Shipley Group: [00:00:00] Welcome to The NEPA Project, a monthly podcast discussing NEPA and other environmental topics. In this episode, we will discuss President Trump's executive order for infrastructure projects and what it means for agencies. This episode is brought to you by the Shipley Group's new training "Tools for Efficient NEPA". If you are struggling with the administration's new focus on NEPA streamlining, whether it be short time limits for document completion or maximum page limits in EAs and EISs. This workshop can help. "Tools for Efficient NEPA" will help you learn techniques to add efficiency in implementing the NEPA process while still remaining compliant with the key procedural requirements of the NEPA statute and implementing regulations. This training will be available both as a live virtual classroom and as agency specific tailored training. For more information go to shipleygroup.com.

Shipley Group: [00:00:50] The guests in this episode will be Joe Carbone and Rhey Solomon. Joe Carbone retired after 37 years of federal service with the U.S. Forest Service where he oversaw the agency's NEPA Policy in Washington D.C. and Atlanta. Joe also served as the deputy associate director for NEPA at the Council on Environmental Quality in 2016 where he worked on NEPA guidelines and procedures. Rhey Solomon retired from the Forest Service in 2003 after 32 years of government service and is now an independent environmental consultant. Rhey served as the deputy director of ecosystem management in the Washington office before retirement.

Joe Carbone: [00:01:30] Let's start out with just talking about the executive order. So this is 13807 that came out on August 15th of last year. So we're coming up on almost a year now this executive order has been out. And so some of the things that just struck me as being things noteworthy to mention at this point.

[00:01:52] One of them really was the purpose and I think just keeping in mind that the whole purpose of this is that there's a frustration out there about inefficiencies and in particular for infrastructure projects in that inefficiencies in getting to a decision, including as the executive order says, management of environmental reviews which brings us to this topic for NEPA. And what also struck me was how the executive order laid out the policy and it shadows Section 101 of National Environmental Policy Act, NEPA, in that it lays out its first part of the policy says that these are about decisions concerning environmental impacts. It recognizes that agencies need to develop infrastructure in a "environmentally sensitive manner" and provide transparency and accountability. And so I think all that transparency the attention to the environment comes through from Section 101 of NEPA. And then it goes the policy for this executive order goes into talking about agencies being good stewards of public funds and coordinating and making predictable and timely decisions. So it starts getting it actually gets into being this balance of not just the environment but also about being efficient. So it's being environmentally responsible while being efficient in getting decisions made. So I think you know that struck me as as a nice balance just like Section 101 of NEPA does. It recognizes both the environment and all the benefits that Americans enjoy including social and economic benefits. And you know so I thought the executive order strikes a good tone on that.

[00:03:54] And then, this particular executive order is not about all NEPA projects the things that it involves major infrastructure projects which the executive order defines as those projects with multiple federal agency authorizations. It has to be an environmental impact statement and that the projects sponsor has reasonable available funds reasonably available funds for the project and so it is not about the entire NEPA process it's just pretty narrow window that at least the executive order addresses. And then it lays out agency performance accountability and it strives for a two year average time process for environmental reviews for these infrastructure projects. It sets up a tracking and scoring system for major infrastructure projects and calls for this one federal decision where there will be a lead federal agency responsible for navigating the project through. And then it also requires the use of the dashboard that agencies have been using under other legislation. So Rhey what's your insight on just the executive order.

Rhey Solomon: [00:05:19] Not that I want to be a contrarian on this stuff but I view the executive order kind of like as you suggested with section 101 and 102 of NEPA in that 101 is a general policy and its got very laudable things, which is fine for the first section on the policy that that the president has laid out here which that's fine. The problem I have with it is unlike NEPA where in section 1022C it goes into very specific requirements of of you will content of what needs to be considered in order to get to this policy. In this particular executive order. It's all about getting it done faster. I mean it really is about efficiency. Which I don't object to that I think efficiency is something that the federal government needs to work on. But, it is clear to me from the executive order that it is causing agencies to look at the way in which they go about doing their NEPA analyses. It actually expands it to energy corridors which in my mind now takes it beyond what you consider highway infrastructure. But it just strikes me as clearly aimed at bringing timing efficiencies and length of documents to something that the administration would consider as being more reasonable. So it does put a little different spin than just about protecting the environment.

Joe Carbone: [00:07:00] Well another thing that it calls for is that CEQs responsibilities to develop some initial set of actions and it recognizes CEQs authority to both interpret NEPA and to simplify and accelerate the review process. So I think it remains to be seen how CEQ will play this out especially given that they're typically low on staff and we'll see how that works out. But I think that this lays out a big role for them in moving forward. And then there's also the memorandum of understanding that was just signed in April and that M0U is for all the agencies to develop agency plans to implement the executive order and they have 90 days to implement it. So from April to July they'll be putting these things together and sometime in July we should expect to start seeing these agency plans roll out and I think it will be an interesting conversation Rhey to talk about those plans because with teaching for Shipley Group we teach with a lot of different agencies and I'm really interested to see what their plans are.

