Review under the National Environmental Policy Act (“NEPA”) can be one of the most costly and time consuming components of any federal project or action. Often, the hurdle of NEPA can be so substantial that necessary projects fall by the wayside. Recognizing the tremendous burden environmental review can create, President Obama signed into law the Fixing America’s Surface Transportation Act, known as the “FAST Act,” on December 4, 2015. In addition to providing funding for infrastructure projects, the Act—specifically within Title XLI—seeks to streamline the rules for permitting and environmental reviews for projects under NEPA. It seeks to accomplish this by eliminating duplicative reviews, setting strict project timelines, ensuring best practices, and limiting opportunities for judicial review. Additionally, a new office will be created to administer and set timelines for expedited review.
The FAST Act permits expedited review for a broad swath of federal actions, including projects related to energy production, broadband access, and other infrastructural improvements. Even outside of the list of enumerated infrastructure projects, other sectors or projects can qualify based on a majority vote of the Federal Permitting Improvement Council, so long as they meet the following criteria:
- The project is already subject to NEPA and does not qualify for another abbreviated authorization or environmental review process; and
- The project either:
- Will likely require a total investment of more than $200 million, or
- Is large and complex enough that it is likely to benefit from enhanced oversight and coordination.
Because of the open-ended nature of this definition, it is unclear how broadly these provisions will apply—though there is significant potential for a very broad application. At a minimum, typical infrastructure projects alone will gain the benefits of expedited review; at a maximum, the expedited review process could apply to all federal actions.
Federal Permitting Improvement Council
To help administer and set the various timelines for review, Section 41002 of the Act establishes the Federal Permitting Improvement Council. The Council, which will be comprised of representatives of each agency involved in permitting and reviewing the covered projects, will:
- Establish a categorized inventory of covered projects that are pending environmental review and add new covered projects as they arise.
- Identify the types of environmental reviews and authorizations that are most commonly involved in projects within each of those categories.
- Designate a “facilitating agency” to coordinate review for each category of covered project.
- Develop performance schedules for environmental reviews and authorizations most commonly required for each category of covered projects no later than one year after the enactment of the FAST Act.
These schedules must specify that any decision by an agency on an environmental review or authorization must be issued not later than 180 days after all the information needed to complete the review or authorization is in the possession of the agency.
Like many other recent federal programs, the FAST Act utilizes new technology in an attempt to expedite environmental review. The Act requires the implementation of a “permitting dashboard,” an online database to track the status of Federal environmental reviews and authorizations for any covered project in the inventory.
Interagency Cooperation and Coordination
To help eliminate duplicative and redundant reviews—both between involved Federal agencies and those required under state law—the Act has two major new programs. The Coordinated Projected Plan, created by the facilitating or lead agency, coordinates both public and agency participation in, and completion of, any required Federal environmental review and authorization for the project. The Coordinated Plan lists all of the agencies involved with the permitting, sets a comprehensive schedule of dates by which all environmental reviews and authorizations must be made, and outlines plans for public participation. In addition, this initial plan must take into account possible alternatives or mitigation measures.
The act also takes steps to coordinate Federal review with state-level reviews mandated by “little NEPA” statutes. Previously, Federal agencies were required to rely only on documentation produced within the Federal process; even if a project sponsor created a 20,000 page EIS as part of the state review, Federal agencies would still need to produce one on their own. Now, under the Act, Federal agencies are permitted to consider those state level reviews that would otherwise be sufficient for environmental review under NEPA. While similar provisions permit the reverse under state little NEPA statutes, this new approach will permit substantially more flexibility in environmental review.
Perhaps the most substantial—and controversial—changes to NEPA contained in the FAST Act are new restrictions placed on judicial review for qualified projects, including the following:
- Statute of Limitations – A two-year statute of limitations for any challenges, accruing upon publication of a notice of the final action in the Federal Register. This marks a major departure from current practice, where courts have applied the Administrative Procedure Act’s general six-year statute of limitation.
- Exhaustion – In order to have standing to file a challenge of any NEPA review of a covered project, a potential plaintiff must have submitted comments during prior administrative proceedings.
- Injunctive Relief – When deciding whether to grant injunctive relief, the court must consider the potential effects on public health, safety, and the environment, and the potential for significant negative effects on jobs resulting from an order or injunction, but they cannot presume that these harms are reparable.
The FAST Act has the potential to shift the parameters of environmental review. At an absolute minimum, it will ease the regulatory burden facing major infrastructure projects; taken to its maximum, it will dramatically alter the 45-year-old NEPA process. We will only be able to fully assess its impact as it goes into practice.