The Trump Administration continues to prioritize guidance-driven revisions to federal regulatory programs to reduce the impact of administrative review and permitting on development. Last week’s highly-anticipated memorandum of understanding (MOU) released by the White House purporting to streamline the National Environmental Policy Act (NEPA) review process for “major infrastructure projects” could be a step toward a more efficient environmental permitting process. However, the impact may be limited.
The length and inefficiency of some environmental reviews under the NEPA has long been a point of frustration for industry and environmental practitioners alike. The NEPA seeks to ensure that federal agencies thoroughly consider the potential environmental impacts of proposed actions (requiring preparation of time-consuming environmental reports) before proceeding with development. State, local, and tribal agencies are sometimes required to help conduct environmental reviews under the NEPA when projects involve specialized expertise but also “major federal action,” such as a federal permit approval or federal funding.
The MOU – signed by 12 federal agencies – builds upon Executive Order 13807 and a separate action list issued by the White House Council on Environmental Quality (CEQ). Both documents focused on reforming the NEPA to promote speedy infrastructure development. In particular, the August executive order established the “One Federal Decision” policy, which provided that major infrastructure projects should have a single lead federal agency, a single record of decision (ROD), and that all authorizations for construction of major infrastructure projects should be completed within 90 days. The executive order defines “major” projects as those “for which multiple authorizations by federal agencies will be required to proceed with construction.”
The MOU further clarified these goals by setting a two-year target time frame for completing the environmental permitting process and directed agencies to work together to review and make decisions concurrently. The MOU listed several other general directives to the agencies, such as providing “predictable, transparent, and timely” reviews, establishing “standard operating procedures” for reviews, and eliminating “duplication of effort” among agencies.
In order to make the Trump Administration’s plan to speed up permitting enforceable and effective, the MOU must be followed up by agency regulations that incorporate deadlines, specific requirements, and additional resources to ensure that permit applications move faster and still comply with relevant laws.