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Capitol Watch: A FASTer Environmental Review and
Permitting Process?

By Anna Denecke, Associate,
Blakey & Agnew, LLC

It’s been less than three months since the Fixing America’s Surface Transportation (FAST) Act was signed into law, and the focus has justifiably been on the legislation’s big-ticket investment programs. The $281 billion, five-year bill is landmark legislation for many reasons, not least of which is the inclusion of an innovative, freight-specific competitive grant program.

However, the FAST Act is more than just an authorizing bill. The law contains a wealth of reforms to the permitting and environmental review processes, aimed at increasing agency coordination, delineating federal responsibilities to the states, and reforming the litigation process for large infrastructure projects. If executed correctly, these modifications could significantly improve the return on federal investment provided by the FAST Act.

Large infrastructure projects often fall under the jurisdiction of multiple federal agencies. A project on the Canada-U.S. border, for example, could need approvals from the Environmental Protection Agency, the Department of Homeland Security, the Department of Agriculture, and the Department of Transportation, to name a few. A lack of inter-governmental coordination often leads to long delays and duplicative efforts.

The FAST Act takes pains to improve this process by inviting the 13 agencies most often involved in permitting to the same table and asking them to work towards modernizing the infrastructure permitting process. The Federal Permitting Improvement Council will identify and develop best practices among Federal agencies for enhancing early stakeholder engagement, ensuring timely decisions, improving Federal and non-Federal government coordination, increasing transparency, reducing information collection requirements, and creating training manuals.

The Council’s executive director, appointed by the President, will be responsible for developing a "master list" of complex multimodal projects, with estimated costs of $200 million or more that are currently pending the environmental review or authorization process. The executive director will categorize these projects, assign a leading facility agency, and identify preferred project schedules, based on an assessment of best practices.

In addition to facilitating inter-agency coordination

during the permitting process, the FAST Act asks for better coordination during environmental reviews. The bill gives project lead and cooperating agencies the option to reference or incorporate state or local decisions, analyses, or studies into the federal environmental review process.

The FAST Act also reforms the National Environmental Policy Act (NEPA) litigation process. NEPA is the process by which the Federal government assesses the environmental impacts of a proposed action or project. Previously, entities looking to make claims against a NEPA authorization had six years from the date of publication of the final record of decision, approval, or denial to do so. The FAST Act decreases this statute of limitations from six years to two years. Furthermore, an entity looking to make a claim must have filed detailed comments to put the lead agency on notice of the issue at hand during the environmental review process.

The FAST Act empowers states to assume Federal responsibilities for the environmental review process. The bill creates a pilot program, allowing up to five states the ability to conduct their own environmental reviews and make approvals for new projects, either under State environmental laws and regulations or under NEPA requirements. The Secretary will be charged with assessing the pilot program in a report to Congress and the experiment sunsets in 2027.

Additionally, the FAST Act makes Categorical Exclusion (CE) reforms, aimed at streamlining the multimodal project delivery process. CE’s are a category of actions during the environmental review process which do not individually or cumulatively significantly impact the human environment, and therefore are not subject to extensive environmental study. The FAST Act allows any US Department of Transportation (DOT) operating authority to use a categorical exclusion of another DOT operating authority, thereby reducing duplicative determinations and expediting the approval process.

Blakey & Agnew, LLC is a public affairs and communications consulting firm based in Washington, DC.