Trump NEPA Initiatives to Expedite Energy Infrastructure: “One Federal Decision”

One of President Trump’s first actions was to issue Executive Order 13766, “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects” (Jan. 24, 2017), directing the Council on Environmental Quality (“CEQ”) to begin efforts to identify high priority infrastructure projects and expedite federal environmental reviews required by the National Environmental Policy Act (“NEPA”). This was followed by the more detailed EO 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects” (Aug. 15, 2017) describing the “One Federal Decision” (“OFD”) policy. The CEQ, the Department of the Interior (“DOI”) and the Bureau of Land Management (“BLM”) have taken several actions to implement this presidential OFD direction.

The challenge the EO is trying to address is the integration and timely coordination of the multiple federal agencies, federal laws and permit decisions that are triggered by a major infrastructure project. Expediting NEPA is not new; Congress and prior administrations have addressed the need for permit streamlining for at least the last 15 years. For example, in 2001, President George W. Bush created a NEPA Task Force to modernize agency regulations implementing NEPA. In 2004, BLM issued a “cooperating agency” rule directing that BLM invite state, local and tribal governments to participate as cooperating agencies in the Bureau’s NEPA processes. In 2003, as part of the President’s Healthy Forest Initiative, bi-partisan legislation, the Healthy Forest Restoration Act, was enacted to expedite NEPA and court review of hazardous fuels reduction projects. Congress also created expedited NEPA for airports (Vision 100 Act of 2003), for highway and transit construction (SAFETEA-LU Act of 2005), and for oil and gas and LNG terminals (Energy Policy Act of 2005).

NEPA expediting is not limited to Republican administrations. In 2012, President Obama issued EO 13604 (2012) directing improved federal permitting and environmental reviews of infrastructure and in 2013 issued an Executive Memorandum expediting certain oil pipelines. The American Recovery and Reinvestment Act of 2009 triggered NEPA, and out of the 275,000 stimulus actions reviewed, over 184,000 met their NEPA compliance obligation with a “categorical exclusion” (“CE”), the least onerous level of environmental review. In 2012, the President also signed MAP-21, legislation to expedite surface transportation permitting and, most significantly, in 2015, Congress enacted the FAST-41 Act to improve federal permitting for highways and other major infrastructure projects. The FAST-41 focus was on better interagency coordination and accountability; the Federal Permitting Improvement Steering Council (“FPISC”) and the Permitting Dashboard are two provisions with a continued role in the Trump efforts.

The OFD is focused on process improvements for “major infrastructure projects.” Infrastructure is broadly defined and in the energy space includes “energy production and generation including from fossil, renewable, nuclear and hydro sources, electricity transmission,” and pipelines. To qualify as a “major infrastructure project,” the project must: 1) trigger an environmental impact statement (“EIS”), the most rigorous form of NEPA compliance, 2) involve multiple federal authorizations, and 3) the project sponsor must demonstrate the “reasonable availability of funds” to complete the project.

The OFD applies to all federal reviews (NEPA, NHPA and ESA) and directs that NEPA be concluded in two years. A “lead agency” is designated and “cooperating agencies” must agree on three key EIS components – the “purpose and need” statement, the alternatives to be reviewed, and the agency preferred alternative. Concurrent rather than sequential reviews are required and a “Permitting Timetable” inserts some new rigor in coordinating agency reviews toward a shared deadline. To meet these goals, an agency dispute resolution process is part of OFD. What are also new are the requirements for one EIS, one Record of Decision (ROD), one administrative record and the requirement that all federal authorizations issue 90 days after the ROD.

In response, on August 31, 2017, DOI issued Secretarial Order 3355 to limit the length of NEPA documents and the time to complete NEPA. The SO limits EISs to 150 pages (or 300 pages for complex projects), directed bureaus to develop appropriate limitations for environmental assessments (“EAs”) and required an EIS to be complete in one year. On September 27, 2017, BLM issued its Report in Response to SO 3355. BLM indicated it would enhance the use of “determinations of NEPA adequacy” (a BLM checklist document that relies on NEPA previously prepared), new CEs and greater reliance on NEPA tiering to expedite NEPA.

That same month, CEQ issued a notice describing its “initial actions” to implement the EO. 82 Fed. Reg. 43226 (Sept. 14, 2017). CEQ indicated it would be revising CE and EA guidance, address the use of mitigation and monitoring and conflict resolution. The CEQ and the Office of Management and Budget (“OMB”) issued a Memorandum on the One Federal Decision Framework (March 20, 2018) (“Memo”). It establishes CEQ as the mediator of interagency disputes and OMB as the “final interpretative authority” for the Memorandum of Understanding (“MOU”) implementing the EO and the Memo. Interestingly, the Memo details a “model” two-year EIS schedule:

• Scope and publish the DEIS 14 months from the Notice of Intent
• Public comments and FEIS 8 months from DEIS notice
• ROD 2 months from FEIS notice

Most recently, on April 9, 2018, 12 federal agencies entered into the Memorandum of Understanding Implementing the One Federal Decision. The federal agencies specifically agree to implement OFD including the two-year NEPA goal, issuance of implementation policies in 90-days, concurrent reviews, the Permitting Timetable and other OFD process improvements.

There are many questions left unanswered at this early stage. Do agencies need more resources to meet these aggressive targets? What are the consequences for a failure to meet the deadlines, can the deadlines be lengthened and under what circumstances? How quickly will agencies and the CEQ provide new guidance? Most importantly, will the courts “get the memo”? Will a 150 page EIS completed in one year or a longer document completed in two years meet the ever-evolving court-imposed standards for a NEPA “hard look”? Only time and several challenges will tell.