other attempts to um come to agreement.
• 8:48
  Zach Rable: I think there was something called like the Speed Act, the Permit Act, the CERTANE Act.
• 8:52
  Zach Rable: You know, there were there were all these bipartisan agreements before.
• 8:56
  Zach Rable: Um, and this is really an amalgamation of ideas that had come from Congress over the years.
• 9:03
  Zach Rable: Um and proponents of the bill would argue that NEPA is keeping its core purpose, right?
• 9:08
  Zach Rable: They're arguing that this is a procedural law and that agencies will still have to study and disclose effects.
• 9:14
  Zach Rable: This won't change that.
• 9:16
  Zach Rable: It's really just improving NEPA such that it occurs quicker.
• 9:20
  Zach Rable: It's giving you know faster timelines um to the process in between.
• 9:25
  Jeff Cranson: So one person's red tape is another person's vital environmental protection, right?
• 9:30
  Jeff Cranson: Absolutely.
• 9:32
  Jeff Cranson: Absolutely.
• 9:32
  Jeff Cranson: Talk a little bit about the Endangered Species Act and the right-of-way exemptions that are that are built in there.
• 9:40
  Zach Rable: Yeah, so the um the Endangered Species Act uh requires federal agencies to consult with the U.S.
• 9:48
  Zach Rable: Fish and Wildlife Service or NOAA Fisheries, um, the National Oceanic and Atmospheric Administration to ensure that projects aren't jeopardizing listed species on their endangered species list.
• 10:04
  Zach Rable: And so these consultations can add a lot of time, right?
• 10:08
  Zach Rable: They have to go out and study the environment and understand what sort of species are living or habitating within the project area.
• 10:17
  Zach Rable: And so they're looking for things like bats or mussels or other pollinators that are common triggers in states in the Midwest and like in Michigan.
• 10:26
  Zach Rable: And like I said, this can add months, and this can really delay work in a right-of-way.
• 10:32
  Zach Rable: And, you know, a lot of times these can be really valuable.
• 10:36
  Zach Rable: They can decide that, hey, look, we've found that there are endangered species here and we need to protect them, and we're going to make decisions at the front end of a project to relocate and then maybe move back at the end of a project, or they'll find that, you know what, we've done our review and there are no um endangered species here that would be impacted.
• 10:56
  Zach Rable: And it's all these investigations that, you know, um just take time.
• 11:02
  Zach Rable: You know, they're wanting to ensure that things are protected for good reason.
• 11:06
  Zach Rable: And opponents would say that maybe that's an unnecessary thing.
• 11:10
  Zach Rable: You know, they're there in some cases is already an existing right of way.
• 11:13
  Zach Rable: Why are we already why are we going back to this place to um review whether or not an endangered species is here?
• 11:21
  Zach Rable: This is an unnecessary delay.
• 11:23
  Jeff Cranson: Yeah, and the burden for the proponents is to help people understand how the ecosystem all fits together, that you might think this one species isn't a big deal, like you know, Michigan's endangered rattlesnake.
• 11:38
  Jeff Cranson: It's like, okay, so what happens if they become extinct?
• 11:42
  Jeff Cranson: Well, it has downstream effects on other species, right?
• 11:46
  Jeff Cranson: And that's the it seems like that's the challenge to keep educating and communicating about that.
• 11:51
  Zach Rable: Yeah, and what I want to say is that this the bipartisan law that's been introduced in the Senate doesn't like sort of strip out this process entirely.
• 12:00
  Zach Rable: It just reduces the amount of time that is permitted for agencies to go and look at and review the sites in question, right?
• 12:09
  Zach Rable: And so um the bipartisan bill would drop those from currently 90 days to now 60 days, um, and work inside of existing operational rights of way would be exempt from this sort of consultation.
• 12:23
  Zach Rable: And, you know, one of the interesting things that this bill does is it allows states to actually take over consultations from the federal wildlife agencies and do them themselves, which you know, some states may prefer.
• 12:36
  Zach Rable: You know, I'm not sure about Michigan's take on this, but you know, some states may prefer that.
• 12:42
  Jeff Cranson: Stay with us.
• 12:42
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• 12:51
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• 12:56
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• 12:58
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• 13:01
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• 13:12
  Jeff Cranson: Going down the list here, you had also mentioned early legal uncertainty that several provisions are significant departures from current practice, like limits on considering new science after a review begins or standing limits.
• 13:25
  Jeff Cranson: Courts will need time, you're right about that, to interpret these and um God knows how much time, but uh flesh that out a little bit.
• 13:35
  Zach Rable: Yeah, so the courts angle is, you know, groups who uh like to consider themselves as protecting the environment, um, this is one of those things that is getting them up, you know, that they're concerned about.
