Sunday, February 25, 2024

Biden Administration Directs Submittal Of Agency Action Plans By April 5, 2023 To Improve Infrastructure Permitting Transparency – Environmental Law – United States

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Overview

On March 6, 2023, the Office of Management and Budget (OMB), the
Council on Environmental Quality (CEQ) and the Federal Permitting
Improvement Steering Council (FPISC) Executive Director released a
Memorandum for the Heads of Executive Departments and Agencies on
Implementation Guidance for the Biden-Harris Permitting Action Plan
(Implementation Guidance) that requires FPISC members, including
the Federal Energy Regulatory Commission (FERC),1 to
submit Agency Action Plans for their collective review by April 5,
2023. These Agency Action Plans are to include strategies,
processes, milestones and deadlines each agency will use to improve
permitting transparency as outlined in the Biden-Harris Permitting
Action Plan (Action Plan) released on May 11, 2022.

The Action Plan and recent Implementation Guidance was spurred
on by the passage of the Infrastructure Investment and Jobs
Act
(P.L. 117-58; IIJA), and subsequently the
Creating Helpful Incentives to Produce Semiconductors and
Science Act
(P.L. 117-167; CHIPS). The IIJA amended Title 41
of the Fixing America’s Surface Transportation Act (FAST-41),
to permit the FPISC Executive Director to direct lead agencies for
National Environmental Policy Act (NEPA) reviews to post projects
other than FAST-41 “covered” projects to the Federal
Permitting Dashboard (Dashboard) if the Executive Director
determines that posting such projects is “in the interests of
transparency.” The Implementation Guidance, like the Action
Plan, centers around utilization of the Dashboard, and explains how
FPISC members should add infrastructure projects, or recommend
their additions.

The Implementation Guidance expounds upon five key elements of
permitting transparency discussed in the Action Plan. These
elements are:

  1. Accelerating smart permitting through early cross-agency
    coordination.

  2. Establishing clear timeline goals and tracking key project
    information.

  3. Engaging in early and meaningful outreach and
    communications.

  4. Improving responsiveness, technical assistance, and
    support.

  5. Adequately resourcing agencies and using the environmental
    review process to improve environmental and community
    outcomes.

A section-by-section summary of the Implementation Guidance,
including information on what is to be included in the forthcoming
Agency Action Plans, is provided below:

Section 1: Accelerating Smart Permitting through Early
Cross-Agency Coordination

Section 1.1. This section tasks the FPISC with
improving coordination among agencies, facilitating sound and
efficient permitting, and resolving issues consistent with climate,
economic and equity goals. This facilitation of cross-cutting
federal permitting issues will be done for all types of
infrastructure projects, not just those covered by Fixing
America’s Surface Transportation Act (FAST 41; P.L. 114-94). These efforts will include the
discussion of strategies to foster early and improved interagency
coordination, providing advanced training, support,
information-sharing avenues, and identifying and helping address
pressing environmental review and permitting issues.

Section 1.2. The guidance addresses the role of
sector-specific teams created by the Biden-Harris administration to
advance the responsible build-out and modernization of U.S.
infrastructure through facilitating interagency coordination on
siting, permitting, supply chain and related issues. These teams
will identify:

  • General permitting issues that should be addressed to avoid
    bottlenecks and facilitate timely review of applications.

  • Large, complex or significant projects in their respective
    sectors that should be considered for addition to the Federal
    Permitting Dashboard (Permitting Dashboard).

  • Strategies to address disputes or complicated issues.

  • Any other pertinent issues determined by the teams.

Section 1.3. Additionally, the guidance outlines the
factors for sector-specific teams to consider when identifying
large, complex or significant projects to be recommended to FPISC
for Permitting Dashboard consideration. Such factors include
the:

  • Size of a project regarding its investment cost, geographic
    scope and magnitude compared to other projects.

  • Complexity of a project, including whether it will require the
    development of an environmental impact statement or environmental
    assessment that involves multiple agencies or raise complex issues
    under relevant statutes.

