Effective yesterday, April 10, 2018, seven executive departments, the U.S. Army Corps of Engineers, the Environmental Protection Agency, and the Federal Energy Regulatory Commission have agreed to cooperate for the timely environmental review and authorization of major infrastructure projects, such as pipelines, roads, and bridges, by signing a Memorandum of Understanding (MOU) implementing President Trump’s August 2017 “One Federal Decision” Executive Order. Under the MOU, one lead agency will be responsible for developing a streamlined permitting timetable that would generally apply to all the environmental reviews and authorizations required for a project with an express goal of completing all reviews and authorizations within two years (commencing from the lead agency’s Notice of Intent (NOI) through the Record of Decision (ROD) publication). While this timetable would govern the actions of involved and cooperating agencies and include multiple milestones that should help move environmental reviews forward more quickly and efficiently, it is important to note that the two-year deadline is a “goal;” the deadlines are not enforceable unless enacted into law by Congress. The signatory agencies now have 90 days to develop detailed policies to implement this MOU and submit them to the Council on Environmental Quality and the Office of Management and Budget.
The MOU also recognizes the role that state, tribal, and local governments can have in approving major infrastructure projects. While the MOU cannot bind the state, tribal, or local agencies, under the MOU the lead agency is directed to seek the cooperation of such entities and their commitment to comply with the permitting timetable, including the two-year goal. Depending on the posture of the state, tribal, or local government vis-à-vis the project, they may or may not wish to cooperate, and certainly those that have resisted environmental rollbacks may be less accommodating.
