August 15, 2017 was a busy day for the Trump Administration. While interacting with the press and other politicians regarding the protests and counter-protests in Charlottesville, Virginia, the White House was also issuing an Executive Order with potentially far-reaching effects on flood management.
The first action was a new Executive Order (not numbered as of release to the press) entitled “Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure.”
- This EO seeks to shorten the time for environmental reviews for infrastructure projects. Those projects are defined as projects “to develop the public and private physical assets that are designed to provide or support services to the general public in the following sectors: surface transportation, including roadways, bridges, railroads, and transit; aviation; ports, including navigational channels; water resources projects; 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 FPISC.”
- Under the EO, the Office of Management and Budget (OMB) and the Council of Environmental Quality (CEQ) will develop tools and scoring that allow quarterly review and evaluation of the speed and efficiency at which Federal agencies are processing approvals for projects. The goal of this effort is for agencies to process environmental review and permits in around two years at most.
- The core tool of the approach is called the “One Federal Decision.” Under it, “each major infrastructure project shall have a lead Federal agency, which shall be responsible for navigating the project through the Federal environmental review and authorization process. . . . With respect to the applicability of NEPA to a major infrastructure project, the Federal lead, cooperating, and participating agencies for each major infrastructure project shall all record any individual agency decision in one Record of Decision (ROD), which shall be coordinated by the lead Federal agency unless the project sponsor requests that agencies issue separate NEPA documents, the NEPA obligations of a cooperating or participating agency have already been satisfied, or the lead Federal agency determines that a single ROD would not best promote completion of the project’s environmental review and authorization process.”
The second action, which is related procedurally, but not substantively, is the repeal of Executive Order 13690. Indeed, buried as section 6 of the new EO discussed above, is the following:
“Sec. 6. Executive Order 13690 of January 30, 2015 (Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input), is revoked.”
For those of you who haven’t been tracking this EO, we have provided a number of blogs on it, including an overview, potential comments, concerns from Congress, and our thoughts on FEMA’s proposed regulations here and here. The question now, is whether the mere revocation of 13690 kills the beast. Presumably, each agency that has adopted regulations under the EO will now (or at some point in the future will) revoke those regulations. But the more interesting question is whether the EO has caused Federal employees to think differently about the original EO 11988 (which 13690 amended), such that a new and more robust Federal standard will exist even without 13690. In other words, will the spirit of 13690 live on, even without the force of law, but causing Federal employees to set a more robust standard for projects to be built with Federal funds?
Only time will tell the answer to this question, and we are sure not every agency will think alike. But this is a little bit like saying, don’t think about a pink elephant. Once you say that, it is hard to not think about the elephant.