February 15, 2018

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Put It To Final – The Official Trump Administration Changes To Environmental Permitting

By Jason Cassidy, Attorney at Ryley Carlock & Applewhite

The White House released its “Legislative Outline for Rebuilding Infrastructure in America” on February 12, 2018. As anticipated, one of the sections of that Outline proposes significant changes to the environmental permitting process, most particularly to federal review under the National Environmental Policy Act (“NEPA”). This article is a follow-up to my February 2, 2018 article analyzing the draft version of this plan and will only focus on that aspect of the Outline.

The Draft turned out to be very similar to the released Outline, so if you had feelings about the Draft, you’ll feel the same way about the Outline (maybe even a little stronger). Developers will appreciate the lengthened permit terms under the Clean Water Act, while environmental groups will oppose the new approval powers that would allow the Secretary of the Interior to put oil pipelines and related facilities on federal parklands. Some of the more controversial features were removed, including nearly the entire section that would affect the Endangered Species Act1

No matter how you feel about it, the White House still can't implement most of the changes by itself. Perhaps the Outline recognized this when it eliminated some of the Draft’s proposed controls over the judiciary, which were not likely to ever become effective. The finished product, while perhaps tempered from the prior draft, would still act as a sweeping revision of the NEPA process—if all its proposals were enacted. But it will be up to Congress to move the bulk of this plan forward.

I. A closer look at the substantive changes between Draft and Outline.
Most of the Draft’s sections were functionally untouched and thus the summaries in my prior article still apply. But some of the sections did see significant change:

A. Altering agency interactions.

  • Despite some new language that adds ambiguity, it would seem that the Interagency Review Team is still on the chopping block.2
  • The Outline now gives FERC the power to take away another agency’s choice to intervene in a licensing proceeding by preemptively forcing that agency to cooperate in FERC’s NEPA document preparation process.3

B. Revising the Clean Water Act.

  • In actions where both Sections 404 and 408 of the Clean Water Act apply, the Outline appears to now completely remove the need for a Section 408 review.4
  • The Outline expands the length of a Clean Water Act permit from five to fifteen years (the Draft expanded it only to ten years).5

C. Broadening the use of federal parklands and historic sites.

  • An action that is taken under a Section 106 agreement of the National Historic Protection Act now does not count as a “use” under Section 4(f) of that Act.6 This is a subtle change from the Draft, which would have instead had the 106 agreement satisfy Section 4(f).
  • Section I(F)(5) of the Outline would give the Secretary of the Interior the unilateral power to approve—not only natural gas pipelines7—but also oil pipelines “and facilities necessary for the production of energy” on any land administered by the National Parks Service.

D. Making fundamental changes to review and procedure.

  • The Outline removed many of the proposed controls on review and procedure, including:
    • A proposed restriction on a court’s ability to deem insufficient an agency’s decision to issue a FONSI or ROD8  “based on a lack of analysis;”9
    • Automatic punishments for an agency’s failure to make a decision within 3 months;10
    • Giving the Courts of Appeals original jurisdiction of Fast 41 projects;11 and
    • Preventing Categorical Exclusions or the issuance of a Biological Opinion from being reviewed in court.12
  • Section III(b) of the Outline clarifies that its “Negotiated Mitigation Pilot” program would allow agencies to establish alternative processes that are entirely “in lieu of NEPA.”
  • The Outline now seeks to preclude any court “from reviewing any claims based on the currentness of data, so long as agencies were in compliance with their established guidelines.”13 

II. Conclusion – You can’t say that you didn’t see this coming.
Most of the Draft plan is replicated in the Outline with only minor cosmetic changes. The Outline’s more substantive changes don’t really add new concepts, but instead take existing Draft sections a step further. So even though the Draft was an unofficial document, it told us what was coming in the Outline.

Ultimately, even though the Outline is the formal White House proposal, it faces the same fundamental barrier as the Draft: it will require Congressional action to get most of it done. Such action is not likely to come soon. In the meantime, if you would like assistance in navigating these changing waters, the attorneys at Ryley Carlock & Applewhite are ready to guide you through them, WOTUS14 or otherwise.

About the Author:
Jason L. Cassidy is a member of the firm’s Litigation practice group. He has experience helping clients resolve disputes involving the False Claims Act, infrastructure and real estate, contracts, water use, Reclamation law, defamation, land use/zoning, discrimination, ADA/disability issues, and a wide variety of business issues. Jason can be reached at 602.440.4812 and  jcassidy@rcalaw.com.

1Sections 3110-3116 of the Draft.
2Compare § I(B)(10) of the Outline with § 3013 of the Draft. Even though the text now only says that it would remove “the second review,” the title of the section is still “Eliminating the Interagency Review Team.”
3Compare Outline § I(B)(14) with Draft § 3017. The Draft would have codified FERC policy that prohibits federal agencies from intervening when they participate as a cooperating agency in a FERC review. The Outline instead would modify the Federal Power Act “and other laws” to require agencies to participate as a cooperating agency upon request.
4Compare Outline § I(C)(1)(d) with Draft § 3104. The Draft had contemplated keeping part of the Section 408 process; the Outline does not.
5Compare Outline § I(C)(3) with Draft § 3107.
6Compare Outline § I(F)(2) with Draft § 3119.
7Compare to Draft § 3122.
8Respectively, “Finding Of No Significant Impact” and “Record of Decision.”
9From Draft § 3000.
11From Draft § 3401.
12Draft §§ 3405-3406.
13Compare Outline § IV(C) with Draft § 3407. The Draft version would have instructed courts only to defer to an agency’s determination that it was using current data. And judicial deference has limits, while preclusion does not.
14Waters Of The United States.