More Room for Improvement in the Permitting Process

BPC has written extensively about the need for reforms to the federal permitting and environmental review process, as predominately governed by the National Environmental Policy Act, or NEPA, including:

• An exploration of the overarching challenges and key solutions;
• Recommendations for the Trump administration to champion; and
• An update on the administration’s progress and the path forward.

Significant progress has been made the last few years. In legislation like the FAST Act, Congress approved new streamlining measures and gave the administration a great deal of latitude to add more transparency, efficiency, and certainty to the federal permitting process. BPC has closely tracked the Trump administration’s efforts to expedite federal approvals using that authority. For the most part, recent actions—summarized in the table below—have focused on institutionalizing the FAST Act’s permitting reforms, while moving beyond the FAST Act to push the “One Federal Decision” initiative.

Executive Order 13807, August 2017

• This order outlined a new initiative, “One Federal Decision,” in which a single lead agency is responsible for shepherding projects through multiagency reviews and keeping agencies to one timetable. As part of this initiative, the Office of Management and Budget (OMB) was directed to set a Cross-Agency Priority goal on modernizing the process, including a new target of two years or less for processing approvals for major infrastructure projects. This includes projects across infrastructure sectors that require an environmental impact statement or EIS, need approvals from multiple agencies, and have reasonably identified requisite funding. The order also included provisions to assess process deficiencies at each agency, develop remedial action plans, bring transparency to the costs of reviews and approval delays, and add projects to the online Permitting Dashboard. The Council on Environmental Quality (CEQ) was made responsible for mediating interagency disputes and ensuring that multiagency reviews and authorizations are conducted simultaneously.

CEQ Notice, September 2017

• CEQ issued an initial list of actions to implement Executive Order 13807. Notable among its proposals, CEQ announced it would:
  • Develop a framework for the implementation of “One Federal Decision” with OMB and the Federal Permitting Improvement Steering Council (FPISC);
  • Refer projects requesting designation as “high priority projects,” i.e., projects meeting the requirements for an expedited process under 23 U.S.C. 139, 33 U.S.C. 2348, or 42 U.S.C. 4370m-4370m-12;
  • Revise, modify, and supplement previous CEQ guidance and regulations for clarity, including issuance of a NEPA practitioners’ handbook; and
  • Convene an interagency working group to begin the process of assessing barriers to a more effective permitting process and developing remedial action plans.

DOT NPR on NEPA Assumption Pilot Program, September 2017

• This rule would implement the FAST Act’s §1308 and §1309, which required:
  • An amendment to the corrective action period provided to states participating in DOT’s Surface Transportation Project Delivery Program, which allows the assignment of certain NEPA responsibilities to states. Alaska, California, Florida, Ohio, Texas and Utah currently participate in the program. (Agreements with Nebraska and Arizona are pending.)
  • Regulations—including application requirements and other criteria—for a pilot program authorizing up to five states to conduct environmental reviews and make approvals for projects with state environmental laws as stringent as NEPA.

While the comment period on the proposed rule has ended, a final rule has not yet been released.

MOU on One Federal Decision, April 2018

• A dozen federal agencies signed a memorandum of understanding regarding the implementation of E.O. 13807 (see above), including a commitment to “One Federal Decision” during NEPA reviews (by developing a single EIS and record of decision), target deadlines, coordinated timetables, simultaneous reviews, and dispute resolution measures. Signatories included the heads of the Departments of the Interior, Agriculture, Commerce, Housing and Urban Development, Transportation, Energy, and Homeland Security; the Army Corps of Engineers; EPA; Federal Energy Regulatory Commission; Advisory Council on Historic Preservation; and Federal Permitting Improvement Steering Council.

CEQ ANPR on NEPA, June 2018

• CEQ sought input on potential changes to implementing regulations under NEPA—particularly comments on how environmental reviews could be more timely, efficient, and conducted in a concurrent and synchronized manner. CEQ also sought public comment on ways to avoid duplication of effort and ensure optimal interagency coordination, as well as numerous areas regarding the scope of NEPA reviews, regulatory provisions that are obsolete or need to be updated, and those that could be improved with regard to mitigation and other requirements. Comments—including those submitted by BPC—were due August 20, 2018. A proposed rule has not yet been released.

FPISC NPR on Fees, September 2018

• The Federal Permitting Improvement Steering Council (FPISC) released a proposed rule to establish user fees, in the form of a project initiation fee, to reimburse FPISC for reasonable costs incurred in implementing certain requirements of the FAST Act, plus the costs of operating the FPISC Office of the Executive Director. The rule has not yet been finalized.

