Congress Enacts Infrastructure Reform, but Implementation Lags

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Transportation bill aims to bring change and certainty to the implementation of major infrastructure projects.

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Business groups have led a growing movement to remedy the huge delays and uncertainties that plague infrastructure projects. The President’s Council on Jobs and Competitiveness highlighted the issue in a 2011 report, prompting the Obama Administration to launch an interagency initiative that includes an online Federal Infrastructure Permitting Dashboard.

But the issue is not just about helping business. For example, the speed with which our nation moves towards renewable power generation will depend crucially on how quickly agencies can site solar and wind farms and build new transmission lines to move the power that these farms generate to where it is needed.

Environmental groups (and unions) recognize this, and several joined to support a bill that ultimately became Title 41 of the five-year transportation bill enacted last December. FAST-41, as the legislation is now known, effectively codifies the Administration’s efforts and adds greater rigor and transparency to the initiative. The point of FAST-41 is not to make it more or less likely that a given project will be approved, but to produce a reliable answer more openly and within a predictably shorter timespan.

Potentially the most significant regulatory reform enactment in two decades, FAST-41 holds great promise, but its object is enormous and highly inertial. Fulfilling the new law’s promise will require sustained attention by this administration and those that follow. Unfortunately, things seem to be off to a slow start.

FAST-41 applies to construction projects subject to the National Environmental Policy Act (NEPA) that are likely to (i) cost more than $200 million, (ii) require the preparation of an environmental impact statement or (iii) require approvals from two or more agencies.

Under the new law, 13 federal agencies, plus the Office of Management and Budget (OMB) and the Council on Environmental Quality, will constitute a Federal Permitting Improvement Steering Council, chaired by a presidentially appointed executive director. By December, this group must develop generic performance schedules for each category of project. These schedules are to be reviewed and revised every two years. Further, no decision involved in a review can take longer than 180 days after the agency possesses the necessary information for assessment.

This process begins when the public or private entity seeking authorization for a covered project submits a “notice of initiation” of the project to the executive director. The project will then be listed on the Dashboard, and a lead agency will be established. The federal agencies likely to have a role in the project are then to be named cooperating agencies, unless they opt out by a certain date. These agencies must provide early consultations with the project sponsors.

The lead agency must then issue a Coordinated Project Plan, the key elements of which are (i) a timetable (derived from the applicable performance schedule) that contains intermediate and final deadlines and (ii) a plan for timely public outreach.

Agencies seeking extensions to these deadlines must obtain approval from the executive director or OMB, and OMB may also need to provide notice of the extension to the House Committee on Transportation and Infrastructure and the Senate Committee on Environment & Public Works. Agencies that fail to meet their scheduled deadlines will be required to post monthly status updates on the Dashboard.

Further, when agencies are initiating environmental impact statements, they must conduct environmental reviews concurrently and cooperatively “to the maximum extent practicable.”

To promote transparency and public involvement, the lead agency must engage the public and the participating agencies no later than at the beginning of the scoping process under NEPA to determine the range of reasonable process alternatives. Public comment periods on draft environmental impact statements must last at least 45 days, but cannot exceed 60 days. All other NEPA-related comment periods are capped at 45 days. In either case, the lead agency can extend the cap for good cause or if the project sponsor consents.

To minimize duplication, agencies are authorized to adopt the analysis and documentation developed by a state agency reviewing the covered project, so long as they were prepared under processes substantially equivalent to those under NEPA. States can opt in to the FAST-41 process. Three or more contiguous states can form an interstate compact to facilitate reviews.

The Dashboard, currently housed at the U.S. Department of Transportation, is to be administered by the executive director and the General Services Administrator. The Dashboard’s current transparency function is substantially enhanced, since disclosure on the Dashboard is FAST-41’s principal accountability mechanism. The Dashboard will also take on an important new role as a docket for covered projects.

Challenges based on NEPA, previously subject to the general six-year limitation on claims against the federal government, must now be filed within two years. To maintain a lawsuit, the challenger must have filed a comment during the review process and the lead agency must have been put on notice of the relevant issue.

In cases in which the challenger is seeking a temporary restraining order or a preliminary injunction, courts must consider the effects that this kind of relief would have on public health, safety, and the environment, as well as “the potential for significant negative effects on jobs.” The latter phrase could well refer to future jobs, an especially important consideration since most jobs associated with a proposed project have yet to be created. When assessing the potential consequences of an order granting preliminary injunctive relief, courts are bound not to presume that the harms stemming from such relief would be reparable.

Congress established an ambitious timetable for implementing the new program. It applies to any covered project for which a notice of initiation has been filed after enactment, and in March, it started applying to all currently pending projects. On April 15, the executive director was supposed to have filed the first annual implementation progress report.

To date, no required notice of initiation for a covered project has yet been filed and an executive director has not been appointed. The Dashboard now notes that it “is undergoing additional updates to meet the requirements” of FAST-41, adding that the notice of initiation “is under development and will be available by June 1, 2016.”

It is difficult to overstate the challenge that the new executive director will face. The simple logistics of setting up systems to gather needed information will be daunting enough. Even more difficult will be persuading hundreds of career staff, in over a dozen agencies, that this time, NEPA reform really must happen. Only then will infrastructure permitting processes move faster and in a more coordinated fashion.

FAST-41 is not the first time that people have tried to “fix NEPA,” and although it represents a congressional mandate, people still have to make that mandate happen. Changing the culture at multiple agencies simultaneously requires charm, persistence, and, above all, clear direction from the White House. The vigor with which implementation takes place over the next year will largely determine whether FAST-41 will accomplish its proponents’ goals.

Jamie Conrad

Jamie Conrad is the principal of Conrad Law & Policy Counsel, a law and lobbying practice based in Washington, D.C., and he is a former Chair of the ABA Section of Administrative Law and Regulatory Practice. He was actively involved in the enactment of FAST-41 on behalf of Business Roundtable. The views expressed here are his own.