Congress Just Enacted New Permitting Requirements for Energy Projects: Did You Miss It?

[Commentary] A new law will impose significant new legal requirements on how federal agencies complete their environmental reviews and permitting of renewable energy projects, transmission lines, pipelines and other major infrastructure projects. The law became effective on Friday, December 4th. Congress quietly inserted new, stand-alone statutory permitting requirements for infrastructure projects into the FAST (“Fixing America’s Surface Transportation”) Act, its $305 billion transportation bill.

Title I of the bill includes the type of transportation-specific permitting tweaks that we have come to expect in transportation bills, but the real surprise is found in Division D of the legislation, which includes Title XLI, entitled: “Federal Permitting Improvement.” The permitting changes included in Title XLI extend far beyond highway projects and cover “construction of infrastructure of renewable or conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, [and] manufacturing.” Key new requirements laid out in the new legislation will have broad applicability to “covered projects” that “require authorization or environmental review by a Federal agency involving construction of infrastructure for renewable or conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines [and] manufacturing,” when such projects are subject to NEPA and are likely to required a total investment of more than $200 million. The law places a number of new, permitting-related legal obligations on federal agencies.

[Hayes is the former Deputy Secretary of the U.S. Department of the Interior. He is a Visiting Lecturer in Law at Stanford University.]