Infrastructure proposal addresses federal decision process delays

A “one agency, one decision” review structure—with firm deadlines to complete environmental reviews and permit applications—highlighted the Trump administration’s proposal to rebuild US infrastructure when it was released on Feb. 12. Officials from both the US Chamber of Commerce and the Interstate Natural Gas Association of America welcomed the plan and said it provided an important starting point.

A “one agency, one decision” review structure—with firm deadlines to complete environmental reviews and permit applications—highlighted the Trump administration’s proposal to rebuild US infrastructure when it was released on Feb. 12. Officials from both the US Chamber of Commerce and the Interstate Natural Gas Association of America welcomed the plan and said it provided an important starting point.

The proposal noted that under current federal laws, infrastructure project sponsors must navigate reviews under the National Environmental Policy Act (NEPA) and permitting processes with multiple federal agencies with separate decision-making authority and often counter-viewpoints. “These many hoops affect the ability of project sponsors to construct projects in a timely and cost-effective manner,” it said.

“This proposal would establish a firm deadline of 21 months for lead agencies to complete their environmental reviews through the issuance of a finding of no significant impact (FONSI) or record of decision (ROD), as appropriate,” the proposal said. “Additionally, the proposal would establish a firm deadline of 3 months after the lead agency’s FONSI or ROD for federal agencies to make decisions with respect to the necessary permits.”

It said that federal environmental reviews would become more efficient with several reforms which include:

• Requiring a single environmental review document and a single ROD coordinated by a lead agency.

• Clarifying that alternatives outside an agency’s scope or an applicant’s capability are not feasible.

• Directing the White House Council on Environmental Quality to issue regulations streamlining the NEPA process.

• Eliminating extra reviews of environmental impact statements under Section 309 of the Clean Air Act.

• Focusing the scope of federal resource agency NEPA analysis on areas of special expertise or jurisdiction.

• Creating incentives for enhanced mitigation.

• Authorizing federal agencies to accept funding from nonfederal entities to support environmental and permit application reviews.

Inefficiencies in protecting clean air could be corrected by clarifying that metropolitan planning associations need only to conform to the most recent National Ambient Air Quality Standard, the proposal said. Uncertainty also could be reduced by establishing motor vehicle emissions budgets before requiring initial transportation conformity determinations for newly designated areas, it said.

Under Section F, “Reducing Inefficiencies in Preserving Publicly Owned Land and Historic Properties,” Sub-Section 5 would aim to reduce uncertainty by authorizing the US Secretary of the Interior to review and approve permits for pipelines which would cross national parks.

Current federal law already gives the secretary authority to approve and review rights-of-way across land the National Parks Service administers, but only for electric, water, and communications facilities, the proposal said. For oil and gas pipelines and energy production facilities, specific congressional authorization is required, it said.

“Authorizing the Secretary of the Interior to approve [ROW] for pipelines and facilities necessary for the production of energy across NPS-administered land in a manner identical to that for other facilities would reduce the delays and uncertainties caused by requiring congressional approval,” the proposal said.

Part IV dealt with judicial reforms aimed at avoiding protracted litigation and making court decisions more consistent. The provisions also would narrow the scope of judicial review by exempting certain actions or issues from challenges.

Proposals included limiting injunctive relief to exceptional circumstances, reducing the statute of limitations for federal infrastructure permits or decisions to 150 days, and requiring project sponsors and federal agencies to use current data.

In his initial response to the administration’s infrastructure proposal, INGAA Pres. Donald F. Santa said it contains principles intended to foster coordination, predictability, and transparency in federal environmental reviews and permitting processes for infrastructure projects, including energy transportation systems such as natural gas pipelines.

“Despite the clear need for new natural gas pipelines, the permitting process has become more protracted and challenging,” Santa said. “Roadblocks and delays are becoming commonplace at federal and state permitting agencies. The permitting principles developed by the White House recognize many of the challenges with the permitting process and suggest reforms that could facilitate the more responsible and orderly development of infrastructure.”

US Chamber of Commerce Pres. Thomas J. Donahue said, “For years, plenty of people have been willing to talk about modernizing our nation’s infrastructure, but few have been willing to take action.”

Donahue said, “A few weeks ago, we turned up the volume on the infrastructure conversation by offering up a few ideas of our own, and it’s encouraging to see that this administration shares our commitment to tackling this challenge in a meaningful way—and soon.”

Contact Nick Snow at nicks@pennwell.com.

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