The Highway Authorization Act signed into law by President Obama last Friday, December 4, includes an important set of reforms for streamlining the federal permitting process for infrastructure projects in a broad range of sectors, including renewable and conventional energy production, electricity transmission, pipelines, manufacturing, surface transportation, aviation, ports and waterways, and water resource projects.
This legislation, spearheaded by Senators Rob Portman (R-OH) and
Claire McCaskill (D-MO), responded to frustrations many companies
in the mining, infrastructure, and building industry experienced
with long delays in the federal permitting process. The Act also
seeks to enhance the transparency of the federal permitting process
for project applicants and the public.
Title XLI of the Act establishes a Federal Permitting Improvement
Council consisting of deputy secretaries or their equivalent from
15 federal agencies with permitting and review responsibilities,
including the Department of Interior, the Department of
Agriculture, the Environmental Protection Agency, and the Federal
Energy Regulatory Commission (FERC), among others. The Council is
tasked with developing best practices for efficient federal permit
reviews and establishing recommended project review timelines for
each category of projects covered by the Act within one year of the
enactment of the Act.
These reforms build on and institutionalize the
Administration's efforts under President Obama's
infrastructure permit streamlining initiative launched in 2012
under Executive Order 13604. Other significant recommendations from
the infrastructure initiative that are codified in the legislation
include:
- The appointment of agency Chief Environmental Review and Permitting Officers (CERPOs) responsible for facilitating efficient and timely reviews of projects within the jurisdiction of their respective agencies;
- The development of a coordinated project review process, which requires designating a federal lead agency and developing a project review schedule for each project;
- The publishing of key project information on an online Federal Permitting Dashboard that allows project developers and the public to track the status of federal approvals and reviews for covered projects; and
- The requirement to coordinate with other agencies and stakeholders early in the permitting process.
Implementation of each of these reforms is already underway
under the Administration's infrastructure initiative.
The legislation also includes a number of important policy reforms
that would not have been possible through administrative action
alone. This includes two changes to the procedures for challenging
agency permitting decisions under the National Environmental Policy
Act (NEPA) – (1) reducing the statute of limitations from six
to two years and (2) requiring courts to evaluate the negative
effects on jobs when considering whether to enjoin projects. The
new legislation also authorizes federal agencies to use
environmental review documents prepared under State law to comply
with NEPA.
To help fund the implementation of these reforms, the Act creates
an Environmental Review and Permitting Fund and authorizes all
member agencies of the Federal Permitting Improvement Council to
establish fee structures for project proponents to reimburse the
costs of federal reviews. Finally, the Act authorizes three or more
states to enter into compacts establishing regional infrastructure
development agencies to facilitate infrastructure development
within the states that are parties to the compact.
Projects that will be subject to the new law include all
economically significant infrastructure projects where the total
investment is $200 million or more, or other projects that would
benefit from increased coordination, such as those that require two
or more federal reviews or the preparation of an Environmental
Impact Statement under NEPA. The first task of the Director of the
Federal Permitting Improvement Council will be to prepare an
inventory of covered projects that are currently pending before
member agencies within 180 days after the enactment of the
Act.
This legislation was originally introduced as a stand-alone bill,
the Federal Permitting Improvement Act, sponsored by Senators
Portman and McCaskill.
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