On December 4, 2015, President Obama signed into law the Fixing America's Surface Transportation Act (FAST Act) (H.R. 22). As part of a larger transit bill, Title XLI of the FAST Act facilitates federal environmental review, authorization, and permitting for certain infrastructure projects. The FAST Act also encourages collaboration and coordination among the various agencies involved on a given project, which fosters transparency and improves the overall effectiveness of the environmental permitting process.

For developers of certain infrastructure projects, the FAST Act may reduce the time and cost associated with the completion of an environmental impact statement (EIS).

The FAST Act creates a governing council for projects that must be reviewed by several federal agencies, known as the Federal Permitting Improvement Council. The council is to be composed of members of relevant federal agencies, including the Environmental Protection Agency, the Departments of Army, Energy, and Interior, and the Federal Energy Regulatory Commission. The President is required to appoint an executive director to lead the council.

The FAST Act's permitting requirements apply to large infrastructure projects that require environmental review by a federal agency, including:

"Covered projects" under the FAST Act are those that are subject to National Environmental Policy Act (NEPA) and have a likely total investment amount of over $200 million. Other projects may qualify if the council determines that the project would benefit from additional oversight.

The council is required to maintain a public database accessible online to track the status of each covered project. This database will show the permitting time frame and deadlines for each project and the status of each agency's compliance review.

The FAST Act requires the council to publish performance schedules to improve the permitting process, shorten the permitting timeline, and promote coordination among the various agencies. The performance schedules set deadlines for agency review to promote timely environmental analysis:

If an agency fails to adhere to a deadline, it must submit an explanation to the executive director who must then publish it on the public database.

To trigger the requirements of the FAST Act, the project sponsor must submit a notice to the executive director detailing certain aspects of the project, including:

The executive director has 14 days to enter the project into the public database after receipt of the notice.

Within 45 days of entering a project in the public database, all agencies responsible for environmental review must be identified and invited to join in a concurrent review of the project. The project sponsor may request that each agency adopt or incorporate by reference any environmental analysis and documentation prepared at the state level.

The FAST Act limits the amount of time to challenge an agency action under NEPA to prevent litigation from delaying infrastructure projects. The statute of limitations for claims under NEPA for FAST Act projects is two years rather than six. To have standing to seek judicial review of an agency decision, the challenging party must have submitted detailed comments to sufficiently put the agency on notice of the issue during the comment period.

Counsel for developers that anticipate engaging in qualifying infrastructure projects requiring federal permitting should take advantage of the provisions of the FAST Act to reduce the time and costs of environmental impact review. All permitting applications should adhere to the FAST Act's requirements to benefit from the expedited review process.

Environmental counsel should be aware of the timeline for implementation of the FAST Act. By June 1, 2016, the council must develop a list of all projects that are currently awaiting environmental review or authorization. The council has until December 4, 2016 to implement the FAST Act's requirements and issue recommendations on best practices.

For more information on environmental impact review, see Practice Note, Environmental Impact Review: Overview.