United States: Administration's New Streamlining Executive Order – Does It Move The Needle?

Last Updated: September 7 2017
Article by Fred Wagner

The release of the administration's latest Executive Order on permit and NEPA streamlining has been overshadowed by recent events.  Whatever positive momentum the EO could have created for the long-overdue focus on infrastructure was undeniably quickly lost.  However, it is still a worthwhile exercise to review any opportunities for progress that may be reflected in the various policy statements and administrative goals articulated in the EO.

In sum, the EO's aspirational goals have merit – you won't find many truly substantive objections to the goal of completing NEPA reviews for "major infrastructure projects" within an average of two years.  The EO has in this way incorporated Common Good's "Two Years, Not Ten Years" report, previously reviewed on these pages, into formal administration policy.  It's a fine goal, but the more relevant question remains:  How does the federal government hope to achieve that objective?

Here is where the EO, no matter how laudable in theory, falls short.  Virtually all of the recommended actions assigned to federal agencies are things they either (a) have the authority to do or (b) are already doing.

The most specific regulatory mandate (as much as can be done through an EO) calls for all agency decisions related to a major infrastructure project to be reflected in one Record of Decision (ROD).  Moreover, the EO states that any permitting decisions necessary for the proposed action are to be completed within 90 days of the issuance of the ROD by the lead federal agency.  For example, the Bureau of Land Management is the lead agency for review of a renewable energy proposal on federal land.  The project also requires a Section 404 permit from the Army Corps of Engineers.  The Corps must now sign off on the ROD, thereby incorporating by reference all NEPA analysis for its decision-making process into the underlying EIS, and then issue (or, in theory, decline to issue!) its permit within 90 days of the ROD.

That's a best practice already being observed in most cases – certainly with the large-scale projects I reviewed at USDOT, and something I insist upon now in the private sector when I represent developers involved in a wide variety of infrastructure.  There are simply no statutory or regulatory hurdles preventing that practice from being employed.  It's a wise statement of policy, but definitely not new.

The other most tangible administrative mandate stresses the need to track and score each agency's performance related to project review and approval.  In other words, the EO supports the use of the past administration's "dashboard" approach to increasing transparency for the general public and putting pressure on the agencies responsible for project approvals.  Like previous transportation infrastructure statutes, the EO also emphasizes a process by which agencies may be penalized for not living up to the timetable milestones.  What those penalties would be and how they would be enforced are questions that go unanswered.  Most likely, they will never be answered because no penalties will ever be imposed.

The EO also adopts the previous administration's "Smart from the Start" approach, by appointing the Departments of Agriculture and Interior as the lead agencies to identify and designate energy corridors on federal lands in an effort to further expedite development of energy infrastructure projects.  While this approach may have been used previously in the context of wind and solar projects, look for it to be expanded to traditional energy development as well.

I maintain that the most important aspects of the EO can be found by reading between the lines.  First, it is plainly obvious that this EO was reviewed and considered carefully by experienced hands in federal project reviews:  the two-year goals have clear escape hatches that take a variety of contingencies into account, and many provisions have careful, even cautious language, concerning enforcement of streamlining goals. These are qualities that have not been present in most of this administration's EOs.  Second, the EO strongly suggests future strong leadership roles for both the Federal Permitting Improvement Steering Council and the Council on Environmental Quality.  We will likely see future guidance coming out of one or both entities to promote best practices across the federal government.  Of course, this places a heightened priority on naming political appointees for those bodies to give direction to the already excellent staff already housed there.

Finally, in light of this week's devastating flooding impacts from Hurricane/Tropical Storm Harvey, one other provision of the EO must be addressed – the repeal of the January 2015 EO 13690.  This EO mandated that projects funded by taxpayer dollars should be planned with a full understanding of both flooding risks and resilience strategies to protect proposed development.  Communities in and around Houston and the Texas and Louisiana coast are now faced with the need to rebuild literally billions of dollars of infrastructure assets.  The scope of the disaster and the apparent frequency of drastic flooding events in that region may likely place additional pressure on the administration to reconsider revocation of EO 13690 or, at a minimum, to incorporate those sorts of objectives in any new infrastructure policies.  Look for any infrastructure legislation to include this sort of language, potentially from both Democratic and Republican representatives.

While the new EO may not be truly innovative, given that Congress now faces an enormously full plate with budgetary and other controversies, it is possible that implementation of the EO may take on even greater importance in the near term, as the legislative process moves slowly, if at all.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.