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Scalpel or Machete? A Look at How the White House Wants to Cut Back the Environmental Permitting Process

In his January 30, 2018 State of the Union address, the President declared that he had eliminated more regulations in his first year than any other administration’s first year. Part of that claim may arise out of a recently-revealed environmental plan that has not yet been formally released.

As reported by the Washington Post, the White House has drafted an environmental proposal to be included as part of an imminent infrastructure plan. The proposal can be found on the Post’s website. Some sections of the proposal are reportedly outdated (the article says that sections regarding the listing and de-listing of species under the Endangered Species Act and delegating some decisions to the states are no longer part of the plan), but many remain in effect.

A Brief Review of the White House’s Pending Plan

The stated purpose of this proposal is to reduce costs and shorten wait times in the permitting process for infrastructure projects. Taken individually, each change might seem modest, but when viewed as an aggregate whole, the proposal is sweeping and dramatic. That said, some sections are likely included primarily for show or for use as sacrificial lambs. For example, sections 3012, 3106, 3121, 3405, and other similar sections are unlikely to survive: the White House does not have the power to unilaterally limit the scope of judicial review, amend enacted statutes, or delegate power away from Congress.

The outlined proposal is 23 pages long, so each section is here reduced to a bulletpoint for an easier review of the entire proposal:

The NEPA Review Process

  • Section 3000 contemplates a new “one agency, one decision” review structure in which only one agency would review an infrastructure project under the National Environmental Policy Act (“NEPA”).
    • It would impose a statutory limit of 21 months for the agency to complete its review and issue either a “Finding of No Significant Impact” (“FONSI”) or a “Record of Decision” (“ROD”).
    • It limits a court’s ability to find that an agency’s decision was based on insufficient analysis so long as the agency made a “good faith effort” to provide adequate analysis given the agency’s limits on time and available resources.
    • Once the lead agency issued a FONSI or ROD, any other state or federal agency would have a firm deadline of only 3 months to make permitting decisions. If the other agency fails to make a decision within 3 months, it can have its decision-making responsibility (and related funding) reassigned to the lead agency.
  • 3001 explains that the lead agency will then create the sole environmental review document and a single Record of Decision.
  • 3002 gives the lead agency the final authority to develop a single purpose and need statement to be used by all other agencies in the Environmental Impact Statement (“EIS”) for that project.
  • 3003 assigns the lead agency sole responsibility to determine any range of alternatives for the project.
  • 3004 allows the lead agency to remove the 30-day waiting period between issuing a final EIS and the ROD on all infrastructure projects.
  • 3005 prohibits agencies from considering any alternative that is not “actually legally, technically and economically feasible.”
  • 3006 requires the Council on Environmental Quality to revise its regulations to streamline the NEPA process.
  • 3007 eliminates the EPA’s ability to review and assess an EIS under § 309 of the Clean Air Act.
  • 3008 narrows an agency’s ability to comment or review a project only to areas that are relevant to the agency’s “special expertise or jurisdiction.”
  • 3009 allows any agency to use another agency’s established Categorical Exclusion.
  • 3010 allows a contractor to conduct final design activities before NEPA review is complete.
  • 3011 allows rail projects to acquire real property and rights-of-way before NEPA is complete.
  • 3012 removes the need for agency concurrence that was enacted in the Moving Ahead for Progress in the 21st Century Act (MAP-21 Act, 23 U.S.C. § 168(d)).
    • This is unlikely to occur without a change to the statute.
  • 3013 eliminates the Interagency Review Team (made up by reviewing agencies, tribal nations, and the mitigation banking sponsor) set forth in the 2008 Mitigation Rule.
  • 3014 allows the lead agency for any infrastructure project to opt into Federal Highway Administration (“FHWA”) and Federal Transit Administration (“FTA”) streamlining procedures (currently only highway and transit projects can do so).
  • 3015 exempts small cell and Wi-Fi towers from both NEPA and the National Historic Preservation Act and declares that those towers “do not have an environmental footprint, nor do they disturb the environment or historic property.”
  • 3016 states that it will incentivize enhanced mitigation by expediting the permitting process.
  • 3017 calls for the Federal Power Act to be modified to prohibit all cooperating agencies from intervening in FERC licensing.
  • 3018 allows private entities to pay agencies to streamline their approval processes and “support their dedicated review of permit applications….”

The Clean Water Act

  • 3101 removes the Army Corps of Engineers’ ability to review nationwide permits under § 404 of the Clean Water Act (“CWA”).
  • 3102 puts the Army Corps in charge of jurisdictional determinations under the CWA (i.e. “navigable waters”) instead of the Administrator of the EPA.
  • 3103 eliminates the EPA’s ability to veto a 404 permit under the CWA.
  • 3104 eliminates the environmental review required by § 408 of the CWA for an alteration, occupation, or use of an Army Corps civil works project.
  • 3105 eliminates the requirement for the Army Corps to issue a permit to any non-federal entity that implements a civil works project without an executed agreement.
  • 3106 would amend the CWA to give states only 90 days to decide whether a Water Quality Certification was complete and then only an additional 3 months to make its determination. The current statute gives states one year to act on a request for certification.
    • This amendment would require Congressional action.
  • 3107 doubles the length of national pollutant discharge elimination system permits from 5 to 10 years and adds automatic renewals.

