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Construction Industry interests salute Environmental Policy Act streamlining

Concrete News

The Portland Cement Association and National Stone, Sand and Gravel Association are among 35 members of Unlocking American Investment, a new U.S. Chamber of Commerce-led coalition supporting National Environmental Policy Act (NEPA) revisions that will help cut typical infrastructure project permitting phases by more than 50 percent against current metrics.

NEPA requires federal agencies to evaluate environmental impact of road and bridge, rail and water infrastructure, and conventional or renewable energy projects. Unlocking American Investment and other critics note, however, that the regulation has not seen a comprehensive update since 1978. Per a President Donald Trump directive, the White House Council on Environmental Quality (CEQ) has issued a notice of proposed rulemaking to address NEPA aspects resulting in protracted processes for obtaining environmental impact statements (EIS) on most infrastructure jobs. CEQ data indicate that EIS completion can average 4.5 years and, for many highway projects, six-plus years.

“NEPA modernization will reduce the average time to complete an EIS in part through increased interagency coordination within the Federal government,” the White House notes. “Sponsors must often acquire approval from various agencies on permitting decisions in order to advance their project. NEPA serves as the umbrella statute for coordinating environmental reviews. In the past, reviews for projects involving multiple permits were conducted sequentially instead of concurrently and in some cases there was insufficient coordination among agencies.”

CEQ-proposed NEPA updates would codify President Trump’s One Federal Decision policy, which improves agency coordination and communication and sets a two-year average goal for completion of major infrastructure project environmental reviews. The Council published its proposed revisions last month in the Federal Register, opening a 60-day public comment period for Unlocking American Investment and other proponents to weigh in on NEPA modernization. Joining PCA and NSSGA in the coalition are the Associated Builders & Contractors, Associated General Contractors of America and American Road & Transportation Builders Association.

“The Trump administration’s commonsense reforms will help speed up the delivery of U.S. transportation infrastructure projects,” affirms ARTBA President Dave Bauer. “Streamlining the NEPA process is essential to assuring that the government is making every transportation dollar go as far as possible while preserving a commitment to our environment.”

SUPREME COURT CLARIFIES CREDITOR APPEAL TERMS IN MASONRY CONTRACTOR BANKRUPTCY DECISION

A unanimous U.S. Supreme Court decision affirms the U.S. Court of Appeals for Sixth Circuit’s finding in Ritzen Group Inc. v. Jackson Masonry LLC, a case demonstrating U.S. Bankruptcy Court complexities. In a mid-January opinion, Justice Ruth Bader Ginsburg detailed a tight framework for creditors seeking relief in bankruptcy court decisions, including a 14-day window for individual party appeals. The case stemmed from a proposed 2013 deal involving Tennessee contractor Jackson Masonry’s sale of a $1.5 million Nashville parcel to local real estate developer Ritzen Group. A failure to close the transaction in 2014 was followed by state court action and Jackson Masonry’s mid-2016 Chapter 11 filing in U.S. Bankruptcy Court for the Middle District of Tennessee. The parties pursued additional actions or motions, leading to the Sixth Circuit finding that a Ritzen appeal for relief was not timely.

“Because there is so much litigation brought within a bankruptcy case by motion or outside of an adversary proceeding, it is not always easy to determine whether the court’s ruling on a motion constitutes a final, appealable order,” observes Annette Jarvis, a Denver-based partner in Dorsey & Whitney LLP and nationally recognized expert in the insolvency field. “In ruling that a bankruptcy’s court’s denial of a relief from the stay motion is a final, appealable order, the Supreme Court opened the door for more and earlier appeals in bankruptcy cases. Motions for relief from the stay are typically brought early in a bankruptcy case and often determine the forum for resolving a larger dispute.”

“It is clear now that denial of these motions must be appealed if the forum decision is to be challenged,” she adds. “It may also lead to confusing situations because, even after denial of a motion for relief from the stay, a new motion seeking such relief can be later filed, based on changed circumstances. How a later motion for relief from the stay will be treated if either an appeal from the earlier denial is pending or the denial was not appealed may create some difficult procedural questions as a result of [the Ritzen v. Jackson] ruling.”