In January 2021, the Federal Permitting Improvement Steering Council (“FPISC” or “Council”) voted to include mining infrastructure projects as an eligible sector for coverage under the Fixing America’s Surface Transportation Act (“FAST-41” or “Act”). The purpose of the Act is to streamline the Federal environmental review process for large-scale infrastructure projects. Renewable energy projects have been eligible for FAST-41 review since 2015, when the Act was passed by Congress. Mining and renewable energy development are necessarily intertwined from a supply chain standpoint, and the addition of the mining sector to FAST-41 is an indicator that the federal government is conscious of the need to shore up related domestic industries if the U.S. is going to be able to reach its carbon reduction goals through mass deployment of renewable projects around the country.
FAST-41 established a program to improve the timeliness, predictability, and transparency of the analysis and permitting phases for infrastructure proposals. The Act enhances federal coordination by requiring all agencies relevant to a project’s review to develop a plan and schedule outlining the necessary steps for project authorization within 60 days of a project’s FAST-41 eligibility being established. FAST-41 limits an agency’s ability to revise their timeline within 30 days of the original posted deadline, and the FPISC acts to ensure each agency meets its deadline. To deter delays, FAST-41 requires the FPISC to report to Congress whenever a modification to the timeline results in a 150% delay of the original schedule.
The Act implemented the Permitting Dashboard, a public website displaying the actual and scheduled timeframes for current projects, allowing for increased transparency related to the permitting process. FAST-41 also set the statute of limitations to challenge a project’s authorization at two years, and established guidelines for judicial review and dispute resolution, all in an effort to minimize delays caused by litigation.
To be eligible for FAST-41 coverage, the project:
- Must be located in the United States and require environmental review and authorization by a federal agency;
- Must be subject to NEPA review;
- Must be likely to require an investment of $200,000,000 or more; and
- Must not qualify for any other abbreviated environmental review.
If a project sponsor believes their infrastructure proposal qualifies for FAST-41 coverage, they must submit a FAST-41 Initiation Notice to the Executive Director of the FPISC and the facilitating Federal agency. The FPISC will coordinate with the lead agency to determine eligibility, potential concerns and mitigation, and the first necessary steps in the permitting process. A decision regarding the project’s eligibility must be issued by the lead agency within 14 days. If the project is approved, the relevant agencies will create a Coordinated Project Plan and the project’s permitting process will immediately begin.
The federal environmental review process is often plagued with long delays and sluggish progress. At its induction, FAST-41 covered renewable and conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, and manufacturing. Since the Act’s passage, 23 renewable energy generation projects have been deemed eligible for streamlined permitting, and nine large-scale renewable projects have already been completed. In light of such a successful track record, the addition of mining as an eligible sector has drawn both praise and criticism, with some applauding the decision to expedite the permitting process (mining project review typically takes seven to ten years) and increased access to battery minerals and other mining products necessary for renewable energy production, while others oppose any acceleration of the development of the mining sector.