• 13:49
  Zach Rable: It's they're concerned that court angle here is being changed significantly and it's stripping away the legal protections that NEPA uh on its face is supposed to be providing.
• 14:01
  Zach Rable: Um and so uh once a permit is started under this new bipartisan law, agencies largely wouldn't be able to cancel or suspend or change a permit, even if new environmental harm turns up, even if this goes to a court for them to review, because the new bill basically only gives one pathway forward, and that's uh reman without vacature, because you know, and so construction is able to keep going even if an agency has to redo some of its work.
• 14:37
  Zach Rable: And so environmental uh protection organizations are finding that to be concerning, right?
• 14:44
  Zach Rable: It sort of blunts their ability to stop what they believe to be problemsome projects going forward at the start, right?
• 14:52
  Zach Rable: Of course, that sort of um blunting of any sort of regulatory or statutory text is going to get the hairs up.
• 15:01
  Zach Rable: And so this will probably go to court before it could even, you know, head to court in sort of the idea that I just described.
• 15:09
  Zach Rable: People will sue on the premise that this is, you know, altering something that it shouldn't be altering, right?
• 15:16
  Zach Rable: Um, and so we'll have to wait for that to play out, and that in itself is uncertain.
• 15:22
  Jeff Cranson: Yeah, so I think some of the reviews I read and some of the analysis looked at some of the positives, anyway, that were cited were uh both what it means for geothermal energy, uh possible expansion and you know, incentives for that use, which is good.
• 15:42
  Jeff Cranson: Most people who are consider themselves protectors of the environment like that aspect.
• 15:46
  Jeff Cranson: And the provision that requires data centers to pay for the increased costs driven by the grid demands.
• 15:52
  Jeff Cranson: Several states have talked about that or tried to pass that kind of legislation.
• 15:56
  Jeff Cranson: B lit eseems li kets there's some agreement there that that's a good thing.
• 16:00
  Jeff Cranson: I know it doesn't address like local air pollution and water consumption or noise or land use reliance on fossil fuel generation, which um is not something the environmental lobby would like.
• 16:12
  Jeff Cranson: But I guess though those are listed as as positives by people on the environmental side of the lobby.
• 16:18
  Jeff Cranson: Did you read much about either one of those?
• 16:21
  Zach Rable: Yeah, that's right.
• 16:22
  Zach Rable: So both proponents and opponents seem to really like the grid pieces, um, the accountability that you've um discussed on those grid pieces already.
• 16:33
  Zach Rable: The the fight is really over this, what they're calling like the finality of a decision of a project moving forward.
• 16:40
  Zach Rable: So supporters are calling this certainty for projects, right?
• 16:44
  Zach Rable: They've been given the go-ahead, they're able to proceed under one of the um NEPA hurdles that I've discussed previously.
• 16:54
  Zach Rable: So, whether through categorical exclusion, environmental assessment, or an EIS, the environmental impact statement.
• 17:00
  Zach Rable: And so that's good, right?
• 17:01
  Zach Rable: Those are what the supporters are saying is certainty.
• 17:03
  Zach Rable: The project can move forward.
• 17:05
  Zach Rable: Opponents are call that, you know, sort of a loss of accountability.
• 17:09
  Zach Rable: They're unable to then say, now hold up, we think that there is a flaw within that decision making, and we want to go to the courts to prevent this.
• 17:17
  Zach Rable: Well, with the bipartisan law that's been introduced, that gets taken away from them or it gets blunted for the most part.
• 17:24
  Zach Rable: And so, you know, state DOTs would benefit from that sort of certainty, but it is sort of the premise of the angst coming from the environmental groups, despite them both really liking those grid piece aspects that you highlighted, Jeff.
• 17:40
  Jeff Cranson: Yeah, I think the geothermal especially caught my eye because I know that Michigan has always been considered a good state for lots of climate and geological reasons for the use of geothermal, which is you know much more sustainable energy.
• 17:55
  Jeff Cranson: I think it was some geothermal contractor's alliance or something that ranked Michigan fifth among top 10 states for geothermal energy use.
• 18:05
  Jeff Cranson: So that that one caught my eye.
• 18:07
  Jeff Cranson: Um, one thing that really interested me in some of the analysis I saw was on the transmission and grid reforms.
• 18:14
  Jeff Cranson: That's considered, again, by some environmental groups to be the bill's strengths.
• 18:19
  Jeff Cranson: An aging power grid desperately needs updating, and with more extreme weather and surging demand from data centers, getting new electricity connected to the grid quickly is essential to keep energy costs down and maintaining resilience.
• 18:32
  Jeff Cranson: In one fell swoop, the legislation would address these issues, producing the necessary conditions to deploy more clean energy.
