Infrastructure Series: Federal Agency Efforts To Streamline Permitting

Author:Mr H. David Gold, Raya B. Treiser and Andrew L. Spielman

This is the second issue of WilmerHale's 10-in-10 Infrastructure Series. In this series, our attorneys share insights on current and emerging issues affecting infrastructure project developers in the United States. Attorneys from various practice groups at the firm offer their take on issues ranging from permitting reform to financing to litigation, and share their insights from working with clients in a variety of infrastructure sectors, from water infrastructure to energy development to infrastructure development on tribal lands. Read all issues in this series and our other recent publications.

As discussed in last week's issue of WilmerHale's Infrastructure Series, the Trump Administration's Infrastructure Plan outlines a number of legislative reforms intended to streamline the permitting of infrastructure projects. In addition to legislative proposals, the Administration has taken a number of executive actions to streamline permitting. In this issue, we provide an overview and analyze the implications of the most significant of these efforts.

What has the Trump Administration said about streamlined permitting?

President Trump has issued three Executive Orders that call for streamlined permitting for infrastructure.

On January 24, 2017, days after taking office, President Trump issued Executive Order 13766 directing federal agencies to expedite environmental review and approvals for "high priority" infrastructure projects. This Executive Order established permitting reform as one of the Administration's top priorities. On March 28, 2017, President Trump issued Executive Order 13783 calling for immediate review of all agency actions that "potentially burden the safe, efficient development of domestic energy resources." On August 15, 2017, Executive Order 13807 directed federal agencies to seek to complete environmental reviews within two years, to jointly issue "One Federal Decision" covering all individual agency decisions related to a particular project, and to issue all necessary permits or authorizations within 90 days. In addition to these Executive Orders, the President discussed permitting reform in the 2018 State of the Union, setting a one- or two-year goal for federal permits for infrastructure projects.

How have agencies responded?

In response to these directives, federal agencies are taking steps to review their permitting regulations and internal guidance and identify specific reforms that would create more efficient reviews.

White House Council on Environmental Quality (CEQ). On September 14, 2017, CEQ issued a list of actions it planned to take to implement Executive Order 13807 and to enhance and modernize the federal environmental review and authorization process. These actions include:

Developing a framework for implementing "One Federal Decision"-along with the Office of Management and Budget and the Federal Permitting Improvement Steering Council (FPISC), which was established under Title 41 of the Fixing America's Surface Transportation Act (FAST-41); Coordinating with...

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