United States: Trump's Infrastructure Plan And The Future Of Infrastructure Reform

Last Updated: February 23 2018
Article by Raya B. Treiser and Rob Lehman

This is the inaugural issue of WilmerHale's 10-in-10 Infrastructure Series. Over the next 10 weeks, our attorneys will share insights on current and emerging issues affecting infrastructure project developers in the United States. Attorneys from across various practice groups at the firm will 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.

Last week, the Trump Administration outlined its vision for improving the nation's infrastructure in the much-anticipated Infrastructure Plan. Infrastructure has been a policy priority for the President since his election campaign, and the Administration has already taken a number of executive actions to streamline permitting and reduce regulatory barriers for infrastructure projects, including through an August 15 Executive Order and directives to streamline the National Environmental Policy Act (NEPA) by the Department of the Interior and Council on Environmental Quality.

Building on these executive actions, the Infrastructure Plan proposes far-reaching legislative reforms to NEPA and other federal environmental statutes. The Plan also calls for $200 billion in federal dollars to incentivize private, state and local investment in infrastructure.

While an infrastructure bill passing in this Congress remains unlikely, the Plan signals the Administration's reform priorities and what developers might expect as the focus of future legislative and regulatory efforts. We expect many of the regulatory reforms proposed will be implemented via executive authorities.

Does This Plan Apply to My Project?

While the Plan does not include a definition of "infrastructure," that term has been interpreted very broadly in related legislation and Executive Orders to include projects ranging from energy generation and transmission, to water infrastructure, to highways, ports and railway. The Plan itself calls out water resources, Brownfield/Superfund sites, and development on tribal lands and in rural communities for specialized grants. It also includes a number of provisions to facilitate the development of mitigation banks. Many of the permitting reforms included in the Plan would apply to any project requiring federal agency approval.

What Are the Proposed Reforms?

The Infrastructure Plan outlines a number of legislative reforms intended to streamline the permitting of infrastructure projects. This includes the following:

  • The "one agency, one decision" approach to permitting, which would require federal agencies with jurisdiction over the same project to complete a single environmental review document and Record of Decision (ROD) (or Finding of No Significant Impact) to support the issuance of their respective permits. Agencies are already encouraged to adopt this approach under an August 15, 2017 Executive Order, and federal agencies are already working to implement it through interagency guidance. A statutory mandate would help ensure (and likely speed up) adoption of this principle. The proposal would also make the single federal decision a requirement, as opposed to merely an encouraged practice. Finally, codifying this requirement in legislation would guard against legal challenges to agencies' authority to use a single environmental analysis and ROD.
  • Firm Deadlines. The Plan also proposes to create a two-year statutory deadline for permitting infrastructure projects (21 months to complete NEPA and three months to complete the permit decision documentation). Again, the notion of a two-year time limit on NEPA is not new. President Trump called for two-year average timelines for projects in the August 15 EO, and agencies are working on developing mechanisms to comply with this requirement. For example, the Department of the Interior is already working to implement an internal directive to reduce the time for preparing an EIS to one year. The Infrastructure Proposal would make the two-year target a "firm deadline."
  • Environmental Statute Reform. The Plan also proposes to amend key environmental statutes, such as NEPA and the Clean Water Act. Among other things, the Plan calls for legislation clarifying the scope of alternatives analysis required under NEPA and limiting resource agency comments to portions of the NEPA analysis relevant to their areas of expertise. The Plan also proposes authorizing federal agencies to use Categorical Exclusions established by another federal agency.
  • Simplifying Reviews. The Plan includes a number of proposals to eliminate steps in the review process that are viewed as redundant or unnecessary. This includes eliminating the requirement for EPA review and comment on draft and final Environmental Impact Statements under Section 309 of the Clean Air Act. It also includes a proposal to prohibit federal agencies from intervening in Federal Energy Regulatory Commission proceedings under the Federal Power Act and to require agencies to participate as a cooperating agency in NEPA reviews upon request. Another proposed reform is to eliminate EPA's role in making jurisdictional determinations under Section 404 and veto 404 permits granted by the Army Corps of Engineers. Finally, the Plan calls for removing overlapping reviews of historic sites and national park lands by the Department of the Interior, the U.S. Department of Agriculture and the Department of Housing and Urban Development.
  • Facilitating Mitigation. The Plan also includes a number of proposals that would remove regulatory barriers to developing compensatory mitigation to offset project impacts. This includes a proposal to streamline the approval and oversight of mitigation banks under the Army Corps of Engineers' 2008 Mitigation Rule. A related proposal would expedite the permitting of projects that enhance the environment through mitigation as an incentive to undertake such enhanced mitigation. Finally, the Plan calls for a pilot program that would experiment with negotiating mitigation measures to avoid and compensate for environmental impacts of transportation projects as an alternative to NEPA review.
  • Private Resources for Permitting. The Infrastructure Plan includes a proposal to expand existing agency authorities to accept funding from non-federal entities to support federal reviews and the preparation of environmental documents.
  • Judicial Reform. Finally, the Plan includes a number of proposals to limit judicial review of final agency decisions related to infrastructure projects. This includes limiting injunctive relief to "exceptional circumstances" and revising the statute of limitations for infrastructure permits to 150 days.

What Happens Next?

The Infrastructure Plan proposes a set of far-reaching legislative reforms. It is now up to Congress to decide which of the proposals to advance, when and how. The initial reaction to the Plan has largely followed party lines, with Democrats expressing concern about short-cutting environmental reviews and lack of dedicated funding and Republicans touting the move to end "analysis paralysis." It remains to be seen whether a bipartisan group can agree on a subset of the proposed reforms, especially in light of the approaching midterm elections. While a stand-alone infrastructure bill would be a very heavy lift in this Congress, at least some of the proposals will likely be considered as Congress takes up the federal budget, the Water Resources Development Act, and other similar vehicles in the coming months.

And while it remains to be seen whether any of the proposals will materialize into law, many of them can be advanced even without legislation, through the development of agency guidance and reform of existing regulations. The Infrastructure Plan signals the Administration's reform priorities: reducing duplication, setting aggressive timelines, and reforming NEPA and other environmental statutes and their implementing regulations. We can expect that agencies will continue to work to implement these priorities within their existing authorities, even in the absence of an infrastructure legislative package.

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
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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