The Nickel Report

Yesterday President Trump signed several Executive Orders (EOs) and Presidential Memoranda designed to speed environmental permitting and reviews. Among them is an EO to “Expedite Reviews and Approvals for High Priority Infrastructure Projects.” While past administrations have recognized the costs and delays of federal environmental permitting and encouraged timely decisions by regulatory agencies (e.g., EOs 13,212, 13,274 and EO 13,604), President Trump’s EO reflects a new sense of determination by the White House to move important infrastructure projects forward. The EO reflects a recognition that major infrastructure projects trigger an array of overlapping environmental and natural resource laws and requirements.

Stating that infrastructure projects are “routinely and excessively delayed by agency processes,” the EO seeks to “streamline and expedite … environmental reviews and approvals for all infrastructure projects, especially projects that are a high priority for the Nation, such as improving the U.S. electric grid and telecommunications systems and repairing and upgrading critical port facilities, airports, pipelines, bridges, and highways.” Any state governor or the head of any executive agency or department may request a “high priority” designation for an infrastructure project. Within 30 days after such a request, the chairman of the White House Council on Environmental Quality (CEQ) must determine whether the project qualifies as “high priority.” Projects so designated will be assigned expedited procedures and deadlines for completion of environmental reviews and approvals, and the reviewing agencies will be required to give the highest priority to completing such reviews and approvals by the established deadlines using “all necessary and appropriate means.” As to any deadline not met, the head of the relevant agency will be required to provide to the CEQ chairman a written explanation for the delay and of concrete actions designed to complete reviews and approvals as expeditiously as possible.

Importantly, the EO does not alter the intricate framework of environmental and natural resource laws that govern the review and permitting of infrastructure projects. For example, the National Environmental Policy Act (NEPA) requires federal permitting agencies to assess whether a project will have a significant impact on the environment. If so, an environmental impact statement (EIS) must be prepared. According to a National Association of Environmental Professionals (NAEP) review of the 194 EISs published in 2015, the average time to complete an EIS was five years and only 16 percent were prepared in two years or less. In addition, permitting agencies must consult with the US Fish and Wildlife Service or National Marine Fisheries Service under Section 7 of the Endangered Species Act if the project “may affect” a listed species or critical habitat. With more than 1,400 species on the list and vast portions of the landscape designated as critical habitat, and many more species and areas of land awaiting listing and designation decisions, the Services are taking an ever-increasing role in the regulation of infrastructure projects. Projects that cross wetlands, streams and other features deemed “waters of the United States” generally require US Army Corps of Engineers permits and must mitigate their impacts under the Clean Water Act.

Carefully navigating this regulatory framework and building a strong administrative record will remain critical to successfully completing the environmental review and permitting process and defending those agency actions from legal challenges — especially when a high-priority project receives expedited processing.