Streamlining Federal Environmental Reviews for Infrastructure Projects: Real Change is Coming
In recent actions, the Trump Administration reinforced its commitment to making significant changes in the way federal environmental reviews and authorizations are managed for infrastructure projects. As discussed in a previous Clark Hill alert, Executive Order ("EO") 13807, "Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects" (Aug. 15, 2017), identified a number of concerns with delays in reviews conducted under the National Environmental Policy Act ("NEPA"), including lack of coordination among federal agencies, overlapping statutory requirements, and redundant processes. All told, these inefficiencies resulted in a four-year median time frame for finalization of environmental impact statements ("EIS"), with some complex or controversial projects taking more than ten years to complete.
Signaling the issue's high priority, the Department of Interior ("DOI") and White House Council on Environmental Quality ("CEQ") quickly issued implementation plans. On August 31, the DOI released Order 3355, "Streamlining National Environmental Policy Act Reviews [NEPA] and Implementation of Executive Order 13807". Key provisions require that all new EIS must be completed within one year and may not exceed 150 pages (or 300 pages for complex projects); any extension beyond three months of that date must be approved by the Assistant Secretary with jurisdiction over the project's EIS. Bureaus within the DOI must set target page and time limits for less detailed NEPA reviews (Environmental Assessments ("EA")) by the end of September 2017. In addition, the Deputy Secretary of Interior will coordinate a review of additional ways to streamline NEPA reviews and eliminate impediments to infrastructure projects.
In mid-September, the CEQ, which has oversight responsibility for NEPA across the federal government, published a Federal Register notice announcing its initial list of actions to carry out the directives in EO 13807. As a first step, CEQ will develop, with the Office of Management and Budget and in consultation with the Federal Permitting Improvement Steering Council, a framework for implementing the "One Federal Decision" concept outlined in EO 13807, which calls for centralized action from all federal agencies involved in a NEPA review. Other steps include enhanced coordination on high priority infrastructure projects, identification of changes needed to improve the CEQ's NEPA regulations, issuance of additional guidance to simplify and accelerate the NEPA process, and formation of an interagency working group to target impediments to efficient and effective operation of the environmental review and permitting process.
The NEPA review process has long been the subject of complaints from the regulated community (as well as some members of local communities in which the projects are located) about protracted delays, inefficiencies, and unnecessary cost. EO 13807 and the implementation plans from the DOI and CEQ seek to move NEPA reviews much more quickly, using new procedures and ground rules that are sure to be controversial and challenged in court. Parties with an interest in projects subject to NEPA review should take steps now to understand the opportunities and challenges of these new processes and maximize chances for successful outcomes.
Clark Hill is experienced in developing and executing informed and effective strategies in complex regulatory matters at all stages of the process, from initial public advocacy through appellate challenges. For more information, please contact Karen C. Bennett, Jane C. Luxton, Kenneth von Schaumburg, William J. Walsh, or another member of Clark Hill's Environment, Energy & Natural Resources or Administrative Law Practice Groups.