A new law offers the prospect of faster Federal approvals and limitations on judicial challenges for certain large infrastructure projects that must comply with the National Environmental Policy Act ("NEPA"). In December 2015, Congress enacted and President Obama signed into law the Fixing America's Surface Transportation ("FAST") Act.1 This article summarizes the key provisions of the FAST Act and implications for targeted industries, including renewable and conventional energy, electric transmission, pipelines, transportation, broadband, and manufacturing.
Why It Matters: The FAST Act could result in faster decisions and greater predictability of the timing of Federal agency decisions for large infrastructure projects. For many years, applicants have complained that the NEPA process takes too long, particularly for projects that require approvals from multiple Federal agencies and that tend to be more complex and controversial. Title XLI of the FAST Act provides expedited timeframes and a more coordinated process under the ambit of a new interagency council to achieve speedier NEPA compliance and stricter limitations on judicial review for large infrastructure projects that involve multiple Federal agencies. However, the new interagency council could impose an additional bureaucratic layer upon an already administratively burdened process, and the FAST Act contains some loopholes that may or may not result in faster decisions.
What Projects Qualify: The FAST Act applies to projects that involve the construction of infrastructure for certain types of projects that are subject to NEPA and:
- are likely to require a total investment of more than $200 million, and do not qualify for abbreviated authorization or environmental review under NEPA; or
- the size and complexity of which make the project likely to benefit from enhanced oversight and coordination, including projects likely to require authorization from more than two Federal agencies, or likely to require preparation of an environmental impact statement ("EIS").
The types of projects that qualify include:
- renewable or conventional energy production
- electricity transmission
- surface transportation
- ports and waterways
- water resource projects
- a project that is determined to be covered by vote of a newly formed interagency council.
A New Council: The FAST Act creates the Federal Infrastructure Permitting Improvement Steering Council ("Council") to oversee the agency coordination process for covered projects. The Council will be comprised of an Executive Director appointed by the President, and members from key Federal agencies.2 The Council will be responsible for:
- developing an inventory of covered projects, and categorizing covered projects based on sector and project type;
- developing performance schedules and completion dates for environmental reviews and authorizations most commonly required for each category of covered projects;
- recommending best practices for:
- stakeholder engagement,
- ensuring timely decisions,
- improving coordination between Federal and non-Federal agencies,
- increasing transparency,
- reducing information collection and administrative burdens,
- developing and making available geographic information systems tools, and
- developing and distributing training materials; and
- developing and maintaining an online Permitting Dashboard.
The Dashboard: The online Permitting dashboard ("Dashboard") will track the status of Federal reviews of projects. The Dashboard will identify performance schedules and timeframes, and will include a hyperlink to a website with project documents. The FAST Act specifies short deadlines for posting updates following receipt of new information.
Agency Roles: A facilitating agency or lead agency will be identified to lead the coordination effort among Federal agencies. The lead agency will identify and invite other agencies to be participating or cooperating agencies, and will be generally responsible for coordinating the implementation of the project plan and setting the project timeline. Participating and cooperating agencies coordinate with the lead agency in setting and implementing the project plan, and are responsible for meeting deadlines.
Initiating the Process: The project sponsor initiates the process by submitting a notice to the Council's Executive Director and facilitating agency, with background information on the project. That notice triggers the Council's timeframes for entry on the Dashboard and succeeding deadlines.
Performance Schedules and Expedited Timeframes: The FAST Act establishes expedited timeframes which emphasize timely progress on agency reviews, including:
- The Council shall set expedited performance schedules and timeframes for NEPA compliance and agency decision making for projects by category, based on the most efficient applicable processes.
- The final completion dates for agency review of a project shall not exceed the average time to complete an environmental review or authorization for a project within the same category. The average time is based on data from the preceding two calendar years.
- An agency decision on a project must be issued not later than 180 days (six months) after the agency receives all information needed to complete the review. However, there are no provisions requiring an agency to identify within a particular timeframe the information needed for review, therefore this requirement may not be particularly effective in expediting agency reviews.
- Agencies with responsibilities regarding the project will be invited to become participating or cooperating agencies within 45 days after a project is entered on the Dashboard, and must respond by the deadline established by the lead agency.
- The lead or facilitating agency will establish a coordinated project plan within 60 days of project entry on the Dashboard, including agency roles and responsibilities, a comprehensive schedule, discussion of potential mitigation strategies, and a schedule and plan for public and tribal outreach.
- The lead or facilitating agency shall establish a timetable of intermediate and final completion dates for action by each participating agency, taking into consideration the Council's performance schedules; the size, complexity, financing plan, and economic significance of the project; agency resources; the sensitivity of affected resources; and recent similar reviews.
- An established timetable shall not be modified unless the lead agency agrees and provides a written justification. A delay of the final completion date of more than 30 days requires consultation with the project sponsor and a decision on the record by the Council's Executive Director. The FAST Act provides for limitations on the length of modifications. Further modifications must be approved by the OMB Director who must explain the modification in a report to Congress, and require supplemental reports on progress by the lead agency. Although the opportunity to modify established timetables appears to be a loophole that may result in substantial agency delays, the FAST Act limits the extent of requested modifications, and requires agencies to explain requested modifications. It remains to be seen whether these provide sufficient deterrent to the prolonged delays that plague current NEPA reviews of large projects.
- Agencies are required to conform to the completion dates in the permitting timetable. Agencies that fail to conform must provide explanations, proposals for alternative completion dates, and ongoing status reports. Agencies may not perceive these consequences as particularly adverse.
- The FAST Act limits the period for comments on a draft EIS by agencies and the public to between 45 and 60 days, unless the project sponsor and the involved agencies agree to a longer deadline or the lead agency extends the deadline for good cause. The comment period for other review or comment processes shall be no more than 45 days.
Interagency Coordination of NEPA Reviews: The FAST Act provides explicit requirements for interagency coordination of NEPA reviews.
Alternatives Analysis: The FAST Act requires streamlining of decision-making on alternatives to be considered in the NEPA process:
Limitations on Judicial Review: The FAST Act provides important limitations on claims for judicial review of covered projects.
Conclusion: The FAST Act has potential to expedite the NEPA process for large infrastructure projects that require multiple Federal approvals. Tasking the lead agency with decision-making authority for timing and intermediate steps such as alternatives identification should help streamline the process. It remains to be seen if agencies will adhere to the performance schedules, timeframes, and project plans established by the Council and lead agencies, or whether extensions of time and variations for "good cause" become common practice. While the Council has one year from formation to establish recommended performance schedules, and it will likely take longer for agencies to become accustomed to the lines of authority and communication mandated by the Act, project proponents should consider discussing project plans and permitting needs with their Federal regulators to assess how the FAST Act may affect them.