FAST Act Implementation Progress: An Important Tool for Expediting Energy Projects for the Incoming Trump Administration?

On Dec. 4, 2015, President Obama signed the Fixing America’s Surface Transportation Act, also known as the “FAST Act,” which sought to expedite the NEPA environmental review process for major infrastructure projects. One year later, rulemaking and guidance from both the Federal Permitting Improvement Steering Council (FPISC) and affected agencies have helped provide some contours to the program as a whole, painting a better picture of how this proposed expedited review will function.

Summary of 2016 Activity

FPISC Takes Shape

A substantial area of uncertainty under the FAST act related to the newly established Federal Permitting Improvement Steering Council; now, some of those questions have been answered. The Steering Council, which comprises 15 federal agencies, is an expansion of the 13-member Federal Permitting Steering Committee established by a 2012 executive order. Agencies in the FPISC include:

• Advisory Council on Historic Preservation

• Army Corps of Engineers

• Department of Agriculture

• Department of Commerce

• Department of Defense

• Department of Energy

• Department of Homeland Security

• Department of Housing and Urban Development

• Department of the Interior

• Department of Transportation

• Environmental Protection Agency

• Federal Energy Regulatory Commission

• Nuclear Regulatory Commission

• U.S. Coast Guard

• Udall Foundation

The FPISC has also updated the Permitting Dashboard to reflect the changed regulatory atmosphere under the FAST Act.

Richard Kidd IV Appointed Executive Director of the FPISC

In July, President Obama appointed Richard G. Kidd IV, the Deputy Assistant Secretary of the Army for Energy and Sustainability, to serve as the Executive Director of the FPISC. In his capacity as Deputy Assistant Secretary, a position he has held since 2010, and in prior positions with the Department of Energy, the State Department, and the United Nations, Executive Director Kidd has extensive experience with infrastructure projects and environmental review.

Establishment of Covered Project Inventory

In coordination with its constituent agencies, the FPISC has established the preliminary inventory of the “Covered Projects” under Section 41 of the FAST Act. On Sept. 22, Executive Director Kidd announced a list of 34 pending projects that will benefit from expedited review. The inventory contains a number of major infrastructure projects, ranging from Nuclear Regulatory Commission approvals of new generators to HUD Coastal Resiliency projects on Manhattan’s East Side.Surprisingly, however, none of the projects currently covered by the FAST Act—a law passed ostensibly to modernize surface transportation—fall within the traditional realm of transportation projects. Of the projects approved, many fall within the energy sector. The projects include:

• Four nuclear power plants

• One offshore oil and gas terminal

• Five electricity transmission projects

• Eleven natural gas and pipelines

• Seven solar and hydroelectric generating plants

• Two HUD coastal resiliency plans

• One solar panel manufacturing plant

Individual Agencies Provide Initial Guidance

In addition to the activities undertaken by the FPISC in aggregate, its constituent agencies have been providing additional guidance on the implementation of the FAST Act. Through opinions, Fact Sheets, and FAQs, the individual agencies like the Department of Transportation and the Department of Agriculture have explained the way that Section 41 and other elements of the FAST Act will affect numerous elements of current and future programs, such as funding mechanisms and state obligation systems.

How Much FAST-er Under the New Administration?

As with many areas of law and policy, the future of the FAST Act under the Trump administration remains up in the air. The FAST Act, which seeks to reduce the burden of the regulatory apparatus by expediting environmental review, would appear to align with many of the goals stated by the incoming administration, including its emphasis on infrastructure and energy projects. It is therefore likely that many more projects—even those not traditionally seen as infrastructure projects—will benefit from the expedited review procedures over the next four years.