United States: The FAST Act Seeks To Streamline The Environmental Review Of Infrastructure Projects

On December 4, 2015, President Obama signed into law the Fixing America's Surface Transportation (FAST) Act—a five-year, $305-billion transportation authorization and spending bill. The FAST Act largely focuses on funding highways and other transit infrastructure, but, interestingly, it also contains provisions overhauling the environmental review of infrastructure projects under the National Environmental Policy Act (NEPA).

For example, the FAST Act requires agencies to coordinate their environmental reviews of transportation projects to avoid duplication and accelerate the review process. In addition, the Act expands agencies' ability to apply categorical exclusions to projects, thereby exempting them from NEPA's more onerous requirements. It also authorizes a pilot program for up to five states to "conduct environmental reviews and make approvals for projects under State environmental laws and regulations instead of [NEPA]."

But perhaps most significantly, Title XLI of the FAST Act establishes the Federal Permitting Improvement Steering Council, which is charged with streamlining the environmental review process for "covered projects"—activities involving investments of more than $200 million and the construction of infrastructure in one of the following sectors:

Thus, the reach of these provisions extends well beyond the transportation realm to an array of large infrastructure projects.

Title XLI requires the Council to inventory covered projects and establish categorical performance schedules for both environmental reviews and agency authorizations. To facilitate transparency, the Council must maintain a "Permitting Dashboard," a searchable online database that can be used to track reviews and authorizations for covered projects. And, by December 4, 2016, the Council is required to issue recommendations on the best practices for enhancing stakeholder engagement, ensuring timely decisions, improving interagency coordination, increasing transparency, and reducing information collection requirements.

A lead agency will be assigned to each covered project. Within sixty days of a project being posted on the Dashboard, the lead agency is tasked with developing "a concise plan for coordinating public and agency participation in, and completion of, any required Federal environmental review and authorization of the Project." This plan must contain a permitting timetable, from which agencies may deviate only in limited circumstances.

Notably, Title XLI restricts judicial review of the NEPA process for covered projects in two ways. First, it reduces to two years NEPA's otherwise applicable six-year statute of limitations. Second, it makes it harder for project opponents to obtain a preliminary injunction by instructing courts to consider the potential negative impact on jobs that could result from such an order. Courts are further instructed to not presume that the potential effects of an injunction are reparable.

Granted, the FAST Act does not change NEPA's requirement that agencies take a "hard look" at the environmental impacts of proposed projects. But, by reducing litigation delays, establishing deadlines, and linking the oversight of environmental review with project permitting, it does have the potential to provide for a more expeditious approval process.

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