On August 16, President Trump issued an Executive Order (EO) on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.
The purpose of the EO is to establish a more transparent, timely, and coordinated process for environmental review and permitting for infrastructure projects in the following sectors:
- surface transportation, including roadways, bridges, railroads, and transit;
- ports, including navigational channels;
- water resources projects;
- energy production and generation;
- electricity transmission;
- broadband internet;
- stormwater and sewer infrastructure; and
- drinking water infrastructure.
Most of the EO’s provisions apply only to “major infrastructure projects”, which are defined as projects that are subject to multiple agency approvals, will require an environmental impact statement (EIS), and for which the project sponsor has identified “a reasonable availability of funds sufficient to complete the project.”
The EO incorporates many tools and concepts established by the Fixing America’s Surface Transportation Act of 2015 (FAST Act), including the categories of covered projects, the use of the Federal Permitting Improvement Steering Council (FPISC), and the federal permitting dashboard.
The EO requires the Office of Management and Budget (OMB) to establish timeframes and procedures for federal agencies to complete environmental reviews for major infrastructure projects. The EO also requires each federal agency with infrastructure review responsibilities to identify performance goals that are consistent with the timeframes and process established by OMB. The EO states that environmental reviews should “be reduced to not more than an average of approximately two years, measured from the date of the publication of a notice of intent to prepare an environmental impact statement or other benchmark deemed appropriate by OMB.” Thus, the EO anticipates that the entire permitting and environmental review process for each major infrastructure project should be completed in two years on average. Because this two year period is only an average, the EO anticipates that some environmental reviews could take more or less time.
A few highlights from the EO:
- The EO requires OMB to establish an accountability system for certain projects to track federal agency performance – i.e., the time taken by each agency to complete the NEPA process – on a publicly-available “dashboard.” This permitting dashboard is already in place, as it was established under the FAST Act of 2015.
- Each agency’s performance will be “scored” by OMB, and OMB will recommend best practices based on the procedures implemented by the agencies that score higher than others. Interestingly, the EO provides that OMB can penalize agencies that significantly fail to meet timetables.
- The EO refers to “One Federal Decision,” which is a concept that anticipates that National Environmental Protection Agency (NEPA) reviews for infrastructure projects will be directed by a single lead agency that will establish and update processing timelines. The EO provides that all agencies involved with a project will issue their permits/approvals for the project within 90 days of the issuance of the lead agency’s Record of Decision.
- The Council on Environmental Quality (CEQ), which administers regulations implementing NEPA, is required to identify actions it will take to modernize and improve the environmental review process. This may lead to the issuance of future CEQ guidance documents or regulations that attempt to narrow the scope of NEPA review required by federal agencies. The Trump Administration has already rolled back one initiative implemented by CEQ under the Obama Administration. In March, President Trump signed an Executive Order rescinding Obama-era CEQ final guidance on consideration of greenhouse gas emissions in NEPA reviews.
- The EO directs the Department of Interior and Department of Agriculture to establish “energy corridors” on federal lands for the development of energy infrastructure projects.
In sum, the EO sets up a significant new role for OMB, in coordination with CEQ and the FPISC, in establishing infrastructure permitting procedures and timelines. The EO incorporates many of the same tools and concepts established by the FAST Act in 2015. However, the FAST Act required applicants to apply for (and pay for) FAST Act processing, while this EO appears to contemplate that covered infrastructure projects will automatically be subject to the EO’s requirements. It remains to be seen if the EO will be implemented in a way that meaningfully improves the permitting and environmental review process for infrastructure projects. However, at a minimum, the EO requires agencies to conduct a more transparent and coordinated process and sets an expectation that the entire process should be completed in two years (on average) for major infrastructure projects.