Earlier this month, President Obama signed the Highway Authorization Act into law. One of the objectives of this legislation was to expedite federal authorization (licensing, permitting, approval, etc.) and environmental review processes for infrastructure projects related to conventional energy production, pipelines, renewable energy production, and ports and waterways, among others. We discuss below the accelerated decision-making and environmental review process, along with the requirements for an infrastructure project to qualify for these benefits.

What Infrastructure Projects Benefit?
An infrastructure project can qualify for the benefits of the Act in two ways. First, an infrastructure project is statutorily entitled to these benefits if it (1) falls within a covered project category (listed below), (2) is subject to the National Environmental Policy Act (“NEPA”), (3) is likely to require a total investment of more than $200,000,000, and (4) does not qualify for abbreviated authorization or environmental review under another statute. Alternatively, an infrastructure project subject to NEPA qualifies for these benefits, if, in the discretion of the newly created Federal Permitting Improvement Steering Council (“Council”), the project would likely benefit from enhanced coordination and oversight. Such projects may include those likely to require authorization or environmental review from three or more federal agencies, or those likely to require an environmental impact statement under NEPA.

Covered project categories include:

• Conventional Energy Production
• Renewable Energy Production
• Pipelines
• Ports and Waterways
• Water Resource Projects
• Electricity Transmission
• Manufacturing
• Broadband
• Aviation

This list is subject to additions by a majority vote of the Council.

What Are the Benefits?
The Act is intended to benefit project sponsors by increasing federal agency accountability and efficiency in a way that shortens the time it takes to obtain authorizations and to complete environmental review processes. The Act also requires timetables and public disclosure of the status of pending authorizations and environmental reviews. Finally, the Act makes it more difficult for third parties that did not actively participate in the environmental review process to make a NEPA challenge.

How Are the Benefits Achieved?

• The Act seeks to increase federal agency efficiency by:
  • Establishing a new administrative body dedicated to increasing permitting efficiency (the Council);
  • Requiring federal agencies to concurrently review project information related to authorizations and environmental reviews to the maximum extent possible;
  • Allowing for the use of existing documents for federal environmental review that were prepared for the project under State laws and procedures; and
  • Providing for increased coordination between federal agencies and State, Local, and Tribal governments.
• The Act seeks to increase federal agency accountability by:
  • Requiring the Executive Director to regularly update the Permitting Dashboard—a publically available online tool for tracking the status of federal agency authorizations and environmental reviews for covered projects;
  • Creating performance schedules for authorizations and environmental reviews that cannot exceed the average duration for authorizations and environmental reviews for a project within the relevant category; and
  • Mandating the issuance of authorizations and environmental reviews within 180 days of the date the federal agency has all information needed to complete the authorization or environmental review.
• The Act imposes limitations on judicial review by:
  • Requiring an action challenging a federal authorization for a covered project to be filed within two years of the final record of decision or approval or denial of a permit;
  • Allowing a litigant to make a NEPA challenge only if that litigant commented during the environmental review, and a commenter filed a sufficiently detailed comment to put the agency on notice of the issue being raised; and
  • Directing courts hearing a request for a temporary restraining order or preliminary injunction to consider the negative effects on jobs such an order or injunction would have, and not to presume that such negative effects are reparable.