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.

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