Buy American/Hire American Policies Previewed in Latest Executive Order

Made in the USA

 

When clients ask about “Buy American” restrictions, which apply to direct purchases by the federal government, they don’t always realize that they are referring to a shifting body of legislation that has been around for more than 80 years, since the Buy American Act of 1933 was passed. Since then, Buy American legislation has grown considerably, to include the often-confused, so-called Buy America Act, which was enacted in 1983 and applies only to mass-transit-related procurements.

On Tuesday, the general body of information on Buy American restrictions grew even larger after President Trump signed an executive order ushering in a “new, more muscular Buy American policy based on the twin pillars of maximizing Made in America content and minimizing waivers and exceptions to Buy American laws.”

The executive order directs every federal agency to “scrupulously monitor, enforce and comply with Buy American laws,” and further tasks Secretary Commerce Wilbur Ross with reviewing all agency findings and submitting a report to President Trump within 220 days. The new order seeks to minimize grants of waivers, and in particular will “more narrowly” construe public-interest waivers, which are already rarely granted. The order also requires agency heads to consider whether the cost advantage of a foreign-sourced product is the result of the use of dumped or subsidized goods.

Additionally, the order focuses on the role of Buy American laws in free trade agreements and, specifically, on whether the United States is getting its “fair share” of global government procurement when it treats foreign suppliers like American companies. The executive order does not actually rescind any trade agreements or call for their renegotiation, but it does call for more information to determine which deals are working for America and which ones are not.

Finally, the order strongly reaffirms the “melted and poured” standard for U.S. steel production, without which semi-finished steel would be imported from countries like China and Russia.

As indicated above, the executive order does not contemplate any immediate action; instead, it is an information-gathering exercise that may or may not result in changes in enforcement, legislation, or trade agreements. It is also a signal to other countries that the United States wants a larger piece of the global government procurement pie. While we await the eventual outcome of the executive order, the various and often complicated compliance issues associated with Buy American laws remain intact, and should be broached with legal counsel, since—even with a greater articulation from the Trump administration about the government’s approach to buying American—there is still no “one size fits all” Buy American test.

Regulatory Reform: Be Careful What You Wish For

Scissors cutting red silk ribbon on white background

A constant refrain from clients over the years, in both the public and private sectors, is that certainty may be the most valuable characteristic of any regulatory program.  The “Waters of the United States” controversy perfectly illustrates this perspective.  One could argue whether the Army Corps of Engineers’ reach over jurisdictional waters governed by Section 404 of the Clean Water Act has expanded or contracted over the years.  But there can be no dispute, thanks to a series of confusing Supreme Court decisions and regulatory inertia, that a property owner still doesn’t know precisely whether all or part of her land qualifies as “waters of the U.S.”  This reality leads to the legitimate complaint from the regulated community that its cost of proposed development rises dramatically because of regulatory uncertainty.

The Trump administration has promised (and is acting on that promise) to address regulatory burdens facing a variety of industries.  Some members of the administration take a broad philosophical view of such actions (“deconstructing the administrative state”), while others have a far more practical aim of promoting greater economic activity by reducing the built-in costs of regulatory compliance.  Whether the goal is job creation or encouraging a more fundamental shift of power away from federal agencies, this effort isn’t new.

In fact, one of the first tasks assigned to me as Chief Counsel at the Federal Highway Administration was implementation of a directive from the Office of Management & Budget to identify out-of-date or redundant regulations for repeal.  Cass Sunstein, then the head of OMB’s Office of Information and Regulatory Affairs, issued a directive to all agencies to find and cut unnecessary rules from the Code of Regulations.  Sounds familiar, right?  Together with my program office colleagues, I researched and found at least a dozen major rules that had been superseded by subsequent law and served no good purpose.

Think back even further, and I have a distinct recollection of Vice-President Al Gore appearing on a late night show to push the Clinton Administration’s effort to reduce silly regulations.  The Vice President demonstrated the testing procedure set forth in federal purchasing regulations to determine whether ash trays meet quality standards.  I’m not sure if those regulations were ultimately repealed, but it made for good TV.

