Originally posted on Troutman Sanders’ Washington Energy Report

On February 12, 2018, the White House issued its proposed framework for an infrastructure bill to Congress.  Notably, the White House’s infrastructure plan proposes to (1) establish a firm deadline of 21 months for lead agencies to complete their National Environmental Policy Act (“NEPA”) reviews and an additional 3 months thereafter to approve or deny a permit (i.e., a decision on an interstate natural gas pipeline project or hydropower license application must be made within 2 years of the application); and (2) amend the Clean Water Act (“CWA”) to set a deadline for a state agency to determine whether a CWA section 401 certificate application is complete.

The infrastructure plan, titled “Legislative Outline for Rebuilding Infrastructure in America,” provides a framework for a bill with four key components: (1) funding and financing infrastructure improvements; (2) provisions for road transportation, water infrastructure, veterans affairs property, and land revitalization improvements; (3) infrastructure permitting improvements; and (4) workforce development.  In the proposal, the White House asks Congress to quickly act on an infrastructure bill that would “stimulate at least $1.5 trillion in new investment over the next 10 years, shorten the process for approving projects to 2 years or less, address unmet rural infrastructure needs, empower State and local authorities, and train the American workforce of the future.”

Of note, the White House proposes to streamline the NEPA process, including FERC’s environmental reviews of applications for interstate natural gas pipeline projects and hydropower licenses.  With respect to NEPA reviews, the White House proposes to, among other things:

• Establish a firm deadline of 21 months for lead agencies to complete their NEPA reviews;

• Establish a deadline of 3 months after the NEPA review for the agency to approve or deny the project.  This 3-month deadline would also apply to permits issued by state agencies acting pursuant to delegated authority.  The plan adds that “[a]ppropriate enforcement mechanisms would be established to ensure that permit decisions are issued”;

• Clarify that an agency is not required to consider alternatives that are outside its jurisdiction during the NEPA review; and

• Require the Council on Environmental Quality to revise its regulations to streamline the NEPA process.

The White House also proposes to amend the CWA to set a deadline for state agencies to determine whether an application for a CWA section 401 certificate is complete and to clarify the deadline for a state decision on the application.  In doing so, the White House notes that states currently have up to 1 year to act on an application, or the requirement is waived.  The White House continues, however, that states often fail to act within the 1-year period or require applicants to re-file a more complete application prior to the 1-year deadline, “which produces a loop of repeated lack of issuance and re-filing.”

The White House concludes that its infrastructure plan “will strengthen the economy, make our country more competitive, reduce the costs of goods and services for American families, and enable Americans to build their lives on top of the best infrastructure in the world.”

A copy of the White House’s infrastructure plan is available here.

The Second Session of the 115th Congress has officially kicked-off what promises to be an interesting and exciting new year. In the link below you will find an update from Troutman Sanders Strategies on the fast-approaching midterm elections and how federal policy decisions will be affected in 2018. The outlook describes the policy issues Congress and the administration may address over the coming months, provide information on members who have left or are leaving Congress, and analyze how those departures will affect leadership positions on congressional committees.

Read the full report here.

On December 22, 2017, the U.S. Department of Interior (DOI) reversed course and issued a Memorandum interpreting the scope of criminal liability under the Migratory Bird Treaty Act (MBTA) and its applicability to “incidental takings,” which the Memorandum defines as a death or other “take” that “results from an activity, but [that] is not the purpose of that activity.” In short, the Memorandum concludes that criminal liability under the MBTA should not be interpreted to extend to incidental takes, and instead only applies to “affirmative actions that has as their purpose the taking or killing of migratory birds, their nests, or their eggs.” This Memorandum will provide significant needed clarity to renewable energy projects and many other industries that perform activities with the potential to indirectly, and non-purposefully, impact migratory birds during development, construction, or operation. Continue Reading Trump Administration Narrows the Scope of the Migratory Bird Treaty Act

From The Washington Energy Report

On September 29, 2017, United States Department of Energy (“DOE”) Secretary Rick Perry took the unusual step of proposing a rule for final action by the Federal Energy Regulatory Commission (“FERC”). Secretary Perry’s initiative, a DOE-issued Notice of Proposed Rulemaking (“NOPR”) under section 403 of the Department of Energy Organization Act (“DOE Act”) (42 U.S.C. § 7173), urges FERC to act extremely quickly to enact rules requiring regional transmission organizations and independent system operators (“RTOs/ISOs”) to provide just and reasonable rates for “fuel-secure” generation units (e.g., coal and nuclear units). See Grid Resiliency Pricing Rule, Docket No. RM17-3-000, at 4–5 (Sept. 29, 2017) (“DOE NOPR”). Continue Reading Department of Energy Proposes FERC-Authorized Full Cost Recovery for Certain Nuclear and Coal Power Generation

From The Washington Energy Report

On September 19, 2017, the Senate Committee on Energy and Natural Resources (“ENR Committee”) unanimously advanced FERC nominees Kevin McIntyre and Richard Glick to a full vote on the Senate floor.  If confirmed by the Senate, Mr. McIntyre and Mr. Glick will join current FERC Commissioners Cheryl A. LaFleur, Robert F. Powelson, and Chairman Neil Chatterjee to fill all five seats at the Commission.  Upon confirmation, Mr. McIntyre will become the new Chairman of FERC. Continue Reading Senate Energy and Natural Resources Committee Advances FERC Nominees for Confirmation

On May 23 the Trump Administration released its formal FY 2018 budget proposal for congressional approval. The formal budget mirrors many of the aspects of the budget blueprint that the Administration released on March 16—including significant cuts to offices and programs relating to renewable energy.

Overall, the proposal cuts the budgets of the U.S. Department of Energy and the U.S. Department of the Interior. The cuts align with the Administration’s goals of reducing non-defense discretionary spending to fund an increase in defense and infrastructure spending. Continue Reading President Trump Sends $4.1 Trillion Budget to Congress

Originally posted here on Troutman Sanders’ Environmental Law & Policy Monitor

by Randy Brogdon, Peter Glaser, Margaret Campbell, Mack McGuffey or Andy Flavin.

In the Rose Garden of the White House, President Trump fulfilled a key campaign promise last week by confirming that the United States will begin withdrawing from the Paris Climate Change Agreement (“Agreement”).  President Trump cited the Agreement’s potential financial and economic burdens as a reason for the withdrawal. Continue Reading U.S. to Withdraw from Paris Climate Deal