White House revises NEPA in hopes of faster infrastructure permitting

UPDATE: Jan. 13, 2020: The White House Council on Environmental Quality (CEQ) has published its proposed changes to the National Environmental Policy Act (NEPA) in the Federal Register. The pubic comment period ends March 10.

During a White House press conference with President Donald Trump, other government officials and business leaders on Jan. 9, Mary B. Neumayr, chair of the CEQ, said that the changes will speed up significantly the environmental process necessary in construction permitting.

"Delays due to lengthy reviews and lawsuits increase costs for project applicants, states, tribes, localities and taxpayers," Neumayr said. "These delays deter investments, and these delays make our country less economically competitive."

She said "commonsense" proposed changes to NEPA include the following.

A two-year time limit for Environmental Impact Statements
A requirement that federal agencies start gathering applicant and public information earlier in the review process
Increased coordination between agencies
Increased use of local, state and tribal documentation to avoid duplication of effort at the federal level
Incorporation of modern technology into the regulations

Neumayr added that the CEQ's proposals would not change major environmental laws like the Clean Water Act or Clean Air Act, only the process of gathering information.

Dive Brief:

The White House Council on Environmental Quality has submitted to the Office of Management and Budget proposed changes to the National Environmental Policy Act (NEPA) in order to "enhance and modernize" the federal review and permitting process for infrastructure projects.
Before putting together its final proposal, the CEQ requested in its June 2018 Federal Register advance notice of rulemaking that it receive any public comments on potential deletions, additions or changes to NEPA regulations with the stated goal of making them more "efficient, timely, and effective." NEPA rules, which were issued in 1978, have not seen a significant revision since 1986.
The action was spurred by President Donald Trump's August 2017 Executive Order 13807, "Establishing Discipline and Accountability in the Environment Review and Permitting Process for Infrastructure," in which the administration asked the CEQ to try to find ways to shorten the time it takes to usher projects through environmental reviews.

Dive Insight:

The CEQ's proposed rule has not yet been published, but the construction industry is eager to see what changes could be in store for the NEPA review process, which, according to the American Action Forum, takes an average of about six years.

Brian Turmail, vice president of public affairs and strategic initiatives for the Associated General Contractors of America (AGC), told Construction Dive that the organization has made several recommendations to the CEQ as to what should be included in the new proposal.

In a 12-page letter to the CEQ, Leah Pilconis, senior counsel at the AGC, laid out several suggestions, including:

Eliminating an alternative to a proposed project when the alternative's constructability would result in a significant budget overrun or change to the project location;
A reevaluation of NEPA documentation only if there are significant changes to either the proposed project location or to the baseline environmental or land use data within the directly affected proposed action area;
No NEPA reevaluation for minor changes to a proposed project; and
Set time limits for routine actions within CEQ jurisdictions.

The AGC added in its letter to the CEQ that the elements of a project that manages to make its way through the NEPA process in as little as two years include:

A designated champion in the lead agency, an individual responsible for advancing the project through the approval process;
Early public outreach;
Positive communication between the lead agency and project developer;
A mutually agreed upon end date;
A coordinated and concurrent permitting and review process between agencies;
One NEPA document that satisfies all permitting requirements; and
Approaches that eliminate redundancies from agency to agency.

The USDOT has also made moves toward streamlining its permitting process for infrastructure projects. In September, the department announced two new rule changes — a general limit of 150 pages for environmental impact statements and a requirement that one federal agency be designated to handle each project's environmental review and permitting process. The changes, according to the USDOT, could reduce the permitting time for many projects to as few as two years.