On April 9, 2018, the Trump Administration announced its latest step in streamlining environmental reviews and permitting for major infrastructure projects. The "Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807" ("MOU") was signed by the heads of twelve U.S. agencies. Signatories include the Departments of Energy, Interior, and Transportation, as well as the Federal Energy Regulatory Commission ("FERC"), the U.S. Army Corps of Engineers and the Environmental Protection Agency.1
The MOU builds on President Trump's August 15, 2017 "Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure" ("Order 13807"). Order 13807 introduced the "One Federal Decision" mechanism, which elevates the importance of "lead" agencies in coordinating and scheduling environmental permitting and review. Order 13807 also calls for (1) federal authorization decisions within 2 years; (2) using a coordinated permitting timetable to ensure timely reviews; (3) issuing a single Record of Decision ("ROD") for each major infrastructure project; (4) completing all related federal authorizations within 90 days of the ROD; and (5) scoring agency performance relative to these new standards.
Order 13807 defined a "major infrastructure project" as an infrastructure project for which multiple authorizations by Federal agencies will be required to proceed with construction, the lead Federal agency has determined that it will prepare an environmental impact statement ("EIS") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. 4321 et seq., and the project sponsor has identified the reasonable availability of funds sufficient to complete the project. Infrastructure includes, but is not limited to, roads, bridges, railroads, transit, aviation, ports, water resource projects, energy production and generation, electricity transmission, broadband internet, pipelines, stormwater and sewer structures, and drinking water supply.
The MOU affirms the Administration's commitment to the principles and policies set forth in Order 13807 and provides additional implementing procedures, including:
- establishing procedures for agencies to coordinate and concur with one another on significant elements of environmental reviews;
- instructing agencies to develop internal policies and procedures for implementation;
- setting out the goal of prompt preliminary planning and coordination by agencies with authorization decision responsibilities;
- providing for elevation of review-related disputes for expeditious resolution;
- establishing that a final EIS should provide sufficient detail to inform all agencies with decision responsibilities; and
- affirming an existing obligation for other agencies to serve as cooperating agencies when invited to do so by FERC, when FERC is acting in a lead-agency role.
Federal agencies--including independent agencies such as FERC--must comply with the MOU "to the maximum extent practicable," subject to the constraints of existing statutory requirements, regulations, and procedures. The MOU also creates exceptions to the single EIS/single ROD requirement, such as when the project sponsor asks for an opt-out (potentially under pressure from cooperating agencies), the lead agency determines that one ROD would not promote efficient completion of the environmental review process, or the project sponsor fails to respond to lead agency requests. Moreover, the MOU does not create any consequences for failure to meet the two-year goal for issuance of a ROD. This means that the impact of the MOU, which became effective April 10, 2018, will depend largely on how agencies implement the procedures and deadlines they establish. Many agencies will need to develop internal procedures to support the MOU's objectives and dedicate additional resources if there is to be any meaningful effect from Order 13807 and the MOU. Finally, it is unclear what effect, if any, the MOU will have on environmental reviews that are currently underway.
The MOU has the potential to impact FERC's permitting and licensing activities to the extent that it spurs better coordination and faster responses by other federal agencies, including those that become cooperating agencies. In addition, some of FERC's existing processes may serve as tools to implement the MOU. For example, FERC's pre-filing process for major gas pipelines and liquefied natural gas ("LNG") terminals facilitates preapplication planning and coordination in the manner directed by the MOU. Two-year decision deadlines, however, will be challenging for many of FERC's licensing and permitting processes, as agency reviews for major gas pipelines, LNG terminals, and hydroelectric projects can take many years and rely on the involvement of both federal and state-level authorities.
The MOU does not address state-level authorities or reviews, such as Clean Water Act Section 401 ("Section 401") certifications, nor does it remove or modify any state statutory obligations or authorities. Some of those reviews, however, should become more timely, as the U.S. Court of Appeals for the Second Circuit in New York State Department of Environmental Conservation v. FERC recently upheld FERC's determination that, by failing to act within one year of the date of receiving a gas pipeline's request for a Section 401 certification, New York State exceeded the one-year timeframe for review established by the Clean Water Act and, therefore, waived its authority to review the request.
The MOU is the latest action in a series of developments that aim to streamline infrastructure siting and development within the boundaries of existing statutes and regulations. The practical effects on infrastructure development, however, will depend on how the MOU is implemented by authorization agencies in the coming months.
1The other signatories are the department of Agriculture, Department of Commerce, Department of Housing and Urban Development, Department of Homeland Security, Advisory Council on Historic Preservation, and the Federal Permitting Improvement Steering Council.
ABOUT BAKER BOTTS L.L.P.
Baker Botts is an international law firm of approximately 725 lawyers practicing throughout a network of 13 offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the technology, energy, and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit bakerbotts.com.