Environmental Streamlining Measures in Title 41 of the FAST Act: What Will They Mean for Infrastructure Project Developers?

by Laura Zagar,^* William Malley,^** and Stephanie Regenold^***

Congress passed the Fixing America’s Surface Transportation Act ("FAST Act") last December.¹ The FAST Act provides new funding for surface transportation projects and includes measures to streamline environmental reviews for highway, transit, and rail projects. But the FAST Act is more than a transportation bill. Title 41 of the Act adopts significant reforms to the federal environmental review process for a wide range of infrastructure projects, including those involving energy production, electricity transmission, surface transportation, aviation, ports, waterways, water resources, broadband, pipeline, and manufacturing.²

For project applicants, these reforms have many potential benefits, including:

• Making it easier for applicants to engage federal agencies at the outset of the process, in determining a lead agency and establishing a project schedule.
• Setting deadlines for specific agency actions and comment periods during the National Environmental Policy Act ("NEPA") process.
• Setting benchmarks for the total time needed to complete the NEPA process and requiring project schedules to be consistent with those benchmarks.
• Establishing an online Dashboard to provide greater transparency regarding the federal actions required and the target dates for those actions.
• Establishing an early consultation process for applicants to obtain information and identify key issues of concern to federal agencies.
• Providing clear statutory authority for federal agencies to adopt state environmental documents to satisfy federal laws.
• Providing new mechanisms for resolving disputes among federal agencies regarding the review and permitting of infrastructure projects.
• Setting new limits on litigation challenging federal agencies’ environmental reviews and permit decisions, including a two-year statute of limitations.