The Trump Administration and Federal Agencies Efforts to Streamline Environmental Review and Approval of Infrastructure Projects: A Year-in-Review

Transcription

1 The Trump Administration and Federal Agencies Efforts to Streamline Environmental Review and Approval of Infrastructure Projects: A Year-in-Review Updated: January 2, 2018 Kevin Ashe Pillsbury Winthrop Shaw Pittman LLP San Francisco

2 Agenda The National Environmental Policy Act (NEPA): A Primer Executive Order Federal Agency Follow-through Council on Environmental Quality s (CEQ) Notice of Planned Implementation Actions Department of Interior: Secretarial Order 3355 Department of Transportation Draft Strategic Plan Pros and Cons of Streamlined NEPA Review/Approvals?

3 The National Environmental Policy Act (NEPA) 42 U.S.C et seq. Council on Environmental Quality (CEQ): 40 Code of Federal Regulations 1500 et seq. Applies to major federal actions significantly affecting the quality of the human environment. Federal agencies must: Take a hard look at potential environmental impacts of the proposed project Evaluate alternatives and mitigation measures Consider and respond to public comments Make informed decisions but no substantive duty to protect environment, after satisfying the hard look requirement.

4 Environmental Documents under NEPA If no exclusion applies, prepare an Environmental Assessment ( EA ) No significant impacts => Finding of No Significant Impact ( FONSI ) Significant impacts, all of which clearly can be mitigated to insignificance => Mitigated FONSI Significant impacts, not all of which can be mitigated => Environmental Impact Statement ( EIS ), which includes: - Statement of Purpose and Need - Impact analyses, including cumulative impacts - Alternatives, Mitigation - Record of Decision ( ROD ) States the agency s decision and presents the basis for the decision.

5 January 2017 EO 13766; and the List of 50 Priority List of Emergency & National Security Projects Surface Transportation Airports Hydro / Marine Terminals Energy Northeast Rail Corridor (between Newark and NYC) Texas Central Railway Cotton Belt Line Rail Project Second Avenue Subway (NYC) Union Station Expansion (D.C.) Purple Line (MD) MBTA Green Line Extension (Boston) Red and Purple Line Modernization (Chicago) Kansas City Airport St. Louis Airport Seattle Airport Expansion Bridges Peace Bridge (Buffalo) Arlington Memorial Bridge Dams 52/53 on Ohio River South Carolina Dam Repairs Cadiz Water Conveyance Project Mississippi River Shipping Channel Dredging Port Newark Terminal Improvements Plains and Eastern Electric Transmission Lines TransWest Express Transmission Energy Storage and Grid Modernization

6 August 15 - Executive Order (EO) Titled Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects Applies to a wide range of infrastructure projects: o o o o roadways, bridges, railroads, and transit; aviation and ports; energy generation and transmission projects (fossil-fuel, renewable, nuclear, and hydropower); water resources, stormwater, sewer, and drinking water projects. CEQ directed to, within 30 days, develop an initial list of actions it will take to enhance and modernize the Federal environmental review and authorization process. Such actions should, among other things: o ensure that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, including by using CEQ s authority to interpret NEPA to simplify and accelerate the NEPA review process.

7 The CAP Goal An instrument originally created by the Federal Government Priority Goals established by the Government Performance and Results Act (GPRA) Modernization Act of By February 11, 2018, OMB must establish a CAP goal that requires completion of NEPA review for major infrastructure projects to be not more than an average of approximately 2 years, measured from the date of the publication of a notice of intent to prepare an [EIS] or other benchmark deemed appropriate by the Director of [the Office of Management & Budget]. All agencies required to update their Strategic and Annual Performance Plans to include goals consistent with the CAP Goal.

8 National Association of Environmental Professionals, Annual NEPA Report 2015 Statistics from 183 EISs from all federal agencies completed in Total average preparation time has increased over past 15 years In 2015, of 184 FEISs in data pool, average time between NOI to NOA of FEIS = 5.0 years.

9 One Federal Decision One Federal Decision - The lead agency must issue a Record of Decision that records any individual agency decision[s] by other federal agencies whose authorizations are required for the project. Those agencies must issue their authorizations within 90 days of the ROD. o The lead, cooperating, and participating agencies must agree to a single permitting timetable; and o Establish points of contact for each project. BUT, flexible project sponsor may waive One Federal Decision to receive separate authorizations; AND lead agency and project sponsor may extend 90-day deadline under certain circumstances.

10 The EO has Teeth Lead agencies must update permitting timetables at least quarterly and report to OMB Within 180 days of establishing a CAP Goal (i.e., by August 10, 2018), OMB shall issue guidance for establishing a performance accountability system : o Scoring Mechanism Tracks and scores each agency s performance and issues quarterly performance scorecards. o Loss of Funding - OMB must also consider each agency s performance during budgeting and determine whether budgetary penalties should be imposed for those that significantly fail to meet a permitting timetable milestone

11 Rollback of Obama EO Flood Risk Management Standard EO (1977) - directed federal agencies to evaluate projects sited in floodplains, avoid adverse impacts from occupancy and modification of floodplains to the extent possible, and avoid direct or indirect support of floodplain development where there is a practicable alternative. Applies to federal action (i.e., federally funded project) within flood plains. Originally defined floodplain as an area subject to a 1% or greater chance of flooding each year based on historical data (referred to as the base flood or 100-year flood standard) Under Obama EO (13690), three options to define floodplain: o areas susceptible to a 500-year flood; o up to two or three on a climate-informed science approach. o In rescinding Obafeet (depending on the type of project) above the base flood elevation; o or any other at-risk based ma EO definition of floodplain, the 100-year standard has been reinstated.

