Infrastructure Permit Streamlining Under the FAST Act

• Date: 01 May 2016

5-2016 NEWS & ANALYSIS 46 ELR 10369

In December 2015, the U.S. Congress passed and Presi-

dent Barack Obama signed the Fixing America’s Sur-

face Transportation (FAST) Act,1 the rst multi-year

federal transportation bill enacted in a decade. Almost

unnoticed among nearly 500 pages of transportation law

were 21 pages containing new, highly detailed procedura l

rules for federal agencies to follow in issuing permits for

most major infrastructure and other capital projects, as

well as authorization for a large administrative apparatus

within the Executive Oce of the President. e new rules

and administrative structure should, if funded and imple-

mented, prove to be a welcome boost to ongoing eorts

by the current administration to improve the federal per-

mitting and siting process. is Comment describes the

new law and its implementation challenges and oers

thoughts on the FAST Act’s potential value to infrastruc-

ture developers.

We have been involved with federal infrastructure and

other permitting processes that were dened by inter-

agency discord, ever-receding schedules, uncontrolled

agency costs, and unwelcome surprises. But we also served

as regulatory counsel to the rst interstate electric trans-

mission project that received expedited review under the

earliest manifestation of the Obama Administration’s

infrastructure permit strea mlining initiative. e process

applied to that multibillion-dollar transmission project

beneted greatly from a well-enforced decisionmaking

schedule at the U.S. Department of the Interior (DOI) and

authoritative oversight of the National Environmental Pol-

icy Act (NEPA)2 process by the White House Council on

Environmental Quality (CEQ ). Despite tough siting and

permitting issues and determined opposition, the project

was approved and built and put into service within a time

frame that was far faster tha n the schedule experienced by

every other major interstate transmission project in the fed-

eral approval process at that time.

Our experience leads us to expect that the new law,

though no panacea, will encourage further improvements

in federal permitting. It should regularize and make more

routine the innovative procedural changes that some

1. Pub. L. No. 114-94, 129 Stat. 1312 (2015) [hereinafter FAST Act].

2. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

C O M M E N T S

Infrastructure Permit Streamlining

Under the FAST Act

by omas C. Jensen, Sandra A. Snodgrass, and Matthew Castelli

Tom Jensen and Sandi Snodgrass are Partners at Holland & Hart LLP; Matt Castelli is an Associate with the rm.

agency ocials and developers have had to invent and

defend project-by-project. Our outlook is tempered by the

fact that key elements of the new law specically require

involvement by senior agency appointees at a time when a

change of administration is pending. In addition, Congress

will need to fund the new administrative apparatus. Full

implementation is going to ta ke some time. at said, we

believe that certain opportunities may be available to those

who choose to bring solid project proposals into the new

system early.

e FAST Act’s new rules on federal permitting merit

attention for the additional reason that they amount to

a sweeping addition to CEQ’s NEPA regulations. ose

regulations have been unchanged since 1978. Congress

has now, in eect, augmented (but not changed) NEPA’s

bedrock rules to create a new category of NEPA and per-

mitting procedures applicable to certain infrastructure and

other capital projects.

e large community of lawyers, regulators, consultants,

developers, conservationists, and others who have operated

for almost four decades under one set of CEQ ru les will

need to come to terms with the reality that the ru les have

been expanded in very signicant ways—without any of

the public involvement or other procedure t hat normally

accompanies, shapes, and builds a degree of shared under-

standing around new federal rules. e learning process

will encompass big-picture issues involving the many rami-

cations of a two-tier permitting system and smaller chal-

lenges such as those that may a rise from the law’s use of

four dierent terms— environmental assessment, environ-

mental document, environmental impact statement, and

environmental review—to describe analytical materials

that support permit decisions.3

CEQ has long confronted questions about its author-

ity to issue regulations.4 e FAST Act sidesteps those

3. FAST Act, supra note 1, §41001(8), (9), (10), (11).

4. CEQ’s rulemaking powers rest on a series of presidential executive orders;

NEPA itself is silent on the point. See D R. M, NEPA L

 L 24 (2013). ose orders allow the “Council” to issue regu-

lations, implying that the U.S. Senate-conrmed ocial who chairs CEQ

and ser ves as the single “Council” member has the requisite r ulemaking

authority. CEQ has not had a Senate-conrmed chair since the resignation

of Nancy Sutley in early 2014.

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.