Endangered Species Law & Policy

In furtherance of the administration's broad infrastructure initiative, President Trump on August 15 signed an executive order (EO) entitled Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.  The EO directs federal agencies to make coordinated, predictable, transparent, and timely decisions with the goal of completing all federal environmental reviews and authorization decisions for major infrastructure projects within two years.  Infrastructure project is defined by the EO to encompass surface transportation (including roadways, bridges, railroads, and transit), aviation , ports and navigational channels, water resources , energy production and generation (including from fossil, renewable, nuclear, and hydro sources), electricity transmission, broadband internet, pipelines, stormwater and sewer infrastructure, drinking water infrastructure, and other sectors as may be determined by the Federal Permitting Improvement Steering Council (FPISC).  A major infrastructure project is defined as one for which multiple authorizations by federal agencies are required to proceed with construction, the lead federal agency has determined that it will prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA), and the project sponsor has identified the reasonable availability of funds sufficient to complete the project.

The EO emphasizes coordination between federal agencies on environmental reviews and permit decisions, as well as consistency and predictability in those processes, for both major and non-major infrastructure projects.  The EO also directs agencies to use One Federal Decision, in which each major infrastructure project will have a lead federal agency that navigates the project through the federal environmental review and authorization project; the Council for Environmental Quality (CEQ) and Office of Management and Budget (OMB), in consultation with the FPISC, are to develop the framework for implementing One Federal Decision.  The EO also directs the OMB to establish certain agency performance priority goals, guidance for establishing an agency accountability system, and other regulations, guidance, or directives as CEQ deems necessary to enhance and modernize the federal environmental review and authorization process.  A preliminary list of these CEQ actions is to be developed within 30 days of the EO.  Impacts of the EO on permitting and interagency consultations under the Endangered Species Act remain to be seen, but the EO has the potential to substantially alter the federal environmental permitting process for infrastructure projects.