NEPA and the Impact of the FAST Act: Navigating the New Permitting and Review Process

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A NEPA and the Impact of the FAST Act: Navigating the New Permitting and Review Process Leveraging Opportunities Under the National Environmental Policy Act Reforms WEDNESDAY, JUNE 15, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Edward McTiernan, Partner, Arnold & Porter, New York Steven C. Russo, Shareholder, Greenberg Traurig, New York Jill Yung, Of Counsel, Paul Hastings, San Francisco The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Permitting & NEPA Review Implications of FAST Act Part 1 What s The Problem? Edward F. McTiernan, Esq. June 15, 2016 Arnold & Porter edward.mctiernan@aporter.com

6 NEPA Overview National Environmental Policy Act, 42 USC 4321 et seq. State counterparts: NY, CA, MA and a dozen other jurisdictions Cities: NYC and DC Requires a hard look at environmental impacts of federal actions Significant impact Must consider cumulative impacts - avoid segmentation Procedural requirement NEPA does not mandate any particular result Process driven Implemented by agency regulations/guidance based upon direction from Council on Environmental Quality Critical assessment of NEPA is complex Difficult to distinguish EIS activities from permit analysis No agreement on how to measure benefits 6

7 The NEPA Process 7

8 Perceived Problems with NEPA Delays ~400 federal EISs/year ( ) 197 final EISs issued in 2012 average prep time = 4.6 years Trending towards longer process Duplication/Coordination Lead Agency and Cooperating Agencies Federal/tribal/state/local reviews Litigation Big 4 federal agencies (Forest Service; BLM; FHWA and Army Corps) account for bulk of decisions Average ~20 Circuit Court decisions/year (9 th Cir. especially active) Costs 8

9 Preliminary Efforts to Increase Efficiency CEQ Obama Administration 9

10 Emerging Issues in Environmental Impact Analysis Environmental Justice Security Considerations Climate Change 2012 Survey by Columbia Center for Climate Change on EIS practices by federal agencies December CEQ Guidance to Federal Agencies (guidance on significance) 10

11 Recent Efforts to Streamline NEPA Reviews EPA January 11, 2011 Revisions to 40 CRF 1506 CEQ November 2010 Guidance on CATEX December 7, 2011 Guidance on Efficient and Timely NEPA Reviews Obama Administration August 31, 2011 Federal Infrastructure Dashboard March 22, 2012 EO 13,604 Improving Performance of Federal Permitting and Review of Infrastructure Projects Steering Committee charged with developing Best Practices Issued Implementation Plan in June 2012 Legislation SAFETEA-LU (Pub. L. No (2005) Moving Ahead for Progress (Pub. L. No ) (2012) Title XLI of Fixing America s Surface Transportation act - December 4,

12 NEPA and the Impact of the FAST Act: New Permitting and Review Process Strafford Webinars June 15, 2016 Jill Yung Paul Hastings LLP

13 Administration s Efforts to Prioritize Streamlining and Reduce Timelines for Permitting August 31, 2011 Presidential Memorandum: Speeding Infrastructure Development through more Efficient and Effective Permitting and Environmental Review Directed agencies to identify High-Priority Infrastructure Projects Spawned the Federal Infrastructure Permitting Dashboard March 28, 2012 E.O. No : Improving Performance of Federal Permitting and Review of Infrastructure Projects Expanded use of the Dashboard to a broader set of projects Launched an interagency Steering Committee Paul Hastings LLP

14 Administration s Efforts to Prioritize Streamlining and Reduce Timelines for Permitting Estimated to have shaved several months to several years off the permitting of over two dozen projects But only a chosen few projects can participate Commitments to expedited permitting were ad hoc Participation by agencies other than the lead agency for permitting and environmental review was spotty Paul Hastings LLP

15 Congress Efforts to Prioritize Streamlining and Reduce Timelines for Permitting FAST Act advances the evolution of the Dashboard by mandating its existence and establishing strict deadlines for documenting permitting milestones The FAST Act also provides: Use of clear procedures to agree upon, modify, and resolve issues with project timelines Greater transparency Enhanced oversight from a new, more structured Council Possibility of adoption of state environmental reviews Limitation of lawsuits (2 years after the date of a Federal Register notification of the final approval) New considerations for courts when evaluating preliminary relief against a covered project Paul Hastings LLP

16 Benefits Promised by the Program How Will the Permitting Process Change? Requires early involvement by cooperating agencies, which should limit or eliminate eleventh hour comments Facilitates concurrent, not serial, review by cooperating agencies Empowers lead agencies to, at the request of a project sponsor, adopt or incorporate by reference, the analysis and documentation that has been prepared for a covered project under State laws Caps the environmental review period at 180 days after an application is complete Intends to facilitate sharing of relevant scientific, environmental, cultural, demographic or other relevant data among agencies and with project applicants Paul Hastings LLP

17 Benefits Promised by the Program How Will the Permitting Process Change? State Permitting Coordination Federal Permitting Improvement Council to issue best practices recommendations for improving coordination between Federal and non-federal governmental entities (Statutory requirement, due by December 2016) Unclear what, if any, concrete constraints will be placed on State participation Timeliness indicator will take into account pauses in the federal review due to external factors, including when a state or local government is in sole review of the application Paul Hastings LLP

18 Plan for Ramping Up the Program Inventory all existing covered projects by June 1, 2016 Create an entry for each project on the Federal Infrastructure Permitting Dashboard by June 15, 2016 Develop a detailed Coordinated Project Plan Including detailed review schedule for public involvement Publicly post all required Federal environmental reviews, authorizations, and related project information within 60 days after the initial project information is posted to the Dashboard Establish the Federal Permitting Improvement Council and Interagency Coordination Governance Structure (hiring and appointments by June 2016; formalize charter by September 2016) Paul Hastings LLP

19 NEPA s FAST Act Implications for New York NEPA/SEQRA Reviews Steven C. Russo russos@gtlaw.com G R E E N B E R G T R A U R I G, L L P A T T O R N E Y S A T L A W W W W. G T L A W. C O M 2014 Greenberg Traurig, LLP. All rights reserved.

20 Fixing America s Surface Transportation Act (FAST Act) > Signed into law on December 4, > Provides funding for infrastructure projects. > Title XLI streamlines rules for permitting and environmental reviews for projects under NEPA. Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 20

21 FAST Act, Title XLI > Covered Projects > Federal Permitting Improvement Council > Interagency Cooperation and Coordination > Judicial Review Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 21

22 Covered Projects > Projects related to energy production, broadband access, and other infrastructural improvements. > Any projects that meet the following criteria: The project is already subject to NEPA and does not qualify for another abbreviated authorization or environmental review process; and The project either: Will likely require a total investment of more than $200 million, or Is large and complex enough that it is likely to benefit from enhanced oversight and coordination. Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 22

23 Federal Permitting Improvement Council Project Inventory Common Practices Facilitating Agency Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 23

24 Interagency Cooperation and Coordination Coordinated Project Plan Agency List Schedule Public Participation Alternatives & Mitigation Measures Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 24

25 New Technology Permitting Dashboard Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 25

26 Interagency Cooperation and Coordination Federal Coordination Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 26

27 Judicial Review Statute of Limitations Standing Injunctive Relief Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 27

28 Next Steps for Implementation Build Permitting Dashboard Nomination and confirmation of the Executive Director of the Federal Permitting Improvement Council Creation of Project Inventory Agency implementation and guidance Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 28

29 Beyond FAST - New York s Tappan Zee Model Greenberg Traurig, LLP gtlaw.com NEPA s FAST Act 29