Article XLI of the FAST Act is an important, new initiative to expedite the permitting process for major infrastructure facilities

As enacted nearly 50 years ago, the National Environmental Policy Act (NEPA) was a relatively simple and straightforward directive to federal agencies to carefully review and consider the environmental implications of their “major actions.” Since that time, the NEPA environmental review process has evolved, through regulations and guidance published by the Council on Environmental Quality (CEQ), implementing regulations and policies of the cognizant agencies and literally thousands of court cases. This evolution has produced  a highly formalized, demanding and contentious process during which project proponents and opponents are given the opportunity to receive, present and comment upon detailed information and analyses regarding anticipated environmental impacts – often resulting in costly delays. Not surprisingly, there have been periodic efforts to simplify, streamline and impose time limits on the process.While certain of these efforts have been successful for specific types of projects, the process for most classes of infrastructure remains convoluted and unpredictable.

The most recent such streamlining effort is Title XLI of the Fixing America’s Surface Transportation (FAST) Act, Pub. L. No. 114-94 (the Title or the Act), signed into law on December 4, 2015. It applies to designated major infrastructure projects, including, specifically, conventional or renewable energy production, pipelines, ports  and waterways, water resource projects, electricity transmission, manufacturing, broadband and aviation. Key provisions of the law are designed to provide an expedited federal review process, greater transparency and limitations on judicial review. While these provisions, summarized below, could ultimately be steps in the right direction, important up-front issues need to be addressed in order  to ensure that the Act’s promised benefits really do ease undue burdens on infrastructure project stakeholders while maintaining the fundamental integrity of NEPA.

Process

The Title’s stated intent is to expedite and improve the environmental review process through greater agency accountability, efficiency and increased transparency (e.g., keeping project stakeholders informed of the status of approval and environmental review and the reasons for any delays). It is not intended to supplant or supersede existing agency rules or policies, and the powers provided by the Act are persuasive rather than directive. The process envisioned by the Act is as follows:

The President is required to establish a Federal Infrastructure Permitting Steering Council (the Council), consisting of an Executive Director and selected Assistant Secretary-level representatives and agency chief environmental review and permitting officers (CERPOs) from 14 designated federal agencies.

It appears that participation is mandatory for all Covered Projects  (i.e., projects in the listed categories that are subject to NEPA review, not otherwise covered by expedited procedures and involve total costs in excess of $200 million). Covered Projects sponsors will be required to submit notices and detailed project descriptions to both the Council’s Executive Director and relevant facilitating agency. An inventory of such projects will be maintained by the Council and the procedural status of each will be published and continually updated on an Internet-accessible dashboard maintained by the Council. Additional Covered Projects may be determined by the Council on a case-by-case basis. The Council will designate a “facilitating agency” for each Covered Project category and will establish recommended performance schedules for each category, with firm target completion dates for issuance of authorizations and environmental review not later than 180 days from the date that the government possesses all the information needed to complete the applicable process.2

Once a project is designated as “covered,” the facilitating or lead agency will coordinate with all participating agencies to develop a Coordinated Project Plan (CPP) outlining each agency’s role and responsibilities, and establishing a permitting timetable with a comprehensive schedule of completion dates. Agencies are required to utilize concurrent review of project information to the maximum extent possible, and the lead agency must consider a project sponsor’s request to adopt or incorporate by reference any environmental analyses and documentation prepared for the project under state laws and procedures.

The cost of this process will be passed on to project sponsors through charges in the nature of user fees.

Transparency

In order to keep project stakeholders informed, and to hold agencies accountable, some of the information from a project’s CPP will be publicly available through mandatory updates to the Permitting Dashboard, an online database for tracking the status of federal agency authorizations and environmental reviews for Covered Projects. This  will include an outline of agency actions required, targeted completion dates, relevant points of contact and the status of each requirement.

Limitations on Judicial Review

The Act also imposes several limited constraints on judicial review:

  • An action challenging a federal authorization for a Covered Project must be filed within two years of the final record of decision, or approval or denial of a permit, unless federal law already provides for a shorter statute of limitations (replacing the default six-year statute of limitations for challenges brought under the Administrative Procedure Act (APA), including NEPA challenges).
  • Litigants are allowed to make an NEPA challenge only if the prospective litigant commented during the environmental review and at least one commenter filed a sufficiently detailed comment to put the agency on notice of the specific issue being raised. Courts hearing a request for a temporary restraining order or preliminary injunction must consider the negative effects on employment of such an order or injunction would have, and may not presume that such negative effects are reparable.

What Projects Are Covered?

As noted above, an infrastructure project is “covered” if it falls within a Covered Projects category; is subject to NEPA; requires a total investment of more than $200 million; and does not qualify for expedited approval and review under an existing statute. The Act also provides the Council with the discretion to designate a project “covered” if the Council determines that an infrastructure project subject to NEPA would benefit from enhanced coordination and oversight, e.g., projects likely to require authorization or environmental review from three or more federal agencies, or those likely to require an environmental impact statement under NEPA.

Covered Project categories, subject to additions by a majority vote  of the Council, include conventional or renewable energy production, pipelines, ports and waterways, water resource projects, electricity transmission, manufacturing, broadband and aviation.

Issues

As noted above, the Act promises substantive improvements to  the existing federal approval and environmental review process, particularly by establishing firm target dates for agency action, encouraging concurrent agency review, promoting transparency and accountability, and establishing some additional limitations on judicial review. At the same time, however, it imposes at least some substantial new requirements on project proponents (including the obligation to file notices and detailed project descriptions and to fund the Council’s operations) that may tend to “nationalize” decisions that are currently being made at a local level, and could unduly complicate the process for obtaining minor permits or using existing general permits (e.g., certain river crossings) associated with large projects. The transition into this new and immediately effective process could also raise significant questions and complicating factors. As also noted above, previous efforts to address these issues have had  limited impact and, in the absence of substantial positive effects, the result of Title XLI could be an additional layer of bureaucracy that imposes obligations but does not yield commensurate advantages.

Against this background, it does seem that project sponsors and stakeholders might be well advised to pay careful attention to the early phases of the Act’s implementation. Key issues include:

  • level and thrust of White House support for the effort
  • experience and orientation of the Executive Director, agency representatives and key staff – determination as to whether the Executive Director will require Senate confirmation
  • the funding formula and how much overhead is loaded onto personnel costs
  • the implications, in terms of Congressional oversight, of the Council’s authority to fund itself without appropriations
  • the agency to be designated as the primary support agency for the Council
  • details of the required notifications and project descriptions
  • the Council’s relationship with EPA and CEQ
  • the extent of the Council’s authority and the respect the agencies will give it
  • how this new NEPA timeline meshes with different permit timelines, e.g., Clean Air Act permits under Title V
  • how to harmonize this new NEPA process with required interagency consultation under the Endangered Species Act (ESA) where ESA issues arise

Conclusion

The idea of a coordinating council statutorily empowered to exercise relatively broad authority over a wide range of infrastructure projects is relatively new and offers considerable promise. We need to recognize, however, that, in the minds of at least some, the highest and best purpose of NEPA is to block projects that should not be built. From this perspective, expedition and efficiency are not necessarily positive values and, because of this tension, previous efforts to streamline the NEPA process have met with mixed results. Title XLI is certainly  well intentioned, but it has numerous moving parts, which can create opportunities for unintended consequences. Close attention to the early implementation stages is clearly warranted and advised.