The Infrastructure Investment And Jobs Act'Amendments To FAST-41

• Published date: 24 January 2022
• Subject Matter: Environment, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Renewables
• Law Firm: Arnold & Porter
• Author: Ms Emily Orler, Allison B. Rumsey and Ethan G. Shenkman

Passage of the Infrastructure Investment and Jobs Act (IIJA) kicks off a multi-year, herculean effort by the public and private sectors to spend a historic level of investment on infrastructure projects. While many are eager to see the promised benefits of this investment, the speed at which federal agencies can get money out the door and projects constructed will depend on how quickly those projects can complete environmental review and permitting. As a result, we expect to see the Biden Administration continue efforts to expedite these processes. This is reflected in the IIJA's targeted amendments to the Fixing America's Surface Transportation Act (FAST Act).

Background

Title I, Subtitle C of the IIJA amends Tile XLI of the FAST Act, 42 U.S.C. ' 4370m-4370m-12 (FAST-41), which created the Federal Permit Improvement Steering Council (FPISC) to facilitate the implementation of new procedural requirements for "covered projects" intended to accelerate environmental review and permitting. FAST-41 applies to infrastructure construction projects in select sectors that require a federal agency authorization (e.g., a permit) or National Environmental Policy Act (NEPA) review, and qualify under one of three tests (see 42 USC ' 4370m(6) or Section 3 of OMB & CEQ's Guidance on FAST-41). Importantly, projects administered by the Department of Transportation under Titles 23, 46, or 49 are expressly exempted from FAST-41, but may eligible for the separate expedited process at 23 USC ' 139 (also amended by IIJA).

Key existing requirements of FAST-41 include:

• Performance Schedules: FPISC must establish model performance schedules that set out intermediate and final completion dates for environmental reviews and authorizations.
• Permitting Timetables: Agencies must develop project-specific permitting timetables that can be modified only after consultation with the project sponsor and should generally conform with FPISC's performance schedules.
• Permitting Dashboard: FPISC must maintain a publicly-available permitting dashboard that tracks covered projects' completion of permitting milestones.
• Heightened Judicial Challenge Requirements Challengers must file NEPA claims within two years (as compared to the otherwise applicable six year statute of limitations) and to demonstrate that they filed comments during the NEPA process that were "sufficiently detailed . . . so as to put the lead agency on notice of the issue."

IIJA Amendments

The IIJA amendments to FAST-41...