DOT Final Rule on NEPA & Sec. 4(f), October 2018

• The Federal Railroad Administration, Federal Highway Administration, and Federal Transit Administration jointly issued this rule to conform their regulations with NEPA and Section 4(f) (a special provision stipulating to DOT the conditions for approving the use of land on certain historic sites) requirements in MAP-21 and the FAST Act. Major changes in the rule include: 
  • Allowing the use of each agencies’ categorical exclusions—a class of actions or projects predetermined by federal agencies not to have a significant impact on the environment and therefore not subject to more intensive reviews;
  • Requiring combined final environmental impact statements/records of decision to be publicly available after filing with the EPA;
  • Setting out coordination plans and schedule requirements within 90 days of publishing a notice of intent;
  • Broadening the definition of “existing operational right-of-way” to align with MAP-21; and
  • Adding new Section 4(f) exemptions for historical transportation facilities.

CEQ List of Categorical Exclusions, December 2018

• CEQ published a comprehensive list of all federal agency categorical exclusions currently in effect to identify how similar classes of actions are treated in the categorical exclusions established by various agencies.

OMB/CEQ Guidance on E.O. 13807 and NEPA Assignment, February 2019

• This guidance clarified that state transportation agencies that have assumed federal authority for environmental reviews are subject to E.O. 13807. It specified that states that have assumed federal environmental review authority “are subject to the same procedural and substantive requirements that would apply if those responsibilities were carried out” by the DOT Secretary..

Some of these measures may substantively improve the federal permitting process, though key measures—particularly an update of CEQ’s regulations implementing NEPA—have not yet been finalized. Generally, actions taken to make simultaneous review the norm, empower key decision-makers in an often-complex process, expand the Permitting Dashboard, and increase data collection and transparency all further key bipartisan priorities and align with previous BPC recommendations, so long as they do not jeopardize environmental protections.

In light of the extensive work that has been done in recent years, a leading argument against additional reforms to federal permits and reviews is that such actions will erode key environmental protections and lead to worse outcomes This concern is well-intentioned, but it ignores the cost to the environment of keeping degrading, outdated infrastructure in public use and delaying use of new, potentially cleaner and more resilient infrastructure. Moreover, BPC has consistently maintained that additional reforms offer benefits so long as:

• New procedures judiciously align with existing permitting initiatives, guidance, and regulations;
• Critical environmental protections and opportunities for meaningful and early public engagement are not undermined; and
• Full transparency in tracking adherence to permitting timetables, costs of environmental reviews and delays, are used to hold federal agencies and project sponsors accountable.

Permitting risk remains a key barrier to attracting more robust private investment in U.S. infrastructure because of the uncertainty and costs associated with a prolonged process. Unnecessary delays in the process are more expensive for both the public and private sectors as costs for materials and labor rise, and the inefficiencies and unnecessary pollution from using existing and outdated infrastructure accumulate.

As such, Congress and the administration should work together to:

Clarify overlapping permitting initiatives, guidance, and regulations. Permitting and environmental rules and regulations vary among infrastructure sectors. And, with so many efforts to recognize and designate high-priority projects for expedited, coordinated reviews, there is a need to clarify overlapping initiatives. The process should be clear, predictable, and uniform among all participating federal agencies, with best practices universally adopted.

Codify and optimize One Federal Decision.

Unilateral administrative action can be effective, but it is not always permanent. Instead, the administration and Congress should work together to codify and optimize the “One Federal Decision” initiative. Such an effort would:

• Reconcile the initiative with existing permitting laws, guidance, and regulations to clarify agency responsibilities and procedures;
• Set the 2-year goal for NEPA reviews, provided agencies and project sponsors have the flexibility to set longer timetables when needed or preferable;
• Require new transparency measures, time and cost tracking, and remedial plans for federal agencies; and
• Provide the training, support, and resources to agency staff needed to successfully develop appropriate internal policies and procedures to comply with the “One Federal Decision” MOU.

Continue expanding the Permitting Dashboard. E.O. 13807 requires all projects subject to 23 U.S.C. 139 and “covered projects” under 42 U.S.C. 4370m to be tracked on the Permitting Dashboard, with monthly updates of project milestones, and gives the FPISC Executive Director the authority to add others. This commitment to using and expanding the dashboard is a step in the right direction and should be continued; it transparently tracks permitting requirements, timelines, and participating agencies’ responsibilities. Congress can support this effort by requiring more projects and data points to be collected and tracked via the dashboard.

