01.11.2016

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Updates

Congress enacted the Surface Transportation Reauthorization and Reform Act of 2015, also known as the Fixing America’s Surface Transportation Act (the FAST Act) on December 4, 2015.  A part of the FAST Act, Title XLI—Federal Permitting Improvement, is particularly significant because it seeks to streamline the multi-agency decision-making process for federal approval of major infrastructure projects.  In particular, the provisions of Title XLI establish a Federal Permitting Improvement Council, require federal agencies to coordinate their reviews of covered projects, set performance schedules for project approvals, limit judicial review of final decisions on project permits and shorten the statute of limitations for project opponents to file legal challenges.  

The following is a summary of the key provisions of Title XLI.

Covered Projects

A "covered project" is defined as any construction activity in the United States that requires authorization or environmental review by a federal agency involving renewable or conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, manufacturing or any other sector as determined by the Federal Permitting Improvement Council and that meets the following criteria:

1. It is subject to the National Environmental Policy Act (NEPA);

2. It is likely to require a total investment of more than $200 million; and

3. It does not qualify for abbreviated authorization or environmental review processes under any applicable law.

OR

4. It involves a project the size and complexity of which make it likely to benefit from enhanced oversight and coordination, including a project likely to require authorization or environmental review from more than two federal agencies or the preparation of an environmental impact statement under NEPA.  FAST Act, Section 41001(6)(A).

The definition of covered projects specifically excludes highway or transportation projects and water resources development projects subject to section 2045 of Water Resources Development Act of 2007 (33 U.S.C. 2348), as these two categories of projects already have coordinated environmental review under other statutes.  FAST Act, Section 41001(6)(D).

Federal Permitting Improvement Council

Title XLI of the FAST Act establishes the Federal Permitting Improvement Council made up of members from each permitting and reviewing agency, to be chaired by an Executive Director appointed by the President.  The Executive Director is instructed to do all of the following:

1. Establish an inventory of covered projects that are pending environmental review or authorization by the head of any federal agency.

2. Categorize the projects in the inventory based on sector and project type.

3. For each category, identify the types of environmental reviews and authorizations most commonly involved.

4. Add a covered project to the inventory after receiving a notice of the initiation of a proposed covered project by a project sponsor.

5. Designate a facilitating agency for each category of covered projects and publish a list of such agencies.  FAST Act, Section 41002(c)(1)(A).

Agency Review to be Completed within 180 Days

The Executive Director is further instructed to develop recommended performance schedules for agency approvals.  Each performance schedule is to specify that any decision by an agency on an environmental review or authorization be issued no later than 180 days after all information needed to complete the review or authorization is in the possession of the agency.  FAST Act, Section 41002(c)(1).

Infrastructure Permitting Dashboard

The Executive Director is to maintain an online database known as the Permitting Dashboard to track the status of federal environmental reviews and authorizations for covered projects and shall make a specific entry for each project on the Dashboard.  FAST Act, Section 41003.

Facilitating or Lead Agency

Under the provisions of Title XLI, a facilitating or lead agency must develop a Coordinated Project Plan to synchronize public and agency participation in the federal environmental review and approval process for a covered project and to facilitate the completion of this process.  The Coordinated Project Plan must also establish a permitting timetable that includes deadlines for action by federal permitting agencies, although the Executive Director of the Steering Committee may extend the deadlines.  FAST Act, Section 41003.

Incorporation by Reference of State Permitting Documents

Title XLI of the FAST Act additionally directs the lead agency, upon the request of a project sponsor, to adopt the analysis and documentation prepared for a covered project under state laws and procedures as the documentation (or part of the documentation) required to complete the federal environmental review.  FAST Act, Section 41005

Limitations on Judicial Review

Title XLI also sets limits on judicial review of federal approvals of covered projects.  First, any court challenge must be filed within two years after the date of publication in the Federal Register of the final approval decision, unless a shorter period is specified in federal law.  FAST Act, Section 41007. 

Second, judicial review under NEPA is barred unless the lawsuit is filed by a party that submitted a comment during the environmental review process.  In addition, the specific claims that are alleged must have been sufficiently detailed during the environmental review process, so as to put the federal agency on notice of the issue, unless the agency did not provide a reasonable opportunity for comment.  FAST Act, Section 41007(a)(1)(B).

Third, when deciding whether to grant preliminary injunctive relief against a federal agency that issued a project approval or against a project sponsor, the court is directed to consider the potential effects on public health, safety and the environment, and the potential for significant negative effects on jobs resulting from an order or injunction, without presuming that these negative effects are reparable.  FAST Act, Section 41007(b).

Issuance of Regulations Establishing Fees

Specified agencies are authorized to issue regulations establishing a fee structure for reimbursing the United States for reasonable costs incurred as part of the environmental review and approval process for covered projects.  These fees are to be deposited into an Environmental Review Improvement Fund for use by the Executive Director of the Federal Permitting Improvement Council (and by agencies with the approval of the Executive Director) to administer, implement and enforce the provisions of Title XLI.  FAST Act, Section 41009.

Implications of Title XLI

The enactment of these provisions signals to federal agencies that Congress wants to see large-scale infrastructure projects approved and developed quickly.  Implementation ideally will increase regulatory certainty in federal agency permitting.  The designation of one facilitating agency, and the express direction to incorporate state environmental documents in the federal permitting process, should reduce the inefficiencies of applying for a permit through multiple agencies, often with competing interests and objectives.  The 180-day deadline for final action reinforces the urgency of efficient permitting.  Requiring courts to consider the negative effects of project delays on jobs, as well as the negative effects from delays on public health, safety and the environment, should reduce the likelihood of preliminary injunctions halting the development of covered projects during litigation.  Nonetheless, the procedures established by Title XLI, such as development of performance schedules and agency coordination through establishment of the Federal Permitting Improvement Council, will take some time to roll out, so the full benefits may not be apparent for several years.

© 2016 Perkins Coie LLP