• 18:39
  Jeff Cranson: It also would provide a dramatic near-term boost to the nation's grid by increasing both the amount of power that existing transmission lines can carry and the supply of electricity available to meet growing demand.
• 18:50
  Jeff Cranson: It establishes procedures that could cut the time to build a major new transmission line to five to six years from what takes 10 years now.
• 18:58
  Jeff Cranson: I only bring that up as some of the things that I think that that's what led to the bipartisan agreement that got this out of both committees, as we mentioned earlier.
• 19:09
  Jeff Cranson: The devil's in the details, and what surfaces as people make their way through this 400 pages of legislation.
• 19:17
  Jeff Cranson: It's only been 10 days, 11 days.
• 19:21
  Jeff Cranson: There's a lot more to be found out, a lot more groups are going to weigh in.
• 19:24
  Jeff Cranson: But what are you picking up from your research and discussions about chances of reconciling this with House priorities?
• 19:34
  Zach Rable: Yeah, so as we all know, there is a midterm election coming up, which will sort of play a major factor in the balance of what Washington, D.C.
• 19:44
  Zach Rable: will look like in the next two years.
• 19:47
  Zach Rable: Um and this bipartisan bill, you know, sprung up in the Senate, and the Senate intends on um voting on it when they come back on November 9th.
• 19:57
  Zach Rable: But the calendar's tight, right?
• 19:59
  Zach Rable: And so really it only has about six weeks to clear both chambers before it would expire with the expiration of this iteration of Congress.
• 20:11
  Zach Rable: The Senate is pretty gung-ho on the bill.
• 20:13
  Zach Rable: Um, I expect it will pass that chamber.
• 20:16
  Zach Rable: The House would have to pass this text, you know, in identical form in order for it to be eventually enacted.
• 20:23
  Zach Rable: And, you know, my read is that the reaction's pretty mixed.
• 20:26
  Zach Rable: What's tricky is that it's not a clean split on any one party line.
• 20:30
  Zach Rable: And so I'm not quite sure of the future once it hits the House.
• 20:33
  Zach Rable: But I it is worth comparing that you know, the House has been working on a surface transportation reauthorization bill, the Build America 250 Act, which is a five-year, I think approximately $158 billion law that, you know, is sort of a traditional transportation reauthorization law that would fund surface transportation and dives a little bit into the details of permitting reform, things that this bipartisan bill touches.
• 21:04
  Zach Rable: Build America 250s delivery provisions are, I would say, more incremental changes sort of within the transportation program itself, whereas the Senate bipartisan bill is a bigger structural change to the laws that sort of sit underneath what informs the transportation program.
• 21:25
  Zach Rable: Um, you know, interestingly enough, both of these um use a 150-day lawsuit clock.
• 21:33
  Zach Rable: So, you know, the clock that would start when someone could sue to um, you know, perhaps stop a project from occurring.
• 21:42
  Zach Rable: So that suggests that maybe there is some consensus on at least that part of delivery improvement or permitting reform.
• 21:50
  Zach Rable: Sort of quickly, Build America 250 would tell us, you know, sort of how much money we get and how, you know, for example, FHWA would run its program.
• 21:59
  Zach Rable: You know, the bipartisan bill from the Senate really changes the rules that every federal agency has to follow before that money sort of would turn into a project.
• 22:10
  Zach Rable: Um, that that's how those two things compare.
• 22:12
  Jeff Cranson: Yeah.
• 22:13
  Jeff Cranson: Well, I'm prepared to be optimistic and surprised.
• 22:17
  Jeff Cranson: Um, but I can't see that there is enough incentive in both chambers and in both parties to do something this significant before the end of the year.
• 22:27
  Jeff Cranson: But we'll keep an eye on it and keep an eye on the discussions, and there'll be more to talk about.
• 22:32
  Jeff Cranson: So thank you, Zach, for taking time to research these things and talk about it, help break it down.
• 22:39
  Jeff Cranson: Um, as always, I really appreciate it.
• 22:41
  Jeff Cranson: Yeah, absolutely, Jeff.
• 22:43
  Jeff Cranson: Thanks for having me on.
• 22:44
  Jeff Cranson: I'd like to thank you once more for tuning in to Talking Michigan Transportation.
• 22:48
  Jeff Cranson: You can find show notes and more on Apple Podcasts or BuzzSprout.
• 22:52
  Jeff Cranson: I also want to acknowledge the talented people who help make this a reality each week, starting with Randy Debler, who skillfully edits the audio, Jesse Ball, who proofs the content, and Jacke Salinas, who posts the podcast to various platforms and transcribes the audio to make it accessible to all.