By Brandt Mannchen

President Donald Trump has pushed forward to reduce the time it takes to conduct environmental reviews with the aim to “fast-track” their completion.  In 2015, President Obama signed a bill, Fixing America’s Surface Transportation Act (FAST-41), which created a new governance structure, set of procedures, and funding authorities to “fast-track” the federal environmental review and authorization process for, not only transportation projects, but anything that is labeled a “high priority infrastructure project”.

This new mechanism to “stream-line” and “hurry-up” crucial environmental analysis is called FAST-41.  Under FAST-41, a new “Federal Permitting Improvement Steering Council” was created that consists of all major cabinet departments, commissions, and regulatory agencies.  This new mechanism was being implemented methodically by the Obama Administration.  However, President Trump has put the implementation of FAST-41 on “speed-drive” and “accelerated” this mechanism’s use via two executive orders, recently signed, to limit environmental reviews and public input.  This is very bad for public transparency and participation.

The two executive orders, by their titles, tell you what is desired and where the government is headed.  Executive Order 13807 is entitled "Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects".  Executive Order 13766 is entitled "Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects".

The goal is for a two-year process for environmental review and decision approval.  Environmental reviews, under the National Environmental Policy Act (NEPA), often last longer than two years due to the magnitude of the project, its significant environmental impacts, and the complicated environmental analysis required for an  accurate estimate of potential environmental impacts.

FAST-41 also reduces the statute of limitations for filing a lawsuit.   In the past, lawsuits could be filed within 6 years of project approval.  Now FAST-41 limits the time to file NEPA lawsuits to 2 years.  Those who file a lawsuit must be person(s) or parties who submitted a related comment during environmental review.

FAST-41 establishes guidance for judicial review of actions that seek temporary restraining orders or preliminary injunctions for high priority projects.  FAST-41 has a dispute resolution process for agencies.  However, if there is no conclusion to the dispute resolution process in 60 days, the Office of Management and Budget (OMB) will make a final decision.  The OMB is concerned more with the fiscal, budgetary, economic, and financial implications of a project.  In the past, OMB has not been significantly concerned about environmental impacts.

What FAST-41 means is that federal agencies, like the U.S. Army Corps of Engineers, U.S. Forest Service, and others, will not have enough time (money and people are in short supply already due to long-term budget cuts) to do the required analyses or quality of analysis needed by the NEPA for a thorough and complete environmental impact statement (EIS) much less give adequate time for public review and input.

Trump has also begun, via his Council on Environmental Quality, an Advanced Notice of Proposed Rulemaking to update regulations that implement the procedural provisions of NEPA.  NEPA is the only statute that gives the public a relatively comprehensive and transparent review, comment, and participation process for federal projects that significantly affect the quality of the human environment.  Without strong NEPA procedural regulations, the public will not get the opportunity to comment or the opportunity to comment will be excessively shortened so that agencies and special interests can get approval to spend 100’s to billions of taxpayer dollars on projects that devastate the environment, including impacts due to activities that exacerbate climate change.

For more information about these proposals contact the Federal Permitting Dashboard at www.permits.performance.gov and the CEQ website at www.whitehouse.gov/ceq/.  You can also contact Brandt Mannchen at 832-907-3615 or brandtshnfbt@juno.com.