Fast forward to last week, when I addressed the National Ocean Industries Association Annual Meeting, giving attendees an overview of regulatory activity impacting the offshore energy sector.  While the overall theme of the meeting was one of optimism over the potential for reduced regulatory burdens affecting offshore energy development, my message was somewhat more sobering.

The unprecedented use of the Congressional Review Act has already led to the rescission of a couple of major rules involving oil and gas development, and there are at least a couple of others that could be on the President’s desk before the CRA deadline in early May.  (Eleven regulations have been repealed in total, after a grand total of one rule had been overturned by Congress in over 20 years since the CRA was passed.)

Beyond that, Administration Executive Orders and internal Department of the Interior Secretarial Orders will impact energy exploration regulations from top to bottom.  So many questions persist.  How will the agencies implement the directive to repeal two rules for every new one proposed?  How will they attempt to estimate the costs vs. benefits of safety rules governing offshore drilling, for example, against the cost of implementing new Blow-Out Preventer rules put in place after Deepwater Horizon?  What rules will be determined to impede energy production and why?  Once the agencies identify these regulations, how will they address the legal requirements of the Administrative Procedure Act to attempt to roll back those regulations?  Besides those procedural issues, the manner in which the DOI will enforce remaining rules is far from clear.

All those unanswered questions add up to one thing: uncertainty.  The Blow-Out Preventer rules, for example, were written largely to adopt and codify existing best practices, many of which were supported by the industry!  Would it really make sense for offshore operators to turn back those standards, having spent millions of dollars investing in safety equipment and technology?  Not all action involves the repeal of regulations.  A proposed rule out of the Department of Homeland Security/Custom and Border Protection could advance the administration’s “America First” policy by prohibiting the use of foreign-flagged vessels for a wide variety of offshore oil and gas activities.  If finalized, some industry experts estimate that this new interpretation of the Jones Act could result in tremendous delays in planned offshore drilling activities.

Many regulations on the books clearly deserve close inspection.  But in advancing the cause of reform, the administration should keep in mind that by drastically changing the regulatory landscape, it may also be increasing uncertainty for major industries that had already adapted to major public health and safety rules.  Fewer regulations may indeed be a laudable goal, but knowing the rules of the road creates certainty that all businesses crave.

Poof! Administration Makes CEQ Greenhouse Gas NEPA Guidance Disappear. Or Did It?

wagner postThe duo of Penn & Teller is one of my favorite acts. I appreciate not only their irreverent sense of humor, but their unabashed respect for their audiences.  Their tricks are designed to amaze, but they just as quickly reveal exactly how they performed the illusion.  Somehow, knowing how their magic works in no way diminishes their appeal.

On March 28, the Trump administration did Penn & Teller one better. At an elaborate ceremony at the U.S. Environmental Protection Agency, the President made a comprehensive group of Obama-era climate guidance and policies disappear.  This post won’t attempt to review the entire collection of actions targeted by the administration.  Most experts agree that the primary focus of the executive actions, the Clean Power Plan, won’t be undone by executive order.  Administrative procedures and pending (and future) litigation will make any change in policy a protracted effort that may not conclude by the end of the President’s first term.

The focus here is the CEQ’s Greenhouse Gas (GHG) NEPA Guidance, issued last August. The White House rescinded this guidance, effective immediately.  As it was not a regulation (although it did go through extensive public notice and comment), this administrative action will have immediate effect.  The more pertinent question is, will the President’s action simply be an elaborate illusion?

It should be remembered that the Guidance’s stated goal was to make the federal government’s consideration of climate change impacts in NEPA documents for the entire spectrum of federal actions as consistent as possible. Agencies and courts reviewing agency actions struggle with precisely how to address climate impacts.  Some agencies include quantitative calculations (the number of tons of carbon associated with an action); some provide only qualitative analysis as a general rule; others still decline to include any analysis on a project-level basis, on the assumption that no one action can produce measureable impacts on a global phenomenon.  The issue becomes even more complicated when projects incorporate climate resilience features in the alternatives analysis (“should we re-build this bridge with 10-foot or 20-foot clearance over the river?”).

