There has been a string of actions in the past few weeks addressing the federal government’s policy goal of streamlining the NEPA review process. Although a number of actions have been taken, it presently boils down to this: the federal government seems to genuinely be pursuing ways to make the NEPA process for infrastructure projects (including energy projects) faster, more predictable, and more efficient. Whether and how this will be implemented in practice remains to be seen. The Dept. of Interior and CEQ have been the first to take (aspirational) actions to implement this policy. The following summarizes the recent actions.
President Trump issued Executive Order 13807, titled “Establishing Discipline and Accountability in Environmental Review and Permitting Process for Infrastructure Projects. Among other things, EO 13807 directs the following:
- Development of a “performance accountability system” to track milestones and deadlines “major infrastructure projects,” score agencies’ ability to meet those deadlines, establish best practices for the permitting/review of infrastructure projects. Projects would also be tracked through a “dashboard” that is updated monthly.
- Implement “One Federal Decision” for major infrastructure projects. Under “One Federal Decision,” a project would have a single lead agency that will coordinate all necessary federal approvals and issue a single record of decision to address all those approvals.
- The completion of all permit decisions should occur within 90 days of the ROD, and “not more than an average of approximately 2 years” after issuance of the notice of intent to prepare an EIS.
- CEQ’s development of a list of initial actions that it will take to modernize the federal environmental review process, which can include issuing new regulations, guidance, and other directives.
For purposes of the EO, “major infrastructure project” essentially includes energy, water, and transportation projects for which multiple federal authorizations are required and for which an EIS is required. The EO is fairly general and ambiguous and leaves room for exceptions to just about all of its directives. The EO can be viewed here: https://www.whitehouse.gov/the-press-office/2017/08/15/presidential-executive-order-establishing-discipline-and-accountability.
CEQ responded by issuing a notice listing the actions it plans to take to implement EO 13807, as follows:
- Developing, in conjunction with OMB, a framework providing for the implementation of “One Federal Decision.”
- Implement a referral process for the environmental review of State projects.
- “Revise, modify, or supplement” existing CEQ guidance regarding: (1) NEPA categorical exclusions, (2) preparation of environmental assessments, (3) improving the NEPA process for “efficient and timely environmental reviews,” (4) the appropriate use of mitigation and monitoring in the NEPA context, and (5) “environmental collaboration and conflict resolution” (whatever that means).
- Review and identify needed changes in existing CEQ NEPA regulations.
- Issue any additional and necessary NEPA guidance to “simplify and accelerate” the NEPA process for infrastructure projects.
- Establish a working group to facilitate the implementation of the actions listed above as well as addressing issues related to ESA Section 7, NHPA Section 106, and Clean Water Act permitting processes.
CEQ’s notice can be viewed here: https://www.federalregister.gov/documents/2017/09/14/2017-19425/initial-list-of-actions-to-enhance-and-modernize-the-federal-environmental-review-and-authorization.
Also in response to EO 13807, the Dept. of Interior issued Interior Secretarial Order 3355. SO 3355 directs the following:
- All EISs for which a DOI Bureau is a lead agency and which have not yet reached the drafting stage shall not exceed 150 pages, or 300 pages for “unusually complex projects.” (Note that these are the same page limits recommend by existing NEPA regulations. The SO presumably intends to make these limits mandatory.)
- Each Bureau shall have a “target” to complete an EIS within 1 year from when the notice of intent is issued.
- Each Bureau must provide the Deputy Secretary with proposals for page limitations and time deadlines for EAs within 30 days of the SO.
- The Deputy Secretary will conduct a review of existing Dept. of Interior NEPA policies and procedures to identify additional ways to streamline the NEPA process.
It’s unclear how all of this will ultimately be implemented and presumably we’ll know more after the Deputy Secretary completes the required review. The SO can be viewed here: https://elips.doi.gov/ELIPS/0/doc/4581/Electronic.aspx.