The Fixing America’s Surface Transportation Act (FAST Act), a $300 billion highway infrastructure bill signed by the president on December 4, 2015, includes sweeping provisions intended to expedite major infrastructure projects, including pipelines, electricity generation projects and even new manufacturing plants that are subject to federal review and application of the National Environmental Policy Act (NEPA). Congress incorporated these governmentwide reforms into the FAST Act to alleviate the delays and uncertainties associated with the environmental review process for major infrastructure projects under NEPA. Although Congress did not amend NEPA itself, these provisions create new administrative obligations for every federal agency that must comply with NEPA when processing applications for federal permits, licenses and other federal approvals. Here are the most important aspects of the new law.
1. An interagency council will issue timetables for the completion of NEPA review documents on “covered projects.”
The law creates a new Federal Permitting Improvement Steering Council (the Council) with representatives from 15 federal agencies. The Council’s initial task, to be completed by June, is to collect detailed information about what the FAST Act designates as covered projects. A covered project is any activity subject to NEPA involving either a total investment cost of $200 million or more or a project that, because of its size and complexity, the Council finds to benefit from the application of these provisions. These projects could include
The Council will collect information on potentially covered projects in order to issue a generic performance schedule or timetable for NEPA reviews of various categories of covered projects. With the goal of speeding environmental reviews, the performance schedules shall not exceed the average time that federal agencies need to complete a NEPA review. These performance schedules are required to be updated every two years. The Council will also release a list of best practices (to be updated annually) on enhancing early stakeholder engagement, using performance metrics to ensure timely NEPA reviews, improving coordination between federal agencies and non-federal government agencies, increasing transparency, reducing administrative burdens and improving information availability for applicants and governmental entities.
2. The Council will monitor the progress of NEPA reviews for covered projects, including the relationship between lead agencies and cooperating agencies to ensure continued cooperation, coordination and expeditious processing from start to finish.
Individual covered projects will be monitored through an online Federal Infrastructure Permitting Dashboard (Dashboard). The process begins when the sponsor of a covered project files a notice of initiation with the Council’s executive director, adding the project to the Dashboard. This starts a 45-day clock for the lead agency to invite all federal and non-federal agencies with any responsibility for project approval, review or financing to participate as cooperating agencies. After 60 days, the lead agency must provide the project sponsor with a concise plan for coordinated agency review of the project, including the roles and responsibilities of each cooperating agency, a permitting timetable, a discussion of potential avoidance, minimization and mitigation strategies, and a public outreach and coordination plan. Although the project timetable can be amended, any delays require a written justification. Delays beyond 30 days require the approval of the Council’s executive director, and delays of more than half of the original timetable require the approval of the Office of Management and Budget (OMB). Although Congress will be notified of any OMB-authorized extension, the extension itself cannot be challenged in court.
To comply with the timetable, the lead agency and coordinating agencies are required to integrate their reviews “to the maximum extent practicable” and communicate with the project sponsor regarding any concerns that could delay the environmental review required for the project. All project documents must be available to the public through the Dashboard comments on an environmental impact statement must run between 45 and 60 days, while comments on an environmental assessment may not be longer than 45 days. These comment periods can be extended only with the project sponsor’s consent or for good cause.
3. For covered projects, the FAST Act makes three changes in judicial review: shortening deadlines to sue, requiring litigants to first present their comments during the NEPA process, and changing the applicable criteria when judges rule on motions for temporary restraining orders and preliminary injunctions.
The FAST Act’s judicial review provisions include the most significant changes to current NEPA practice. The traditional six-year statute of limitations to file suit is reduced to two years with a supplemental environmental impact statement considered to be a separate final agency action subject to a separate two-year statute of limitation. Plaintiffs who challenge the lead agency’s record of decision must have filed their own comments on the project’s environmental impact statement or environmental assessment, and someone must have filed comments on the project that included the issues raised by the plaintiff with enough detail to have put the lead agency on notice. Where a plaintiff moves for a temporary restraining order or preliminary injunction to block the project, courts are instructed to consider an injunction’s potential impact on jobs related to the project as well as public health, safety and environmental concerns. Further, the court should not presume an injunction’s potential effect on job losses or any other factor considered to be reparable — a departure from the current practice of many courts.
The FAST Act will become effective for any covered project that is pending on March 3. Project sponsors may file a notice of initiation with the Council after that date. The FAST Act’s infrastructure provisions will sunset in December 2022.