The Infrastructure Plan - Third Time's a Charm?
The most recent iteration of the Trump administration's infrastructure plan was the third attempt at addressing this issue, with each successive plan getting more detailed. On February 12, 2018, the Trump administration released its Legislative Outline for Rebuilding Infrastructure in America (Outline), which committed the administration to "working with the Congress to enact a law that will enable America's builders to construct new, modern, and efficient infrastructure throughout our beautiful land." However, a comparison of this proposal to the prior two proposals raises almost as many questions as this most current Outline answers. While the Outline applies to nearly all infrastructure projects, our focus will be on how the proposals that have been made over time could impact natural gas and LNG projects that are reviewed and approved by the FERC.
The Three Proposals
Soon after taking office on January 20, 2017, President Trump issued an Executive Order and a Presidential Memorandum which, together, addressed expediting environmental reviews for infrastructure projects and required the Commerce Department to develop a plan under which all pipeline projects would use American-made materials. In August 2017, the President issued an Executive Order to establish "discipline" and "accountability" in the federal government's processing of environmental reviews and authorization decisions for new infrastructure projects. The Outline is, to date, the most robust document issued by the administration addressing these issues.
Comparing the Three Proposals
| Issue | January 2017 | August 2017 | February 2018 |
|---|---|---|---|
| Requiring use of U.S. steel | Required Commerce Department to develop a plan. | Silent Abandoned? | Silent Abandoned or replaced with announced tariff on steel? |
| Agency responsible for expediting environmental reviews | Chairman of the White House Council on Environmental Quality (CEQ) | Lead federal agency (FERC) | Lead federal agency (FERC) |
| Timeline for lead federal agency review | Silent | Goal of completing all federal environmental reviews and authorization decisions within 2 years, measured from the date of the publication of a notice of intent to prepare an environmental impact statement. | Firm deadline of 21 months for lead agency to complete environmental reviews through the issuance of a Finding of No Significant Impact (FONSI) or Record of Decision (ROD). |
| Deadlines applicable to permits issued by agencies other than the lead federal agency. | Silent | All federal authorizations shall be completed within 90 days of the issuance of a ROD by the lead federal agency. | Firm deadline of 3 months after the lead federal agency's FONSI or ROD. Deadline also applicable to any permits issued by state agencies under federal delegations of authority. |
As can be seen, the administration's views are becoming more defined, but there are some unanswered questions, including the following:
- Will there be a requirement that American steel be used to build pipelines, or have the recently announced tariffs on steel replaced this requirement?
- Will the proposed changes apply to just projects that require an Environmental Impact Statement (EIS) or also those projects in which there is a Finding of No Significant Impact through the issuance of an Environmental Assessment (EA)?
- What will the time deadline be for the lead agency's decision (e.g., issuance of the Certificate of Public Convenience and Necessity)?
- Which review milestones delineate the 21-month deadline?
- How will a "firm deadline" on other federal and, in particular, delegated state agencies, be enforced?
Use of LawIQ's data can clarify how some of these decisions would have impacted past projects. For instance, if the 21-month period in the Outline is measured from the initiation of the application through the issuance of the EA or EIS, very few projects would have failed to meet this standard, as seen in the following chart:
However, as has been advocated by some, if the 21-month period runs from the initiation of the pre-filing through the issuance of the certificate, a large number of past FERC projects would have failed to meet this goal:
We will continue to follow the evolution of the President's proposals, especially if they are included in legislation being considered by Congress.