For a link to the Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure, please click here. For a link to the White House Fact Sheet on EO 13807, please click here.
FAST-41 and EO 13807
Title 41 of the Fixing America’s Surface Transportation Act
(FAST-41) and Executive Order 13807
- What problem does EO 13807 address?
Before construction can begin on an infrastructure project, it typically must comply with numerous Federal statutes overseen by multiple Federal agencies, making for a lengthy review process. EO 13807 addresses the need for a coordinated, predictable, and transparent Federal environmental review and authorization process for infrastructure projects while protecting public health, safety, and the environment.
- How does EO 13807 address this problem?
The order uses three key tools to improve the permitting process:
- One Federal Decision — project sponsor concerns in navigating the Federal bureaucracy are addressed through a One Federal Decision (OFD) policy. Under OFD, a designated lead Federal agency works with other relevant cooperating Federal agencies to complete a single record of decision.
- A Predictable Schedule — each major infrastructure project will have a permitting timetable for environmental reviews and authorizations, and agencies will be held accountable to those timetables through performance measures and financial penalties. This will provide greater predictability to project sponsors and potential investors as to when a project review will be completed.
- Shorter Review Times — the order establishes an average two-year goal across all agencies to process environmental reviews and authorizations for major infrastructure projects.
- How do EO 13807 and FAST- 41 work together?
In addition to the benefits of EO 13807, FAST-41 covered projects receive these additional FAST-41 specific benefits:
- One Stop Shop for Project Sponsors — in addition to a lead Federal agency contact, FAST-41 project sponsors have a dedicated point of contact through the Executive Director’s office. When a project sponsor (or agency) brings a permitting timetable dispute to the Federal Permitting Improvement Steering Council’s (FPISC) Executive Director, the Director uses the FAST-41 dispute resolution process. Under FAST-41, the Director is required, in consultation with the project sponsor and appropriate agencies, to mediate the dispute within 30 days or it is elevated to the Director of the Office of Management and Budget (OMB). The OMB Director, in consultation with the Chairman of the Council on Environmental Quality (CEQ), directs the agencies to resolve the dispute within another 30 days. The OMB Director’s dispute resolution actions are final and conclusive.
- Permitting Dashboard Accountability and Transparency — the permitting timetables for FAST-41 projects are publicly available on the Federal Permitting Dashboard to provide predictability, enhanced transparency and accountability, and are reviewed and updated at least quarterly and as often as monthly.
- Executive Director Oversight of FAST- 41 Projects — under FAST-41, lead agencies work with cooperating agencies to develop a Coordinated Project Plan (CPP) at the start of a project. FAST-41 provides a formal process for lead and cooperating agencies to coordinate on a quarterly basis to update the project plan. The CPP lists the roles and responsibilities for all entities with environmental reviews or authorizations, discusses a mitigation strategy, and outlines plans and a schedule for public and tribal outreach and coordination. The FPISC Executive Director’s office reviews the CPPs on a quarterly basis to ensure agencies are generating efficiencies in the permitting process by using best practices and addressing timetable issues in advance so unexpected future delays do not occur.
- Shorter Statute of Limitations — FAST-41 reduces the statute of limitations from six years to two years for covered projects (under the APA).
- Where can I learn more about FAST- 41 and how to apply to become a covered project under FAST-41?
- Overall FAST-41 information: https://www.permits.performance.gov/
- Instructions on applying to become a covered project: https://www.permits.performance.gov/tools/becoming-fast-41-covered-project
- What projects are subject to EO 13807?
The order applies to infrastructure projects that 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.”
Many of the provisions of the EO only apply to "major infrastructure projects," defined in the EO as “projects for which multiple Federal authorizations are required to proceed with construction, the lead Federal agency has determined that it will prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and the project sponsor has identified the reasonable availability of funds sufficient to complete the project.”
- How does EO 13807 enhance accountability for infrastructure permitting, including for FAST- 41 covered projects?
The order requires new government-wide accountability measures through the following actions:
- CEQ will implement an action plan to improve environmental reviews Government-wide. Click here for CEQ’s Federal Register notice of this initial list of actions.
- OMB, in consultation with FPISC, will develop a Government-wide modernization goal for environmental reviews and authorization decisions, and will ensure that agencies take meaningful steps to achieve it.
- Agencies will modify their strategic plans to include goals for improving their environmental review and authorization processes, and agency officials will be accountable for showing improvement, consistent with guidance to be provided by OMB.
- OMB, in consultation with FPISC, will establish a performance accountability system and score each agency on its implementation of the Executive Order. Poor performance will be considered in budget formulation and could result in the imposition of penalties.
- How will project disputes be resolved among agencies?
Under EO 13807, except where dispute resolution processes are otherwise provided for in law, such as FAST-41, upon request of a lead Federal agency, cooperating agency, or participating agency, CEQ may mediate interagency disputes arising among Federal agencies concerning Federal environmental review or authorization decisions for any infrastructure project pertaining to any environmental law, regulation, order, or policy, and shall facilitate resolution of any conflicting positions of the relevant agencies.
For FAST-41 projects, in addition to the FPISC Executive Director’s permitting timetable dispute resolution process discussed in question three above, CEQ may mediate disputes over substantive (non-timetable) policy issues.
- How does Executive Order 13766 fit into the requirements of this Executive Order?
The policies established in Executive Order 13807 align the high priority infrastructure designation in Executive Order 13766 with existing coordination frameworks, such as FAST-41. Rather than having the Chairman of the Council on Environmental Quality designate high priority infrastructure projects, as was called for under EO 13766, high priority infrastructure projects will be those projects subject to FAST-41, the Department of Transportation’s 23 U.S.C. 139 framework, or the U.S. Army Corps of Engineers’ 33 U.S.C. 2348 framework.