Here are possible legislative amendments to reduce the time for infrastructure review and permitting. These concepts were developed through extensive discussions over the past year with project developers, environmental advocates and regulators. These amendments are procedural, and are not designed to affect substantive decisions on the wisdom or desirability of projects or amend in any way the underlying decisional standards.
To some degree these proposals constitute a wish list. The two amendments that we believe are vital to effective streamlining are: 1) Giving CEQ authority to decide issues around scope and adequacy of environmental review; and: 2) Giving OMB authority to resolve inter-agency disputes. Without a clearly designated and empowered decision-maker, even trivial disagreements can extend the process for months or years. Like the possibility of going before a judge, the possibility of a decision-maker enhances the willingness of parties to reach agreement on disputed issues, whether on the scope of environmental review or the appropriate balance of competing regulatory goals.
1.
Statement of purpose. Except in unusual circumstances, determinations of whether to approve infrastructure projects shall be made in less than two years. Delay is costly and often destructive of public goals, including environmental quality and a robust economy. All public determinations, including review by courts, should be mindful of this legislative determination of the need for expeditious decisions.
Suggested Amendments:
Sec. 61002(c)(1)(C)(ii)(II)(aa)(at 945), Council Time Limits, add at end “and, without a showing of unusual and extraordinary circumstances, shall be completed in two years or less.”
Sec. 61003(c)(2)(B) (at 961), Permitting Timetable Factors for Consideration, add at end of paragraph after (vi), “and, without a showing of unusual and extraordinary circumstances, shall be completed in two years or less.”
2.
CEQ is authorized to resolve all issues concerning the process for the environmental review, including scope, adequacy, timetable, incorporation of prior environmental review statements, and other issues.
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Sec. 61003(c(2)(C)(ii) (at 963), Dispute Resolution, add a new subpart (iii) and subpart (iii) becomes subpart (iv): “Environmental Review. The Chairman of the Council on Environmental
Quality may resolve all remaining disputes regarding the appropriate process for conducting the environmental review, including scope, adequacy, timetable, and incorporation of prior environmental review statements.”
3.
Fast track review. CEQ may grant or require fast track review with a schedule of less than one year for final environmental review. In approving final environmental review after such a schedule , CEQ shall consider: i) whether the project proponent or lead agency solicited public input on the project prior to preparation of environmental review statement; ii) whether environmental review encompassed material impacts; and ii) whether the project has overall net benefits to the environment.
Sec. 61003(c)(2)(B) (at 962), add: "(vii) For any project determined by the Chairman of the
Council on Environmental Quality to demonstrate significant net environmental benefits and when the lead or facilitating agency or the project proponent demonstrates that the preferred alternative was developed with significant consultation with affected stakeholders, the timetable may be set at one year or less."
4.
Judicial review. Judicial review of the adequacy of environmental review shall be limited to whether the review failed to disclose material impacts and practical alternatives. Except in unusual circumstances, judicial review shall be complete within six months.
Sec. 61007(a)(1)(B) (at 981) add "(iii) the action is limited to claims that the agency failed to consider or disclose material impacts of the proposed project or practical alternatives to the project."
5.
The Chief Permitting Officer or other official designated by the President for a particular project is authorized to resolve all issues among federal agencies or departments, and to require issuance of all federal permits consistent with applicable law.
Sec. 61005(e)(at 979) add: "(4) DISPUTE RESOLUTION.—(i) IN GENERAL. The Executive Director, in consultation with appropriate agency CERPOs and the project sponsor, shall, as necessary, mediate any interagency disputes regarding the content or scope of any environmental review,
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or any procedural questions regarding the environmental review process. (ii) DISPUTES.—If a dispute remains unresolved 30 days after the date on which the dispute was submitted to the
Executive Director, the Director of the Office of Management and Budget, in consultation with the Chairman of the Council on Environmental Quality, shall facilitate a resolution of the dispute and direct the agencies party to the dispute to resolve the dispute by the end of the 60-day period beginning on the date of submission of the dispute to the Executive Director. (iii) FINAL
RESOLUTION.—Any action taken by the Director of the Office of Management and Budget in the resolution of a dispute under clause (ii) shall—(I) be final and conclusive; and(II) not be subject to judicial review.”
6.
Coordination with state and local governments. Duplicative environmental review is contrary to the public interest and should be avoided. CEQ shall coordinate with states to eliminate the need for such review. Nor should any state or jurisdiction delay approval of projects of interstate or national significance. The project proponent shall strive to achieve state and local permitting concurrently with federal permitting. For interstate projects, the Chief Permitting
Officer shall be authorized to grant final permits if state and local permits are delayed more than six months past issuance of federal permits.
Sec. 61003(c)(3) (at 968), add: " (D) For interstate projects, in the event that the coordination specified in (B) does not achieve a final determination on review and permitting under any applicable state, local, or tribal law by the respective state, local, or tribal agency within 6 months of the issuance of a final Federal permit, the lead agency CERPO, in consultation with the Chairman of the Council on Environmental Quality and the Director of the
Office of Management and Budget, shall be authorized to make a determination regarding any outstanding environmental review and authorizations."
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