Critics of the Guidance argued that the policy would make NEPA analyses even more complex and take even more time to address this over-arching issue. They also asserted that mandating any quantitative analysis on a project-specific basis made no sense, as the potential climate impact of any additional carbon produced by the project was the quintessential “cumulative effect,” and shouldn’t be charged to any single action.  Moreover, they worried that agencies would have to chase potential carbon emissions “upstream” from more general land-use planning actions in a manner that would be amorphous at best, and inaccurate at worst (for example, opening federal lands to energy exploration, and having to calculate the carbon emissions from potential future use of the resources that could be extracted).

Now all these challenges have magically disappeared, right? Well, not so fast.

Earlier this week I attended the Annual Meeting of the National Association of Environmental Professionals, the organization of consultants and engineers largely responsible for most of the major NEPA work in the U.S.  I had the opportunity there to discuss the Guidance with a number of veteran environmental officials from past administrations, as the EPA announcement literally took place during sessions on “how to assess climate change impacts in NEPA documents.”  Their conclusion, with which I agree, was that regardless of the intent behind rescission of the Guidance, NEPA practice will remain largely unchanged.

Plaintiffs challenging agency NEPA analysis will still pursue claims that analysis of climate impacts was not done in sufficient detail, or not at all. Federal courts will be confronted with this issue in any number of contexts, from broad-based land-use planning decisions to project-specific action.  Agencies won’t be able to avoid the issue.  They will be compelled to respond to public comments on the topic of climate and resilience.  In many instances, the nature of the project itself will demand attention to how or if rising sea levels (as one example) will impact construction of a project.  Will the project proponent be required to commit to additional mitigation measures to protect the infrastructure or development at issue?  Will engineering alternatives need to be considered to address resiliency?  In short, analysis of climate impacts will still be part and parcel of many (if not most) federal environmental reviews.

Therein lies the uneasiness about the absence of CEQ guidance on the issue that I heard expressed at the conference. Professional consultants fear a case-by-case, court-by-court standard on how to address climate, which is certainly not conducive to efficient reviews.  They similarly worry about different federal agencies taking very different approaches, which is likely to occur.  Projects being analyzed in the same geographic region could see widely divergent approaches to climate impacts and resilience.  Once courts have more opportunities to chime in, we may also witness different standards in different parts of the country.

That was what the Guidance attempted to avoid, all under the framework of current regulatory requirements that give agencies great flexibility depending on the well-understood NEPA concepts of “context and intensity.” Now that the Guidance is gone, the goal of greater consistency may also be illusory.

The CEQ GHG NEPA Guidance has disappeared. But the challenge of how to address climate issues under NEPA has not.

Hidden Behind the President’s Proposed EPA Cuts, an Infrastructure Silver Lining

As expected, President Trump’s recently released “skinny budget” proposes deep cuts to EPA’s 2018 fiscal year funding. The outline calls for Congress to slash $2.4 billion from EPA’s existinbridge-918748_640g budget, reducing the agency’s funding from $8.1 billion to $5.7 billion.  This 31 percent budget reduction would force the agency to axe over 50 programs and the equivalent of roughly 3,000 full-time jobs.  Of course, Congress is unlikely to enact these cuts in full, and even many key Republicans have already indicated resistance to major pieces of the President’s proposed EPA budget.

But the Administration doesn’t propose cutting every EPA program.  In fact, buried in the lede is the proposed budget’s “robust funding for critical drinking and wastewater infrastructure.”  $2.3 billion is set aside to fund the Clean Water State Revolving Fund and Drinking Water State Revolving Fund (the State Revolving Funds)—a $4 million increase over the 2017 annualized continuing resolution funding level. And the budget would provide $20 million in first-time funding to the Water Infrastructure Finance and Innovation Act program (WIFIA), which is based on the successful Transportation Infrastructure and Innovation Act administered by the Department of Transportation.

