On August 15, 2017, President Trump issued yet another executive order (EO) intended to speed environmental review of infrastructure projects. His first executive order with that objective, issued January 24, 2017, was devoid of detail and largely hortatory. The August EO, is more detailed, but is merely aimed at implementing legislation passed during the Clinton and Obama Administrations: The Government Performance and Results Act of 1993, and the Government Performance and Results Modernization Act of 2010 (collectively GPRA).

The key new elements of the EO are a goal of achieving a two year average duration for agency environmental reviews, and scoring of agency performance by OMB pursuant to the GPRA. The EO also includes several provisions calling for coordination among agencies and appointment of a lead federal agency for each project. However, these do not appear to add to existing coordination obligations among federal agencies, other than to identify more coordination groups. In addition, without explanation, the EO revoked an Obama era executive order directing flood risk reduction measures for federal projects.

What it Means

Better coordination among federal agencies and a two-year duration for environmental reviews are worthy goals. However, there is little in the EO that provides confidence that those goals will be achieved to any greater degree than earlier efforts under other administrations. The accountability feature may make this EO more successful, but planned agency budget and staff cuts could quickly undermine efforts to speed the process. The EO itself contains many off ramps from time requirements to accommodate legal requirements and the need to assure that environmental reviews are defensible. If the agencies short-cut required processes in order to meet the two year “average,” the most likely result is the kind of litigation that has often been the cause of the lengthy project delays the President complains of.

With respect to the revocation of the order calling for flood risk reduction measures, it may be that the “flaw” in that order was that it was based on climate change. But however one feels about climate change, rising sea levels are a fact well-recognized by insurance companies and coastal cities. Revoking those requirements will not streamline the permitting process, but it may well result in government spending on projects that are not well-designed to survive changing conditions later in this century.

Over decades Congress has layered time consuming, expensive and sometimes duplicative environmental review for major federal projects. Each agency has its own statutory responsibilities and review criteria, meaning that any administration will be constrained in moving the process along too fast or risk being hung up in the courts for years. True streamlining remains dependent on sound congressional action.