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Mar 29, 2020
On August 15, 2017, the White House issued Executive Order 13,807, which cited the need to improve domestic infrastructure as the basis for its mandate to cap the amount of time federal agencies may spend preparing an Environmental Impact Statement for certain major infrastructure projects. This development followed Executive Order 13,766, which called for streamlining and expediting the NEPA process for infrastructure projects, particularly those deemed to be of “high priority” to the nation. Executive Order 13,807 spurred subsequent steps toward agency implementation, including the Council on Environmental Quality’s “Initial List of Actions to Enhance and Modernize the Federal Environmental Review and Authorization Process” and the Department of the Interior’s Order 3355. Certainly, there is merit to the position that streamlining the Environmental Impact Statement requirements under NEPA could improve failing U.S. infrastructure. For example, the United States currently trails peer economies in the reliability of its infrastructure. Moreover, the current Environmental Impact Statement process requires great expense on the part of both agency and project. In fact, streamlining NEPA requirements may even be framed as a bipartisan cause, since developers and environmentalists alike advocate focused, succinct review of environmental impacts.
However, while streamlining Environmental Impact Statement preparation has the potential to benefit constituents on both sides of the development debate, arbitrarily limiting such preparation without case-specific analysis will likely compromise NEPA’s ultimate goals of reasoned decision making and informed public comment. Moreover, while the newest policy mandates propose changes to limit Environmental Impact Statement preparation for all types of projects, recent judicial decisions suggest that the judiciary will nevertheless strictly enforce existing standards of assessment and information sharing for NEPA compliance. This Note examines the tradeoffs between timely infrastructure development and environmental compliance, in order to assess the potential of Executive Order 13,807 to meet its stated objective of fast tracking energy infrastructure development. I argue that, while streamlining Environmental Impact Statement preparation can dually serve developmental and environmental interests under the appropriate circumstances, the proposed limitations will likely compromise NEPA’s objectives of reasoned decision making and informed public comment. Instead, policies geared toward expediting infrastructure development should implement process improvements explicitly targeted toward facility upgrades, because streamlining the Environmental Impact Statement process for upgrades and expansions will have a lesser impact on regulatory goals than streamlining the process for new facilities. This Note concludes by considering a series of process improvements, which, if applied specifically to facility upgrades and expansions, may serve to accelerate project development and execution more effectively than existing policy. This strategy would also dovetail with the current administration’s designation of many upgrades to existing domestic infrastructure as “high priority.”