The recent unprecedented storm season has focused attention on infrastructure permitting, particularly in hardest hit areas. It has also led to two important Federal actions designed to accelerate the National Environmental Policy Act (NEPA) process that is often seen as the major cause for permitting delay.
Will this have any effect? It’s too early to tell and some signs may be hopeful. But the history of similar previous Federal attempts to speed decisions have generally failed in the face of legal challenges and bureaucratic delays. Moreover, as explained below, there are major legal and regulatory hurdles that still stand in the way of a faster permit process.
Executive Order 13807
On August 15, 2017, President Trumps signed an Executive Order, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” The Order contains “aspirational” procedures including:
Directing that there be “One Federal Decision” for “major infrastructure Projects. Often, permitting actions by the Army Corps, the Fish and Wildlife Service, EPA and other agencies are not coordinated resulting in significant delays.
Establishing a goal that all permit decisions be made within 2 years after issuance of an Environmental Impact Statement Notice of Intent (NOI);
Creating a public “dashboard” with timetables and deadlines for tracking projects;
Establishing an accountability system with potential penalties by OMB for failing to meet permitting timetable milestones;
Revoking The Obama federal flood risk management guidance as imposing onerous construction costs; and,
Directing the Council on Environmental Quality (CEQ), the Office of Management and Budget (OMB), other Federal permitting agencies and the Federal Permitting Improvement Steering Council to take actions to implement the Order’s goals.
Interior Secretarial Order 13807
On August 31, Deputy Interior Secretary David Bernhardt approved guidance that attempts to implement the EO for Interior actions including approval of energy projects on federal lands. The guidance covers several Interior Department agencies with key roles in Infrastructure permitting including the Fish and Wildlife Service.
The Order mandates certain actions including:
Setting a “target” for EIS completion within one year from NOI issuance with deviations of no more than one month;
Setting an EIS page limit of no more than 150 pages or 300 pages for “unusually complex projects;” and,
Establishing Secretarial oversight for additional ways to streamline the NEPA process.
CEQ’s role in overseeing and streamlining agency NEPA compliance is also central to meeting the Order’s goals. On September 14, CEQ released an initial list of actions to enhance and modernize the Federal environmental review and authorization process. The list includes:
Developing a “framework “ for implementing “One Federal Decision;”
Coordinating with the Permitting Council, the Department of Transportation and the Army Corps of Engineers regarding “high priority infrastructure projects;”
Reviewing existing CEQ NEPA regulations to identify changes needed to update and clarify those regulations;
Issuing additional guidance to simplify and accelerate the NEPA process; and,
Forming and leading an interagency working group to identify impediments to the efficient processing of environmental permit reviews.
Can these Actions Actually Improve the Process?
While these actions have the potential for speeding up environmental reviews and permitting, there are significant hurdles to overcome. First, there are risks and delays due to litigation. Lawsuits can be expected to thwart a range of infrastructure projects including pipelines and highways.
Agency efforts to produce streamlined EISs must be counterbalanced by ensuring that all relevant information is included and analyzed so that agency administrative records are defensible in court. These aspirational procedures also depend on significant new agency actions and will likely face resistance from agency staff and the public with vested interests in maintaining the status quo.
Proponents of major infrastructure projects should not assume that these permitting improvements are a done deal.
Larry Liebesman Senior Advisor
A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.