Together, these programs form the backbone of federal support to state and local water infrastructure programs. Since formation, the State Revolving Funds have provided over $150 billion of water infrastructure support funding.  And WIFIA aims to provide long-term, low-interest loans worth up to 49 percent of water infrastructure project costs for qualifying projects, and is designed to work “hand in hand” with the State Revolving Funds.  EPA estimates that $20 million of WIFIA funding can support almost $1 billion in direct loans for water infrastructure projects across the country, through leveraging and multiplier effects. Indeed, the Department of Transportation estimates that “[e]ach dollar of Federal funds can provide up to $10 in TIFIA credit assistance—and leverage $30 in transportation infrastructure development,” so WIFIA is certainly promising.

In light of the substantial agency-wide cuts being floated by the Administration, this increase in federal water infrastructure funding, however modest, is a vital silver lining. Whatever other changes Congress makes to the balance of the proposed budget, these line items are likely safe.  Administrator Pruitt is a long-time federalism advocate, and President Trump has repeatedly emphasized his desire to funnel money toward water infrastructure projects, so water infrastructure funding may be somewhat of a sacred cow to both the White House and the agency.

But while it appears that the Trump EPA will prioritize water infrastructure, it is less certain when and how the money will start flowing. Aside from Administrator Pruitt, other EPA program heads have not been appointed; having a full political team in place at EPA would seem to be a prerequisite to getting WIFIA up and running.  Nor has the Administration indicated how it would dole out WIFIA funding, particularly in light of the significant proposed EPA staff cuts.  In short, though the President plans to push water infrastructure development while in office, there are important unanswered questions regarding the form that development and prioritization will take.  Yet despite these question marks, WIFIA stands a strong chance of moving forward.  It has both White House and EPA support, it is likely to garner significant Democratic support, and it supports both urban and rural constituencies.  If any Trump EPA program is likely to start off strong, it looks to be WIFIA.

 

Water Project Secures Appellate Win in Arduous NEPA Journey

Water GlassWhen politicians seek to target NEPA as the primary culprit for delays in major infrastructure projects, I am consistently one of the voices urging caution. Many realities create delay, most often, the lack of funding to get large-scale projects off the ground. We know that most federal projects get through the NEPA compliance by issuance of a “categorical exclusion,” a process that can usually be concluded in a matter of a few weeks. Large scale development? No, that takes longer, but they also represent the vast minority of projects with some sort of federal nexus.

The voices seeking further NEPA reform are out in force once again, as the new Congress and the new Administration try to find ways to expedite project planning and delivery. That’s laudable, but leaders should look first to all the effective tools available to federal agencies through the FAST Act (specifically Title 41 of that Act) and many other administrative reforms championed by the last two Administrations, Republican and Democrat.

Yet every now and then, a project serves as a poster child for how NEPA and its procedural mandates can be misused by those seeking to derail desperately needed infrastructure, further fueling cries for undercutting NEPA’s mostly positive legacy. I have been involved with one such project for over a decade, and most recently, the D.C. Circuit provided a glimmer of hope for the citizens who would benefit from its final construction.

The Northwest Area Water Supply project (or “NAWS”) has been planned and in various stages of design and development for decades. The project would provide a reliable and safe drinking water source for thousands of North Dakota’s citizens who have suffered with severe water quantity and quality issues for years. The basics of the project are simple:  water would be withdrawn from the Missouri River Basin, treated, and then transported via pipeline into the Hudson Bay Basin to provide a new water source for communities in and around Minot, North Dakota.

NEPA compliance began in the late 1990’s and culminated when the Bureau of Reclamation issued an environmental assessment and Finding of No Significant Impact in 2001. The Province of Manitoba, Canada, led the opposition to NAWS, primarily on the basis that water withdrawn from the Missouri River Basin and transferred to the Hudson Bay Basin had the potential to introduce invasive, microscopic biota, which could cause terrible damage in Canada. (The State of Missouri subsequently joined the fight against NAWS, opposing any withdrawal of water from the Missouri River.)

The merits of these challenges will not be re-litigated here. It’s enough to say that the agency’s first EA, and then a full, updated Environmental Impact Statement were challenged and found wanting in certain respects. A new Supplemental EIS was prepared and a Record of Decision was issued in August 2015. These documents were, of course, challenged again by Manitoba and Missouri.  Through all this time, my children were born, celebrated their B’nai Mitzvot (Mazel Tov!), and made their way to college. Wonderful achievements for my kids, but still no new drinking water source for the citizens of North Dakota.

Following completion of the Supplemental EIS, the State decided to seek a modification of the pending injunction, simply to allow paper engineering work to proceed while the most recent NEPA challenge was litigated. This relief was necessary, we argued, because engineering design for the NAWS water treatment plant was complicated business and could take almost two years alone, and then would be followed by two years of construction. In other words, no water would be withdrawn from the Missouri River and no water transferred to the Hudson Bay Basin for about four years. If the State could not engage in even the engineering design, water delivery could be delayed for several years beyond that planning and construction horizon.

That request was first denied by the district court, but on March 3, the D.C. Circuit reversed that ruling and ordered the lower court to grant the State’s request to modify the injunction. The Supplemental EIS challenge is still pending, so NAWS’ final chapter is still to be written.

Oral argument before the D.C. Circuit (conducted beautifully by my former colleague Nessa Coppinger) was remarkable. Judge Harry Edwards got to the heart of the debate over NEPA and how projects suffer from delay as a result of litigation like that North Dakota has defended for almost 20 years. Edwards pressed counsel for Manitoba about what harm could be suffered simply by allowing paper design work to move forward.  Not satisfied by the answers he heard, the Judge said something along the lines of: “I know how this works. You’ll challenge any NEPA work done on this project for however long it takes, and it will be another decade before any work on the project can commence.  Meanwhile, the people who need water won’t get any.”

It took all my self-control to not shout “Amen!” from the gallery. But Judge Edwards truly grasped the problem faced by the State as it sought to prevent what the Court called “an imminent public health crisis faced by its citizens.” NEPA must be followed, of course.  But when is “enough, enough,” and when has an agency done all that it could to identify reasonably foreseeable risk? The State now has some interim relief, as it waits to see if the latest NEPA analysis passes muster.

Cases like these and North Dakota’s NAWS experience don’t help those who extol the benefits of NEPA review to produce well-considered infrastructure projects across the country. While it may be the exception to the rule, it is a disturbing enough exception to encourage the ongoing effort currently underway to further undercut NEPA’s goals of reasoned decision-making and an informed public. We can and should have both, together with prompt project planning and development. I’ll drink (good clean water) to that!

Will “Pay to Play” Laws Impact Potential New Infrastructure Spending?

blog 1In the President’s first address to Congress, two statements received near-unanimous standing ovations:  his advocacy for a major infrastructure rebuilding effort, and his continued promise to “drain the swamp” of political influence-peddling and corruption.  In the infrastructure world, these two themes come together with so-called “Pay to Play” laws, which restrict political contributions by businesses that have received or are trying to obtain government contracts, as well as by their owners, officers, and other principals.

At FHWA, my colleagues and I struggled mightily with these laws proliferating around the country.  The basic question was this:  did these restrictions run afoul of 23 U.S.C. § 112, which prohibited rules that would unduly limit competition for contracts involving federal funds?  The public certainly had the right to know that large contracts weren’t being awarded as a result of political contributions.  On the other hand, if that sort of political activity eliminated major contractors from bidding on surface transportation projects, would the cost of those projects increase due to lack of competition?  There were no easy answers.

My colleagues in Venable’s Political Law Practice Group have prepared this summary of “Pay to Play” laws, practical steps to help would-be contractors on the federal, state, and local levels, and a brief update on current trends in this field.  Any trillion-dollar infrastructure package will come with some strings attached, and “Pay to Play” may very well be one of those strings.  Creating or enhancing a compliance plan to address these kinds of restrictions is advisable now, before any new money hits the streets.

 

Funding Our Infrastructure Maintenance Backlog Before the Next Crisis

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The shocking images out of California of the near-failure of the Oroville Dam have once again shined a light on essential, aging American infrastructure. Damage to the nearly mile-long spillway and threatened complete breach of the dam’s “emergency spillway” (really just the side of the hill adjacent to the man-made structure) led to the mandatory evacuation of nearly 200,000 people.  As of this writing, water levels behind the dam have stabilized, but new storms in the short term and the expected spring melt in the longer term may once again threaten adjoining communities with devastating flooding.

Much less frightening, but equally important, the American Road and Transportation Builders Association (ARTBA) just published its updated list of “structurally deficient” bridges.  Over 55,000 bridges nationwide meet that definition, which includes facilities that need anything from substantial engineering upgrades to complete replacement.  Although this is hard to believe, ARTBA estimates that nearly one in four bridges (over 170,000) are at least 50 years old and have never had major reconstruction work!

One of the highest-profile bridges in desperate need of repair is the Memorial Bridge, one of the DC metropolitan region’s most crucial route to downtown. The bridge’s foundation is literally crumbling, with nets installed to catch pieces as they fall from the structure.  The National Park Service is responsible for that facility, and while efforts have been made recently to appropriate the necessary funds for major renovations, the money isn’t all there, and work has not started.

In the case of both the Oroville Dam and the Memorial Bridge, federal, state, and local officials take emergency measures when needed, but spend most of their time praying that nothing truly catastrophic takes place. While I’m all for guidance from above, that’s hardly a way to manage public infrastructure.

Perhaps these high-profile cases highlight the biggest challenge facing political leaders trying to coalesce around the best way to fund an infrastructure program and how much to dedicate to the effort. The popular projects are often the ones that result in a brand new facility, complete with the requisite ribbon-cutting ceremony.  Your basic maintenance and renovation projects, in contrast, usually get more attention for the interruption of service or road detours they create, and certainly don’t result in a ribbon-cutting.  (The project slogans are catchy, though – “We’re making it wider for you and your rider!”)

Ask any infrastructure executive in any sector if they would prefer to build something new to add to their inventory or increase maintenance budgets to repair the things already built, and I suspect they would almost unanimously choose the latter. Yet, maintenance projects remain stubbornly unsexy.

At least so far, there does not appear to be an appetite on Capitol Hill for a major infrastructure spending bill along the lines of the Recovery Act passed at the beginning of the Obama administration. Most of the attention has been focused on tax reform and incentivizing private infrastructure investments, although Democrats have offered more of a traditional public financing proposal.  The amount?  A trillion dollars has been bandied about, definitely a nice, round number.  The reality is that our country faces a multi-trillion-dollar deficit in infrastructure maintenance.  How should politicians solve this policy conundrum?  I have a modest proposal:

Concentrate on tax reform and incentives in the first instance. Freeing up capital and encouraging public-private partnerships has long been the goal of both parties.  In exchange for that deal, however, Congress should be willing to offer up what I’ll call a “Maintenance Match” program for states and localities that direct spending to a variety of renovation projects.  For every dollar that the states spend on priority maintenance projects (as defined by long-standing lists from groups like ARTBA and the American Society of Civil Engineers), the federal government will match it, two for one.  This way, states may bite the bullet on difficult budgetary decisions if they know they could actually reduce some of their lengthy maintenance backlog.

The benefits of such a deal could be enormous. Construction jobs are created; vital infrastructure is improved; public health and safety is protected; and the inevitable political wrangling over what shiny, new projects to build is avoided.

It shouldn’t take the specter of a failing dam or the closure of a vital transportation artery to reach this compromise. Maintenance may indeed be boring, but I predict voters will readily accept the taxes necessary to support boring over evacuations, flooding, and hair-raising commutes.

Welcome Back to EnviroStructure!

united-states-capitol-1675540_1920Welcome back to “EnviroStructure!”  I apologize for my temporary hiatus.

Did I miss anything in the last few months?

If there’s one thing I’ve learned to appreciate in recent years, it’s that there’s nothing more constant in this world than change. With that understanding, and with a great sense of optimism and enthusiasm, I’m happy to be part of a new team here at Venable LLP. I promise to offer you on these pages the same common sense reflections on all things environmental law and infrastructure that I hope have become the hallmark of this blog.

Let’s begin with one absolutely uncontroverted reality – the Trump Administration and the new Congress will grapple with infrastructure spending and with project delivery. While finding dollars and cents is always a greater challenge than advancing the seemingly perpetual goal of streamlining environmental reviews and permitting, something will happen. Unlike many of the hot-button issues being addressed in the infancy of the new Administration, both sides of the aisle will want to demonstrate accomplishments on the infrastructure front.

