Trump Infrastructure Plan and the Environment

Once again, the Trump administration has kicked off infrastructure week. This time, a 55 page document with some details on the plan was released. Several elements of the plan have implications for the environment. These range from amendments to permitting to rights of way for pipelines, and changes to the superfund cleanup process.

One of the biggest proposed changes is the “One Agency, One Decision” environmental review structure. Under this proposal, there would be a deadline of 21 months for lead agencies to complete environmental reviews through issuance of a Finding of No Significant Impact (FONSI) or Record of Decision (ROD). Furthermore, 3 months after the issuance of the FONSI or ROD, Federal agencies would need to make decisions about any necessary permits. This is in stark contrast to the current process where there is review under the National Environmental Policy Act (NEPA) and decisions on permits by appropriate federal agencies who possess separate decision-making powers in accordance with their specialties. Agencies are currently encouraged to file a joint analysis, but are not required to do so. Part of this proposal would also ask the Council on Environmental Quality (CEQ) to revise its regulations and streamline the NEPA process. Additionally, this proposal seeks to change the rule that requires the EPA to review most Environmental Impact Statements (EISs) and provide comments on them, arguing that the process is duplicative and can cause delays without providing extra protection to the environment.

Another area of suggested change involves clean water. The plan proposes allowing nationwide permitting without an additional USACE review. The administration seeks to consolidate the authority to make jurisdictional determinations for 404 permits with the Secretary of the Army. Additionally, the proposal suggests eliminating the EPA’s oversight by removing its ability to veto a 404 permit under 404(c). To streamline the process, the administration proposes allowing one NEPA document for 404 and 408 actions. There are also several timeline proposals, including extending the term of a National Pollutant Discharge Elimination System Permit from 5 years to 15 years with automatic renewals allowed “if the water quality needs do not require more stringent permit limits. . . .”

There is also a provision to remove some of the current protections that prevent lands administered by the National Parks Service from being used for pipelines for energy production. Currently, such use would need to be approved by Congress. The infrastructure plan proposes allowing the Secretary of the Interior to review and approve permits for such pipelines.

There are also various judicial reform proposals included. One such proposal would limit injunctive relief available under NEPA to exceptional circumstances. Another would revise the statute of limitations for challenges to permitting and authorization decisions from up to 6 years to 150 days. The final suggestion would require agencies to establish guidelines on when new studies and data are required and preclude courts from hearing claims on currency of data when the agency is within their own guidelines.

Changes for superfund sites were also proposed. First, would be the establishment of a revolving loan fund and grant program for Superfund sites just like there is for Brownfield programs. Second would include an exemption from liability for States and Municipalities acquiring contaminated property through actions as Sovereign Governments. Third, would be to provide the EPA with express settlement authority to enter into administrative agreements to clean up and reuse sites. Finally, to integrate cleanup and rebuilding work by removing restrictions on coordinating funding.

These are all just proposals so far and would still require approval from different quarters to make these suggestions a reality. However, it does provide a glimpse into the thinking of the administration with regards to environmental safeguards that have been in place for years.

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