The Biden administration has cleared up uncertainty about the role of a small office that irons out complex environmental permit reviews, part of a bid to speed permitting for wind farms and other projects, its executive director tells Bloomberg Law.
The Federal Permitting Improvement Steering Council (FPISC) had been scheduled to sunset in December until it was reauthorized in the $1.2 trillion bipartisan infrastructure bill. Despite that lifeline, FPISC’s role under Biden wasn’t clear until he released his permitting action plan on May 11, which is thought to be the first time the president has publicly mentioned the office.
Project developers now have a clear signal that FPISC will continue to play a lead role in permit streamlining, possibly encouraging them to turn to the agency—whose services are voluntary—for help, according to Nat Keohane, who helped write a 2012 executive order on permitting as special assistant to President Barack Obama for energy and environment.
“It provides a signaling that elevates something folks haven’t been focused on, because it comes from the White House and it has that additional oomph,” said Keohane, now president of the Center for Climate and Energy Solutions.
One of the new provisions in the recent Biden plan lays out a 90-day deadline for agencies to develop plans for improving permitting.
It also tells sector-specific teams under the White House Climate Policy Office and National Economic Council to send FPISC a plan for speeding up permitting of projects like offshore wind and climate-smart infrastructure, and expands the council’s authorities to include tribal-sponsored projects on tribal lands.
Another new requirement gives agencies and cross-agency teams 90 days to tell FPISC about ways they can develop programmatic analyses in priority areas or geographic regions. Projects like offshore wind farms could especially benefit if they’re clustered in the same area and share many characteristics, said Christine Harada, who heads the council.
Harada confirmed that uncertainty about her office has been cleared.
Now that Congress has approved infrastructure spending, FPISC must first square away lingering legal questions, Harada said. Then it will focus on practical questions of “how are we going to actually get these projects on the ground?” she said. “What kinds of technologies do we need to be developed? How do we work with which states and the utility commissions in order to move that forward?”
‘Just Lip Service’
Some doubt that a more muscular FPISC will make a meaningful difference.
“Although I’m glad that the administration is trying to address permitting issues, in principle I’m skeptical that adding more bureaucracy to cure too much bureaucracy will work,” said Marcella Burke, a former deputy general counsel at the EPA and former deputy solicitor at the Interior Department, both during the Trump administration.
Burke compared the decision to use FPISC—as opposed to the traditional process of working only with the permitting agencies—as akin to deciding whether to use the Transportation Security Administration’s PreCheck program or the private-sector CLEAR program at the airport.
“Maybe it’ll be a faster line; we can try our luck, but I can’t guarantee anything,” said Burke, now a partner at King & Spalding LLP.
Rep. Sam Graves (R-Mo.), top Republican on the House Transportation and Infrastructure Committee, expressed similar concerns, calling the action plan “just lip service” in a joint statement with committee member Rodney Davis (R-Ill.)
Harada acknowledged that the exact degree to which FPISC helps speed permitting is hard to measure because “there is no such thing as an average project. Each permitting project is unique, and they vary greatly based on complexity.”
But that doesn’t mean the steering council hasn’t played an important role, she said. Harada pointed to the Gemini Solar project near Las Vegas, saying it had been under federal review for more than a decade before it was added in 2018 to FPISC’s permitting dashboard—an online tool that tracks permit progress to increase coordination.
“Once on the dashboard, there was a substantial uptake in permitting progress, and the project review was complete two years later,” Harada said.
Karen Hanley, who preceded Harada as FPISC’s deputy and acting director under Biden, said the council’s efforts led to a 45% time savings for NEPA during her tenure. On average, the federal permitting process was finished within 30 days of the schedule agreed upon at the beginning of the process, said Hanley, now executive vice president of The Permitting Institute, a pro-development association.
Political Will Needed
Permitting practitioners also said Biden’s plans for FPISC won’t amount to much if federal agencies don’t execute.
“Agencies know where the process delays exist, but it requires political will to do the hard work that translates a plan into durable outcomes,” said Alex Herrgott, who led FPISC under President Donald Trump and is now president of The Permitting Institute.
Sharon Buccino, a senior attorney at the Natural Resources Defense Council, added that “it’s a mistake to look at FPISC in isolation,” because “in the end it’s the agencies that have to do the review.”
Buccino called for more funding from Congress to staff up agencies with permitting personnel. The Biden action plan addressed that topic, telling agencies to “prioritize available resources to address workforce needs” created by the plan. Biden’s fiscal 2023 budget request would increase staffing at FPISC from 15 to 25 full-time employees.
Permitting work at the agencies isn’t just a desk job, Harada said.
“We need archaeologists, biologists, marine biologists, engineers, divers to do physical inspections,” she said. “So it’s about being smart about how we think about redeploying some of those folks. Are there agencies that are potentially not as involved in permitting where I might be able to borrow and steal?”