United States: President Trump Takes His Turn At Expediting Environmental Reviews And Permitting Of Infrastructure Projects

The National Environmental Policy Act, 42 USC § 4321 et seq. (NEPA) was signed into law by President Richard Nixon on January 1, 1970. NEPA ushered in the now familiar requirement that agencies take a "hard look" at the environmental impacts associated with major federal actions. Since 1970, the environmental assessment process and associated public review and comment have expanded and the mean time between the Notice of Intent to prepare an Environmental Impact Statement (EIS) and the Notice of Availability of a final EIS presently stands at approximately five years. As a result, Congress and the Executive Brach have engaged in countless reform efforts designed to expedite and streamline the environmental reviews mandated by NEPA. In the past few years these efforts seemed to take on new urgency and resulted in several executive orders, adoption of Title XLI of the Fixing America's Surface Transportation Act of 2015 (FAST Act) and issuance of numerous reports and recommendations from the President's Council of Environmental Quality (CEQ). The FAST Act focused on expediting public and private infrastructure projects by creating the Federal Permitting Improvement Steering Council (FPISC), requiring use of a federal "dashboard" to track progress on certain covered projects, and requiring use of "best practices" for impact assessment and environmental permitting across all federal agencies.

President Donald Trump continued this trend on August 15, 2017 by issuing an Executive Order (EO) on "Establishing Discipline and Accountability in the Environmental Review and Permitting Process of Infrastructure". Building upon an argument that can be traced back to President Gerald Ford, President Trump's EO claims that the "Federal Government, as a whole, must change the way it processes environmental reviews and authorization decisions." In an effort to transform the NEPA process and associated permit decisions, the EO calls upon the Office of Management and Budget (OMB) to coordinate with FPISC and establish goals for processing of environmental reviews and authorizations. OMB is also given the job of tracking and incentivizing improved performance of all agencies.

President Trump's EO builds upon and refines past reform efforts in several ways. First, the EO establishes an aspirational goal that "processing of environmental reviews and authorization decisions for new major infrastructure should be reduced to not more than an average of approximately 2 years . . ." OMB is required to track agency progress on a quarterly basis and impose "appropriate penalties" within the limits of existing law including recession of federal funds from state agencies that fail to perform in a timely manner. Next, the EO attempts to advance the goal of one-stop shopping by creating a new One Federal Decision process. OMB and CEQ are charged with implementing this proposal by promptly developing a protocol so that project sponsors can identify a single lead agency to serve as a clearing house for all information requests. The EO introduces the requirement that federal agencies document their decision making in a single Record of Decision (ROD). The requirement for a single, multi-agency ROD has the potential to save time and avoid uncertainty. However, agencies occasionally have differing views on topics discussed in a ROD such as mitigation of unavoidable impacts. When the proposed action is the issuance of a permit or other approval, the single ROD requirement has the potential to trigger intensive negotiations and lengthy RODs as permitting agencies attempt to delineate detailed mitigation and monitoring measures to be imposed upon the sponsoring agency. The EO also revises several details about how the CEQ's existing dashboard will operate and opens up the dashboard to any project at the discretion of the Executive Director of FPISC.

President Trump's EO also introduces an untested idea for dealing with the frequently contentious issue of routing energy transmission infrastructure. The Departments of Interior and Agriculture have been ordered to work together to identify energy right-of-way corridors on Federal land that would be eligible for expedited review. It is unclear how this requirement will work in practice but given what appears to be mounting demand for transmission capacity, and the unique challenges that long linear projects face in the environmental review process, project sponsors should welcome any approach that provides relief from the present morass.

Finally, the EO rescinds the Federal Flood Management Standard that was put in place by executive action following Superstorm Sandy and required all federal actions to meet specified levels of resiliency. Considering Federal involvement in roads, sewer systems, ports and costal military installations, the decision to walk away from a unified approach to dealing with rising sea levels and storm flooding is already controversial. Indeed, as demonstrated by several recent decisions where courts found that agencies failed to adequately assess climate-related impacts when preparing an EIS, project sponsors who ignore these issues may put their projects in peril. By jettisoning a uniform standard, the EO could have the unintended consequence of introducing needless uncertainty to any environmental impact analysis that needs to address resiliency.

The core reforms contained in the EO build upon past efforts and have the potential to help reduce delays and unpredictability that have become part of the environmental review and permitting process. Unfortunately, federal agencies are all being asked to do more with less and many key appointments at agencies that are essential to the success of this EO have yet to be made. For example, senior positions at the FPISC and CEQ remain open.

The EO adds to these challenges by giving FPISC, CEQ, and OMB, several assignments to develop new implementing frameworks with aggressive deadlines—the success of these initiatives will depend on whether they can be meaningfully implemented on the ground with tangible results. Because litigation over major federal infrastructure decisions seems almost inevitable and any shortcuts while developing the administrative record for an EIS or permit decision can have disastrous consequences for the project sponsor, lack of resources could create problems. Nevertheless, with time and sufficient management attention devoted to improving environmental impact review and related permitting issues (not merely expediting decisions), agencies should be able to develop innovative procedures and new practices that take the necessary "hard look" at environmental impacts and make decisions that withstand legal challenges in two years or less. In the meantime, clients with environmental review issues or major permit applications on the horizon should closely monitor how agencies respond to this EO and we should all be checking the CEQ dashboard.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Carlton Fields
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Carlton Fields
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions