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The heads of a dozen federal agencies executed a memorandum of understanding implementing Executive Order 13807, which directed federal agencies to expedite environmental reviews and permitting for major infrastructure projects.
The April 9 memo is significant in part because it provides new details about how agencies will carry out the reforms required by the executive order. But the memo also is significant because it includes a new requirement that wasn’t included in the executive order itself: It requires lead agencies to obtain “concurrence” from cooperating agencies at three critical milestones, which presents the risk that the process could bog down if agencies withhold concurrence.
For project sponsors, a critical issue is whether this new requirement will speed up the process—or slow it down.
The cornerstone of E.O. 13807 is a commitment to making “One Federal Decision” for major infrastructure projects within no more than two years—which would be a dramatic reduction from the current average of nearly five years. The executive order aims to achieve this reduction without any change in underlying legal requirements by requiring greater upfront planning, tighter deadlines, improved agency coordination, and increased transparency, including posting project schedules on the White House’s project permitting dashboard.
With the new memo, as well as guidance issued by the Council on Environmental Quality and Office of Management and Budget, federal agencies now have a more detailed road map for carrying out the reforms required under the executive order.
For example, the memo provides a breakdown of the timeline for completing the National Environmental Policy Act process in two years. It also clarifies the circumstances under which agencies have discretion to set schedules longer than two years. In addition, to achieve the faster completion times, the memo places greater emphasis on undertaking early coordination and planning before the NEPA process begins.
In addition to implementing the reforms required by the executive order, the memo calls for lead agencies to obtain written concurrence at specific milestones from cooperating agencies whose authorizations are required for the project. The required concurrence points include:
To minimize delays at concurrence points, the memo directs cooperating agencies to respond to a request for concurrence within 10 business days, and allows the lead agency to presume concurrence if the cooperating agency doesn’t respond within that time. It also provides that concurrence simply means “the information is sufficient for that stage, and the environmental review process may proceed to the next stage of the NEPA process.”
This new requirement—which isn’t mandated by any statute or by the executive order—raises several issues that will have to be addressed in practice or through additional guidance, such as:
Which cooperating agencies will need to concur?
Concurrence is required from cooperating agencies “whose authorization is required,” the memo said. Lead agencies will have to determine what constitutes an “authorization” for purposes of this requirement. For example, it seems clear that the U.S. Army Corps of Engineers has an “authorization” role when it issues a Section 404 permit under the Clean Water Act.
But what about other agencies? The Environmental Protection Agency has statutory authority to veto the issuance of a Section 404 permit; the U.S. Fish and Wildlife Service and National Marine Fisheries Service have authority to issue an incidental take statement—the equivalent of a permit—under Section 7 of the Endangered Species Act. Lead agencies will have to determine whether concurrence needs to be obtained from agencies with these “approval-like” roles.
How will disagreements at concurrence points be resolved?
In theory, agency disagreements at concurrence points will be resolved quickly through elevation procedures described in the memo. In practice, resolving such disagreements can be time-consuming and document-intensive. Even if a cooperating agency responds within the required 10-day period, the agency’s response could simply consist of a request for more information, or a request to consider modifications to an alternative. Even if well-founded, these requests can stretch out the concurrence process considerably, especially when there are deep disagreements among agencies about the wisdom of a project.
Can the lead agency proceed without concurrence?
There will likely be situations in which an impasse takes many months to resolve. Putting the entire study on hold to resolve one issue with one agency could have substantial impact on the overall project schedule, because a relatively short delay can end up having a large ripple effect. Given the strong policy direction to maintain a two-year schedule, lead agencies may seek the flexibility to “keep the process moving” while continuing to negotiate with the cooperating agency to obtain concurrence.
What are the lead agency’s obligations when it is unclear which other agencies will have an authorization role?
For some projects, it’s unclear at the outset which other agencies’ approvals will be needed. For example, there may be multiple alternatives under consideration, and an agency’s approval may be needed for some alternatives but not for others. Lead agencies will have to determine whether concurrence should be obtained from any agency whose approval may be needed.
