On January 24, 2017, the Trump administration issued an Executive Order titled “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects”. Copy available here: https://www.whitehouse.gov/the-press-office/2017/01/24/executive-order-expediting-environmental-reviews-and-approvals-high
In a substantively related development, on January 13, the Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ) released a guidance document titled “Guidance to Federal Agencies Regarding the Environmental Review and Authorization Process for Infrastructure Projects” (available, as of this date, at: https://www.permits.performance.gov/sites/permits.performance.gov/files/docs/Official%20Signed%20FAST-41%20Guidance%20M-17-14%202017-01-13.pdf). The OMB/CEQ guidance document was developed pursuant to Title 41 of the Fixing America’s Surface Transportation Act of 2015 (FAST-41). PL 114-94 (42 U.S.C. §§ 4370m – 4370m-12). The guidance document also builds on an Executive Order and two Presidential memoranda issued during the Obama administration.
The Trump executive order provides for the designation of “high priority” infrastructure projects, to be made by the Chairman of CEQ in response to requests from state governors or the heads of federal departments and agencies. For any project so designated, CEQ is directed to coordinate with the relevant federal agency and establish expedited procedures and deadlines for completing environmental reviews and approvals “in a manner consistent with law.” If the deadlines are not met, the agency head must provide a written explanation to CEQ. This executive order does not mention FAST-41 or the OMB/CEQ guidance document.
FAST-41 applies to a wide range of infrastructure projects that are subject to review under the National Environmental Policy Act (NEPA) and other federal laws. The OMB/CEQ guidance document addresses the statutory requirements of FAST-41, which are intended to achieve: increased predictability through project-specific timetables, with processes for resolving issues and modifying timetables; increased transparency and accountability in the federal environmental review process; and improved early consultation among federal agencies. The guidance also explains the federal Permitting Dashboard, which is an online framework for tracking covered projects: https://www.permits.performance.gov/. FAST-41 established a Federal Permitting Improvement Council (Council) comprised of an Executive Director appointed by the President and members designated by the heads of ten federal departments (Agriculture, Army, Commerce, Defense, Energy, Environmental Protection Agency, Housing and Urban Development, Homeland Security, Interior, Transportation) and three independent agencies (Federal Energy Regulatory Commission, Nuclear Regulatory Commission, Advisory Council on Historic Preservation). The Chairman of CEQ and Director of OMB are also members of the Council. The scope of FAST-41 is governed by the statutory definition of the term “covered project”:
The term “covered project” means any activity in the United States that requires authorization or environmental review by a Federal agency involving construction of infrastructure for renewable or conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, manufacturing, or any other sector as determined by a majority vote of the Council that—
(i)(I) is subject to NEPA;
(II) is likely to require a total investment of more than $200,000,000; and
(III) does not qualify for abbreviated authorization or environmental review processes under any applicable law; or
(ii) is subject to NEPA and the size and complexity of which, in the opinion of the Council, make the project likely to benefit from enhanced oversight and coordination, including a project likely to require—
(I) authorization from or environmental review involving more than 2 Federal agencies; or
(II) the preparation of an environmental impact statement under NEPA.
The extent to which the Trump executive order overlaps or adds to the FAST-41 process is not readily apparent. Most projects that could be treated as “high priority” under the executive order are likely “covered projects” for FAST-41. One difference is that, under the executive order, a state governor can designate a project high priority. Under FAST-41, if a project does not meet the $200 million threshold, the decision to treat it as covered is made by the Council.
Please let us know if we may provide additional information or assistance regarding the executive order on expediting environmental reviews or the OMB/CEQ guidance document on FAST-41.
