Welcome 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.