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Tracking the Trump Administration’s Progress on Permitting

By Andy Winkler

Monday, December 11, 2017

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President Trump has, many times since taking office, reiterated his desire to improve America’s infrastructure. While a formal plan to spur new investment has yet to materialize, his administration has been busy on a related priority—expediting federal approvals for infrastructure project permits and environmental reviews. BPC’s Executive Council on Infrastructure found that permitting risk is one of several key barriers to private investment in U.S. infrastructure; the current process can increase the length and cost of project development and create uncertainty for investors.

As BPC outlined when the president took office, Congress has provided the administration with a great deal of latitude, in legislation like the FAST Act, to add more transparency, efficiency, and certainty to the federal permitting process, while upholding longstanding environmental protections. This blog reviews the steps that the administration has taken, using such authorities. Importantly, we highlight that:

  • While early administrative actions served to lay down a political marker, recent measures—such as Executive Order 13807—could more substantively improve the federal permitting process.
  • Several such actions further key bipartisan priorities and align with previous BPC recommendations.
  • Their ultimate success is dependent on agency buy-in; administrative support, training, and resources; and careful alignment with previous permitting initiatives.

Administrative Actions To-Date

Through mostly executive orders and rulemaking, the Trump administration has sought to solidify the FAST Act’s permitting reforms and implement its “One Federal Decision” initiative. Below is a summary of major actions the administration has taken thus far and their potential impact.

Executive order on high priority infrastructure projects (January 24): Executive Order 13766—the second executive order President Trump signed upon entering office—directed the Chairman of the Council on Environmental Quality (CEQ) to designate high-priority infrastructure projects and fast-track their environmental reviews and permit approvals. While showing the administration’s support for permitting reform, it does not appear to have had a material impact. Some have even argued that it actually duplicates or conflicts with permit streamlining provisions in the FAST Act: Senators Rob Portman (R-OH) and Claire McCaskill (D-MO)—whose bipartisan permitting reforms were incorporated into the FAST Act’s Title 41—made this point in a June letter to the President.

Executive order on advisory infrastructure council (July 19): Executive Order 13805 established a Presidential Advisory Council on Infrastructure to sit within the Commerce Department and include business leaders with infrastructure expertise—including members from the finance, construction, and transportation sectors. The Council was tasked with making recommendations to the president on opportunities and policies to improve infrastructure investment, including ways to “accelerat[e] pre-construction approval processes.” Though there may be value in soliciting private sector input on opportunities to accelerate permitting, just two months after the order was issued, the administration disbanded the council.

Notice of proposed rulemaking for a program supporting transit P3s (July 31): The Federal Transit Administration (FTA) requested public comment on creating an experimental program to deliver transit projects more quickly and at less cost by involving the private sector. Importantly, such a program, based on the Federal Highway Administration’s (FHWA) SEP-15 initiative, would allow FTA to experiment on a case-by-case basis in four major areas of project delivery—contracting, right-of-way acquisition, project finance, and compliance with NEPA and other environmental requirements. The program—once up and running—may offer innovative transit projects the flexibility to deviate from current procedures if it will substantially accelerate the time and reduce the costs required to deliver that project.

Executive order on permitting/environmental review processes for federal agencies (August 15): Executive Order 13807 provides the most substantive outline to-date of the administration’s plans to modernize the permitting process. The executive order lays out a new initiative, “One Federal Decision,” in which a single lead agency is responsible for shepherding projects through multiagency reviews and keeping agencies to a single timetable.

As part of this initiative, the Office of Management and Budget (OMB) will 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 would include projects across infrastructure sectors that require an environmental impact statement, need approvals from multiple agencies, and have reasonably identified requisite funding. Notably, the executive order also includes provisions to assess deficiencies in the approval process at each agency, develop remedial action plans, bring greater transparency to the costs of reviews and approval delays, and add projects to the online Permitting Dashboard. CEQ will be responsible for mediating interagency disputes and ensuring that multiagency reviews and authorizations are conducted simultaneously.

While this executive order touches on several key BPC recommendations to accelerate the permitting process, its implementation must carefully align new procedures with those included in previous legislative and administrative actions to modernize permitting. As of April 2017, DOT had only completed 27 of its 42 planned actions to implement Subtitle C of MAP-21, a section of the 2012 highway reauthorization bill intended to accelerate project delivery and reduce project costs. DOT’s Inspector General found that new provisions in the FAST Act required DOT to revisit 10 of those 27 actions, noting that the attendant delays “could impact the Department’s ability to achieve the intended benefits under MAP-21 initiatives.” Given the many changes being proposed in Executive Order 13807, its careful alignment with previous permitting efforts would help to avoid further disruption to the continued implementation of MAP-21 and the FAST Act, and help build on the progress made to-date in bringing greater transparency, certainty, and accountability to the federal permitting process.

Notice with an initial list of actions from CEQ (September 14): As directed by Executive Order 13807, CEQ issued a notice listing the initial actions it proposes to take in implementing the executive order. Notable among its proposals, CEQ will:

  • 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 effective permitting approvals and developing remedial action plans.

Notice of proposed rulemaking on the NEPA assumption pilot program (September 28): This notice, as proposed by three DOT agencies (FHWA, FTA, and the Federal Railroad Administration), would implement the FAST Act’s §1308 and §1309.

Implementation of §1308 required an amendment to the corrective action period provided to states participating in the Surface Transportation Project Delivery Program, which allows the assignment of certain NEPA responsibilities to states. California, Texas, Ohio, Florida, and Utah currently participate in the program.

