On April 9, 2018, the White House released a Memorandum of Understanding (MOU) signed by EPA, the Department of Interior (including the Fish and Wildlife Service), Department of Commerce (including the National Marine Fisheries Service), U.S. Army Corps of Engineers, and 8 other federal agencies which clarifies and implements the Administration’s plans to streamline review under the National Environmental Policy Act (NEPA) for major infrastructure projects. The MOU is the culmination of efforts taken by the White House Council of Environmental Quality (CEQ) since last fall to reduce processing time under NEPA for such projects.
The MOU’s goals are to “provide a more predictable, transparent, and timely Federal review” for major infrastructure projects by eliminating duplicative efforts and implementing an expedited timeline. The MOU also further delineates the requirements for Lead Agencies, which are responsible for coordinating review between agencies and preparing the necessary documentation. The Lead Agency is determined at the outset of the NEPA review by consensus of all the involved agencies. Further, the Lead Agency will be responsible for preparing the final Record of Decision, which will now encompass all the necessary information into one document. Also, the Lead Agency will be responsible for creating and enforcing a Permitting Timetable and will have the goal for reducing the time to two years starting from the date the Notice of Intent is published to the issuance of a Record of Decision. The Permitting Timetable will be included in the preliminary project plan, and the MOU contains provisions to quickly resolve any conflict that could delay meeting this timeframe.
Although the MOU establishes general procedures for reviewing agencies, it does not articulate EPA’s specific role in the NEPA process. Given that EPA has a statutory duty to review and rate other agencies’ NEPA reviews, this omission is fairly significant. Also, despite the new expedited process, agencies still must comply with relevant statutory and regulatory NEPA requirements. If they do not, a reviewing court could overturn the agencies’ decisions. Therefore, heading forward, a major question remains regarding whether the agencies can implement these expedited procedures while also meeting statutory and regulatory NEPA requirements.