We’ve been trying to stay focused here at the California Construction Law Blog. But it’s been hard.
This past week, a couple of new developments took place at the federal level on infrastructure, although if you blinked, you may have missed it.
Executive Order on Environmental Permitting
This past Tuesday, at a press conference quickly overshadowed by the President’s comments about the tragic events that took place in Charlottesville, President Trump announced that he had signed a new executive order aimed at streamlining the environmental permitting process for federally-funded projects.
Key highlights of Trump’s executive order include:
- CAP Goal on Infrastructure Permitting Modernization (CAP Goal): The executive order requires the Office of Management and Budget (OMB), in consultation with the Federal Permitting Improvement Steering Council (FPISC) which was established in 2015, to establish a Cap Goal aimed at accelerating federal environmental reviews and approvals for new infrastructure projects with the goal of reducing environmental reviews and approvals to an “average of approximately 2 years, measured from the date of the publication of a notice of intent to prepare an environmental impact statement or other benchmark.” The CAP Goal is required to be prepared within 180 days of the executive order.
Note: The executive order, which highlights Trump’s infrastructure priorities, defines “infrastructure project” as a projects involving surface transportation, including roadways, bridges, railroads, and transit; aviation; ports, including, navigational channels; water resources projects; energy production and generation, including, from fossil, renewable, nuclear and hydro sources; electricity transmission; broadband internet; pipelines; stormwater and sewer infrastructure; drinking water infrastructure; and other sectors as determined by the FPISC.
- Federal Performance Goals Consistent with the CAP Goal: The executive order requires all federal agencies with environmental review, approval and consultation responsibilities to develop performance goals consistent with the CAP Goal. The executive order also requires the OMB, in consultation with the FPISC, to issue guidance to federal agencies to assist in the development of these performance goals within 180 days of establishment of the CAP Goal.
- “Major” Infrastructure Project Tracking and Scoring: For “major” infrastructure projects, defined as infrastructure projects requiring multiple federal approvals, the executive order requires those projects to be tracked using performance measures focused on: (i) whether the project has a permitting timetable; (ii) whether the project includes a process to address timetable milestones that are missed or extended; (iii) whether federal agencies are meeting the milestones in the timetable; (iv) the time it takes to complete environmental reviews and approvals; and (v) the cost of environmental reviews and approvals. The executive order requires the OMB to develop a scoring system, to be published by OMB at least once per quarter, and authorizes the OMB to penalize through the budget authorization process federal agencies that significantly fail to meet their performance goals.
- “One Federal Decision” for Major Infrastructure Projects: The executive order requires major infrastructure projects to have a “lead” federal agency responsible for navigating the project through the federal environmental permitting process. With respect to the National Environmental Protection Act (NEPA), the lead federal agency is required to record individual agency decisions in one Record of Decision (ROD), unless the project sponsor requests that agencies issue separate NEPA documents, the NEPA obligations of an agency have already been satisfied, or the lead federal agency determines that a single ROD would not promote completion of the project’s environmental permitting process. All federal decisions for the construction of a major infrastructure project are to be completed within ninety (90) days of the issuance of a ROD, provided that the final environmental impact statement includes an adequate level of detail. The OMB and the Council on Environmental Quality, in consultation with the FPISC, is to develop aframework for implementing the One Federal Decision.
- Rollback of Obama Federal Risk Management Standard: Consistent with earlier comments by President Trump on climate change and the President’s withdrawal of the U.S. from the Paris climate agreement in July, yet despite a recently leaked government report from 13 federal agencies waiting for approval by the White House finding that climate change has had a significant impact on the U.S., the executive order rolls back an earlier executive order signed by former President Barack Obama that would have required that federally-funded projects built in flood plains be designed to survive rising sea levels and other consequences of climate change. The Obama executive order, known as the Federal Flood Risk Management Standard, was signed in 2015 but had yet to take effect as federal agencies solicited input and drafted rules to implement the order.
End of President’s Advisory Council on Infrastructure
This past month, President Trump signed an executive order establishing a Presidential Advisory Council on Infrastructure. The Advisory Council, which was to be comprised of not more than fifteen (15) members, was to make findings and recommendations concerning the prioritizing the nation’s infrastructure needs; accelerating pre-construction approval processes; developing funding and financing options; identifying methods of increasing public-private projects; identifying best practices in procurement methods, grant procedures and infrastructure delivery systems; and prompting manufacturing and infrastructure-related technological innovation.
Less than a month later, and the day following President Trump’s announcement on Twitter that he was disbanding two other presidential advisory councils — the American Manufacturing Council and Strategic and Policy Forum — following the decision by several members to quit after the President’s remarks concerning the events in Charlottesville, the White House announced that President Trump would not be going forward with the Presidential Advisory Council on Infrastructure either.