One lead agency, one federal decision: No simple solution for environmental reviews
The Administration’s proposal to expedite environmental reviews for infrastructure projects sounds simple, but it’s not. As an environmental practitioner who works with both public and private clients, I understand the allure of simplicity. I also wonder whether the federal government will engage meaningfully to address the significant problem of aging infrastructure.
The White House seeks infrastructure projects delivered in two years (or less) with one lead agency yielding one decision. I’ve followed the proposal and reactions closely, seeking to understand these points: Why has the Trump Administration set these goals? How likely is any significant change? Is this good or bad for our business and our clients? And would be the impact on natural and cultural resources?
Here’s my current take. Keep in mind that my view is as a consultant who represents clients’ interests in planning, designing and delivering infrastructure projects. For legal analysis, I’ll refer you to a good summary by Perkins Coie (provided for information only, I have no connection to them).
Why target these goals?
Mario Loyola, Associate Director for Regulatory Reform at the Council on Environmental Quality, recently addressed implementation of Executive Orders 13783 and 13807 and the principles behind White House environmental proposals. He explained that the promoted timeframe of “two years” is for major infrastructure projects only, and 95 percent of projects that rely on existing categorical exclusions would have a shorter review period.
Loyola, following prepared notes and speaking to American Council of Engineering Companies members, laid out the Administration’s primary points:
- Unpredictable and long process – Meeting National Environmental Policy Act regulations plus applying for many permits is unpredictable and lengthy for project sponsors. This leads to more dependence on public funding since private industry won’t accept risk.
- Simple and predictable solution – The Administration wants to make environmental reviews more predictable and provide certainty to industry and investors. To do so, they are looking at NEPA and various permit requirements as one process. They also wish to give more responsibility for environmental review to states.
- Administrative action – Agencies have also been directed to look for administrative reforms. The Office of Management and Budget as a role to hold agencies accountable by monitoring for delays and look for predictable decisions. CEQ is looking at additional guidance to reform NEPA by comparing original legislation to implementing regulations and guidelines to identify how to refocus to the original intent.
- Acknowledged challenges – The regulatory authorities that are delegated to states, such as 401 Clean Air, are a challenge to federal solution. The Administration is stymied here. They can invite state to follow timelines but cannot require compliance.
Keeping watch on regulatory change
Professional associations that represent my firm and interests of certain clients are watching closely. ACEC, as the voice of engineering companies, has keen interest in the Administration’s regulatory initiatives and any Congressional action relating to infrastructure since they will affect our business. In my opinion, whether the effects are positive or negative or mixed cannot yet be determined.
My Department of Transportation clients are collectively represented by the American Association of State Highway and Transportation Officials. Transportation Secretary Elaine Chao told AASHTO leaders last week that her agency has begun implementing the Trump vision for infrastructure with steps to overhaul the environmental permitting process to speed approvals and roll back regulations.
Skepticism and caution
No one that I’ve talked to is confident that there will be bi-partisan agreement on infrastructure addressing either a sustainable source of funding (e.g. gas tax) or reform of environmental regulatory process. Due to the complexities of both funding and achieving bi-partisan agreement, I am skeptical that either major environmental change or major infrastructure funding is forthcoming. Some changes in regulatory reviews and some additional money may result but transformation of the nation’s infrastructure or its environmental regulations is unlikely.
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