Major infrastructure developers received a notable holiday gift from Capitol Hill and the White House earlier this month with the December 4, 2015 enactment of the Highway Authorization Act. Title XLI of the Act promises to streamline both the authorization (license, permit, approval, etc.) and environmental review processes for covered projects.
Who Benefits?
To benefit from the Act’s streamlined process, an infrastructure project must (1) fall within a covered project category, (2) be subject to NEPA, (3) be likely to require a total investment of more than $200,000,000, and (4) not qualify for abbreviated authorization or environmental review under another statute. Covered project categories include:
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Renewable or conventional energy production
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Electricity transmission
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Surface transportation
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Aviation
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Ports and waterways
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Water resource projects not already covered under the Water Resources Development Act of 2007 (33 U.S.C. 2348)
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Broadband
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Pipelines
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Manufacturing
This list is subject to additions by a majority vote of the newly created Federal Permitting Improvement Steering Council (“Council”). A complex project falling within one of the listed categories that is subject to NEPA but does not otherwise qualify under the Act, may still benefit from the Act’s streamlining process subject to the Council’s discretion.
What Are the Benefits?
The Act is intended to benefit project sponsors by increasing federal agency accountability and efficiency in a way that shortens the time it takes to obtain authorizations and to complete environmental review processes. The Act also requires timetables and public disclosure of the status of pending authorizations and environmental reviews. Finally, the Act makes it more difficult for third parties that did not actively participate in the environmental review process to make a NEPA challenge.
How Are the Benefits Achieved?
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The Act seeks to increase federal agency efficiency by:
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Establishing a new administrative body dedicated to increasing permitting efficiency (the Council);
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Requiring federal agencies to concurrently review project information related to authorizations and environmental reviews to the maximum extent possible;
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Allowing for the use of existing documents for federal environmental review that were prepared for the project under State laws and procedures; and
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Providing for increased coordination between federal agencies and State, Local, and Tribal governments.
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The Act seeks to increase federal agency accountability by:
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Requiring the Executive Director to regularly update the Permitting Dashboard—a publically available online tool for tracking the status of federal agency authorizations and environmental reviews for covered projects;
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Creating performance schedules for authorizations and environmental reviews that cannot exceed the average duration for authorizations and environmental reviews for a project within the relevant category; and
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Mandating the issuance of authorizations and environmental reviews within 180 days of the date the federal agency has all information needed to complete the authorization or environmental review.
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The Act imposes limitations on judicial review by:
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Requiring an action challenging a federal authorization for a covered project to be filed within two years of the final record of decision or approval or denial of a permit;
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Allowing a litigant to make a NEPA challenge only if that litigant commented during the environmental review, and a commenter filed a sufficiently detailed comment to put the agency on notice of the issue being raised; and
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Directing courts hearing a request for a temporary restraining order or preliminary injunction to consider the negative effects on jobs such an order or injunction would have, and not to presume that such negative effects are reparable.
