June 26, 2018

There’s an echo chamber in this country encompassing all of the stakeholders for large infrastructure projects talking about the need to shorten timelines, reduce redundancy and duplicative work, increase reliability, encourage collaboration, and add accountability and transparency to the environmental permitting process.  In 2015 congress passed the FAST Act, which included FAST-41, a title applicative to large projects with the purpose of streamlining the NEPA process. A bipartisan policy originally introduced by Sens. Rob Portman (R-OH) and Claire McCaskill (D-MO), FAST-41 encouraged collaboration, timely studies and processing, public accountability, and established the Federal Permitting Improvement Steering Council (FPISC) to oversee the process.

Two and a half years after the enactment of FAST-41, there is no executive director of the FPISC, there are 38 projects on the Permitting Dashboard, select projects have reported saving millions of dollars, and collaboration appears to have increased in some, but not all project processes. On June 26, 2018, Sens. Portman and McCaskill convened a round table to discuss progress and next steps with the following participants:

• Alexander Herrgott, Associate Director for Infrastructure, Council on Environmental Quality
• Angela Colamaria, Acting Executive Director, Federal Permitting Improvement Steering Council
• Joseph M. Johnson, Ph.D., Executive Director, Federal Regulatory Process Review and Analysis, Environment, Technology, and Regulatory Affairs, U.S. Chamber of Commerce
• Christy Goldfuss, Senior Vice President, Energy and Environmental Policy, Center for American Progress
• Sean McGarvey, President, North America’s Building Trades Union
• Hon. Mary L. Landrieu, Senior Policy Advisor, Van Ness Feldman, LLP
• Jolene Thompson, Executive Vice President, Member Services and External Affairs, American Municipal Power, Inc.

The participants discussed anecdotes of projects moving forward quickly, saving money, and incorporating additional inter-agency collaboration.  Hesitant efforts from agencies to communicate and report to the dashboard, most notably from FERC, led the table to discuss the possibility of requiring agency participation to a certain extent.

Given the slow progress on enacting FAST-41, as well as the small number of projects utilizing the process, the sunset for the bill in December 2020 may not leave adequate time to reap the full benefits of the streamlining, or to include enough projects in the dashboard and data collection efforts to be able to adequately assess the effectiveness of each element of the new structure. Extending the timeline, or eliminating the sunset entirely as suggested by Senator Portman and Dr. Johnson, would allow for honing of the process and more projects as examples to learn from and a set of statistics to examine.  Opening up the program to a broader range of projects could also be beneficial to expand the pool for program evaluation purposes.

In order to push forward with permit streamlining efforts, Senators McCaskill and Portman are proposing a bill with the goal of improving and extending FAST-41. The bill would remove the seven year sunset, allow more projects to apply to the program, set a two-year goal for the permitting process for every project (with options to explain a need for extensions), and extend the authority of the FPISC.

Christy Goldfuss of The Center for American Progress suggested that it may still be too early for Congress to focus efforts on expanding FAST-41.  Without a permanent executive director and plenty of work to do in developing the Dashboard as well as fostering collaboration for currently qualified projects, she suggested that “Congress should utilize power they have instead of trying to expand it.” This could be done by maintaining the sunset date only for the provisions that have yet to be implemented, thus increasing pressure to move forward with them. Her concerns around the two-year deadline include the possibility of rushing projects resulting in sloppy work, and the possibility of incurring additional disputes and lawsuits due to insufficient time to work with all stakeholders.

The FPSC reports $1 billion in savings in the year and a half that it has been operational and notable increased collaboration between agencies involved in NEPA reviews including development of MOUs, monthly meetings, and clear communications.  By focusing on individual projects, the Council says it is able to provide oversight and a leadership on a case-by-case basis and learn from each individual project. Given the success of this aspect of FAST-41, hopefully an expansion of the program would occur in parallel with an assurance of the available capacity of the Council to take on more projects.