The Infrastructure Investment and Jobs Act—Amendments to FAST-41

Passage of the Infrastructure Investment and Jobs Act (IIJA) kicks off a multi-year, herculean effort by the public and private sectors to spend a historic level of investment on infrastructure projects. While many are eager to see the promised benefits of this investment, the speed at which federal agencies can get money out the door and projects constructed will depend on how quickly those projects can complete environmental review and permitting. As a result, we expect to see the Biden Administration continue efforts to expedite these processes. This is reflected in the IIJA’s targeted amendments to the Fixing America’s Surface Transportation Act (FAST Act).

Background

Title I, Subtitle C of the IIJA amends Tile XLI of the FAST Act, 42 U.S.C. §§ 4370m–4370m-12 (FAST-41), which created the Federal Permit Improvement Steering Council (FPISC) to facilitate the implementation of new procedural requirements for “covered projects” intended to accelerate environmental review and permitting. FAST-41 applies to infrastructure construction projects in select sectors that require a federal agency authorization (e.g., a permit) or National Environmental Policy Act (NEPA) review, and qualify under one of three tests (see 42 USC § 4370m(6) or Section 3 of OMB & CEQ’s Guidance on FAST-41). Importantly, projects administered by the Department of Transportation under Titles 23, 46, or 49 are expressly exempted from FAST-41, but may eligible for the separate expedited process at 23 USC § 139 (also amended by IIJA).

Key existing requirements of FAST-41 include:

• Performance Schedules: FPISC must establish model performance schedules that set out intermediate and final completion dates for environmental reviews and authorizations.
• Permitting Timetables: Agencies must develop project-specific permitting timetables that can be modified only after consultation with the project sponsor and should generally conform with FPISC’s performance schedules.
• Permitting Dashboard: FPISC must maintain a publicly-available permitting dashboard that tracks covered projects’ completion of permitting milestones.
• Heightened Judicial Challenge Requirements: Challengers must file NEPA claims within two years (as compared to the otherwise applicable six year statute of limitations) and to demonstrate that they filed comments during the NEPA process that were “sufficiently detailed . . . so as to put the lead agency on notice of the issue.”

IIJA Amendments

The IIJA amendments to FAST-41 reflect a bi-partisan acknowledgement of the need to further expedite environmental review and permitting to achieve the IIJA’s ambitious goals by making FAST-41 permanent through removal of the seven year sunset clause and building on the largely unchanged existing FAST-41 process.

Key additions to the FAST-41 process include:

• Accelerating Performance Schedules & Permitting Timetables: The IIJA establishes a “goal” of limiting all performance schedules to two years or less, adopting the deadline set in the now rescinded Executive Order 13807. This is an ambitious—and potentially unrealistic—goal since FAST-41 also states that final completion dates “shall not exceed the average time to complete an environmental review or authorization,” and FPISC reported in 2020 that only 27% of electricity transmission, renewable production, and pipeline projects reviewed achieved this two year target.
• Requiring Preparation of a Single NEPA Environmental Impact Statement: The IIJA directs agencies to prepare a single, joint document where an Environmental Impact Statement (EIS) is required unless the lead agency can demonstrate a different approach would be more efficient. For FAST-41 covered projects, this amendment codifies the Trump Administration’s addition of this language to the Council on Environmental Quality’s (CEQ’s) NEPA regulations (see 40 CFR 1501.7(g)), which has been left unchanged in the Biden Administration’s Phase I NEPA rulemaking.
• Establishing a Record of Decision Deadline: The IIJA requires agencies “to the maximum extent practicable” to issue their decision on the FAST-41 covered project “not later than 90 days” after the issuance of the Final EIS. This new deadline may be in response to the 2020 CEQ study of nearly 1,300 EISs issued between 2010-2018 finding that agencies failed to ever issue decisions for 118 EISs and took on average five months to issue a decision after issuing the Final EIS.
• Expanding Applicability of Certain Requirements to Other Projects: The IIJA gives the FPISC Executive Director authority to require a lead agency to maintain an entry on the permitting dashboard for projects that do not qualify as a “covered project” when it “is in the interest of transparency.” The lead agency must create and report on agencies’ compliance with the project’s permitting timetable.

Next Steps

Whether these changes will have any real impact on the projects funded through the IIJA will likely be unknown for years. Though FPISC claims that the FAST-41 process has delivered a 45% time savings, many remain skeptical of the process’s benefits. We will continue closely following the Administration’s efforts reform the environmental review and permitting process to achieve its environmental and social goals.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.