Department of the Interior Accelerates Permitting for Oil and Gas, Adopts 28-Day Mandate

In response to the Trump administration’s push to increase U.S. energy output by declaring a national energy emergency, the Department of the Interior (the Interior) has released plans to aid the administration’s goals.  These include the Interior’s Emergency Permitting Procedures intended to accelerate and streamline review and approval of certain energy projects, primarily oil and gas.  Bypassing formal rulemaking, the Interior cites its authority during emergencies to implement “alternative processes” to comply with the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Endangered Species Act (ESA).  The alternative processes are available to current and future applicants so long as they affirm in writing to the Interior that they qualify for and want to avail themselves of the expedited processes.

The most notable aspect of the alternative processes is the Interior’s mandate to complete its NEPA, NHPA, and ESA obligations within 28 days — a formidable goal given the comprehensive and robust review generally required by each of these statutes as amplified by judicial precedent.  While the reality of this truncated review may prove challenging, the Interior’s guidance may serve as a critical stepping stone in jumpstarting pending or future projects.

NEPA.  Environmental reviews of federal actions under NEPA are typically lengthy efforts, often taking years to complete.  The Interior’s alternative compliance process will require a 14-day review of projects subject to an environmental assessment and a 28-day review period for projects subject to an environmental impact statement.  To streamline the process further, the Interior has provided applicants with a submission form to request emergency coverage for NEPA purposes.

NHPA.  Section 106 of the NHPA requires federal agencies to conduct an extensive review of the effects of projects on historic properties.  In lieu of the traditional Section 106 process, the Interior’s alternative procedures authorize the use of any programmatic agreement previously developed pursuant to 36 C.F.R. § 800.14(b).  The Interior does not specify which programmatic agreements they may turn to, but authorizes the Bureau of Land Management to oversee the process.

ESA.  Similar to the NEPA process, the Interior plans to implement an expedited Section 7 consultation, which will involve only an informal consultation with the Fish and Wildlife Service, in which they will have a truncated time to review and weigh in on the Interior’s proposed action.

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