Rhey Solomon: [00:08:24] Yeah I think the public would be interested in them as well. And it is something I would hope that we could have future podcast to actually visit with the agencies on their plans when they get there more fully developed. My concern is of course as you know I'm one that always raises concerns unfortunately. As these agencies are rolling these plans which they only got 90 days according to the memorandum of agreement. I don't know how well those are going to be coordinated. And as you indicated Joe CEQs under the executive order is also supposed to be moving forward with perhaps changes to the regulations. And so I think there's a lot of things swirling right now that the more information that gets exchanged and shared among the agencies is actually helpful for the process. Because as you know most agencies tend to kind of work in a vacuum on their own. Looking at their own missions, their own laws, their own regulations and tailoring whatever they're going to do in that context. But the executive order clearly is indicating that this has got to be done in a more collaborative way. And so I'm not sure that the memorandum of understanding, although it's written, I'm just not convinced that agencies are necessarily going to be able to do all that within the 90 day window. Thoughts on that.

Joe Carbone: [00:09:55] Yeah I agree with you because it's this coordination that if if they are going to coordinate across agencies. You and I both know with our experience that this just this is a this takes a lot of time especially when people are running in many directions already. And so trying to do that. And again this goes back to the the one agency decision. So there plans across the agencies, especially those agencies that are going to be working with each other on a particular infrastructure project they're going to want alignment in how they're proceeding. This is already difficult for agencies that have different missions, different requirements beyond NEPA just different administrative kinds of requirements even decision levels that differ some are out of Washington and some are more local decision makers. That takes a lot of coordination. So it will be interesting to see how the agency plans do that coordination up front.

Rhey Solomon: [00:11:00] Especially given as you know that the Forest Service has an objection process. FERC has another objection process. And with FERC it depends on where you where you enter into that that working relationship with them. And then you've got BLM with their objection process and how that is going to fit with in this one decision process. In the memorandum agreement there is some indication they have sensitivity to FERC. But there was no recognition of that sensitivity to BLM and Forest Service. So I'm not sure that that is going to move in an efficient way as they might have wanted it to.

Joe Carbone: [00:11:43] Right. And so you know these all of these objections these objections and processes come from other statutes at least that I know the Forest Service does and these are not necessarily controlled by the NEPA regulations or agency NEPA procedures.

[00:12:01] So there are things that have always needed to be coordinated and in some cases where I know where the Forest Service and Department of Interior have had you know Bureau of Land Management have had joint decisions or they've had both had decisions to make. They've have mechanisms to allow for say one objection process but that all takes coordination and I don't I don't see this as being anything new. It's just reality. And you know if anything maybe the MOU and the executive order puts it back on the front burner or that, hey there's an expectation here, you're going to coordinate and you know get this process aligned. Even recognizing that there are differences across agencies.

Rhey Solomon: [00:12:54] The other thing Joe I think that this effort does which is a real positive is, depending on what they find as the agencies start rolling this out and really if they do it more collaborative. I think there's an opportunity to identify for Congress the various components of the laws that are controlling some of these analyses that do make things much more difficult. And so perhaps out of this could be some additional thoughts from the administration for legislative changes. I mean they've already sent up to the Hill their legislative agenda for environmental analysis and infrastructure. So this could be a very positive aspect of yet clarifying more clearly some of those very specific things that Congress could do to make this much more efficient.

Joe Carbone: [00:13:55] Right. I was just thinking about that same thing and I was wondering if you had any comments on the alignment of the legislative agenda. That's that's gone out with this executive order and see you know some overlap in those things.

Rhey Solomon: [00:14:12] Yeah I mean there clearly is an overlap with the executive order. I think the legislative initiative are are the the infrastructure legislative outline that was put out by the administration goes into I think more clearly defined rationale and thinking on what exactly they would want done. But it does go well beyond just our NEPA interests. I mean it clearly gets into the Endangered Species Act, National Historic Preservation Act, Clean Water Act 404 permitting, ESA authorities even even to the point where they're talking about judicial realignment. So it's a very broad agenda and I think this initiative on the part of the agencies could help to really focus that to really to really deal with the Congress in a way that look don't go throwing out the baby with the bath water. Let's be more strategic and more surgical about what we're going to change and why we're going to change it.

Joe Carbone: [00:15:23] Yeah I agree with that surgical changes as in my experience anyway way that's been the best way to move pieces forward in a productive way without throwing the baby out with the bathwater. And and also to just bring alignment with coalitions that agree on incremental changes without causing more strife across party lines and so forth.

Rhey Solomon: [00:15:54] Yeah I agree. Joe and I you know I don't think we want to get as many specifics for this podcast so I would suggest maybe we just leave it at that. We would like to follow this up with specific podcasts with individual agencies to talk about how they envision the implementation of the executive order as well as a memorandum of understanding.

