August 03, 2021

Will Streamlined NEPA and Permitting Provisions Sink the Bipartisan Infrastructure Bill?

3 min

Whenever the actual text of a massive piece of legislation first sees the light of day, there are bound to be more than a few surprises. Late last Sunday evening, following a favorable 67-32 procedural vote in the Senate on July 28, the text of the trillion-dollar bipartisan infrastructure bill was released. While most attention has been focused on the proposed spending in various sectors, including roads and bridges, broadband, power infrastructure and grid resilience, public transit, rail, and electric vehicle infrastructure, the bill included some surprising provisions addressing the NEPA and permitting processes for large infrastructure projects.

One major section that has already incurred the wrath of some environmental NGOs is the proposed codification of a Trump-era policy, Executive Order 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, which came to be known as the “One Federal Decision.” Section 11301 of the bill proposes to reinstate parts of that EO, even though almost immediately after taking office, President Biden rescinded that policy (as well as other Trump administration executive orders) as part of the White House’s comprehensive review of agency actions under the previous administration.

It is more than likely that this provision was a key factor in attracting Republican support for the infrastructure bill. NEPA and permitting reform has long been the subject of legislative attention from that side of the aisle. Section 11301 is generally aimed at streamlining the process for preparing for NEPA documents, environmental assessments, and environmental impact statements. What caught some observers off guard, however, was that the proposed bill includes some aspects of EO 13807 that triggered the most vociferous opposition. For example, the bill proposes to generally limit the “alternatives analysis” section of environmental impact statements to 200 pages. Furthermore, it proposes requiring the lead agency of a major project to develop a schedule to complete the environmental review process for a major project within two years after publishing a notice of intent. Section 11301 also proposes to require the secretary of transportation to develop categorial exclusions that would accelerate the delivery of projects, in conjunction with the other agencies involved in the environmental review process. Page limits, so-called shot clocks for NEPA reviews, and the expansion of CEs were all items that incoming leadership at the White House Council on Environmental Quality opposed as a preview for the expected revisions to the 2020 NEPA regulations.

The proposed streamlining provisions go further. Section 70801, Federal Permitting Improvement, proposes various amendments to the Fixing America’s Surface Transportation Act (“FAST Act”), passed during the Obama administration in 2015. Importantly, Section 70801 proposes to repeal the sunset provision of the FAST Act, which would have terminated the legislation’s streamlining provisions in December 2022. The new legislation would keep the FAST Act on the books indefinitely, including, significantly, the reauthorization of the Federal Permitting Improvement Steering Council, the inter-agency entity established to track project reviews and to assist with untangling conflicts between federal agencies. Furthermore, Section 70801 also reflects Trump-era policies, such as the requirement for agencies to issue a ROD within 90 days of the issuance of a final environmental impact statement. Section 70801 also proposes to shorten the time the lead agency has to invite other agencies to be a participating or cooperating agency, from 45 days to 21 days.

The Biden administration has stressed its belief that compromise is not dead in Washington, DC. The NEPA and permitting reform provisions in the proposed infrastructure bill prove that point. It remains to be seen whether the final legislation includes all or some of these reforms or whether these measures are a bridge too far for those wary of perceived watering down of NEPA and permitting procedures. We are staying up to date on all infrastructure related legislative developments. Visit our Infrastructure Resources page to follow our collection of timely alerts and analysis.