On April 9, 2018, the heads of numerous federal agencies signed a Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807 (“MOU”) aimed at expediting and coordinating environmental review of major infrastructure projects. Signatories include the Secretaries of the Departments of Agriculture, Commerce, Housing and Urban Development, Interior, Transportation, Energy, Homeland Security, and Army, the Administrator of the Environmental Protection Agency, Chairmen of the Federal Energy Regulatory Commission (“FERC”) and the Advisory Council on Historic Preservation, and the Acting Executive Director of the Federal Permitting Improvement Steering Council. Signing the MOU represents a commitment to the Trump Administration’s vision of coordination and cooperation in the processing of environmental reviews and permits for major infrastructure projects, expressed in the Executive Order of August 15, 2017, on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects (“EO”) 13807 . EO 13807 established the Administration’s signature “One Federal Decision” policy and goal of completing environmental reviews within two years of the initial notice. (Previous Clark Hill e-Alerts on regulatory reform EOs can be accessed here.) The MOU became effective on April 10 and represents a key step toward expediting infrastructure projects.
The MOU follows the Administration’s February 2018 proposals intended to encourage Congress to pass a comprehensive infrastructure bill, Legislative Outline for Rebuilding Infrastructure in America (see Clark Hill alert) While chances of Congressional action remain limited, the MOU addresses regulatory issues administratively by establishing a lead Federal agency to act as project manager, ensuring qualified infrastructure projects meet the two year goal for completing all environmental reviews and authorization decisions. Qualifying projects are those that require an Environmental Impact Statement (“EIS”) and multiple Federal agency approvals, and where sufficient funds to complete the project identified.
Under the MOU, cooperating agencies, timelines, and agency comments will be closely managed by the lead Federal agency. Additional discipline is created by requiring the agencies to provide written concurrence up front at specified decision points, such as “purpose and need” and “project alternatives” reviews, that will be carried forward for analysis in the EIS and used in identification of a preferred alternative. Additional features, such as designating a failure to comment by a prescribed deadline as presumed agreement, and an elevation process for resolving disagreements within or between agencies, are designed to further eliminate delays. The lead agency may grant limited exceptions to these requirements in certain circumstances: where the project sponsor requests separate National Environmental Policy Act (“NEPA”) documents or NEPA obligations have already been met, when the lead agency determines that one final Federal decision would not promote efficiency or Federal law requires a combined decision document, or in the case of FERC licensing orders.
These changes offer new opportunities for project proponents. The challenge for the agencies will be ensuring that environmental reviews and agency decisions are thorough and properly documented in anticipation of legal challenges.