Section 1.4. This section identifies other activities
that sector-specific teams should report regularly, which includes
initiatives and strategies to address complicated matters,
disputes, resource constraints and other issues that warrant
FPISC’s attention as they arise and on at least a quarterly
basis. Additionally, the teams are called upon to address instances
of a lack of interagency coordination, staffing limitations,
implementation or operational challenges, or legal or policy issues
that may hinder the timely delivery of specific infrastructure
projects. Moving forward, the teams are expected to report
potential mechanisms to advance technical innovation and
interoperability, as well as make environmental reviews more
efficient and effective.

Section 1.5. The guidance outlines what actions
agencies should take to accelerate smart permitting through early
cross-agency coordination. This section states that agencies should
identify approaches to execute their environmental review and
permitting responsibilities for infrastructure projects in a manner
that seeks to deconflict requirements to prevent bottlenecks, build
common undersigning, and contribute effective, efficient, timely,
inclusive and sound scoping of projects.

Section 2: Establishing Clear Timeline Goals and Tracking Key
Project Information

Section 2.1. The Action Plan directs agencies to
establish and post project permitting schedules with clear timeline
goals that are both ambitious and realistic, contain relevant
milestones and meet all requirements in applicable law. This
includes efforts to ensure that permitting schedules include the
relevant actions and milestone completion dates for each agency,
use the most effective and expeditious processes, and include best
practices identified in federal, state and tribal reviews for
coordination and public engagement.

Regarding establishing permitting schedules, the guidance
suggests that agencies consider factors such as the project’s
overall size and complexity, the project’s regional or national
economic significance, the project’s environmental and climate
benefits, the sensitivity of the natural or historic resources that
the project may affect, impacts on communities with environmental
justice concerns and the overall cost and financing plan for the
project. Such efforts should seek to reduce duplication, enhance
effective, efficient, informed decision-making, and avoid or reduce
environmental harm.

Lastly, the section concludes by stating that a Chief
Environmental Review and Permitting Officer (CERPO) for each
agency-including sub-agencies of a department where
appropriate-should review and approve each project’s permitting
schedule, permitting timetable and related plans for quality
assurance.

Section 2.2. This section establishes that the
following projects must be posted on the Permitting Dashboard:

  • FAST-41 Covered Projects: Projects identified as
    “covered” projects under Title 41 of the Fixing
    America’s Surface Transportation (FAST) Act.

  • Department of Transportation (DOT) Projects: DOT highway,
    public transportation, railroad and certain multimodal projects
    that require an environmental assessment or an environmental impact
    statement.

Section 3: Engaging in Early and Meaningful Outreach and
Communication with Tribal Nations, States, Territories, and Local
Communities

Section 3.1. The Action Plan prioritizes proactive and
continuous engagement with the public and Tribal, state, local, and
territorial partners to consider the needs of communities during
the environmental review and permitting processes. To do this,
relevant parties and interests must be identified. This engagement
should be tailored to individual communities since engagement needs
can vary by community.

The White House recommends dedicating specific staffing and
partnering with trusted local messengers for this outreach. For
projects with tribal implications, agencies should consult with
tribal nations. Agencies should also coordinate with environmental
justice and public outreach teams and equip field offices to
deliver coordinated outreach to communities.

Finally, agencies should post and maintain information about
public engagement opportunities and the status of mitigation
measures agreed to as part of the environmental review and
permitting process for all projects published on the Permitting
Dashboard.

Section 4: Improving Responsiveness, Technical Assistance, and
Support

Section 4.1. The White House suggests that agencies
should post information about their resources, training, tools and
opportunities on an accessible public webpage to foster an
understanding of requirements and opportunities to engage with the
Federal process. Given that the DOT oversees the Permitting
Dashboard, agencies should provide DOT with their webpage
information and provide updates to ensure the central resource page
remains up to date.

Additionally, agencies should seek opportunities to provide
jointly developed information and training to help project
sponsors, permit applicants, potentially impacted communities,
Tribal Nations and other stakeholders navigate the Federal
environmental review and permitting processes. These materials
should be regionally tailored. Further, the Permitting Council
Executive Director can aid in the facilitation of discussions and
information sharing among agencies to foster a smooth process with
reduced delays.

