Infrastructure plan could add momentum to permitting reforms already underway

February 01, 2018
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President Trump’s call for an increase in federal funding for infrastructure upgrades includes as a key component streamlining environmental and other permitting requirements, changes that will likely face an uphill battle in Congress, even while the administration moves forward on many of these reforms through executive actions, sources said.

Trump has called for bipartisan congressional action on an infrastructure fund, with the White House expected to offer a set of legislative “principles” for streamlined permitting within the next few weeks.

The administration has pledged $200 billion for infrastructure improvements, and the president says this sum can be leveraged into a $1.5 trillion fund through state and local contributions and private investment.

“Tonight, I am calling on the Congress to produce a bill that generates at least $1.5 trillion for the new infrastructure investment we need,” Trump said in his State of the Union address on Jan. 30. “Every federal dollar should be leveraged by partnering with state and local governments and, where appropriate, tapping into private sector investment — to permanently fix the infrastructure deficit.”

“Any bill must also streamline the permitting and approval process — getting it down to no more than two years, and perhaps even one,” Trump said in his speech to Congress.

The proposal to speed up development of roads, bridges and other infrastructure projects would codify some of what's already underway within the administration as part of the president's broader deregulation agenda, sources said.

The president's call for a new infrastructure fund could bring attention, if not momentum, to efforts already underway within the administration to consolidate and expedite the permitting process, even if congressional action appears unlikely this year, according to industry sources.

“A lot of what the administration is proposing is not new in substance, but what is new is the amount of drive they're bringing to it,” said an industry source who supports efforts to expedite federal permitting.

The Obama administration signed into law a number of permitting reforms for highway and transportation  projects, which Trump is building on in his recent directives for reduced timelines and less burdensome regulatory reviews of infrastructure projects.

The administration's efforts on deregulation and streamlined permitting are “driven by the same core set of concerns” for “building more projects and boosting the economy” by eliminating “regulatory barriers” and “expediting the permitting process,” the source said.

What's different between the two efforts is that the administration is seeking substantive changes through its deregulation push, and promoting process changes in its permitting reforms, even while the “overall goal is the same,” the source said.

“Legislative action would be the better option for dramatic” and long-term changes to the federal permitting process, said Cynthia Taub who leads the National Environmental Policy Act permitting and litigation practice at the law firm Steptoe & Johnson, but she acknowledged that “executive actions are more likely in the near-term.”

Industries that operate large facilities, such as chemical makers, have come out in strong support for Trump's infrastructure proposal and backing for streamlined permitting.

“Among other priorities for regulatory reform, [the American Chemistry Council] sees a need to improve the implementation process for new federal regulations,” said ACC communications director Jennifer Scott in an email statement. “A prime example is environmental permitting for new manufacturing facilities, expansions and factory re-starts.”

Trump has issued several executive orders calling on federal agencies to reduce regulations and compliance costs, and directing the White House Council on Environmental Quality to revise its regulations for developing and reviewing environmental assessments for major infrastructure projects under NEPA.

“Before becoming a reality, these projects must navigate a labyrinth of permitting requirements involving state and local entities and up to nine federal agencies – NEPA reviews among them,” Scott said. “The process has many challenges that can derail or significantly delay a project. We support reforms that would enable facilities to obtain required construction and operation permits in a timely, transparent and efficient manner."

Those reforms are expected to be laid out further in legislative principles from the White House, which will draw from and expand on reform efforts already underway.

For instance, the U.S. Forest Service published an advanced notice of proposed rulemaking for revising its NEPA procedures with the intent of streamlining its environmental analyses. The Forest Service argued that it needs to limit resources committed to conducting NEPA reviews to accommodate an increased demand for battling wildfires.

The proposal's overall goals are reflective of Trump's executive order 13807 (EO13807.pdf) issued last August, which sets a government-wide goal of completing NEPA infrastructure reviews within two years.

Other NEPA reforms reportedly being considered by the administration – such as limiting the role of the Environmental Protection Agency in reviewing the adequacy of federal agencies' infrastructure reviews – will require an act of Congress, which is not likely anytime soon, industry sources said.

Senate Democrats have already voiced concern about the adequacy of funds being pledged by Trump for infrastructure upgrades, while conservative Republicans are expressing opposition to creating a new federal spending program.

“Regardless of congressional action, a lot of these reforms that have been pending for the past few years, are now being implemented,” said an industry NEPA lawyer, “and this administration will take credit for having come up with them” and for getting them done.