Summary

Among the changes proposed in the bill are a restriction on the scope of review allowed under NEPA to impacts with a “reasonably close causal relationship to the project;” imposition of timelines on lead and cooperating agencies; addition of a “Judicial Review” section expanding agency deference, restricting standing, and shortening review period; and increasing “certainty” in the outputs of federal reviews such as environmental impact statements and agency permits.

While the bill has the potential to increase confidence, an 11th hour amendment has now exempted and left exposed any project subjected to federal action before the bill is signed.

How does the bill seek to increase project ‘certainty’?

The SPEED Act increases project sponsors’ confidence in the finality of the decisions made by federal regulatory agencies. It does this by adding to the end of Section 106 of NEPA (entitled “Procedure for Determination of Level of Review”) a new sub-section called, simply, “Certainty,” prohibiting agencies from:

1. Rescinding or changing “any environmental document” completed under NEPA unless ordered by a court or requested in writing by the applicant, or
2. Taking any number of actions – “revoke, rescind, withdraw, terminate, suspend, amend, alter” –  to interfere with an authorization, e.g., a permit resulting from NEPA.

Within the second category, a number of exceptions are allowed: in the event (a) such action is ordered by a court, (b) the project sponsor materially breaches the authorization’s terms or applicable law, (c) the authorization was obtained through fraud or material misrepresentation, (d) such action is needed to stop “specific, immediate, substantial, and proximate harm or damage to life, property, national security, or defense” not in the original review, or (e) the project sponsor requests such action.

How does the bill, as amended, reduce certainty?

On the morning of the bill’s passage, several House members introduced an amendment adding a new final section of the bill called “Preservation of Ongoing Administrative Corrections” exempting from the bill all actions taken by the current Trump Administration to reopen, reconsider, or initiate “corrective action” – even if the agency’s action is ongoing at the time the bill is signed.

Recent media reports have focused on the effects on the offshore wind projects under construction and those in receipt of permits but not under construction. But, as the Bipartisan Policy Center has noted, this language is “broad and expands beyond energy projects: Any final agency action that is revisited during that timeframe would lose the benefits of the SPEED Act.” Project certainty in these cases would drop significantly.

The result is that hundreds of GWs of renewable energy and BESS across the US in receipt of federal permits are at risk if the Trump Administration takes any of these actions before the SPEED Act becomes law. This risk is on top of that which projects previously targeted by the Trump Administration face.

What’s next for the SPEED Act?

The bill is now with the Senate, which returns to work on January 5, and will likely be taken up by the Energy and Natural Resources and Public Works committees and combined with other energy and environmental legislation before Senators debate and vote in those committees to send the bill to the full Senate.

Due to the late amendment vociferously opposed by leading Senate Democrats and the 60 votes required to break the filibuster in a chamber with just 53 Republicans, the bill does not have a promising future. And its prospects dimmed even further on December 22 when the Trump Administration shocked the offshore wind industry by issuing stop-work orders to the five projects currently under construction, citing unspecified national security concerns.

Recent reporting in POLITICO has described the SPEED Act negotiations as “already fraught” and now with the orders are at “a new low.” Republican backers in the Senate have resorted to calling for an end to the filibuster, a so-called “nuclear option” unpopular with both the parties.

For further information, please contact: Doug Pfeister, CoralPoint Partner and Regional Lead, Americas