The Nickel Report

Several presidential administrations have sought to shorten the lengthy process for obtaining federal authorizations and permits, with particular attention on infrastructure projects that usually require multiple federal permits with accompanying environmental reviews. Despite consistent interest in improving this process, delays persist, in part because of how courts have interpreted the level of analysis required during these environmental reviews. This past Tuesday, President Trump issued a new Executive Order (EO) 13807: “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” As this EO is implemented, the big question is: How much relief can this or any other executive action provide?

Multiple administrations have been concerned about how much delay federal permitting and environmental reviews can cause, especially for infrastructure projects. For instance, President Bush issued EO 13212 to require agencies to expedite energy-related projects and to create an interagency task force to help accelerate review of these projects and EO 13274 to create an interagency Transportation Infrastructure Streamlining Task Force to identify ways to expedite review and permitting of transportation infrastructure projects.

Similarly, President Obama issued Executive Orders to improve the permitting and review process for infrastructure projects. For example, EO 13604, “Improving Performance of Federal Permitting and Review of Infrastructure Projects,” created an interagency steering committee that released an implementation plan in May 2014 with four overall strategies and multiple reforms to improve the environmental review and permitting process. As part of implementing the steering committee’s plan, the Council for Environmental Quality and the Office of Management and Budget created an online Federal Infrastructure Permitting Dashboard to coordinate necessary reviews for the project, reduce the time for permitting and environmental review, and enhance public accountability for the time needed to complete permitting and review of these projects. “Guidance Establishing Metrics for the Permitting and Environmental Review of Infrastructure Projects,” M-15-20 (Sept. 22, 2015).

President Trump’s August 15 Executive Order follows on previous efforts to improve the permitting and environmental review process. Back in January, President Trump issued EO 13755 to “streamline and expedite” the review and permitting process for infrastructure, especially “high priority” infrastructure projects. As my colleagues pointed out, EO 13755 did not alter the substantive requirements of environmental and natural resources laws that dictate the amount of review necessary before issuing a federal permit or authorization.

The new EO, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” seeks to ensure a “coordinated, predictable, and transparent” review process for infrastructure projects requiring federal authorization. To achieve this goal, this EO, among other things, does the following:

• instructs federal agencies to follow a “transparent and coordinated process” for their environmental reviews and authorizations, including early coordination with other federal, state, tribal, and local agencies and engagement with the public;
• orders the Director of the Office of Management and Budget (OMB) to create a Cross-Agency Priority (CAP) Goal on Infrastructure Permitting Modernization, along with guidance on a performance accountability system to track achievement of the new CAP Goal;
• specifies that this new CAP Goal reduce environmental review and permitting time, to the extent permitted by law, to “not more than an average of approximately 2 years” following the publication of the notice of intent to prepare an environmental impact statement (or other benchmark deemed appropriate by the OMB);
• requires the performance accountability system to track specific timelines and issues regarding each major infrastructure project and include a scoring mechanism to mark progress toward the CAP Goal targets;
• requires federal agencies to follow the “One Federal Decision” process for all environmental reviews and authorizations for major infrastructure projects, in which:
  • all reviews under the National Environmental Policy Act (NEPA) are contained in a single Record of Decision (ROD) issued by the lead agency;
  • the lead agency issues the single ROD based on a schedule agreed to by the cooperating and participating agencies, unless separate NEPA documents are requested by the project sponsor or a single ROD is not the best method for that project;
  • all federal authorizations are complete within 90 days after the ROD; and
  • a framework to implement the “One Federal Decision” is developed by the Council for Environmental Quality (CEQ) and OMB;
• orders the CEQ to evaluate ways to modernize federal environmental review and permitting processes, including “using CEQ’s authority to interpret NEPA to simplify and accelerate the NEPA review process;”
• establishes the CEQ as a potential mediator of disputes arising among agencies during environmental review and permitting processes regarding “any environmental law, regulations, order or policy” and “any conflicting positions of the relevant agencies;”
• orders the CEQ to create an interagency working group to review NEPA implementing regulations and other environmental review policies to “identify impediments to efficient and effective environmental reviews and authorizations for infrastructure projects;”
• directs the Department of the Interior and the Department of Agriculture to take the lead, as appropriate, to identify and designate “energy right-of-way corridors on Federal lands for Government-wide expedited environmental review for the development of energy infrastructure projects;” and
• revokes Executive Order 13690 of January 30, 2015 (“Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input”).

As this EO is implemented over the next few months, project sponsors will start to see how much these provisions improve the environmental review and permitting process.

But there will likely be limits to how much relief this EO can provide. Like all EOs, it must be “implemented consistent with applicable law,” meaning that the terms of the statute—and applicable case law—continue to inform how agencies conduct NEPA reviews. As such, agencies may be limited in how quickly they can complete their environmental reviews consistent with the scope of evaluation often required (by courts anyway) for significant infrastructure projects. It is unlikely that a majority of environmental impact statements can be issued in two years. A recent study of the 194 environmental impact statements issued in 2015 found that only 16 percent were completed in two years or less, with the average completion time being five years. As such, the majority of projects will probably fail to meet the new EO’s two-year timeline for each permit.

There are many reasons for the length of environmental review and permitting, including judicial interpretations of what NEPA requires. As judicial interpretations are outside of the authority of the executive, this presents a potential stumbling block for even the best reform efforts. For instance, just the day before this EO, the US District Court for the District of Montana issued a decision overturning an environmental assessment evaluating a federal mining plan modification because the agency “failed to take a hard look at the indirect and cumulative effects of coal transportation and coal combustion” and “foreseeable greenhouse gas emissions.” Montana Environmental Information Center v. U.S. Office of Surface Mining, No. 9:15-cv-00106 (D. Mont. Aug. 14, 2017). This opinion, clocking in at over sixty pages, shows a potential pitfall of an expedited review: missed or under-evaluated issues can increase the odds of the environmental analysis (and accompanying permit or authorization) being overturned on judicial review, greatly increasing the overall timeline for approval.