President Donald J. Trump took swift action on his second full day in office to sign an executive order directing federal agencies to act quickly on approvals for high priority infrastructure projects, but existing law may slow down the fast track he seeks.
In the Executive Order, entitled "Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects," the President observed that "too often, infrastructure projects in the United States have been routinely and excessively delayed by agency processes and procedures," which have added unnecessary costs and blocked the American people from project benefits, including "allowing Americans to compete and win on the world economic stage."
Trump stated that it is now the policy of the Executive Branch to "streamline and expedite, in a manner consistent with law, environmental reviews and approvals for all infrastructure projects, especially projects that are a high priority for the Nation, such as improving the U.S. electric grid and telecommunications systems and repairing and upgrading critical port facilities, airports, pipelines, bridges, and highways."
Section 2 of the Executive Order directs the Chairman of the White House Council on Environmental Quality (CEQ), within 30 days after a request is made, to decide whether an infrastructure project qualifies as a "high priority" infrastructure project. If so, Section 3 provides for expedited procedures and completion of environmental reviews, indicating that all agencies "shall give highest priority to completing such reviews and approvals by the established deadlines using all necessary and appropriate means." The head of a relevant agency that fails to meet the deadlines will be required to provide a written explanation to the CEQ Chairman on the causes for delay and provide for concrete actions to complete such reviews as expeditiously as possible.
It will be interesting to see how President Trump's appointees in the various major agencies with jurisdiction over infrastructure projects work together with the CEQ to implement the latest presidential effort at expediting infrastructure projects. The CEQ, which was created in 1969 with the enactment of the National Environmental Policy Act (NEPA), is responsible for formulating and recommending policies to promote the improvement and quality of the environment and issues regulations applicable to federal agencies implementing NEPA.
NEPA, which requires comprehensive environmental impact statements for major undertakings that impact the environment, has proven for decades to add significant project complexities, delays and costs, as project developers have had to spend millions studying various scenarios and environmental impacts to the satisfaction of multiple federal agencies with permitting authorities, states and Native American Indian Nations, among others.
More than 10 years ago, in an effort to break the NEPA log-jam, especially for major electric transmission and interstate natural gas pipeline projects, Congress and then-President George W. Bush worked together to enact the Energy Policy Act of 2005, which codified federal priorities to expedite electric transmission project development (recall the creation of National Interest Electric Transmission Corridors designated by the Secretary of Energy), natural gas pipelines and liquefied natural gas (LNG) terminal facilities. The Federal Energy Regulatory Commission (FERC) then signed memoranda of understanding with various federal agencies, which designated FERC the lead agency for major energy projects, established a pre-application meeting process with project developers, and required FERC, within 60 days after a request from an applicant, to give project developers information on (1) the key issues of concern to the various participating agencies; and (2) the likelihood of approval for the potential facility. Such memoranda did not change existing law but secured commitments from participating federal agencies to work with FERC to communicate informally, share data, and work together to expedite reviews and approvals required by NEPA and the many substantive environmental and energy statutes and regulations.
Now that President Trump is putting the power of his office behind infrastructure projects as a major priority with his Executive Order, his newly-arriving cabinet appointments and CEQ Chairman will have the opportunity to revisit and update prior efforts to expedite siting, permitting and development of interstate natural gas pipelines and electric transmission infrastructure.