On September 22, 2023, the U.S. Federal Transit Administration (FTA) published a notice (the Notice) announcing the release of a proposed Programmatic Assessment of Greenhouse Gas Emissions From Transit Projects (Programmatic Assessment). The proposed Programmatic Assessment would incorporate consideration of the social costs of greenhouse gas (GHG) emissions and climate change into the agency’s analysis of a proposed action under the National Environmental Policy Act (NEPA).
The Programmatic Assessment will help the agency efficiently assess whether a detailed GHG emissions analysis is required for transit projects. The Programmatic Assessment is a NEPA streamlining tool that provides estimates of the (1) GHG emissions generated from the construction, operations, and maintenance phases of sample bus rapid transit, streetcar, light rail, commuter rail, and heavy rail projects and (2) personal vehicle emissions displaced due to a transit project’s “ridership effect” (e.g., trips made by public transportation that would otherwise have involved personal vehicle travel). It is intended to provide a reference for the FTA and its project sponsors to use in NEPA documents to describe the effects of proposed transit investments on partial lifecycle GHG emissions (partial lifecycle does not account for GHG emissions from raw materials extraction and related processes).
The rollout of this NEPA tool is part of a broader executive branch focus on climate change. In January 2021, President Joe Biden directed agencies to begin accounting for the social cost of GHG emissions in regulatory and other actions. In January 2023, the Council on Environmental Quality (CEQ) issued a guidance document directing project proponents to consider the net social costs of potential GHG emissions and their effects in their NEPA analysis. In accordance with the CEQ guidance, the proposed Programmatic Assessment includes an estimate of the net social benefits of reduced operational emissions resulting from each transit project.
The Programmatic Assessment estimates the GHG emissions and social cost in dollars of those emissions for transit projects. One project category evaluated by the tool is commuter rail projects where passenger service is typically provided on routes of current or former freight railroads. The Programmatic Assessment estimates that predominantly at-grade, commuter rail projects are on average expected to avoid at least $1,430,000 to $1,640,000 in economic damages over 20 years due to the amount of operational GHG emissions they displace.
Rail carriers should anticipate greater governmental scrutiny of all future transit projects that may result in GHG emissions. Not only is the Biden administration focused on the social cost of GHG emissions, the U.S. Court of Appeals for the D.C. Circuit recently criticized the Surface Transportation Board (STB) for underestimating the full lifecycle effects (downstream effects) of projects with GHG emissions or potential climate effects in Eagle County v. Surface Transportation Board, No. 22-1019 (D.C. Cir. Aug. 18, 2023). This greater scrutiny is likely to make the process of securing funding for new rail projects more difficult.
The impact of this new analysis may expand beyond rail transit projects. Although the FTA does not directly regulate freight railroads, carriers should expect to see this Programmatic Assessment used by other federal transportation agencies such as the STB in passenger rail proceedings and the Federal Railroad Administration in administering grant programs for rail infrastructure projects. Rail carriers may also leverage the Programmatic Assessment to show that the long-term impact on reducing GHG emissions through the displacement of vehicle miles traveled by riders balances out the initial heavy environmental impact of project construction. Where both passenger and freight traffic will utilize new construction, the Programmatic Assessment’s results may be paired with data on the expected GHG emission reduction resulting from any truck-to-rail diversion associated with the new construction.
Freight rail carriers should consider submitting comments on the proposed Programmatic Assessment. For example, comments might focus on how freight traffic operating over new transit projects (e.g., commuter rail routes shared with freight) may further reduce GHG emissions through truck-to-rail diversion, a topic unaddressed in the current draft of the Programmatic Assessment. The FTA is requesting comments on the proposed Programmatic Assessment by November 24, 2023. Following the comment period, the FTA will post a second notice in the Federal Register responding to comments and providing the final Programmatic Assessment.
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