The Trump Administration's First Steps Toward Streamlining Environmental Reviews

• Date: 01 December 2017

47 ELR 11018 ENVIRONMENTAL LAW REPORTER 12-2017

C O M M E N T

The Trump Administration’s

First Steps Toward Streamlining

Environmental Reviews

by Norman F. Carlin and Kevin J. Ashe

Norman F. Carlin is a Partner with Pillsbury Winthrop Shaw Pittman LLP. He helps industry, developer,

and public agency clients navigate the environmental impact review process under the California

Environmental Quality Act and the National Environmental Policy Act. Kevin J. Ashe is an Associate in the

Environmental and Natural Resources practice area at Pillsbury Winthrop Shaw Pittman LLP.

On August 15, 2017, President Donald Trump

issued an Executive Order (EO) entitled “Estab-

lishing Discipline and Accountability in the

Environmental Re view and Permitting Process for Infra-

structure Projects.”1 EO No. 13807 seeks to exped ite

federal review and approval of infrastructure projects by

imposing new timelines and procedures, including a two-

year deadline for completing reviews under the National

Environmental Policy Act (NEPA)2 and issuing permits

for major infrastructure projects. While the EO itself is

broadly framed and leaves many aspects of implementation

to be worked out, subsequent actions by the Council on

Environmental Quality (CEQ) a nd the U.S. Department

of the Interior (DOI) have already begun to implement the

EO’s directives.

EO No. 13807 follows the Trump Administration’s

prior EO No. 13766,3 which called for stream lined envi-

ronmental review and approval of “high-priority” projects.

Among other things, EO No. 13766 required the chair of

CEQ to coordinate with federal agencies to establish expe-

dited procedures and NEPA review dead lines. is Com-

ment focuses on the later EO and discusses its prospects

for implementation.

I. EO No. 13807

EO No. 13807 applies to a wide range of infrastructure

projects, including roadways, bridges, railroads, and tran-

sit; aviation and ports; energy production and generation

(fossil-fuel, renewable, nuclear, and hydropower); electric-

ity transmission; broadband Internet; pipelines; and water

resources, stormwater, sewer, and drink ing water projects.

1. Exec. Order No. 13807, 82 Fed. Reg. 40463 (Aug. 24, 2017), https://

www.whitehouse.gov/the-press-oce/2017/08/15/president ial-executive-

order-establishing-discipline-and-accountability.

2. 42 U.S.C. §§4321 et seq.

3. Exec. Order No. 13766, 82 Fed. Reg. 8657 (Jan. 30, 2017).

e EO denes “major inf rastructure projects” a s those

requiring a full environmental impact statement (EIS)

under NEPA and multiple permits, approvals, or other

authorizations from federal agencies (collectively, “autho-

rizations”), and for which sucient and reasonably avail-

able funding has been identied. EO No. 13807 includes

a number of features intended to streamline NEPA reviews

and project approvals.

A. Cross-Agency Priority Goal and Two-Year Target

for EIS Completion

EO No. 13807 requires the Oce of Management and

Budget (OMB) to establish by February 11, 2018, a federal

Cross-Agency Priority (CAP) Goal on Infrastructure Per-

mitting Modernization, building on an existing program

under the Government Performance and Results Modern-

ization Act of 2010.4 e CAP Goal will provide, where

permitted, for NEPA review and authorization processes

for infrastructure projects to be “consistent, coordinated,

and predictable.” In addition, the CAP Goal will require

completion of NEPA reviews for major infrastructure proj-

ects in “not more than an average of approximately two

years” from the notice of intent to prepare an EIS. e

CAP Goal must be incorporated into each federal agency’s

strategic and annual performance plans, and progress must

be reviewed by agency leadership.

B. “One Federal Decision”

e EO requires approval of major infrastructure proj-

ects in “One Federal Decision” via the Record of Deci-

sion (ROD), which the “ lead agency” (that is, the agency

preparing the EIS) issues on or after completion of the

EIS. e lead agency’s ROD must also “record a ny indi-

4. Pub. L. No. 111-352, 124 Stat. 3866 (2011).

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.