A new Executive Order designed to shorten federal environmental reviews and permitting, if successful, would mean big changes for National Environmental Policy Act (NEPA) reviews and federal approvals of major projects.
In August, President Trump signed an Executive Order (EO) that aims to complete environmental review and approvals of major infrastructure projects1 within two years by instituting changes to those processes and new accountability requirements for lead agencies, their personnel, and other reviewing and permitting agency personnel. While the two-year requirement might seem daunting, agencies have already achieved that time-frame and even shorter ones for major infrastructure projects. Moreover, those reviews didn't “cut corners” and to the extent that they were challenged in court, the agencies prevailed.
How does the measure stack-up against those enacted by predecessors and how can agencies, and environmental practitioners prepare? Read on to learn more.
How Have Past Administrations and Congress Tried to Expedite Environmental Reviews and Permitting?
Since 1970, the National Environmental Policy Act (NEPA) has required federal agencies to weigh the environmental consequences of their actions before making decisions. It can and often does take years to complete NEPA reviews, particularly for major infrastructure projects. Even though the NEPA implementing regulations have page limits for Environmental Impact Statements (EISs), stress that agencies focus on what is important, state that federal agencies should integrate the requirements of NEPA with other planning and environmental review procedures, and contain provisions for time limits, over the years agencies have produced EISs that greatly exceed the page limits and take too long to complete.
While there are various reasons that an EIS process can take too long, the excessively long ones lead to protracted internal reviews and requests from stakeholders to extend comment periods. In the end, a lengthy EIS does not make the process more legally defensible. Moreover, they can overwhelm and bog-down reviewing agencies, the public, elected officials, and ultimately, the judges. In addition, the amount of time involved in agency decisions regarding areas such as wetlands, endangered species, historic properties, and bridges can take too long because of staffing constraints, varying statutory responsibilities, differing missions, and policy differences. The new EO is the latest of many attempts by past administrations and congress to streamline the NEPA review and authorization processes:
- President George W. Bush signs Executive Order 13274 emphasizing the importance of expedited transportation project delivery while being good stewards of the environment.
- Congress passes the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), aimed at improving efficiency in environmental review of transportation projects.
- President Barack Obama signs Executive Order 13604 to improve efficiency in federal permitting and review, including tracking progress against performance goals, in addition to transparency and environmental protection.
- Congress passes the Moving Ahead for Progress in the 21st Century Act (MAP-21) to accelerate transportation project delivery through the increased use of Categorical Exclusions, programmatic approaches, and planning and environmental linkages.
- Congress passes the Fixing America’s Surface Transportation (FAST) Act which codified the FHWA “Every Day Counts” initiative, allowed greater use of funds for permitting improvements, improved early engagement, expanded the federal project Dashboard, formalized the Federal Permitting Improvement Steering Council (FPISC), accelerated processes for emergency projects, and established a pilot program to delegate NEPA to certain states for transportation projects.
Approval Process Change
The key process change in the EO is the “One Federal Decision.” The process will designate a single Federal lead agency throughout the NEPA and authorization processes and include all approving agency NEPA decisions in one Record of Decision (ROD), with certain exceptions.3 The Federal lead, as well as cooperating and participating agencies are required to agree on a permitting timetable. Federal authorization decisions for the construction of a major infrastructure project are required to be completed within 90 days of the issuance of a ROD by the lead Federal agency, provided that the final EIS includes an adequate level of detail to inform agency decisions.
The Council on Environmental Quality (CEQ) and the Office of Management and Budget (OMB) are required to develop the framework for implementing One Federal Decision, in consultation with the FPISC. The framework will include guidance on the development of permitting timetables including identifying when the design of a project has sufficiently advanced so that a schedule can be developed and the process for extensions. Timelines are required to account for federally required decisions or permits that are assumed by, or delegated to, State, tribal, or local agencies. CEQ and OMB will also develop guidance for applying One Federal Decision whenever the lead agency is a State, tribal, or local agency exercising an assignment or delegation of an agency's NEPA responsibilities. Other process improvements include the following:
- CEQ Streamlining Guidelines: Within 30 days of the date of the EO, CEQ is required to develop an initial list of actions it will take to enhance and modernize the Federal environmental review and authorization process.