The Clean Air Act

  • 3108 amends the Clean Air Act (“CAA”) to only require conformance with the most recent National Ambient Air Quality Standards for a certain pollutant.
  • 3109 will allow newly designated areas to establish emissions budgets one year before the area must demonstrate conformity.

Endangered Species Statutes

  • 3110 broadens the National Oceanic and Atmospheric Administration’s (“NOAA”) ability to authorize incidental take1 by removing the Marine Mammals Protection Act requirement that takings occur in a “specified geographical region.”
  • 3111 redefines Reasonable and Prudent Alternatives Actions so that they won’t trigger NEPA analysis under the Endangered Species Act.
  • 3112 creates a “more efficient process” to list and de-list endangered species.
    • This may have already been removed from the plan.
  • 3113 delegates authority to states to issues incidental take permits under the ESA.
    • This may have already been removed from the plan.
  • 3114 gives the U.S. Fish and Wildlife Service (“FWS”) and NOAA broader discretion to issue incidental take permits.
  • 3115 requires FWS to consider “other protections” besides state and federal regulatory prohibitions when FWS is deciding to list or de-list a species.
  • 3116 limits FWS’s or the National Marine Fisheries Service’s (“NMFS”) ability to designate critical habitats to only one year after an animal is determined to be threatened or endangered (beginning with the issuance of a final approval of a species recovery plan).
  • 3117 requires NMFS to respond to all consultations under the Magnuson Stevens Act within 30 days or lose its ability to respond.

Historic Preservation and Public Lands

  • 3118 removes the review power from each of the Departments of the Interior, Agriculture, and Housing and Urban Development to decide whether parklands or historic sites can be used by the Department of Transportation.
  • 3119 eliminates review under the National Historic Preservation Act of the potential impact of transportation projects on historic sites.
  • 3120 removes the National Park Service’s ability to review conversions of parks and sites or to identify substitute property.
  • 3121 authorizes the Bureau of Reclamation to transfer title of federally owned facilities to non-federal partners without obtaining specific Congressional authority.
    • This would require an act of Congress.
  • 3122 gives the Secretary of the Interior the power to authorize natural gas pipelines across national parks.

Delegations to States (these may have already been reduced or removed)

  • 3201 gives other agencies besides the FHWA and FTA the ability to delegate NEPA responsibilities to states for infrastructure projects.
  • 3202 authorizes states to assume FHWA’s responsibilities to acquire federally-funded rights-of-way.
  • 3203 authorizes USDOT to give states the ability to make project-level transportation conformity determinations under NEPA.
  • 3204 gives states the authority to make floodplain and noise policy determinations under NEPA.

A new Pilot Program

  • 3301 establishes a “performance based” pilot program focused on performance measures rather than compliance with NEPA.
  • 3302 authorizes the Secretary of Transportation to create a “negotiated mitigation” pilot program that would allow a contractor to buy offsets or pay an “in-lieu-fee” to mitigate environmental impacts, or avoid an anticipated impact all together.

“Judicial Reform”

  • 3401 assigns original jurisdiction of “Fast 41 projects” to the Court of Appeals.
  • 3402 requires courts to establish “exceptional circumstances” before entering a “stop work” injunction on a project under NEPA.
  • 3403 reduces the statute of limitations for a challenge of a federal permit or decision from 5 years to 150 days.
  • 3404 reduces the statute of limitations for a NEPA substitution from 2 years to 150 days.
  • 3405 exempts Categorical Exclusions from judicial review under the Administrative Procedure Act.
    • The scope of judicial review is generally not determined by the executive branch.
  • 3406 overrules the Supreme Court’s decision in Bennett v. Spear by codifying that Biological Opinions are not “final” agency actions, which change would prevent an immediate legal challenge to a Biological Opinion.
  • 3407 requires courts to defer to an agency’s decision as to whether “current data” is actually being used in the environmental review on a particular project.

Conclusion

Were all of these proposed changes to go into effect, that would indeed constitute a massive de-regulation of the federal environmental review process. But that is unlikely to occur. As noted above, some proposals are already off the table, environmental groups will contest many others, and some are unlikely (or impossible) for the White House to implement.

The existing NEPA process undeniably needs an overhaul. To do so will require a “Goldilocks” approach: not too timid, not too overreaching, but just the right amount of regulation. Whether these proposed changes sweep too broadly will remain to be seen. But love it or hate it, the release of this proposal gives developers and environmental groups a detailed roadmap of how the Trump administration will try to change federal policy. 

Copyright © 2018 Ryley Carlock & Applewhite. A Professional Association. All Rights Reserved.

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About this Author

Jason Cassidy, Litigator, False Claims Act, Ryley Carlock Applewhite Law Firm
Associate

Jason is a member of the firm’s Litigation practice group. He has experience helping clients resolve disputes involving the False Claims Act, real estate, defamation, land use/zoning, discrimination, ADA/disability issues, bankruptcy, contracts, federal and state laws, and a wide variety of business issues.

Some of Jason’s representative matters include:

  • Negotiating a full-discharge settlement of a client’s student loans from the United States via an adversary bankruptcy proceeding. Jason was named to the Arizona Pro Bono Honor Roll in 2014 by the Arizona Bankruptcy...
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