Joe Carbone: [00:16:21] Exactly know one of the things that I've noticed in talking with agencies about putting out their notices of intent for environmental impact statements that there's actually been a review out of Washington of those notices of intent. And so I hear from some agencies as I'm doing instruction, like well we used to be able to put these out but now they have to go up for review. And so they see that that is something that's actually slowing things down. But I look at the the memorandum of understanding and there is some discussion in there which might bring some relief to agencies about it that the MOU is looking at not unreasonably delaying these NOIs. But that being said, there seems to be more emphasis on getting alignment within an agency about a major infrastructure project that, alright here's the cooperating agencies here's where the funding there is funding that's available. And before launching into the NEPA process to figure out is this something that the agency can do? Is it something that is wanted? Is there a need for it before the launch? So it be interesting to me in future podcasts to actually talk with the agencies about the how are there plans for you know this front end loading going to work. And then actually get into talking with the agencies about specific projects that they've already launched. I think it would be really interesting and informative for all of us moving forward.

Rhey Solomon: [00:18:02] You remind me of when I was doing work with Ray Clark down at Duke University, I remember Ray used to talk about his pithy statements and one that has always struck me as really on the mark over the years was Ray used to say "to kill a dumb project as a public service" and I think I think this more up front coordination before you launch a notice of intent, does exactly what Ray was suggesting and that is. Think your way through what you really want to propose. Make sure this is something that the federal government wants to spend money on, before you just launch off from the Notice of Intent and start spending federal resources on something that gets killed in the end.

Joe Carbone: [00:18:49] Yep exactly. And you know Rhey,you and I worked years ago now on this whole concept of decision making and using the decision science to get a more contemporary view of how decisions are made and how agencies make decisions. And you know the literature points time and time again to that important first step in figuring out, is there a need is there a need for a project and is there even a decision that needs to be made? And that itself takes. A lot of work and a lot of time and it should take a lot of time and then as you get several agencies that are involved with that each having decisions to make, it becomes more complex. And and also more important to engage early.

Rhey Solomon: [00:19:43] As you and I both know that's the one thing that you and I have always emphasized in our Shipley training is the importance of the purpose and need and how it's written and how it's structured and and all of that leads to the whole idea that if the purpose of need is well-structured then the rest of your project is likely to get tied up in all kinds of knots. And I guess that's in part some of my concerns with with this executive order and memorandum of understanding is I hope that people really think about what's the nature of the problem we're trying to solve here before you just launch off with all kinds of solutions. And unfortunately I see a lot of perceived solutions in the memorandum of understanding and the executive order that I'm not so sure they've clearly thought through where the real hang ups in the process are.

Joe Carbone: [00:20:40] Yes that's a good observation Rhey. Putting into practice the whole concept of in approaching good decision making understanding the problem before launching. And I know working with teams in the past, interdisciplinary teams, and you get into the alternatives phase you're looking at well what are some alternatives. And the team is having a hard time and so they put back on the table as well, what is the purpose in need of this project? And they start telling you and you find out that there is not total agreement on that. In fact they're all trying to solve different problems. And I think that frustration comes through time and time again it's not a NEPA thing, its about decision making. And I hope the agencies are allowed to or think through in their in their plans to move forward that they're actually identifying real problems to solve.

Rhey Solomon: [00:21:37] Which I think the executive order and the MOU are focusing on the one decision document. I'm not sure though by having a decision document, that necessarily really deals with the problem. I think the problem is much more deeply founded in missions and funding of agencies than it is in sitting the agencies down and agreeing on some problem that they can all agree on. Given the diverse mission of agencies, I'm not so sure that that's something that's going to be easily agreed to.

Joe Carbone: [00:22:13] Yep, I totally agree with you on that. This one federal decision its one thing to put it into a single record of decision and coordinate all of that. The other is, as you say that the bigger lift is trying to actually get on the same page for the same decision. And some agencies are not decision makers but they have a responsibility, regulatory responsibility to review and to make recommendations or to impose certain mitigations if you will for projects that are under their authority. And it's not a decision it doesn't have to be in alignment with the decision. So it's going to be interesting because they all have different missions and responsibilities.

Rhey Solomon: [00:23:03] And I hope we follow up with other podcasts of these agencies and direct some questions specifically how how are they proposing as part of their plan to resolve some of these differences in missions and regulatory authorities.

Shipley Group: [00:23:19] Thank you for listening to this episode of the NEPA project. To view the transcript of this discussion. Please go to shipleygroup.com/podcast. If you have any questions or comments in regards to this episode. Or you have any topics or ideas for future episodes. Please reach out to shipley@shipleygroup.com. We would love to hear from you. If you found this episode helpful. Please subscribe on iTunes or any where you listen to podcasts and share this podcast with your colleagues.

[00:23:47] This episode was brought to you by the Shipley Group's new training "Tools for Efficient NEPA". If you are struggling with the administration's new focus on NEPA streamlining whether it be shortened time limits for document completion or maximum page limits in EAs and EISs this workshop can help. "Tools for Efficient NEPA" will help you learn techniques to add efficiency in implementing the NEPA process while still remaining compliant with the key procedural requirements of the NEPA statute and implementing regulations. This training will be available both as a live virtual classroom and as agency specific tailored training. For more information go to shipleygroup.com. Thanks for listening. And remember NEPA is just good planning and decision making.