- Energy Corridors: The Departments of the Interior (DOI) and Agriculture are required to facilitate the identification and designation of energy right-of-way corridors on Federal lands for Government-wide expedited environmental review for the development of energy infrastructure projects.
- FPISC: The EO provides organizational support for the FPISC.
- Dashboard: Projects subject to the EO must be tracked under the federal Dashboard.
- Agency Reorganization: The DOI is required to provide OMB a strategy and recommendations for a multi-agency reorganization effort that would further the aims of the order. The Department has also directed that environmental impact statements “shall not be more than 150 pages or 300 pages for unusually complex projects.”
Agency Performance Accountability
The 15 Cabinet-level agencies and a score of other Executive-level agencies have existing Cross-Agency Priority (CAP) Goals established by the Government Performance and Results Act (GPRA) Modernization Act of 2010. Within 180 days of this EO (sometime in February 2018), OMB — in consultation with the FPISC — is required to establish a CAP Goal on Infrastructure Permitting Modernization so that: 1) Federal environmental reviews and authorization processes are consistent, coordinated, and predictable; and 2) the processing of environmental reviews and authorization decisions should be reduced to not more than an average of approximately two years, measured from issuance of the Notice of Intent (NOI) or other benchmark deemed appropriate by OMB.
Agencies with environmental review, authorization, or consultation responsibilities for infrastructure projects are required to modify their Strategic Plans and Annual Performance Plans (under the GPRA) to include performance goals related to the completion of environmental reviews and authorizations consistent with the new CAP Goal. The agencies are required to incorporate the achievement of these performance goals into appropriate agency personnel performance plans such as those of the agency Chief Environmental Review and Permitting Officers (CERPOs) or other appropriate officials.
Within 180 days of establishing the CAP Goal (i.e. May 2018), OMB, in consultation with the FPISC, is required to issue guidance for establishing a performance accountability system to determine whether agencies are meeting their goals, including the costs of environmental review and authorization for each project. The accountability system is required to have a scoring mechanism. OMB will consider each agency's performance during budget formulation and determine whether appropriate penalties should be imposed for those that significantly fail to meet a permitting timetable milestone.
Realizing Better Performance
Streamlining is an elusive goal given the need to assess complex environmental effects, take into account the input and perspectives of numerous stakeholders and the public, apply the many cross-cutting imperatives of environmental statutes other than NEPA, meet the institutional prerogatives of different federal agencies, and comply with the legal requirements of NEPA itself. The new EO seeks to promote better federal performance through process and accounting improvements.
Achieving an average two-year target will require skill, dedication and decisiveness in planning, initiating, and conducting environmental review and permitting processes. Agencies and practitioners need to examine their approach to these processes to meet the requirements of the EO. In a way, it's like going back to basics and back to the principals and requirements established decades ago. It's also good public policy if project proponents, the public, and other stakeholders can receive a decision on a project within a reasonable amount of time rather than having a cloud of uncertainty over their heads for years.
1. "Major infrastructure projects” are defined as infrastructure projects that require multiple authorizations by Federal agencies, will require an Environmental Impact Statement (EIS), and “the sponsor has identified the reasonable availability of funds sufficient to complete the project.”
2. Despite the focus of the EO on NEPA and Federal authorizations, the EO also revoked Executive Order 13690 of January 30, 2015 (Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input). Among other requirements, EO 13690 required agencies to use a higher flood elevation and expanded flood hazard area than the base flood to account for climate change and other future changes. The revocation of EO 13690 in and of itself is a substantial change in policy concerning flood risk management and climate change deserving of further review, but this article is focused on the changes to environmental review and federal approval processes.
3. The EO notes exceptions to the One ROD requirement: 1) if the project sponsor requests that agencies issue separate NEPA documents; 2) the NEPA obligations of a cooperating or participating agency have already been satisfied; or 3) the lead Federal agency determines that a single ROD would not best promote completion of the project's environmental review and authorization process.