On May 11, 2022, the Biden administration1 issued its Permitting Action Plan (Action Plan) to “ensure the timely and sound delivery of much-needed upgrades to America's infrastructure” and to “strengthen and accelerate Federal permitting and environmental reviews, fully leveraging the permitting provisions in the [Bipartisan Infrastructure Law].”
From the related Fact Sheet, the Biden administration's expectations are that the Action Plan will ensure that “Federal environmental reviews and permitting processes are effective, efficient, and transparent, guided by the best available science to promote positive environmental and community outcomes, and shaped by early and meaningful public engagement. Taken together, these new steps will help strengthen supply chains, lower costs for families, grow our clean energy economy, revitalize communities across the country, support good-paying jobs, and deliver infrastructure investments on task, on time, and on budget without unnecessary bureaucratic delay.”
Five Key Elements
The Action Plan includes five key elements to accomplish these expectations:
(1) Accelerating permitting through early cross-agency coordination to appropriately scope reviews, reduce bottlenecks, and use the expertise of sector-specific teams
(2) Establishing clear timeline goals and tracking key project information to improve transparency and accountability, providing increased certainty for project sponsors and the public
(3) Engaging in early and meaningful outreach and communication with Tribal Nations, states, territories, and local communities
(4) Improving agency responsiveness, technical assistance, and support to navigate the environmental review and permitting process effectively and efficiently
(5) Adequately resourcing agencies and using the environmental review process to improve environmental and community outcomes
Permitting Council to Coordinate
The Action Plan will leverage the interagency Federal Permitting Improvement Steering Council (Permitting Council) to improve coordination among agencies and resolve issues consistent with climate, economic and equity goals.
Established in 2015, the Permitting Council includes the deputy secretaries or equivalent of 13 federal permitting agencies, the Council on Environmental Quality (CEQ) Chair, the Office of Management and Budget (OMB) Director, and an Executive Director, who serves as the Permitting Council Chair. While the Permitting Council provides a governance structure and set of procedures for FAST-41 covered projects, the Permitting Council's membership will be deployed more broadly in this Action Plan as a governing body to help address pressing issues, provide guidance and take other necessary actions to facilitate sound and efficient permitting. The Permitting Council Executive Director, CEQ Chair, and OMB Director, in cooperation with the National Economic Council (NEC), the White House Climate Policy Office (CPO) and the White House Infrastructure Implementation Team, will work closely with the Permitting Council agency members, other senior agency officials and Permitting Council member agency Chief Environmental Review and Permitting Officers (CERPOs) to help ensure that appropriate resources, coordination mechanisms and attention are being devoted to environmental reviews and permitting and that environmental review and permitting decisions are being conducted in an efficient and effective manner. The Permitting Council also will fully leverage its role as a federal center for permitting excellence to:
- Help avoid conflicts and bottlenecks and, if they emerge, resolve them
- Identify and share best practices, drawing on the expertise of agency CERPOs, who will provide day-to-day technical support for permitting processes, facilitate timely reviews and resolve permitting issues in a timely fashion
Sector-Specific Experts Convened
In addition, the Biden administration has convened sector-specific teams of experts, including teams marshaled by the CPO and NEC, that are advancing the responsible build-out and modernization of US infrastructure by facilitating interagency coordination on siting, permitting, supply chain, and related issues for:
- Offshore wind energy and transmission
- Onshore renewable energy and transmission
- Production and processing of critical minerals
- Climate-smart infrastructure
Within 60 days of the issuance of the Action Plan, these teams will provide to the Permitting Council a charter that describes their organizational structure, mission and objectives, and strategies for promoting the effectiveness and timeliness of permitting. In addition, these teams will provide updates to the Permitting Council at least quarterly on the status of large, complex, or significant projects in meeting permitting milestones and schedules, strategies to address disputes or complicated issues, whether additional resources are necessary to reduce bottlenecks and any other pertinent issues as determined by the teams.
1 The Action Plan states that it “covers the Administration's executive agencies and departments, as well as independent agencies that agree to take these steps or are directed to do so by statute.”
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2020. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.