To implement §1309, the agencies have promulgated regulations for a pilot program authorizing up to five states to conduct environmental reviews and make approvals for projects under state laws instead of NEPA. States face a host of requirements to be eligible for the pilot, including: previous participation in the existing Surface Transportation Project Delivery Program, committed personnel and resources, state environmental laws that are deemed as stringent as NEPA (the necessary characteristics are further qualified in the proposed rule), state consent to exclusive federal court jurisdiction, and state laws comparable to the Freedom of Information Act.

Supplemental notice of proposed rulemaking to amend environmental procedures (September 29): The notice includes proposed revisions to FHWA and FTA joint regulations implementing NEPA and Section 4(f)—a special provision stipulating to DOT the conditions for approving the use of land on certain historic sites. Importantly, this rulemaking is required to implement several sections of the FAST Act, including §1303, §1304, §11502, and §11503. Among other things, this rulemaking will add the Federal Railroad Administration to certain NEPA and Section 4(f) implementing procedures, modify certain procedures in accordance with the FAST Act, and solicit comments on opportunities for FHWA and FTA to expand their definitions of “existing operational right-of-way” in their procedures for categorical exclusions.

Draft strategic plan for FY 2018-2022 (October 25): DOT’s draft strategic plan, issued for public comment, includes an objective to accelerate federal project approvals and several strategies to achieve it.  

Progress and Path Forward

When President Trump took office in January, BPC outlined steps the new administration could take to champion permitting reforms. The chart below outlines the administration’s progress in fulfilling these recommendations.

Empower key decision-makers: In recent actions, the administration has emphasized the roles of CEQ and OMB in permitting modernization, and, in particular, solving disputes that arise in multiagency reviews. Importantly, Executive Order 13807 provides federal decision-makers with a new tool to hold agencies accountable: OMB, in consultation with FPISC, must establish a performance accountability system and score each agency on its implementation of the executive order. Poor performance could result in the imposition of penalties, and will additionally be considered in formulating agency budgets. Recent steps also continue to elevate the importance of lead agencies in shepherding projects through the permitting process.
Continue expanding the Permitting Dashboard: Executive Order 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.
Institutionalize and expand the use of FAST Act Permitting Dashboard authorities: Executive Order 13807 and CEQ’s initial list of implementation actions shows a commitment to using and aligning the One Federal Decision initiative with existing FPISC authorities and the Permitting Dashboard. These steps similarly focus on advancing several key, bipartisan FAST Act priorities: greater permitting schedule adherence; transparent tracking of permitting requirements, timelines, and responsibilities; and enhanced predictability.
Encourage further uptake to the Surface Transportation Project Delivery Program: DOT, in its September 28 notice of proposed rulemaking, included a change to the Surface Transportation Project Delivery Program and issued, for public comment, regulations for a related pilot program, which will allow states to substitute their environmental laws for NEPA under certain conditions. These are certainly steps in the right direction as DOT considers additional ways to encourage uptake to the program. Organizations like AASHTO have offered their own recommendations on additional program improvement—though such changes may require legislative action.
Increase data collection and transparency: While Executive Order 13807 included 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. If the administration can successfully implement these measures, they would go a long way in increasing the broader understanding of what can hold up a project and informing any future reform efforts.
Make simultaneous reviews the norm: Executive Order 13807 laid out a general federal commitment to providing environmental review and permit approvals in a “coordinated, consistent, predictable, and timely manner,” setting a goal of completing approvals in two years or less. Meeting such a goal will certainly require simultaneous multiagency reviews. However, there is little evidence thus far that this has yet become the “norm.”
Complete implementation of other FAST Act permitting provisions: Though implementation is still incomplete, the administration’s two rulemakings in September show some progress. Admittedly, further progress faces a key challenge: Despite the potential benefits of Executive Order 13807, the administration must take great care in ensuring that its implementation is not duplicative of actions required by the FAST Act, add additional bureaucracy to the process, or disrupt the continued implementation of both MAP-21 and the FAST Act.
Appoint a new director of the FPISC: The FPISC Executive Director, a presidentially-appointed position, remains unfilled. The continued implementation of the FAST Act and now Executive Order 13807 would benefit greatly from the leadership a new director could provide the interagency council.
Setup the Environmental Review Improvement Fund: The FAST Act’s Title 41 provided the authority—yet to be utilized—to establish a fee structure for project proponents to reimburse the United States for 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 more timely and efficient.
Reopen DOT Order 5610.1D for additional comment before finalizing: In December 2016, DOT provided notice and a 21-day comment period for Order 5610.1D, which would update procedures for considering environmental impacts and implement a number of key FAST Act permitting provisions. At that time, a number of organizations, including AASHTO and ARTBA, expressed concern at the short comment period and warned that the document could create confusion and slow down project delivery as currently worded. While it appears that DOT has since sought critical feedback from transportation stakeholders on technical concerns with the order as well as a host of other regulatory measures, it is unclear where DOT stands on finalizing the order or how it will align DOT’s procedures for considering environmental impacts with the executive orders and rulemakings issued since the president took office.
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.
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.
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.

While it is clear that more work remains, the administration can make significant progress if it:

  • Judiciously aligns new procedures with previous permitting initiatives, guidance, and regulatory rulemakings;
  • Recommends to Congress any changes needed to optimize “One Federal Decision;”
  • Prioritizes full transparency in tracking adherence to permitting timetables and the costs of environmental reviews and their delays so that both federal agencies and project sponsors may be held accountable;
  • Provides the training, support, and resources to agency staff needed to modernize the permitting process and ensure new procedures can be successfully implemented; and
  • Ensures, in all actions, that key environmental protections and opportunities for public engagement are not jeopardized or overlooked.

KEYWORDS: EXECUTIVE COUNCIL ON INFRASTRUCTURE, 115TH CONGRESS, PRESIDENT DONALD TRUMP