New EO seeks to shorten time for environmental impact statements and federal permits.
On August 15, 2017, President Trump issued an Executive Order (EO) (not yet numbered) that seeks to streamline federal environmental review and approvals of major infrastructure projects by imposing new timelines and procedures. The EO’s key provisions aim to hold federal agencies accountable to a two-year deadline for completing review and issuing all federal authorizations for a wide range of infrastructure projects, including roadways, bridges, railroads and transit; aviation and ports; energy production and generation (fossil fuel, renewable, nuclear and hydropower); electricity transmission; broadband internet; pipelines; and water resources, stormwater, sewer and drinking water projects. The new EO also revokes the Obama Administration’s EO 13690 (2015), which required federally funded projects to incorporate flood risk management standards that account for sea level rise.
The new EO defines “major infrastructure projects” as those which require both a full Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) and multiple permits, approvals and/or other forms of authorization from federal agencies, and for which sufficient and reasonably available funding has been identified. By February 11, 2018, the EO requires the Office of Management and Budget (OMB) to establish a federal Cross-Agency Priority (CAP) goal on Infrastructure Permitting Modernization, building on an existing program under the Government Performance and Results Modernization Act (2010). The CAP goal will provide, where permitted by law, for NEPA review and authorization processes to be “consistent, coordinated, and predictable” and for major infrastructure projects to be completed in “not more than an average of approximately two years” from the notice of intent to prepare an EIS. The CAP goal must be incorporated in each federal agency’s strategic and annual performance plans and progress must be reviewed and analyzed by agency leadership.
The EO requires approval of major infrastructure projects in “One Federal Decision” via the Record of Decision (ROD) which the “lead agency” (that is, the agency preparing the EIS) issues on or after completion of the EIS. All other federal agencies must complete any permitting and other authorization decisions required for project construction within 90 days after the ROD. In addition, the EO gives the lead agency new, but largely undefined, responsibility for “navigating the project” through the authorization processes of other agencies and utilizing a “more unified environmental review and authorization process.” The “cooperating agencies” (those with special expertise or jurisdiction by law over resources affected by a project) and “participating agencies” (a special category of agencies with an interest in highway and public transportation projects, with which the lead agency must coordinate) must identify points of contact for each project, cooperate with the lead agency and respond to its requests for information in a timely manner. The lead, cooperating and participating agencies must agree at the outset to a single permitting timetable with interim and final milestones for each agency’s actions, the final ROD and all federally required authorizations.
OMB and the Council on Environmental Quality (CEQ), in consultation with the Federal Permitting Improvement Steering Council (FPISC) and an interagency working group, are charged with developing an implementation framework and guidance to fill in the broad outlines of the “One Federal Decision.” For example, the manner in which other agencies will “all record any individual agency decision” in one ROD prepared by the lead agency is unclear, since the other agencies still have 90 days post-ROD to issue their authorizations. CEQ is further directed to issue regulations, guidance and directives as necessary, among other things, to “ensure that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, including by using CEQ's authority to interpret NEPA to simplify and accelerate the NEPA review process.” In addition, CEQ is given new authority to mediate interagency disputes and facilitate resolution of conflicting positions on any infrastructure project “pertaining to any environmental law, regulation, order or policy”—not limited to “major” projects or to CEQ’s traditional NEPA jurisdiction. The FPISC is also given ill-defined new authority to “work with the lead agency or any cooperating and participating agencies to facilitate the environmental review and authorization process for any infrastructure project” and provided budget support.
While the timing targets are ambitious, some flexibility is provided. The project sponsor (that is, the local government or private entity that is applying for federal funding or authorization for the infrastructure project) may request that the agencies issue separate NEPA documents. The lead agency may waive the single ROD requirement if it “determines that a single ROD would not best promote completion of the project's environmental review and authorization process.” The 90-day deadline may be extended if federal law prevents the issuance of any authorization within 90 days, the lead agency determines that more time would “better promote completion of the project’s environmental review and authorization process” or if the project sponsor requests “a different timeline.” Moreover, the CAP goal is completion of review and permitting in a two-year period on average, rather than a deadline for each project.
Despite such flexibilities, the EO does have teeth. Lead agencies must update permitting timetables at least quarterly and report to the OMB, and missed milestones from the timetables must automatically be elevated to senior agency officials. The OMB must implement an accountability system that tracks and scores each agency’s performance and issue quarterly performance “scorecards.” In addition to use of “One Federal Decision,” meeting permitting timetable milestones and progress toward the CAP goal, the scoring will track the cost of environmental review and authorizations, the added project costs attributable to delays, and implementation of best practices to ensure timely decisions. The OMB also must consider each agency’s performance during budgeting and determine whether budgetary penalties should be imposed for those that significantly fail to meet a permitting timetable milestone, after considering the causes of any poor performance.
Also tucked into the new EO are two miscellaneous provisions, one of which has gotten much public attention: the rescission of the Obama Administration’s EO 13690 (2015) on floodplain risk management. Prior EO 11988 (1977) directed federal agencies not to support development in floodplains where there is a practicable alternative and to avoid, to the extent possible, adverse impacts from occupancy and modification of floodplains. EO 11988 defined “floodplain” as an area subject to a one percent or greater chance of flooding each year (referred to as the “100-year flood” standard). EO 13690, in turn, expanded the definition of floodplain, as applied to federally funded projects, to include areas susceptible to a 500-year flood or determined to be at risk based on “a climate-informed science approach.” Agencies were required to conduct the same “practicable alternatives” analysis as under EO 11988, but to incorporate climate science into the analysis. Unsurprisingly, EO 13690 was viewed by advocates as ensuring prudent project siting when investing federal funds, and by climate skeptics as an unnecessary hindrance to project development. With EO 13690 rescinded, the 100-year flood standard of EO 11988 is restored.
The second, less noticed miscellaneous provision assigns the role of lead agency for designation of “energy right-of-way corridors” on federal lands to the Departments of the Interior and Agriculture, and directs Interior to develop a strategy for a “multi-agency reorganization effort” to expedite NEPA review of energy infrastructure projects (e.g., electric transmission lines and pipelines). The strategy will be incorporated into implementation of President Trump’s Executive Order 13781, which requires OMB to propose a plan to reorganize federal agencies to improve efficiency, effectiveness and accountability, and may include transferring some agency functions to state or local governments or the private sector. If OMB takes up the latter invitation, this provision may get considerably more attention.
Project developers and environmental advocates have long argued over whether and how much infrastructure projects are delayed by protracted environmental reviews, and whether such delays are justified by environmental benefits. President Trump’s EO takes a strong stand on the side of streamlining. However, except for budget support for the FPISC, the EO does not identify new resources either for the speedier completion of EISs and permitting or for the additional agency staff time that its new planning, coordination, monitoring and reporting requirements inevitably will consume. Nor does it provide relief from any substantive requirements other than those of the prior floodplain management EO (though the directive to CEQ to use its NEPA interpretive authority to reduce NEPA burdens hints at potential substantive changes to come). Project sponsors may be ambivalent, eager for their projects to advance but less eager to face litigation risk from rushed and potentially vulnerable EISs. The threat of budgetary punishment for missing timetable milestones will provide a strong incentive for agency staff to do their best. But only time—and the quarterly scorecards—will tell whether the EO’s goals, processes and penalties will have much real-world effect on the timing and cost of infrastructure projects.