Where is the most likely fertile ground for agreement or compromise?

Public-private Partnerships (P3s) will return with a vengeance. Beyond the more well-established programs under the jurisdiction of the U.S. Department of Transportation (now consolidated under the Build American Bureau), look for the promotion of P3 opportunities in other industry sectors desperately in need of the influx of funding, like water treatment/delivery and the expansion of broadband to more rural populations.

In order to provide adequate oversight for the potential record number of P3 financing deals, look for states to update or reform their existing programs to ensure protection of taxpayer investments. The fairly recent statutory updates in the Commonwealth of Virginia might very well serve as a model for other states seeking to expand private investment, but to avoid deals that do not end up working fairly in the public interest.

Environmental streamlining will be expanded into multiple sectors beyond transportation. The little-known secret of the FAST Act (Congress’ most recent surface transportation reauthorization bill from 2015) is how Title 41 of the Act offers NEPA and permit reform opportunities across a variety of public infrastructure. At a recent regulatory reform conference I attended, extremely experienced attorneys lamented how streamlining efforts should have been extended beyond transportation. When I respectfully corrected the record before an audience of almost 300 onlookers (that was a bit awkward, admittedly), both the expert panel and the conference attendees seemed genuinely surprised that the FAST Act could already provide excellent opportunities for improving project delivery across the economy.

NEPA reform and permit streamlining, however, will not proceed down Easy Street.  Inevitably, focus on high-profile and controversial projects like the Keystone and Dakota Access pipelines will trigger stiff opposition from local and national NGOs. But, there simply appears to be too much momentum to expand FAST Act and other previous USDOT reforms (like the highly successful “Every Day Counts” initiative) to prevent long-lasting, and overall positive changes to the country’s complex system of project approval.

Finally, and not surprisingly, look to the courts for further guidance on whether certain project delivery reforms fall within or just outside the federal government’s authority. While at USDOT, our team successfully defended reforms like shortening the statute of limitations for challenges to final NEPA decisions, combining the Final Environmental Impact Statement and Record of Decision under the agency’s regulations, and mandating that permit and NEPA reviews be performed concurrently by USDOT and its sister resource agencies. While we may have avoided legal challenges to those efforts, might, say, the Bureau of Land Management be as successful if it applied those same measures to an oil and gas project or a mining project? Logically, you’d expect the same positive outcome, but too often logic doesn’t apply when dealing with more controversial infrastructure projects.

My new colleagues and I look forward to an open-ended conversation on these crucial issues in the coming year and beyond. Thanks again for supporting “Envirostructure”, especially in these constantly changing times.

Infrastructure Gets Top Billing from President-Elect Trump

President-Elect Trump’s election night statement specifically called out infrastructure, above all other domestic policy concerns, as a focus of his new Administration. Despite some initial rumblings from the conservative wing of the Republican Party about more government spending, it seems likely that enough members of both parties could work with the Trump White House to pass a major infrastructure initiative. Unlike the financial stimulus bill passed in 2009 at the beginning of the Obama Administration, the volume of infrastructure investment Trump has advocated and the types of projects he has mentioned specifically will necessarily require attention to environmental and natural resources laws that govern project selection and delivery.  The following substantive areas will be in play: Continue Reading

Justice Antonin Scalia (1936-2016)

This week a friend in the media asked me to reflect on Justice Antonin Scalia’s environmental law legacy.  The resulting article includes a summary of my comments, and I offer some additional thoughts below.

The late Justice’s philosophy of strict statutory (and Constitutional) interpretation had broad implications for the implementation of a variety of environmental laws. In video interviews that were broadly disseminated after news of his death, Scalia said that he really didn’t view cases before the Supreme Court addressing environmental laws as particularly challenging or complex.  He professed not to worry or care about the policy issues in a specific case; rather, he did what he normally did – read the pertinent statute and tried to figure out what Congress meant based on the plain meaning of the words. Continue Reading

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