Lay of the Land
Looking only at its name, the Fixing America’s Surface Transportation Act (FAST), a long-term funding bill adopted by Congress in late 2015, would seem to benefit only ground transportation projects. For the most part, FAST has been billed as a program that will deliver long-term funding certainty for surface transportation infrastructure investment.
FAST, however, does much more, providing “fast track” environmental review and federal permitting for major infrastructure projects, including renewable and conventional energy, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines and other similar projects (those that involve a likely investment of more than $200 million). FAST is designed to increase transparency, require communication between federal agencies and project sponsors, force agencies to provide a timeline for review (and limit their ability to deviate from that timeline), and provide some limits for judicial review (shorter statute of limitations, exhaustion of administrative remedies, and additional findings for preliminary injunctions). The principal benefits of FAST include:
- Increased Transparency and Agency Cooperation with a Central Online Tracking Database. FAST requires the establishment of a “permitting dashboard” for all covered projects. The permitting dashboard is a searchable online database that will provide the status and schedule of environmental review and permitting tasks for each agency for all the covered projects.
- Coordinated Environmental Review and Permitting Plan and Schedule. A project must be placed on the permitting dashboard within two weeks of being identified on the inventory of covered projects. Within sixty days after a project is placed on the permitting dashboard, the lead agency must develop a plan for coordinating and completing the environmental review and permitting process. The plan must include a permanent timetable from which the agencies may deviate only under limited circumstances (written justification must be provided and there are limits on how long an extension can be granted). In addition, if a project sponsor requests a meeting to discuss the project, the review and permitting process, or the schedule, the federal agencies are required to meet with the sponsor within sixty days of that request. The lead agency has specific requirements to make relevant information available to other agencies and the project sponsor as early as possible.
- Development of Project Alternatives. FAST requires the lead agency to engage the cooperating agencies and the public to determine the reasonable range of project alternatives. If an Environmental Impact Statement (EIS) is to be prepared, this process shall be completed no later than completion of scoping for the project. Ultimately, it is up to the lead agency to determine the reasonable range of alternatives.
- Limitation on EIS Comment Periods. FAST provides for a 45–60 day comment period on a draft EIS. The review period can be extended by agreement with the project sponsor or for good cause.
- Coordination with State Agencies on Concurrent CEQA Review. FAST provides that the lead agency shall, to the maximum extent practicable, coordinate the federal environmental review and authorization process with any state, local, or tribal agency responsible for conducting any separate review or authorization to ensure timely and efficient completion of the process. Any coordination plan shall, to the maximum extent practicable, be reflected in a memorandum of understanding. It is up to the state to choose to participate in the FAST environmental review and authorization process. The federal agency cannot force a state to participate.
- Incorporation of CEQA Documents That Have Already Been Prepared. At the request of the project sponsor, the lead agency must consider and may adopt or incorporate by reference all or part of the analysis in an existing CEQA document. The federal agency may also incorporate the analysis and supplement it with its own analysis if there are significant changes to the project or to the circumstances surrounding the project, including new information.
- Implementation of Oversight. FAST establishes a Federal Permitting Improvement Steering Council to coordinate implementation of FAST. The Council is comprised of an Executive Director appointed by the President, a representative of each affected federal agency, the Chairman of the Council on Environmental Quality, and the Director of the Office of Management and Budget. The Council will establish and update best practices for enhancing early stakeholder involvement, ensuring timely decisions, improving interagency coordination, increasing transparency, and reducing information collection requirements.
- Shortened Limitations Period for Judicial Review. FAST provides a two-year limitation period for any judicial challenge to a federal agency’s authorization of a covered project (unless a shorter time is specified elsewhere in federal law). While this may seem unreasonably long when compared, for instance, to the 30-day statute of limitations for a CEQA challenge in California, before FAST, a six-year federal limitations period applied. In the case of NEPA actions, FAST incorporates an exhaustion of administrative remedies concept, both in terms of who may sue (only those who commented during environmental review) and the issues that may be litigated (only those that were sufficiently raised during the administrative review so as to put the agency on notice, unless the lead agency did not provide a reasonable opportunity for comment on an issue). Lastly, FAST makes it harder for project opponents to obtain a preliminary injunction because courts must now consider the potential negative impact on jobs that could result from an injunction.