January 27, 2017 Practice Points

Infrastructure Gets Top Billing from President Trump

Despite some initial rumblings about more government spending, it seems likely that enough members of both parties could work with the White House to pass a major infrastructure initiative

by Fred Wagner

President Donald J. Trump’s election night statement specifically called out infrastructure, above all other domestic policy concerns, as a focus of his new administration. Despite some initial rumblings from the conservative wing of the Republican Party about more government spending, it seems likely that enough members of both parties could work with the White House to pass a major infrastructure initiative. The volume of infrastructure investment Trump has advocated, and the types of projects he has mentioned will require particular attention to be paid to environmental and natural resources laws that govern project selection and delivery. The following substantive areas will be in play:

NEPA Reviews and Permitting

MAP-21 (The Moving Ahead for Progress in the 21st Century Act) and the FAST Act (Fixing America’s Surface Transportation Act) include a great deal of new authority designed to streamline project review and approval. Expect the Trump Administration to go even further.  Extending the authority to combine a Final Environmental Impact Statement (FEIS) and Record of Decision to all agency National Environmental Policy Act (NEPA) reviews, not just transportation projects, is highly likely. And the Trump Administration might support the inter-agency permitting committee created by the FAST Act and extend the jurisdiction of that committee to a broader range of infrastructure projects.

CEQ Greenhouse Gas NEPA Guidance

A Trump White House Council on Environmental Quality (CEQ) will likely withdraw guidance on how and to what extent NEPA reviews should address greenhouse gas impacts. The new administration may not be able to order that project sponsors not consider GHG impacts at all, but it could constrain the recommended scope of any such analysis, whether on a project-specific or planning level of analysis. The federal courts have largely written NEPA’s history to date, and the handling of potential GHG impacts and application of any new federal policy will be no exception.

Government Funding of Infrastructure

The promotion of public-private partnerships (P3s) will return with a vengeance. Efforts by the Obama Administration to consolidate and streamline the process for approving federal grants supported in part by P3 investments will accelerate.  A gasoline tax increase is highly unlikely, so the Trump Administration will rely heavily on P3s to avoid placing additional direct financial burdens on citizens.  A Trump Administration Department of Transportation could consider tolling of new and existing highway assets a palatable option.  President Trump will have no choice but to work with Congress to find the always-challenging “pay-fors” to support public projects.

Selection of Infrastructure Projects

Expect an emphasis on high-profile, visible projects. LaGuardia Airport in New York City is high on any list.  The new Gateway project connecting New Jersey and New York also falls in that category.  Even large-scale transit projects may continue to see support.  However, we anticipate a dramatic shift away from non-vehicular transportation, promotion of “livable communities,” or other policies of the Obama Administration that tend to advance the transition to alternative mobility.

Also expect regulatory or policy reforms that give maximum flexibility to local and state governments to select which projects get funded and to identify highest priority projects from a policy standpoint. Expect reductions to competitive grant programs that gave the federal government decision-making authority.

Non-Transportation Infrastructure

As demonstrated by his recent Executive Memorandum, ordering the Army Corp of Engineers “to review and approve in an expedited manner” the Keystone Pipeline, practitioners can expect the Trump Administration to reverse policy decisions that slowed down or even cancelled major energy infrastructure projects. But, practitioners can also expect continued efforts by opponents of traditional oil and gas developments to attempt to stop these projects. This dynamic again will place a tremendous emphasis on expediting NEPA and permitting approvals, and standards for judicial review of challenges to these projects.

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