Date ArticleType
2/20/2018 Member News
Trump Faces Pushback on Plan to Speed Environmental Permits

Trump Faces Pushback on Plan to Speed Environmental Permits

By Dean Scott and Alan Kovski
Bloomberg BNA

The Trump administration wants more authority from Congress to speed up environmental reviews that can delay infrastructure projects, but is it really using all the authority it already has?

Congress streamlined permitting in a 2012 transportation bill. Further streamlining was enacted in 2015, including a two-year limit for filing lawsuits, and then there were Trump’s own streamlining efforts in a 2017 executive order directing agencies to be more transparent in their reviews.

President Donald Trump’s Feb. 12 
infrastructure plan goes further in attempting to cut through permitting delays for projects, calling for revising environmental laws that environmental groups and many Democrats view as untouchable.

Business groups back Trump’s latest plan, saying environmental litigation under the National Environmental Policy Act (NEPA)—which requires environmental assessments of projects as well as consultation across the federal government—has slowed development.

However, Trump’s plan faces a high hurdle in the Senate, where 60 votes are needed to cut off a filibuster threat but Republicans have a bare 51-seat majority. Sen. Heidi Heitkamp (D-N.D.) said she would like to hear why the changes made three years ago weren’t enough.

“I’m all for making it easier and cutting through the red tape,” she told Bloomberg Environment. “But we did a lot of that in 2015.”

The 2012 and 2015 transportation laws included limits on filing lawsuits and provisions to streamline federal environmental permitting for major energy, infrastructure, and manufacturing projects. The 2015 law in particular was meant to strengthen interagency cooperation on environmental reviews.

The Trump administration argues that the tools it has now to speed up environmental review and permitting aren’t enough. The administration says states still need more authority to hasten reviews for projects they deem priorities, and it objects to the ability of environmental and other groups to delay projects by suing.

Trump’s solution is to amend environmental statutes to make projects go faster, including NEPA, the Clean Water Act, the Safe Drinking Water Act, the Endangered Species Act, and the Clean Air Act. Those laws contain their own—at times conflicting—permitting requirements. Trump’s plan would consolidate permitting by giving a single agency the lead role. 

Revisions Sought

An administration official, speaking on condition of anonymity, told Bloomberg Environment the 2015 law fell short because it focused largely on NEPA reviews but essentially left intact other permitting processes and authority held by various agencies.

This includes the National Marine Fisheries Service, the U.S. Army Corps of Engineers, and the Environmental Protection Agency, which have authority beyond what’s provided under NEPA.

“We only got 10 percent of the way there” in previous legislative fixes, the official said, adding that neither the George W. Bush nor the Obama administration was willing to push for wholesale changes to the permitting process through changes to the Clean Air Act and the Clean Water Act.

One example cited in Trump’s plan is Section 309 of the Clean Air Act, which requires EPA to review and publish comments on most environmental impact statements. The plan would eliminate that review.

Trump’s proposal calls for a “one agency, one decision” review structure, essentially directing whatever agency has primary jurisdiction over a project to develop one environmental review for use by all agencies.

Under Trump’s plan, the lead agency would have 21 months to issue a record of decision or a finding of no significant impact. Federal agencies then would have only three more months to decide on their permits, limiting the overall timeline to two years.

The plan also would allow states and other nonfederal entities to pay more of the upfront costs, the official said. 

Statute of Limitations Curtailed

The 2015 changes in the FAST (Fixing America’s Surface Transportation) Act, which reauthorized multi-year highway funding, also shortened the statute of limitations from six years to two for environmental groups to sue over big-impact projects, defined as costing more than $200 million. For transportation projects, the window is 150 days.

The law also directed courts to consider the effects of rulings on jobs, created an interagency council to coordinate permitting, set permitting timetables, and in some instances authorized federal agencies to rely on environmental reviews issued by state agencies.

Trump took further steps to expedite infrastructure projects through an August executive order.

The FAST Act and the order will address chronically slow permitting processes, according to Ted Boling, the White House Council on Environmental Quality’s associate director for NEPA.

For the 500 or so infrastructure projects involving federal agencies since 2010, the median time to get a decision is about 3.7 years, he said.

Boling said the White House Office of Management and Budget will closely monitor agencies on permitting progress.

“There will be consequences for a lack of performance, either through reallocation of resources or what have you,” he said.

Albert Ferlo, a partner at law firm Perkins Coie LLP in Washington and a former Justice Department attorney, spoke of the pitfalls Feb. 9 at an American Law Institute event.

“When you tell people to speed up, get this done by a certain date, guess what, they cut corners,” Ferlo said.

“It allows low-hanging fruit for anyone wanting to challenge that project in court,” Ferlo said. “So streamlining without some changes to the litigation process, I think, won’t result in the desired impact.”

Faster permitting would require changes to environmental laws, because executive orders can’t supersede authorizing statutes such as the Clean Air Act.

“Whatever authority is out there, it’s not enough,” Senate Environment and Public Works Committee Chairman John Barrasso (R-Wyo.) told Bloomberg Environment Feb. 14.

“The NEPA process was never intended to be abused and hijacked the way it has been,” Barrasso said. One agency should be authorized to give a final greenlight to projects rather than waiting for approval from as many as seven or eight separate agencies, he said. 

Democrats Unconvinced

Some Senate Democrats say Trump hasn’t taken full advantage of the streamlining authority he already has under the FAST Act.

The top Democrat on the Environment and Public Works Committee, Sen. Tom Carper (Del.), who helped broker the 2015 streamlining, said the administration hasn’t made the case for further permitting changes.

“I think we’ve done a fair amount already,” he told reporters Feb. 12, adding the administration may need to be reminded of the flexibility it already has.

Carper said he expected Democrats would raise that point at a March 1 committee hearing on the infrastructure plan. Other committee Democrats also are skeptical.

“I think the president’s intentions are not to streamline a process but to compromise needed environmental and public health” protections, Sen. Ben Cardin (D-Md.) told reporters Feb. 13.

Democrats and environmental groups also question why the Trump administration is pressing for more changes when it has yet to fill some top positions that are to play key roles in speeding up permitting. 

Chairman Eyes NEPA Changes

In the House, Rep. Rob Bishop (R-Utah), chairman of the House Natural Resources Committee, said he hopes to pursue further revamping of NEPA this year, even as he cautions that Senate approval is an uphill battle.

“The goal is to streamline the permitting process so it’s not used simply as a tool to stop [projects] and so it’s not used as a tool for getting people who love to litigate the opportunity to litigate,” Bishop told Bloomberg Environment Feb. 15.

Too often NEPA is used “as a tool for stopping progress and as a tool of making money by litigating,” he said. Bishop said he plans hearings on what streamlining is needed.