Transportation Systems Casebook/CEQ 2-Year Planning

Summary

On August 15, 2017, President Donald Trump signed Executive Order (EO) 13807, which aims to reduce the federal review time of major infrastructure projects under the National Environmental Policy Act (NEPA). The EO seeks to limit the NEPA process to no more than 21 months, with final approvals issued within 3 months following a decision. These changes are designed to achieve the administration’s goal of expediting the construction of large infrastructure projects by shortening the federal permitting process to 2 years. The Trump Administration’s efforts are largely focused on streamlining environmental review process of Environmental Impact Statements (EISs), the most comprehensive of three levels of review under NEPA. Currently, any project requiring federal approval or utilizing federal funds must be reviewed according to one of three NEPA processes, which require agencies to examine how an action will affect the environment both temporarily, during the construction phase, and permanently. In such cases, each federal agency often produces its own study and conclusion. Each federal agency implements NEPA differently, and in a 2014 U.S. Government Accountability Office (GAO) report, agencies reported a huge disparity in costs paid to private contractors to complete EISs, ranging from $250,000 to $1.5 million.

Timeline of Events

September 18, 2002 - President Bush signs Executive Order 13274

• EO 13274 applied only to transportation infrastructure projects. It allowed the Secretary of Transportation to designate high-priority projects and then assembled an interagency task force of all of the federal agencies with a role in the permitting process to find ways to work together to complete all permitting as quickly as possible.

March 22, 2012 - President Obama signs Executive Order 13604

• This order applied to more infrastructure projects beyond just transportation. EO 13604 placed the federal Chief Performance Officer (a Deputy Director of the Office of Management and Budget) in charge of an interagency steering committee to “facilitate improvements in Federal permitting and review processes for infrastructure projects in sectors including surface transportation, aviation, ports and waterways, water resource projects, renewable energy generation, electricity transmission, broadband, pipelines, and other such sectors as determined by the Steering Committee.”
• The Obama order focused on transparency by identifying projects and their timelines on a new website (the “Permitting Dashboard”), where the public could see how quickly the process was or was not moving.

December 4, 2015 - FAST Act signed by President Obama

• The most recent surface transportation reauthorization bill, the FAST Act of 2015, included Title 41 (“Federal Permitting Improvement”). This provision established a statutory Federal Permitting Improvement Steering Council that has the same membership as the Steering Committee established by the Obama’s E.O. 13604 (plus FERC, the Nuclear Regulatory Commission, and HUD). The Council was charged with selecting infrastructure projects that have a total project cost of over $200 million each, and don’t qualify for abbreviated review processes under any other law. The Council is then directed to set performance schedules (using the Dashboard), including intermediate and final completion dates, for the permitting processes of the projects.

January 24, 2017 - Trump Executive Order 13766

• Trump’s initial order on the subject was drastically more concise than President Obama’s EO 13604, and excluded language in the Bush order about federal responsibility “to promote environmental stewardship.” Trump’s order dispensed with any kind of interagency working group or task force, and rather directed the chairman of the CEQ to be in charge of corralling agencies into compliance.

August 15, 2017 - Trump Executive Order 13807

• EO 13807 included focused on the concept of “One Federal Decision” in order to meet a two-year processing goal of environmental reviews and permitting.
• The order included projects that meet certain statutory requirements as high priority projects and says that the head of CEQ shall satisfy the requirements of the earlier order by simply referring projects to the FPISC. In doing so, the order aims to implement title 41 of the FAST Act.

February 12, 2018 - President Trump Releases Infrastructure Plan Outline

• In addition to calling for $200 billion in new federal spending that aims to encourage investment of over $1 trillion in non-federal funds for infrastructure projects, the plan included the “one agency, one decision” environmental review structure that would reduce the permitting time frame to a two year maximum.

April 9, 2018 - Federal Agencies Sign MOU Implementing EO 13807

• Twelve separate agency heads within the Trump Administration signed the MOU which seeks to implement EO 13807 by establishing a coordinated and timely process for environmental reviews of major infrastructure projects.

October 29, 2018 - USDOT issues Final Rulemaking to Streamline NEPA Requirements and other key environmental rules.

