On April 9, 2018, 12 federal agencies signed the One Federal Decision Memorandum of Understanding (MOU). The MOU is intended to implement President Trump’s One Federal Decision (OFD) policy established in Executive Order (E.O.) 13807, and establish a process for improving the coordination and timeliness of environmental reviews of major infrastructure projects. Issued in August 2017, E.O. 13807 directed the Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ) to develop a framework for implementing the OFD policy, and set a goal of completing federal permitting for “major infrastructure projects” within two years. E.O. 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” 82 Fed. Reg. 40,463, 40,464 (Aug. 24, 2017).
E.O. 13807 defines a “major infrastructure project” as “an infrastructure project for which multiple authorizations by Federal agencies will be required …, the lead Federal agency has determined that it will prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA)… and the project sponsor has identified the reasonable availability of funds sufficient to complete the project.”
The MOU was signed by the US Environmental Protection Agency (EPA), US Department of the Interior (DOI), US Department of Agriculture, US Department of Commerce, US Department of Housing and Urban Development, US Department of Transportation, US Department of Energy, US Department of Homeland Security, US Army Corps of Engineers, Federal Energy Regulatory Commission, Advisory Council on Historic Preservation, and Federal Permitting Improvement Steering Council.
Under the MOU, a single lead federal agency will be designated to guide each major infrastructure project through the environmental review and permitting process. The MOU directs federal agencies to agree on a permitting timeline with the goal of completing the entire process within two years, to work together to conduct environmental review and authorization decisions concurrently, and to develop a single EIS and record of decision. The MOU also directs that all final permit decisions should issue within 90 days of the ROD.
The MOU is the latest in a series of recent steps taken to improve the federal environmental review and permitting process, including:
A DOI directive that all environmental impact statements (EIS) shall be less than 150 pages (or 300 pages for unusually complex projects), and final EISs to be completed within 1 year.
Several agencies, including CEQ and the US Forest Service, have announced plans to consider revisions to streamline NEPA regulations and procedures.
EPA established a goal that by September 30, 2022, all permitting related decisions will be made within 6 months. A March 2018 memorandum also directed the EPA Office of Policy (OP) to oversee an agency-wide review of permitting policies to accelerate permitting related decisions and re-delegate responsibility for administering NEPA to OP.
It is still too early to gauge how effective the MOU and other streamlining efforts will be. While some permitting obstacles may lessen under this Administration, the NEPA process is largely driven by the statute and case law, so it may be difficult to achieve dramatic changes without statutory changes. The Trump Administration released a long-awaited infrastructure legislative proposal in February, but the prospects for any major infrastructure legislation this year appear dim. No matter what streamlining improvements are implemented, NEPA litigation will continue be a tool for project opponents.