Gravel2Gavel Construction & Real Estate Law Blog
On April 9, 2018, the heads of twelve Federal agencies and departments entered into a Memorandum of Understanding (“MOU”) committing their respective agencies to implement certain concepts and directives from Executive Order (“EO”) 13807,[1] the Trump administration’s effort to streamline environmental review and approval of major infrastructure projects. The signatory agencies are the Departments of the Interior, Agriculture, Commerce, Housing and Urban Development, Transportation, Energy, and Homeland Security, the Environmental Protection Agency, Army Corps of Engineers, Federal Energy Regulatory Commission (“FERC”), Advisory Council on Historic Preservation, as well as the Federal Permitting Improvement Steering Council. These agencies frequently are involved in large-scale, complex infrastructure projects, such as traditional and renewable energy facilities and interstate pipelines; highway and bridge improvements, and transportation projects. While much of the MOU recites requirements previously set forth in the EO, it adds details and deadlines regarding interagency coordination, communication and dispute resolution in order to carry out the EO’s “One Federal Decision” concept and the goal of completing environmental review under the National Environmental Policy Act (“NEPA”) within two years.
On March 20, 2018, the Office of Management and Budget (“OMB”) and the Council on Environmental Quality (“CEQ”) released a framework memorandum on how federal agencies should implement One Federal Decision — a method by which the project’s lead agency, after preparing and adopting a single Environmental Impact Statement (“EIS”) for the project, issues a Record of Decision (“ROD”) from which all other agency approvals required for project implementation must follow within 90 days. The framework and MOU add more specificity on how the EO’s streamlining goals may be achieved, including:
- Internal Policies for One Federal Decision – Each signatory agency has committed to prepare and submit to CEQ and OMB by July 8, 2018, internal policies to ensure effective implementation of One Federal Decision.
- Permitting Timetables – The OMB-CEQ framework memorandum recommends that agencies endeavor to establish the following permitting timetable for each project review: formal scoping and complete Draft EIS preparation within 14 months of the publication of the Notice of Intent (“NOI”) to prepare an EIS; formal public comment period and Final EIS preparation complete within eight months of the Notice of Availability of the Draft EIS; and publication of the ROD within two months after the Notice of Availability of the Final EIS. While actual timetables may differ, the MOU emphasizes that lead agencies are responsible for establishing permitting timetables as early as practicable, but generally before a NOI is published. Such timetables will set forth milestones for the environmental review and approval process consistent with EO’s two-year completion goal. The lead agency will release permitting timetables for comment, allowing other agencies 10 business days to object. But permitting timetables are not set in stone, as the MOU requires the timetables to be updated and, if necessary, adjusted on a quarterly basis.
- Notices of Intent – CEQ regulations implementing NEPA require lead agencies to “integrate the NEPA process with other planning at the earliest possible time.” The MOU provides more specificity: signatory agencies will issue NOIs as soon as practicable after determining that a project meets the definition of “major infrastructure project” and is sufficiently developed for scoping and public comment.
- Points of Concurrence – Agencies with authorization responsibilities for a major infrastructure project must issue written concurrences (meaning written confirmations that the environmental review process may proceed), at the following three stages of the NEPA process: (i) the Statement of Purpose and Need; (ii) identifying project Alternatives; and (iii) identifying the Preferred Alternative. If any cooperating agencies fail to respond to requests for concurrence within 10 business days, that agency will be deemed to have concurred.
- Concurrent Review – Agencies have agreed to conduct their environmental review obligations concurrently, rather than in sequential order.
- Resolution of Lead Agency Disputes – As soon as practicable in the NEPA process, potential lead and cooperating agencies must designate a project point of contact (“POC”) for interagency coordination efforts. Should a dispute arise as to which agency is to act as lead agency, the POC of the agency who receives first substantial contact from the project sponsor will propose a lead agency and circulate a decision to other involved agencies. Notified agencies have 10 business days to object to the proposed designation. If any of the notified agencies object within 10 business days, the agencies involved will meet within 15 days thereafter to select a lead agency.
- “Cooperating Agencies” in FERC Lead Projects – Complex projects typically involve “cooperating agencies” (i.e., those with jurisdiction or special expertise relating to the project). Upon the lead agency’s request, cooperating agencies may be involved in project scoping, and may be tasked with developing data and analyses within their areas of expertise. CEQ NEPA regulations allow agencies identified by the lead agency as cooperating agencies to decline participation if other program commitments preclude their involvement. The MOU reaffirms that, for projects where FERC acts as lead agency, cooperating agencies may only decline if the agency lacks jurisdiction, not on the basis of inadequate resources for competing commitments. Further, should a signatory agency decline to contribute to a FERC-led environmental review, that agency may not subsequently participate as an intervenor in FERC proceedings.
While the MOU recites many requirements previously set forth in the streamlining EO, it nonetheless memorializes a coordinated intent amongst the federal agencies most frequently involved with complex infrastructure projects requiring multi-agency review and approval. The new requirements and deadlines set forth in the MOU, if followed, should reduce inter-agency response times that can delay project approvals. However, like the EO itself, the MOU offers only additional procedural requirements, rather than additional funding, staff or technological resources to improve the environmental approval process. As with other attempts at streamlining project review, by the Trump Administration and the Obama Administration before it, time will tell whether adding new process and coordination steps succeed in delivering speedier approvals.
[1] A more detailed account of the EO and its requirements was covered in previous article by environmental attorneys at Pillsbury Winthrop Shaw Pittman.