Expand NEPA delegation/assumption pilots to new infrastructure sectors. DOT, in its September 2017 proposed rulemaking, included a change to the Surface Transportation Project Delivery Program and issued regulations for comment on a related pilot program, which will allow states to substitute their environmental laws for NEPA under certain conditions. These actions were certainly steps in the right direction as DOT considers additional ways to encourage uptake to the program. Yet Congress and the administration can work together to encourage greater uptake to the program and expand the pilot to infrastructure sectors outside of transportation, e.g., water, wastewater, and energy infrastructure systems.

Implement and expand data collection and transparency measures. While E.O. 13807 and related administration actions have maintained a federal commitment to transparency and accountability in environmental reviews and agency decisions—including new cost estimates, continued Permitting Dashboard tracking, a new performance scoring system, mandatory explanations for agency delays, and government-wide assessments of process inefficiencies—these efforts are not all in place. While the administration institutionalizes these changes, Congress and the administration can work together to further enhance data collection and reporting requirements. Such an effort would go a long way in increasing the broader understanding of what can hold up a project and informing any future reform efforts.

Launch pilot program utilizing innovative practices for environmental reviews. Former Rep. Bill Shuster (R-PA), who served as chairman of the House Transportation and Infrastructure Committee, released draft legislation authorizing a new pilot program that would permit waivers from certain federal rules and regulations for a select number of projects that adopt innovative practices, such as:

• Integrating environmental planning or other techniques involving consideration of multiple resources on a watershed or ecosystem scale;
• Advancing environmental mitigation and enhancement measures that will result in a substantial improvement over existing conditions in an ecosystem or watershed;
• Using innovative technologies that enable more effective public participation in decision-making; and
• Focusing on environmental and transportation outcomes rather than processes.

Such a pilot could test and advance practices that both expedite project delivery and improve environmental outcomes.

The Trump administration should continue to accelerate permitting and environmental review process, by working to:

Finalize and operationalize the Environmental Review Improvement Fund. The administration released a proposed rule in September 2018 to implement the FAST Act’s Title 41 which provided the authority to establish a fee structure for project proponents to cover the reasonable costs incurred in conducting environmental reviews. Funds collected would be deposited into a Permitting Improvement Fund and made available to cover the expenses of the FPISC or transfer funds to agencies conducting environmental reviews to help make their processes timelier and more efficient. Finalizing and enacting this rule should be a priority on FPISC’s to-do list.

Review regulations, such as 23 CFR §636, governing the assumption of NEPA responsibilities by private entities. With increased interest in the potential of public-private partnerships (P3s), federal rulemakings pertaining to the ability of a private partner in a P3 contract to assume NEPA responsibilities, such as in the preparation of NEPA documents, should be reviewed and, where appropriate, amended. While great progress has been made in the transportation sector, similar efforts to review and revise regulations that could result in a speedier process have not been replicated for other infrastructure types.

Further institutionalize practices and procedures that bring added transparency, predictability, and coordination to the process. Key improvements to the permitting process—including making simultaneous review the norm, empowering key decision-makers in an often-complex process, expanding the Permitting Dashboard, increasing data collection and transparency, and promoting early and meaningful coordination and public engagement—must all be further institutionalized. While this progress depends heavily on the administration, there is also a clear role for Congress to provide direction and oversight and ensure that best practices are codified and made permanent.

Improve PEL data collection and guidance, particularly for P3 projects. The Planning and Environmental Linkages (PEL) initiative supports a collaborative and integrated approach to transportation decision-making that uses information, analysis, and other products developed during project planning to inform the environmental review process. Additional guidance, case studies, and data collection may help to further disseminate and promote valuable PEL practices and expand them to other infrastructure sectors.

Extend lessons learned from SHRP2’s C19 effort to other areas of transportation and infrastructure. The second Strategic Highway Research Program (SHRP2) has done considerable work in developing solutions to expediting project delivery (C19). This work may be further disseminated across agencies, adapted to other areas of infrastructure, and leveraged through the collaborative network created by the multiagency FPISC.

In sum, clearly more work remains. It is important to note that these recommendations do not depend on changes to the substantive elements of permitting or environmental reviews. Improvements in the permitting process can be achieved without changing the standards upon which those decisions are made. These recommendations focus on commonsense, process-oriented reforms, building upon past bipartisan efforts, which will save time and money, and have the added benefit of attracting increased private sector participation.