On September 14, 2017, the Council on Environmental Quality (CEQ) published its “Initial List of Actions to Enhance and Modernize the Federal Environmental Review and Authorization Process.” 82 Fed. Reg. 43226. CEQ developed this list in response to Executive Order 13807, captioned “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” 82 Fed. Reg. 40463 (Aug. 24, 2017). CEQ is not soliciting comments; rather, the notice is apparently for information only. The notice can be found here:https://www.gpo.gov/fdsys/pkg/FR-2017-09-14/pdf/2017-19425.pdf
EO 13807 asserts that “Inefficiencies in current infrastructure decisions, including management of environmental reviews and permit decisions or authorizations, have delayed infrastructure investments, increased project costs, and blocked the American people from enjoying improved infrastructure,” and concludes “the Federal Government, as a whole, must change the way it processes environmental reviews and authorization decisions.” In its statement of policy, section 2 of EO 13807 calls for environmental reviews to be conducted in a “coordinated, consistent, predictable, and timely manner” and sets a “goal of completing all Federal environmental reviews and authorization decisions for major infrastructure projects within 2 years.” EO 13807 can be seen as a more detailed iteration of EO 13766 of January 24, 2017. 82 Fed. Reg. 8657 (Jan. 30, 2017). (See General Memorandum 17-011 of January 27, 2017.)
Agency Performance Accountability. Section 4 of EO 13807 says that federal agencies “should follow transparent and coordinated processes for conducting environmental reviews and making authorization decisions. These processes must include early and open coordination among Federal, State, tribal, and local agencies and early engagement with the public.” The concepts being promoted – transparency, coordination, early engagement – are not new. Indeed, these concepts have been key features of the federal environmental review process since 1978 when CEQ promulgated the regulations implementing the National Environmental Policy Act (NEPA). How well agencies actually integrate these concepts into their NEPA processes is, of course, subject to debate and varies from agency to agency. As a means of tracking federal agency progress in carrying out the policy set out in section 2, including the 2-year time frame for environmental reviews, section 4 directs the Office of Management and Budget (OMB), in consultation with the Federal Permitting Improvement Steering Council (FPISC), to develop a Cross-Agency Priority (CAP) Goal (pursuant to the Government Performance and Results Act (GPRA) Modernization Act of 2010) on Infrastructure Permitting Modernization. EO 13807 sets a 180-day time frame for OMB to develop this CAP Goal, after which OMB is directed to issue guidance for a performance accountability system for achieving the CAP Goal. All federal agencies are directed to revise their Strategic Plans and Annual Performance Plans to include agency performance goals consistent with the CAP Goal. Each major infrastructure projects, is to be tracked on the Permitting Dashboard: https://www.permits.performance.gov/.
One Federal Decision. To “enhance” the environmental review and authorization process, and to achieve the 2-year timeframe, EO 13807 directs agencies to use a mechanism called “One Federal Decision” for major infrastructure projects. The lead agency and all cooperating and participating agencies would, if practicable, incorporate the decisions of all of the agencies into a single Record of Decision (ROD). If a single ROD does not work, then the standard timeframe for any federal agency decision or authorization not incorporated into the ROD would be no more than 90 days after the ROD is issued. CEQ is directed, in consultation with the FPISC, to develop the framework for implementing One Federal Decision, including guidance for whenever the lead agency is a state, tribal, or local agency “exercising an assignment or delegation of an agency’s NEPA responsibilities.”
CEQ’s Initial List of Actions. Section 5 of EO 13807 directs CEQ to develop an initial list of actions it plans to take “to enhance and modernize the Federal environmental review and authorization process.” The EO sets out four objectives for the actions on the CEQ list:
(A) ensure optimal interagency coordination of environmental review and authorization decisions, including by providing for an expanded role and authorities for lead agencies, more clearly defined responsibilities for cooperating and participating agencies, and Government-wide applicability of NEPA decisions and analyses;
(B) ensure that environmental reviews and authorization decisions involving multiple agencies are conducted in a manner that is concurrent, synchronized, timely, and efficient;
(C) provide for agency use, to the maximum extent permitted by law, of environmental studies, analysis, and decisions conducted in support of earlier Federal, State, tribal, or local environmental reviews or authorization decisions; and
(D) ensure that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, including by using CEQ’s authority to interpret NEPA to simplify and accelerate the NEPA review process.
CEQ’s initial list, as published on September 14, includes five existing guidance documents that CEQ plans to review or supplement. CEQ also plans to review its regulations to identify possible changes. A CEQ handbook for infrastructure projects is also planned. Finally, CEQ will convene an interagency EO 13807 Working Group, which will address issues such as integrating requirements of other federal laws into the NEPA process.
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