12 Boston s Innovation District Source: FEMA Flood Map Service Center

13 Manhattan Lower West Side Source: FEMA Flood Map Service Center

14 August 31 - Secretarial Order No Secretary of Interior issued order limiting size of DOI agency EISs to 150 pages; 300 pages for unusually complex projects. o Excludes appendices. Sets target to complete a EISs within one year after Notice of Intent (NOI) o One year quicker than EO s two-year goal Problematic?

15 September 14 - CEQ Notice of Planned Implementing Actions Consult with other agencies to develop a framework for implementing One Federal Decision Coordinate with FPISC, the U.S. DOT, and the Army Corps of Engineers to identify high-priority projects Potentially most important - CEQ to review existing CEQ Regulations implementing the procedural provisions of NEPA in order to identify changes needed to update and clarify those regulations o Categorical Exclusions and EAs o Practitioner s handbook on public involvement, deference to the lead agency s statement of purpose and need and range of alternatives, cumulative impacts analysis, reliance on prior analyses and decisions on projects within the same general location, and reliance on prior state, local, and tribal environmental reviews

16 Implications of CEQ Notice? While the CEQ notice does not foreshadow the outcome of its review, it does describe an ambitious undertaking that has the potential to affect the most fundamental components of NEPA. The prospect of new or revised CEQ regulations and guidance is worth noting in particular. NEPA is a short statute, providing a framework statement of policy rather than detailed direction on procedures for conducting environmental reviews. While each federal agency is directed to develop its own regulations and procedures for NEPA reviews, agencies and courts rely on CEQ s NEPA regulations and on CEQ guidance in interpreting and applying NEPA requirements.

17 October 19 - U.S. DOT Draft Strategic Plan First formal response by U.S. DOT to EO 13807; released for public comment. Provides long-term objectives for increasing investment and streamlining federal environmental review and approval of transportation projects over next five years (FY ) Four main goals: 1. Safety: Reduce transportation-related fatalities and serious injuries across the transportation system; 2. Infrastructure: Invest in infrastructure to ensure mobility and accessibility and to stimulate economic growth, productivity, and competitiveness for American workers and businesses; 3. Innovation: Lead in the development and deployment of innovative practices and technologies that improve the safety and performance of the Nation s transportation system; and 4. Accountability: Serve the Nation with reduced regulatory burden and greater efficiency, effectiveness, and accountability. Calls environmental review and permitting fragmented, inefficient, and unpredictable Encourage use of Public-Private Partnerships (P3s)

18 Other U.S. DOT Streamlining Efforts June 2017 DOT published a request for public comment asking for input to help identify obstacles to infrastructure projects. Received over 200 comments containing over 1,000 ideas. The Department is currently reviewing these comments. July 2017 FTA NOPR to codify the Private Investment Project Procedures (PIPP), which would establish new, experimental procedures to encourage use of public-private partnerships (P3s), joint developments and other private investment in surface transportation capital projects. o Project proponents request waiver or modification of FTA requirements that hinder P3s. In process of updating guidance that allows DOT administrations to apply Categorical Exclusions of another administration for certain multimodal projects U.S. DOT formed Regulatory Reform Task Force (per EO 13777) to evaluate existing regulations and make recommendations to the Secretary regarding their repeal, replacement, or modification September 28, 2017 U.S. DOT issued NOPR to implement Section 1309 of FAST Act, which directs the Department to establish a pilot program authorizing up to 5 states to conduct environmental review under State law in lieu of NEPA. Proposed regulations would dictate eligibility standards and application requirements for the program, as well as criteria for determining whether state laws and regulations are at least as stringent as NEPA. September 29, 2017 U.S. DOT issued a supplemental NOPR to revise existing FTA-FHWA regulations that implement NEPA and Section 4(f). The proposal would add FRA to these joint regulations, require To the maximum extent practicable that all environmental reviews be coordinated as a single process, and would implement other revisions required by the FAST Act.

19 Pros and Cons of Streamlined NEPA Review Pros: Less time until project implementation/construction Reduced preparation cost for less-detailed EISs Less reinventing the wheel by reliance on prior studies Greater schedule certainty Increased NEPA delegation to state agencies? o Since 2007, FHWA Caltrans for federally funded highway projects in California Cons: Agencies racing to satisfy time limits may lead to sloppier EISs Increased susceptibility to legal deficiencies, challenges? Increased skepticism/political backlash than already exists due to quickened review? Less-detailed alternatives analysis may prevent the rare situations where agencies have found project alternatives to be superior projects.

20 CalTrans NEPA Assignment for Federally-Funded Highway Projects Source: Caltrans, Monitoring Report under the Surface Transportation Project Delivery Program (March 2017); available at

21 Questions? San Francisco Four Embarcadero Center 22nd Floor San Francisco, CA Ph Fax