One Step Forward, One Step Back on Infrastructure Executive Orders

Last week, President Trump issued a new executive order related to infrastructure, but he also disbanded the newly created Presidential Advisory Council on Infrastructure.  The Presidential Advisory Council on Infrastructure, established by an executive order issued in July, had yet to convene before its termination.

The newly issued executive order aims to increase the efficiency and effectiveness of federal environmental review and authorization of infrastructure projects.  This order does not distinguish between executive agencies and independent agencies, such as FERC.  For the “one-in, two-out” executive order, the Office of Management and Budget (OMB) and White House later clarified that independent agencies were not covered by that order.  There has yet to be any guidance on whether the new executive order applies to independent agencies.

Last week’s executive order has two main substantive portions.  The first (section 4 of the order) focuses on holding federal agencies accountable for their timeliness, efficiency, and transparency when reviewing infrastructure projects.  This section directs the Director of the OMB, in consultation with the Federal Permitting Improvement Steering Council, to create a Cross-Agency Priority Goal on Infrastructure Permitting Modernization within 180 days.  Cross-Agency Priority Goals were created by the Government Performance and Results Act Modernization Act of 2010 and are designed to facilitate greater coordination and information sharing among federal agencies for a limited number of high-priority issues.  After establishing this goal, the Director of the OMB will create a performance accountability system, which will track major infrastructure projects, issue a scorecard for agencies’ performances at least once per quarter, and identify best practices.

The second substantive portion (section 5 of the order) creates certain process enhancements to unify the environmental review and authorization process.  Among other things, the executive order requires that each major infrastructure project have one lead federal agency, and that agency will coordinate a unified Record of Decision that includes all individual agency environmental decisions regarding an infrastructure project.  All federal authorizations for an infrastructure project are to be completed within 90 days of the Record of Decision.

Finally, one subsection (section 5(g) of the order) concerns energy infrastructure projects in particular.  This subsection requires the Departments of Interior and Agriculture to be the lead agencies “for facilitating the identification and designation of energy right-of-way corridors on Federal lands for Government-wide expedited environmental review for the development of energy infrastructure projects.”

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