On August 15, 2017, President Trump Signed the Executive Order (EO) titled "Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects." The purpose of the EO is "to ensure that the Federal environmental review and permitting process for infrastructure projects is coordinated, predictable, and transparent."
The EO is focused on "major infrastructure projects," which are defined to include "infrastructure project(s) for which multiple authorizations by Federal agencies will be required to proceed with construction, the lead Federal agencies will be required to proceed with construction, the lead Federal agency has determined that it will prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and the project sponsor has identified the reasonable availability of funds sufficient to complete the project."
The EO introduces the idea of "One Federal Decision," a program under which "major infrastructure projects" will have one lead federal agency responsible for guiding the project through the federal environmental review and authorization process. According to the EO, the Council on Environmental Quality (CEQ) and Office of Management and Budget (OMB) will develop the implementation framework and guidance documents, including permitting tables, for the One Federal Decision program.
The EO also sets forth various requirements for "modernizing an outdated system," including requiring agencies to track the costs of the environmental review and permitting processes, establishing a two-year goal for processing environmental documents for "major infrastructure projects," and directing OMB to establish a performance accountability system with a scoring structure to grade agency implementation of the EO.
Although this EO sets forth a promising pathway for significant infrastructure projects to navigate federal environmental permitting, whether and how it will be implemented will depend in large part on further action by CEQ and OMB. Nevertheless, the EO lays out a potentially beneficial, streamlined process that would eliminate duplicative (and sometimes conflicting) reviews by designating a lead agency that is tasked with making the final call on the federal environmental permitting for an infrastructure project.
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