The Biden Administration’s Initial Steps Towards Permitting Reform

Nearly a year and a half since taking office and six months after signing the Bipartisan Infrastructure Law (BIL) (aka the Infrastructure Investment and Jobs Act), the Biden-Harris Administration has taken action on the key issue that could otherwise impede their infrastructure and climate goals—permitting efficiency. On May 11, 2022, the Biden-Harris Administration issued a “Permitting Action Plan.” As we’ve previously discussed, the ability of agencies to spend the historic investments enabled by the BIL will depend in part on how quickly agencies can complete environmental review and permitting. Generally, agencies will have to complete the environmental review process before granting financial assistance. In addition, infrastructure projects will require issuance of federal permits, triggering the environmental review process. This means that one of the administration’s signature legislative achievements—not to mention climate and net-zero goals—relies upon timely environmental reviews and permitting.

The Biden-Harris Administration is trying a different approach than the four previous administrations, all of which issued Executive Orders imposing new requirements on agencies intended to expedite the processes. Executive Orders, however, can be undone by a later President. The Trump Administration, for example, issued numerous infrastructure permitting efficiency-related Executive Orders that were revoked by the Biden-Harris Administration through Section 7 of Executive Order 13990.

The Biden-Harris Administration plan relies on existing authorities, including the reforms included in the BIL. The Plan, which was issued in advance of a Senate Oversight Hearing with CEQ Chair Brenda Mallory, signals a re-commitment to the administration’s stance that infrastructure development and robust, transparent environmental review need not be in conflict. As noted in the Plan, the administration intends to advance “well-designed projects that promote, rather than compromise, our environmental goals.”

The Plan is largely a compilation of ongoing activities, including for example:

• The second of two NEPA rulemaking phases that seek to align the process with administration climate and environmental justice priorities.
• An interagency working group (first announced in February) that will deliver legislative and regulatory recommendations of the Mining Law of 1872, which governs mining of most critical minerals on federal public lands.
• The encouragement of early and sustained tribal consultation.
• The establishment of “ambitious and realistic” project permitting schedules that are to be publicly posted.

There are, however, some new announcements embedded in the Plan, including the following.

• Establishing Sector-Specific Teams: The administration has convened sector-specific teams of experts led by the What House Climate Policy Office and National Economic Council for six sectors, including offshore and onshore renewable energy, broadband, transportation, and critical minerals. Within 60 days of issuance of the plan, the teams must submit their charters to the Federal Permitting Improvement Steering Council (Permitting Council).
• Expanding Use of the Dashboard: The publicly-available Federal Infrastructure Permitting Dashboard tracks project and environmental review timelines of FAST-41 projects for the purpose of increased transparency and accountability. The Plan commits to upgrading the dashboard to better track and monitor agency progress. In addition, the Permitting Council), Council on Environmental Quality (CEQ), and Office of Management and Budget (OMB) will issue guidance on which non-FAST-41 projects should be on the dashboard, as permitted by the BIL. Notably, the Permitting Council will also explore use of the Dashboard to provide information about net greenhouse gas emissions or emissions reductions associated with projects.
• Conducting More Programmatic Analyses: Within 90 days, agencies and cross-agency teams will identify and report to the Permitting Council opportunities to prepare new programmatic analyses and approaches or special area management plans within priority sectors or regions. For instance, CEQ has already proposed programmatic analyses in draft guidance to assist federal agencies in regulating and permitting carbon capture, utilization, and sequestration projects.
• Enhancing Public Engagement: To ensure meaningful opportunities for public involvement in agency decision-making, agencies are directed to review policies, procedures, and staffing, and account for language and technological barriers to participation. Agencies are to consider identifying a chief public engagement officer and publish public hearings, meetings, and comment periods on the Permitting Dashboard.
• Issuing Guidance & Plans: Within 90 days, OMB and CEQ will issue guidance to agencies on carrying out the initiatives in the Plan, and agencies with environmental review and permitting responsibilities will complete initial plans for implementing the Plan. Thirty days after issuance of the OMB/CEQ guidance, agencies will finalize those plans.

We’ll continue closely monitoring the Biden-Harris Administration’s efforts to expedite infrastructure development without undermining their environmental and transparency goals. If you have questions about these topics, please reach out to the authors.

*Lucas Gorak contributed to this blog post.

© Arnold & Porter Kaye Scholer LLP 2022 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.