• The rule aims to speed up and ensure “greater consistency” in the permitting of surface transportation projects. This effort will also reduce duplicative environmental reporting efforts between the Federal Highway Administration, Federal Railroad Administration, and Federal Transit Administration.

Overview

The Trump Administration and others believe that the federal permitting process, especially the environmental review aspect under NEPA, is too long and prevents or delays the completion of important infrastructure projects. According to a GAO report in 2014, the completion of final EISs in 2012 had an average preparation time of 1,675 days, or 4.6 years—the highest average EIS preparation time the organization had recorded since 1997. Additionally, the GAO reported that many agencies told them that the “time frame measures for EISs may not account for up-front work that occurs before the Notice of Intent to produce an EIS—the 'start' date typically used in EIS time frame calculations.” For example, DOT officials reported to GAO that the “start” date is unclear in certain instances because of the large volume of project development and planning work that takes place before they issue a Notice of Intent.

Under the president’s executive order, federal agencies would adhere to a policy of “One Federal Decision” that aims to improve coordination between federal entities to expedite the review process. On April 9th, 2018, the heads of 12 different departments and agencies in Trump’s cabinet signed a Memorandum of Understanding (MOU) that aimed to implement EO 13807. Specifically, agencies agreed to work together to “develop a single Permitting Timetable for the necessary environmental review and authorization decisions, prepare a single environmental impact statement (EIS), sign a single record of decision (ROD), and issue all necessary authorization decisions within 90 days of issuance of the ROD, subject to limited exceptions.” Furthermore, agencies agreed under the MOU to conduct their review processes at the same time, rather than sequentially.

Attempts at making the environmental review process more efficient are not exclusive to the Trump Administration. In 2002, President Bush signed an EO that allowed the Secretary of Transportation to designate high-priority projects and then assembled an interagency task force of all of the federal agencies with a role in the permitting process to find ways to work together to get all the permitting done as quickly as possible. In 2012, President Obama issued EO 13604, which focused on transparency by identifying projects and their timelines on a new public website - the “Permitting Dashboard”, so the public could follow the review process.

Policy Considerations

Critics of the President’s plan argue that the cumbersome environmental review process is important to ensure fair consideration of the impacts federal projects may have on “wetlands, endangered species, Coast Guard navigational consents,” etc. Beyond impacts to the natural environment, EISs assess potential impacts to Environmental Justice populations, such as socioeconomically disadvantaged and limited English proficiency populations, as well as noise and vibration disturbing the surrounding communities and visual impacts. By consolidating reviews and requiring them to be completed within a certain timeframe, environmental and public interest groups fear that such considerations will be excluded or not thoroughly assessed as part of the NEPA process.

Another critical aspect of the NEPA process is public involvement. Multiple public review periods are required throughout the EIS process, including a 45-day public comment period following the publishing of the draft EIS. Opponents worry that expediting the NEPA process that lack of public involvement will be one of the main consequences. The Sierra Club asserted, “Without strong NEPA procedural regulations, the public will not get the opportunity to comment or the opportunity to comment will be excessively shortened so that agencies and special interests can get approval to spend 100’s to billions of taxpayer dollars on projects that devastate the environment, including impacts due to activities that exacerbate climate change.”

Furthermore, opponents believe that many delays to the process are caused more so by political disputes over project scope, character, funding and siting, rather than the actual environmental review. They are quick to point out that less than 10 percent of federally assisted transportation projects require an EIS. In 2014, the GAO reported that less than 1 percent of projects required an EIS. Most projects qualify for a Categorical Exclusion (CE) from the National Environmental Policy Act, the least intensive NEPA review process. Additionally, about 5 percent of projects are subject to Environmental Assessments, the mid-level NEPA review. Moreover, critics identify other issues that they believe have a more impactful role in creating project delays than the permitting and review process:

