Gravel2Gavel Construction & Real Estate Law Blog
On August 15, 2017, President Trump issued Executive Order 13807 (EO 13807), which seeks to streamline federal environmental review and approvals of major infrastructure projects by imposing new timelines and procedures. The EO aims to hold federal agencies accountable to a two-year deadline for all federal authorizations for infrastructure projects, including highways and transit, airports and ports, fossil, nuclear and renewable energy, pipeline and water projects.
EO 13807 defines “major infrastructure projects” as those which require both a full Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) and multiple permits, approvals and/or other forms of authorization from federal agencies, and for which sufficient and reasonably available funding has been identified. The EO requires the Office of Management and Budget (OMB) to establish a federal goal of completing NEPA review and permitting in “not more than an average of approximately two years” from the notice of intent to prepare an EIS. The goal must be incorporated in each federal agency’s strategic and annual performance plans and progress must be reviewed by agency leadership.
The EO also requires approval of major infrastructure projects in “One Federal Decision” via the Record of Decision (ROD) which the “lead agency” (that is, the agency preparing the EIS) issues on or after completion of the EIS. All other federal agencies must complete any permitting and other authorization decisions required for project construction within 90 days after the ROD. The agencies must agree at the outset to a permitting timetable with milestones and completion dates for each agency’s actions.
There is some flexibility to the ambitious timing targets. The project sponsor (that is, the local government or private entity applying for federal funding or permits) may request that the agencies issue separate NEPA documents. The lead agency may waive the single ROD requirement if it “would not best promote completion of the project’s environmental review and authorization process.” The 90-day deadline may be extended if federal law prevents the issuance of any authorization within 90 days, the lead agency determines that more time would “better promote” completion of project reviews or the project sponsor requests a different timeline. Moreover, the two-year goal for completing reviews and authorizations is an average, not a deadline for every project.
Despite such flexibilities, EO 13807 has teeth. OMB must implement a performance tracking system and issue quarterly “scorecards” for each agency. In addition to success in achieving “One Federal Decision” timetable milestones and the two-year completion goal, the scoring will track the cost of environmental review and authorizations, the added project costs attributable to delays, and implementation of best practices to ensure timely decisions. OMB must consider the agencies’ performance during budgeting and may impose budgetary penalties for those that significantly fail to meet milestones.
The new EO also revokes the Obama Administration’s EO 13690 (2015), which required federal agencies to incorporate climate change considerations into flood risk management. Specifically, federal agencies are directed to avoid adverse impacts from occupancy and modification of “floodplains,” defined as areas subject to a one percent or greater risk of flooding each year, referred to as the “100-year flood.” While the Obama EO had incorporated a “500-year flood” standard (0.2 percent or greater annual risk), the Trump EO reinstated the 100-year standard. By unhappy coincidence, in the following week, Hurricane Harvey brought Houston’s third 500-year flood since 2015.
Project developers and environmental advocates have long argued over whether and how much infrastructure projects are delayed by protracted reviews and whether delays are justified by environmental benefits. President Trump’s EO takes a strong stand on the side of streamlining. The threat of budgetary punishment for missing timetable milestones will provide a strong incentive for agency staff to do their best. However, EO 13807 does not identify new resources to speed processing EISs and permits nor provide relief from any substantive requirements, other than those of Obama’s floodplain EO. Only time will tell if the EO has much real-world effect on the delivery of infrastructure projects.