The new Fixing America’s Surface Transportation Act (FAST Act), signed by President Obama on December 4, 2015, contains NEPA streamlining reforms that could have important implications for future infrastructure projects, including pipelines.1 Building on prior streamlining efforts, including the Obama Administration’s 2012 Executive Order 13604, the FAST Act is intended to improve the NEPA process for major infrastructure projects through improved agency coordination and reduced litigation delays.
Projects covered by the new law include economically significant infrastructure projects that are subject to NEPA and have a total investment over $200 million:
[A]ny activity in the United States that requires authorization or environmental review by a Federal agency involving construction of infrastructure for renewable or conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, manufacturing …that:
- is subject to the National Environmental Policy Act (NEPA);
- is likely to require a total investment of more than $200,000,000; and
- does not qualify for abbreviated authorization or environmental review processes under any applicable law; or
- is subject to NEPA and the size and complexity of which, in the opinion of the Council, make the project likely to benefit from enhanced oversight and coordination, including a project likely to require authorization from an environmental review involving more than two Federal agencies or the preparation of an environmental impact statement under NEPA.
Covered projects under this title of the FAST Act do not include: (1) transportation projects subject to Department of Transportation (DOT) approval; or (2) water resources development projects subject to environmental review. Id. The FAST Act handles DOT-approved transportation projects separately because NEPA streamlining provisions had previously been established for such projects under Title 23, Section 139.2
Applicants of covered projects must submit a notice to the Interagency Council and the applicable lead permitting agency that summarizes the project and explains how the project meets the covered project definition under the Act. §41003(a)(1).
Important aspects of the FAST Act include:
- Interagency Council. Section 41002 establishes a Federal Permitting Improvement Council, composed of officials from the Council on Environmental Quality (CEQ), Office of Management and Budget (OMB), and 13 other federal agencies, including the Advisory Council on Historic Preservation, DOT, and the Environmental Protection Agency (EPA). The Interagency Council is tasked with developing an inventory of pending environmental reviews within 180 days and developing recommended environmental review schedules for project categories by December 2016.
- Coordinated Project Plans. Coordinated project plans will identify the lead agency and cooperating agencies and contain a permitting timeline. The lead agency is to develop the permitting timetable in consultation with the cooperating agencies and the applicant. Disputes regarding the timeline can be brought to OMB for resolution.
- Permitting Dashboard. An online database will be maintained to track the status of federal NEPA reviews for each covered project. Information must be posted by the lead agency, including the permitting timetable, status of compliance for each participating agency, an explanation of any timetable modifications, and any memoranda of understanding between the agencies.
- Coordination with States. States may elect to impose the FAST Act’s streamlining procedures on state reviews of a covered project. In addition, the lead federal agency can adopt or incorporate by reference any state environmental documents in completing the NEPA review for the project.
- Applicant Fees. The FAST Act authorizes member agencies of the Interagency Council to issue regulations establishing fees for applicants to reimburse the costs of federal reviews.
- Judicial Review Provisions. Section 41003 includes two litigation reforms: (i) reducing the current general statute of limitations from six years to two, and (ii) directing courts to consider any negative effects on jobs when deciding whether to preliminarily enjoin a project. The FAST Act provides that in any action seeking a temporary restraining order or preliminary injunction of a covered project, the court shall “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” and shall not presume that such harms are reparable.
It remains to be seen how effective these streamlining reforms will be in particular cases. Some past streamlining efforts, including those adopted by EO 13604 and the 2005 Safe Accountable Flexible Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), appear to have had limited impact to date. Many agencies are risk-adverse, and sometimes choose not to pursue streamlined options out of concern that such “short-cuts” will increase litigation risk. Project applicants will thus need to be prepared to advocate for streamlining to be appropriately implemented for their projects, both at the federal and state level. Indeed, the FAST Act contains many opportunities for project applicant input, including filing the initial project notice, negotiating project schedules, and commenting on proposed fee schedules.
The FAST Act’s judicial review provisions are also a small step in the right direction. The reduction in the statute of limitations from six years to two will help provide greater certainty for applicants on the finality of federal permit decisions. However, the reality is that most NEPA challenges are brought well within two years anyway, since project challengers generally want to bring such litigation before the project is constructed or the case otherwise becomes moot. Nonetheless, any steps towards reducing the delay and uncertainty that currently plagues the NEPA review process are welcome.