• Funding for Permitting and Reviews: Many believe that one of the largest problems to processing reviews is not the process itself, but a lack of funding and staff required to process the permitting and environmental reviews. They argue that the loss of agency expertise and the lack of support for NEPA and permitting staff in the agencies is responsible for many problems in implementing NEPA. They believe the process could be accelerated while ensuring environmental protection by implementing a system to collect fees from project sponsors to address bottlenecks by allocating those funds to agencies.
• Lack of Sustainable Project Funding: Opponents also point to the impediments created by a lack of sustainable funding. Without guaranteed revenue streams, state and local agencies are slow to carry out projects because of the risks created by not having funding certainty.
• Procurement Practices: Most states require a design-bid-build procurement process in which contracts for design and construction have to be awarded in separate bids. Some argue that this inhibits the efficiency in delivering process.
• Other Environmental Requirements: As noted in the 2014 GAO report, beyond the lack of documentation on the number of NEPA reviews and associated costs and timelines, it is not well documented if environmental compliance efforts are aimed at meeting the requirements of the “Endangered Species Act and the Clean Water Act; executive orders; agency guidance; and state and local laws.” Without knowing where the current efforts are being directed, it is difficult to know how to effectively streamline NEPA reviews while maintaining adequate environmental protections.

Annotated List of Actors

Governmental Actors

President Donald Trump

• Assumed office in January 20, 2018. Among other issues, campaigned on improving the nation’s infrastructure.

DJ Gribbin, former Special Assistant to the President for Infrastructure Policy

• Point person for infrastructure policy in the White House, responsible for coordinating the Administration-wide process behind the President’s infrastructure initiative

CEQ

• Structured within the Executive Office of the President, “CEQ oversees the implementation of NEPA, reviews and approves federal agency NEPA procedures, and issues regulations and guidance documents that govern and guide federal agencies’ interpretation and implementation of NEPA.” CEQ is technically a three-person council, with each member nominated by the President and confirmed by the Senate, but for at least 20 years, Congress has set up the CEQ to be led by one member through language in appropriations funding.

Trump Administration and Agency Heads Signing MOU:

• Department of Interior Secretary Ryan Zinke
• Department of Agriculture Secretary Sonny Perdue
• Department of Commerce Secretary Wilbur Ross
• Department of Housing and Urban Development Secretary Ben Carson
• Department of Transportation Secretary Elaine Chao
• Department of Energy Secretary Rick Perry
• Department of Homeland Security Kristen Nielsen
• U.S. Army Corps of Engineers Secretary Mark Esper
• Environmental Protection Agency Administrator Scott Pruitt
• Federal Energy Regulatory Commission Chairman Kevin McIntyre
• Advisory Council on Historic Preservation Executive Director John Fowler
• Federal Permitting Improvement Steering Council Acting Executive Director Angela Colamaria

Federal Permitting Improvement Steering Council (FPISC)

• The Fast Act, the most recent surface transportation reauthorization bill, created a new entity – the Federal Permitting Improvement Steering Council (FPISC), composed of agency Deputy Secretary-level members and chaired by an Executive Director appointed by the President. The entity was tasked with improving Federal infrastructure permitting.

Opponents

Natural Resources Defense Council
Sierra Club

Proponents (non-governmental)

U.S. Chamber of Commerce
National Association of Manufacturers
North America’s Building Trades Unions (NABTU)
American Council of Engineering Companies

Additional Suggested Reading

White House Press Release on Issuing MOU: https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-administration-improving-inefficient-permitting-reviews/

Opposition Op-Ed on Other Steps Needed to More Quickly Process Permits: https://www.usnews.com/opinion/op-ed/articles/2017-08-22/trump-wont-speed-up-infrastructure-projects-by-gutting-environmental-rules

GAO Report on NEPA Efforts (2014): https://www.gao.gov/assets/670/662543.pdf

White House MOU on Executive Order for Streamlined Permitting: https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf

Discussion Questions

• From your experience or assessment, what do you think causes the most significant delays in permitting and reviews?
• Do you believe the application of NEPA has become too stringent and inhibits infrastructure improvements, or does it ensure an adequate consideration of environmental impacts?
• What action, if any, do you think federal policymakers should take to address issues with delays of environmental reviews, permitting, and project delivery?
• Do you think the Trump Administration’s 2-year permitting plan is a good goal and would be a benefit for transportation systems?
• Is it possible to conduct all environmental reviews, required public outreach, and complete documentation within 2 years?
• Will special interest groups gain influence bypassing public interests if environmental reviews are expedited?