Earlier this week, President Trump released the outline of his infrastructure plan, which includes over three dozen proposals intended to reduce delay, inefficiency and redundancy in the project permitting process. The plan contemplates amendments to major federal environmental statutes, including the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act.
The chief goal of the proposed reforms—highlighted in both the President’s recent State of the Union Address and an earlier Executive Order—is to streamline the permitting process so that federal agencies approve projects in two years or less. The plan establishes a “firm deadline” for lead agencies to complete environmental reviews and issue a Record of Decision (ROD) under NEPA within 21 months, and requires them (or a state agency acting pursuant to delegated authority) to issue or deny any necessary permits within 3 months thereafter.
The plan lacks detail regarding just how such a deadline would be enforced, stating only that “appropriate enforcement mechanisms” would be established. What these might be appears to be in flux: an earlier draft plan, made public about two weeks before the President’s official release, outlined a review process by the Federal Permitting Improvement Steering Council for agencies that missed deadlines. This process was omitted from the final product.
The guiding principle underlying many of the proposed reforms is eliminating overlapping agency authority and duplicative review in the permitting and review process. For example, the plan establishes a “One Agency, One Decision” environmental review structure, and requires a single environmental review document and ROD to be signed by all involved agencies. Agencies would be directed to focus only on their areas of “special expertise,” and would be permitted to rely on the determinations of other agencies that certain projects are categorically exempt from environmental review, instead of having to conduct their own independent assessment. As another example, the authority to issue dredge and fill permits under section 404 of the Clean Water Act would be consolidated in the U.S. Army Corps of Engineers. The Corps would gain final authority to construe the jurisdictional terms “navigable waters”/”waters of the U.S.” under section 404 of the Act—authority that currently rests with EPA, though both agencies currently exercise it pursuant to a Memorandum of Agreement—and EPA would lose its current ability to veto a 404 permit.
The plan also contains a number of other provisions intended to speed the infrastructure permitting process, including calling for procedures to expedite review for projects likely to result in positive environmental impacts, and limiting the availability of injunctive relief to stop projects that have already been approved pending a court challenge. The plan also requests that two pilot programs be established which would exempt projects wholesale from environmental review in lieu of performance-based review or negotiated environmental mitigation.
Several of the proposed changes, including the idea of setting deadlines for agency action, draw from the report Two Years, Not Ten Years: Redesigning Infrastructure Approvals, issued by the nonpartisan reform organization Common Good. Philip K. Howard, Senior Counsel at Covington & Burling LLP, was the lead author of the report, and E. Donald Elliott and Gary Guzy, each a former general counsel of EPA and members of the firm’s environmental practice group, contributed pro bono legal advice.
It remains to be seen which if any of these proposals will be enacted into law. The President’s plan is merely an outline, and no proposed statutory language implementing these ideas has yet been made public.