Last month, the White House released its “Legislative Outline for Rebuilding Infrastructure in America” (the “Infrastructure Plan” or “Plan”), which contains a wide range of proposals for facilitating the construction of infrastructure projects. In addition to financial incentives and investment programs, the Infrastructure Plan proposes a series of changes in federal permitting and environmental review processes, particularly under the National Environmental Policy Act (“NEPA”). This Infrastructure Plan follows an August 2017 Executive Order that also sought to streamline the environmental review process for infrastructure projects. As of the Plan’s release, the Executive Order’s streamlining directives had not yet been implemented. Many of the Plan’s proposals (which restate many of the Executive Order’s goals) call for separate, future legislative action.
Among various proposals aimed at streamlining environmental review and permitting, the Infrastructure Plan proposes to shorten the approval timeline for infrastructure projects by imposing firm deadlines on environmental impact review (21 months) and permitting decisions (3 months following completion of environmental review) made by federal agencies, and by requiring coordinated environmental review for projects that require multiple permits and could otherwise go through multiple iterations of environmental review. In addition, the Plan proposes to clarify that agencies need not consider project alternatives that are outside of their own authority or the capability of an applicant. Moreover, the Plan seeks to limit the authority of involved agencies to comment on environmental review documents to issues within each agency’s area of expertise, as well as to curtail certain ancillary review processes such as EPA’s authority to comment and rate most EIS’s under Section 309 of the Clean Air Act. The Plan also proposes that lead agencies should be able to apply Categorical Exclusions (categories of actions that an agency has determined do not require an environmental assessment or impact statement) established by other agencies in addition to their own.
Additionally, the Infrastructure Plan proposes to extend to all federal agencies the statutory provisions for efficient environmental review, and for delegating NEPA responsibilities to States, that are currently applicable to agencies within the U.S. Department of Transportation. The Plan also proposes certain changes to judicial review, including reducing the statute of limitations applicable to permit and environmental review decisions to 150 days rather than 6 years. Moreover, the Plan offers several proposals to streamline review and eliminate potential redundancies by amending certain pertinent provisions of the Clean Water Act, the Clean Air Act, the Federal Power Act, the Magnuson-Stevens Act, and the public lands and historic properties statutes.
The Infrastructure Plan also proposes, albeit in vague terms, the creation of two pilot programs to test alternative methods of addressing the environmental impacts of infrastructure projects, which would replace the environmental review procedure that typically occurs pursuant to NEPA. The first program is a “performance-based pilot,” which would require a lead agency to develop environmental performance standards for a project that address its expected impacts. The project sponsor would be required to comply with these performance standards, and the development and imposition of these standards would replace the procedural aspects of the review that currently occurs under NEPA and certain other permit schemes. The second program is a “negotiated mitigation pilot,” which would authorize lead agencies to address a project’s expected impacts through the negotiation of mitigation agreements, instead of undertaking the process of NEPA review. The proposals for these pilot programs are limited to several bullet points in the plan, and it is unclear how the development of performance standards or mitigation measures is envisioned to differ from the way such measures are developed during the NEPA process.