On April 9, 2018, the heads of 12 federal agencies signed a memorandum of understanding (“MOU”) that aims to streamline and shorten federal environmental and permitting reviews for major infrastructure projects.  The MOU implements President Trump’s One Federal Decision (“OFD”) policy established in Executive Order 13807 (“EO 13807”), signed on August 15, 2017 and described further here.  Agency signatories to the MOU include, among others, the U.S. Environmental Protection Agency; the U.S. Army Corps of Engineers; and the Departments of Interior, Agriculture, Commerce, Transportation, and Energy.

EO 13807 defines “major infrastructure project” as “an infrastructure project for which [1] multiple authorizations by Federal agencies will be required to proceed with construction, [2] 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 [3] the project sponsor has identified the reasonable availability of funds sufficient to complete the project.”  The lead agency for purposes of the environmental review, as determined in accordance with the Council for Environmental Quality’s regulations implementing NEPA at 40 C.F.R. 1501.5 and 1501.6, will decide whether a project constitutes a “major infrastructure project.”  If so, the MOU and EO 13807 will guide the environmental and permitting review for the project.

To achieve the goal of streamlining environmental and permitting reviews, the MOU signatories have agreed to develop policies and implement best practices to ensure the use and efficient implementation of the OFD, as well as to communicate with one another and project sponsors in a regular and structured manner.  Most significantly, the MOU commits the agencies to (1) “undertake” to meet the two-year federal review timeframe established in EO 13807; (2) collaborate with the lead agency to prepare a “Permitting Timetable” that identifies the environmental review and permitting milestones and actions to meet the two-year goal (and to make the Permitting Timetable available to the public via the online Federal Permitting Dashboard); and (3) make their permitting decisions and carry out whatever environmental review obligations they may have concurrently and in conjunction with the lead agency’s NEPA review.

Within the two-year timeline, the lead agency (in consultation with cooperating agencies) must publish a Notice of Intent (“NOI”) to prepare an EIS, conduct the environmental review, prepare a single EIS, issue a single Record of Decision (“ROD”), and undertake any other work identified in the Permitting Timetable.  Cooperating agencies must undertake their permitting reviews concurrently.  To the maximum extent practicable and permitted by law, the cooperating agencies must comply with the Permitting Timetable.  Within 90 days of the ROD, agencies must issue all necessary permitting decisions.

To encourage agencies to abide by Permitting Timetables and the two-year goal, EO 13807 requires the White House Office of Management and Budget (“OMB”) to track agency performance.  OMB will score agencies and take the scores into account when formulating the budget that it recommends to Congress. EO 13807 grants OMB the discretion to impose financial penalties on agencies that fail to adhere to the Permitting Timetable.

The general goal of EO 13807 and the MOU to make federal environmental and permitting reviews more efficient follows on the objectives and framework established in President Obama’s 2012 Executive Order 13604 (and implementing plan) and the 2015 Fixing America’s Surface Transportation Act, which applied to major federal projects in a variety of sectors, from transportation to broadband, manufacturing, and energy production.  However, the Obama-era efforts did not establish a timeframe like the Trump Administration’s two-year goal, and while President Obama tasked OMB with overseeing implementation of EO 13604, the agency did not have the power it does under EO 13807 and the MOU.  Therefore, it remains to be seen whether the MOU will make a noticeable change in inter-agency cooperation and planning, or result in uniform achievement of project review processes of two years or less.

For more information on EO 13807, the MOU, and the federal environmental review process generally, contact Mark A. Chertok, Elizabeth Knauer, Sahana Rao, or Alexis Saba.