Section 4.2. To minimize duplication and maximize the
use of technology for environmental review and permitting-related
information collection, agencies should share information collected
during the process through the increased development and use of
centralized datasets and systems. This would allow cross-agency
data-sharing and collaboration with project sponsors, stakeholders
and interested parties to identify data needs to facilitate
effective and timely reviews. Finally, agencies should consider
engaging stakeholders on improving the efficiency and effectiveness
of information collection requests.

Section 5: Adequately Resourcing Agencies and Using
Environmental Review Process to Improve Environmental and Community
Outcomes

Section 5.1. With a focus on resource management,
Section 5 calls on federal agencies to leverage existing tools to
address workforce needs necessary for efficient environmental
reviews and permitting processes. Specifically, the Action Plan
stresses the funding of liaison positions, reimbursable agreements
with permitting agencies or recipients and interagency protocols
for permitting-related communication. To mitigate mid-project
staffing changes, the Action Plan implores agencies to provide
employees with opportunities to garner agency-related expertise and
implement retention strategies. Finally, the Action Plan details
that the OBM and the Office of Personnel Management (OPM)-alongside
the Permitting Council Executive Director-will collaborate to
ensure sufficient resources and staffing for agencies.

Section 5.2. The Action Plan compels agencies to
utilize the environmental review and permitting process to usher in
improved environmental and community outcomes. To achieve the
aforementioned goal, the guidance implores agencies to leverage
best practices in disclosing such outcomes-including qualitative
and quantitative overviews of a given project’s environmental
and community effects and adverse impact mitigation efforts. As
such, the guidance recommends that agencies use the Permitting
Dashboard to distill and communicate project disclosures.

Section 5.3. The Action Plan calls on the Permitting
Council to utilize the Permitting Dashboard or another platform to
disperse information on greenhouse gas emissions related to
projects. The guidance details that the CEQ’s recently revised
NEPA Guidance on Consideration of Greenhouse Gas
Emissions and Climate Change
, which Akin discussed
previously
here and here, may assist in greenhouse
gas emissions disclosure. Finally, this section explains that CEQ
and OMB intend on issuing further guidance related to greenhouse
gas emissions disclosure on the Permitting Dashboard.

Section 6: Agency Action Plans

Section 6.1. This section outlines that all agency
action plans must include:

  • Strategies, processes and deadlines that will oversee the
    implementation of the Action Plan’s five key elements-including
    accelerating permitting; establishing clear process timelines;
    engaging with tribes, states, territories and local communities;
    boosting agency responsiveness and technical support, and
    prioritizing agency resources related to environmental reviews and
    permitting processes.

  • Performance mechanisms to ensure adequate progress
    monitoring.

  • Processes for navigating issues, such as schedule delays and
    disputes.

Additionally, the guidance establishes an April 5, 2023 deadline
for agencies to submit finalized action plans.

Section 6.2. This section urges agencies to establish
and monitor performance measures to inform decision-making related
to environmental reviews and permitting processes.
Specifically-starting with 2024 action plans-agencies must identify
performance goals to ensure expeditious environmental reviews and
authorization decisions, boost collaboration and transparency, and
improve environmental and community outcomes. Further, agencies are
to utilize 2023 agency performance reports to measure progress in
2024 action plans. Finally, the guidance suggests that agencies use
information from the Permitting Dashboard to develop the
aforementioned performance goals.

Section 6.3. The guidance calls on agencies to publish
agency-wide points of contact for environmental review and
permitting processes to encourage community engagement. Similarly,
this section encourages such points of contact to be made available
across agencies. The guidance compels agencies to have such
information in place by the end of 2023.

Moreover, the guidance tasks agencies to develop and enact
internal issue identification and resolution processes. These
efforts should allow for feedback from relevant points of contact
and be colored by pertinent project information. Moving forward,
such input may be expanded to serve as department-wide issue and
dispute resolution procedures.

Footnote

1 The 13 Federal agency FPISC members include designees
of the Secretaries of Agriculture, Army, Commerce, the Interior,
Energy, Transportation, Defense, Homeland Security, and Housing and
Urban Development, the Administrator of the Environmental
Protection Agency, and the Chairs of the Federal Energy Regulatory
Commission, Nuclear Regulatory Commission, and the Advisory Council
on Historic Preservation. 42 U.S.C. §
4170m-1(b)(2)(B).

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