On Monday February 12, President Trump unveiled his long-awaited infrastructure plan. According to President Trump, our country’s infrastructure “is in an unacceptable state of disrepair, which damages our country’s competitiveness and our citizens’ quality of life.” While some view the plan as a step toward streamlining an environmental review process that could delay a project unnecessarily, others worry the proposal could curtail the authority federal agencies exercise over environmental reviews pursuant to the National Environmental Policy Act (NEPA).
The plan calls for $200 billion to be spent rebuilding roads, bridges, highways, railways, waterways, and other infrastructure over the next ten years. That money will come from cuts to other programs (particularly within the Department of Transportation) and is not intended—at least as proposed—to come from new revenue streams. According to President Trump, the proposed changes will generate approximately $1.5 trillion in new infrastructure investment.
In addition to addressing “unmet rural infrastructure needs” and empowering state and local authorities, the hallmark of the plan is the proposal to expedite environmental reviews conducted pursuant to NEPA. President Trump has stated on many occasions that the process for completing environmental review for infrastructure plans is too cumbersome and drawn-out. The new plan proposes to have environmental reviews completed in no more than two years, no matter the size, scope, or complexity of the proposed project. The two-year timeline includes 21 months to complete the actual review and 3 months for an agency to make a permit decision.
To accomplish this goal, President Trump has proposed a “one agency, one decision” policy, under which one federal agency will lead the review process for each permit. Other federal agencies may sign the Record of Decision (ROD) at the end of the review process, but not serve as cooperating agencies like they may have done in the past, a role that gave them much more involvement in the review itself. The proposal also directs the CEQ to review and revise its regulations to streamline the NEPA process.
In addition to recommending reforms to the environmental review process, the proposal also suggests making changes to judicial review of decisions made pursuant to the NEPA to “avoid protracted litigation and to make court decisions more consistent.” For example, President Trump proposes to limit injunctive relief to “exceptional circumstances” and to establish a uniform statute of limitations of 150 days for decisions and permits on infrastructure projects to be challenged.
Notably, the plan also proposes to change EPA’s authority to participate in and impact NEPA reviews. For example, a provision of the Clean Air Act allows EPA—if it’s a cooperating agency—to provide comments on draft and final environmental impact statements. The new plan, however, proposes to eliminate that provision of the Clean Air Act. Similarly, the plan proposes to eliminate EPA’s Clean Water Act authority to veto a Section 404 permit under the Clean Water Act. While these proposals could have significant effects on EPA’s involvement in the NEPA process, they would also require legislative action from Congress.
Although the 55-page plan includes many detailed proposals for reforming the environmental review process, there are still many details to be developed and many remaining unknowns.