July 27, 2020

Streamlining the Federal Environmental Review Process: The Pros and Cons of FAST-41

by Nathan Eady, Christopher Kane, Christian Marsh, and Patrick Veasy

Title 41 of the Fixing America’s Surface Transportation Act (Act), 42 U.S.C. § 4370m et seq., now commonly known as the FAST-41 program, may prove to be a vital set of tools to facilitate the successful processing and approval of the nation’s most important infrastructure projects. Enacted in 2015 and signed into law by President Obama, the Act created a new governance structure, set of procedures, and funding authorities to improve the federal environmental review and authorization process for “covered” infrastructure projects. The Act intentionally casts a broad net over a wide range of potential infrastructure initiatives including aviation, ports, water resources, energy production and transmission, pipelines, and even broadband internet improvements. Ultimately this initial gateway into the policy was written so broadly that any project determined to be “covered” under the Act by the Federal Permitting Improvement Steering Council (Permitting Council)—a collection of federal departments and agencies tasked with improving federal infrastructure permitting—can potentially enter the program. Therefore, the limiting factor for project entrants is more closely tied to the size and complexity of the undertaking.

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