What’s Old Is New Again: Expedited Review of Energy Infrastructure Projects Under Trump’s Executive Order

by J. Matthew Derstine

While the two Presidential Memoranda expediting review and approval of the Keystone XL and Dakota Access pipelines grabbed much recent attention, an Executive Order issued the same day could have a broader impact by expediting the environmental review and approval of infrastructure projects nationwide.  But whether this Executive Order will truly “expedite” the environmental review process remains to be seen.

The President’s Executive Order titled “Executive Order Expediting Environmental Reviews for Infrastructure Projects” was issued on January 24, 2017.  Noting that “infrastructure projects in the United States have been routinely and excessively delayed by agency processes and procedures,” the Executive Order states that “it is the policy of the executive branch to streamline and expedite, in a manner consistent with the law, environmental reviews and approvals for all infrastructure projects, especially projects that are a high priority to the Nation such as improving the U.S. electric grid and telecommunications systems. . . .”  To that end, the Order directs the Chairman of the White House Council on Environmental Quality (“CEQ”) to decide whether an infrastructure project qualifies as a “high priority” infrastructure project.  Once a project is designated as “high priority,” the Chairman of the CEQ is to work with relevant agencies to “establish, in a manner consistent with the law, expedited procedures and deadlines for completion of environmental reviews and approvals” and the “agencies are to give the highest priority to completing the reviews and approvals by the deadlines using all necessary and appropriate means.”

But whether the new administration can effectively “streamline and expedite” the environmental review of infrastructure projects given the extensive framework of laws that govern the permitting of infrastructure projects remains an open question.  Any project that is located on or crosses federal land must comply with the National Environmental Policy Act (“NEPA”), and if the project is determined to have a significant impact on the environment, then NEPA requires a comprehensive environmental impact statement (“EIS”) that provides a record of the permitting agency’s considerations and conclusions regarding the potential environmental impacts of the project.  NEPA also requires that the permitting agencies consult with other agencies to ensure compliance with other federal laws including the Endangered Species Act and the Clean Water Act.  Currently, the average time to complete an EIS is five years and the costs associated with the EIS process can significantly drive up project development costs.  President Trump’s Executive Order cannot change or override NEPA or any of the regulations that implement NEPA.  Therefore, it will be a challenge to effectuate any real change in the environmental approval process for infrastructure projects.

In considering the potential impact of Trump’s Executive Order and whether it will indeed expedite environmental reviews for energy and other infrastructure projects, it is important to recognize that we have been here before.  This is not the first administration to recognize the delays and costs associated with the federal permitting process or the first to attempt to encourage federal agencies to make timely permitting decisions through executive orders.  In 2001 President Bush issued Executive Order 13212 titled “Actions to Expedite Energy-Related Projects,” and in 2012, President Obama issued Executive Order 13604 titled “Improving Performance of Federal Permitting and Review of Infrastructure Projects.”  Both Executive Orders sought to expedite the approval of energy-related projects and to ensure that federal agencies set and adhere to timelines for the completion of environmental reviews.

Beyond Executive Orders, there have also been legislative attempts to prioritize and expedite the approval of infrastructure projects.  The Energy Policy Act of 2005 established a new regulatory framework for siting electric transmission projects with the goal of streamlining the siting process.  Pursuant to the 2005 Act, federal agencies signed a memorandum of understanding with the Federal Energy Regulatory Commission (“FERC”) designating FERC as the lead agency to expedite reviews and approvals required by NEPA.  And in December 2015, Congress passed the “Fixing America’s Surface Transportation (“FAST”) Act.  Among the requirements of this statute are provisions that change the federal permitting process for major infrastructure projects through coordination and deadline setting for permitting decisions and new rules that increase transparency and accountability in the environmental review process.  The FAST Act applies to a wide range of infrastructure projects that are subject to review under NEPA and require a total investment of over $200,000,000.  These “covered projects” include infrastructure for energy production and electricity transmission.  The FAST Act is just now being implemented through guidance issued on January 13, 2017 from the CEQ and the Office of Management and Budget and it remains to be seen how effective the FAST Act will be in improving the permitting process.

In sum, President Trump’s Executive Order to “streamline and expedite” the environmental approval process for infrastructure projects is not new.  It has been tried before. And while it will be interesting to see how effective the new Chairman of the CEQ and other agency appointees will be at implementing this latest effort to expedite the environmental review process, any real progress will be a challenge given the extensive framework of environmental laws that govern federal permitting.  But then again, the success of Trump’s “Infrastructure Plan” which he has vowed to deliver in his first 100 days in office, will ride on getting “high priority” projects approved and built, so there is likely to be a significant degree of focus placed on streamlining the current environmental approval process or using the power of a Republican Congress to enact “regulatory reform” directed at “streamlining” NEPA itself.

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