Infrastructure Permit Streamlining Under the FAST Act

摘要

As discussed above, the new law incorporates measures that the Obama Administration already has adopted, such as the permitting dashboard. It seems likely that OMB and CEQ will not go through the arbitrary exercise of stopping or abandoning the administration's ongoing permit-streamlining efforts only to erect essentially the same features in the name of FAST Act compliance. FAST Act Title XLI implementation will almost certainly build on procedural improvements already in place. Even with a foundation for the new procedures in place, it is not at all clear how much progress can be made over the next year or two when so much depends on engagement by senior appointed officials. There are limits to what even the most able career staff can and will do, notwithstanding the changes already underway. Delays are likely to encourage some interests to renew the push for "regulatory reform" bills or additional "permit streamlining" legislation, especially in connection with matters that lend themselves to portrayal as time-sensitive, such as droughts, storms, immigration, and similar issues. Developers and other parties hoping to take advantage of the new authorities and procedures are advised to familiarize themselves with the nuances of the process embodied in Title XLI, including particularly the authorities granted to OMB and CEQ. NEPA practitioners will need to come to grips with the creation of a new, two-tier NEPA process with distinct differences between the tiers. It will also be important to track the actions that the Council member departments and other agencies take to meet their duties to collaborate and cooperate. As lawyers, we have upheld the cautious traditions of the profession by emphasizing in this Comment the uncertainties and risks connected to the new law. Seen from that perspective alone, the safest way to assess the import of the new law will be to follow the progress of the first few covered projects through the streamlining process-once the law is implemented. But as counselors who have advised infrastructure developers for years, we would be ignoring our experience if we did not highlight a somewhat counterintuitive opportunity inherent in the new law. Simply put, senior officials in the Executive Office of the President-the career and political employees who worked with congressional allies from both political parties to enact Title XLI-have a lot to lose if the law fails. Thus, developers who bring well-conceived projects forward soon are likely to receive a warm welcome from the officials and entities who were behind Title XLI and are determined to demonstrate the law's value. In sum, we are cautiously hopeful that the FAST Act will enable faster, smarter, and more predictable permitting decisions on the country's most important development projects, but we will all have to wait to find out. The most cautious developers will want to sit back and see what happens. Others, however, may wish to move fast to seize an unusual opportunity created by government officials with something important to prove.