The answers to these questions have considerable significance for project sponsors. As a practical matter, the need to obtain written concurrence at multiple milestones increases the potential for an impasse. The greater the number of agencies whose concurrence is required, the greater the risk that an impasse will occur. This risk may be manageable in practice, but much will depend on how the concurrence requirement is implemented.
In attempting to assess the effect of concurrence points under the memo, it’s instructive to consider the origins of this concept and lessons learned from experience in the highway context, where this concept was first used.
Concurrence points emerged in the mid-1980s as part of an effort to integrate Section 404 permitting decisions into the NEPA process for highway projects. These efforts culminated in a handbook, known as the Red Book, which was published jointly in 1988 by the Federal Highway Administration, Corps, EPA, and Fish and Wild ife and National Marine Fisheries. As the highway agency recounts on its website, compliance with the Red Book was made mandatory by an interagency memo executed in 1992.
While the 1988 Red Book didn’t directly call for concurrence points, it led to the adoption of so-called NEPA-404 merger agreements in several states, mostly for highway projects. The merger agreements typically called for lead agencies to obtain concurrence from the Corps and the EPA—and in some cases other agencies—at three milestones: purpose and need, the range of alternatives, and the selection of the preferred alternative. Such agreements remain in effect today in a few states, including North Carolina and Colorado.
Following the initial adoption of these merger agreements, Congress enacted legislation that prescribed in detail the environmental review process required for specific classes of infrastructure projects. First, in 2005, Congress enacted a streamlined environmental review process for highway and transit projects (23 U.S.C. § 139). In 2014, Congress enacted a similar process for water resource projects (33 U.S.C. § 2348).
And in 2015, Congress again enacted a set of environmental streamlining requirements, commonly known as FAST-41, that essentially apply to all infrastructure projects other than the highway, transit, and water resource projects covered by the previous legislation (42 U.S.C. § 4370m). These statutory procedures all required lead agencies to coordinate in some form with other agencies during the environmental review process—but none adopted the “concurrence point” model of decision-making that had been required under some NEPA-404 merger agreements.
In 2006, the Federal Highway Administration issued comprehensive guidance implementing the newly enacted environmental review process in 23 U.S.C. 139. As part of that guidance, it noted that section 139 simply required “opportunities for involvement” by agencies and the public on the purpose and need and the range of alternatives. The guidance didn’t directly call for NEPA-404 merger agreements to terminated, but said, “Interagency merger agreements should be reviewed to determine if their future application will meet the purpose and intent of [Section 139]. The lead agencies may need to renegotiate or dissolve a merger agreement that calls for other agencies to concur in purpose and need statements or the range of alternatives if the agreement is not expediting project development.”
In 2015, the Red Book was updated. The 2015 Red Book recommends establishing “checkpoints” for agency involvement in determining the purpose and need, range of alternatives, and selection of a preferred alternative. While it acknowledges the possibility of seeking concurrence at these milestones, it noted that “[f]ormal concurrence is not required, but having meetings at certain milestones within the synchronized review process is highly recommended.”
As this chronology indicates, the NEPA-404 merger model emerged in the late 1980s, and initially took the form of a concurrence model under which the lead agencies were required to obtain concurrence from (in most cases) the Corps and the EPA at three standard milestones. Subsequent legislation prescribed a general coordination process, without requiring concurrence. Agencies have responded to that legislation by adopting guidance that requires coordination at the three standard milestones, but stops short of requiring concurrence.
In implementing the executive order, agencies would be wise to learn from the highway experience by adopting a pragmatic, flexible approach to the use of concurrence points, evolving toward a coordination model rather than a rigid concurrence requirement.
Bill Malley is a partner with Perkins Coie’s Environmental and Natural Resources Practice in Washington, D.C. As an adviser to transportation agencies and private-sector clients, Malley helps navigate the environmental review process for major transportation infrastructure projects and defends project approvals in federal courts. He has served as National Environmental Policy Act counsel on some of the largest transportation infrastructure projects in the U.S., and has participated in developing each of the major federal surface transportation bills over the past decade.
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