Everything Should Go Through FAST-41
Let's put wins on the board
President Trump has declared American energy dominance a central pillar of his administration. Beyond energy independence, achieving this vision would mean establishing America as the world's preeminent energy producer while creating jobs, lowering electricity costs, and strengthening national security. This goal is laudable – but it will be impossible if the regulatory status quo remains intact. Laws like the National Environmental Policy Act (NEPA) create multi-year (and sometimes multi-decade) delays, while obstructionists use environmental review as a cudgel to trap developers in endless cycles of litigation. The result is a graveyard of cancelled projects, and of projects that never even broke ground.
There will be several opportunities to reform laws like NEPA over the next few years. In Congress, Republicans may find ways to enact party-line reforms through budget reconciliation, and there will certainly be regular order negotiations in 2026. In the executive branch, President Trump’s rescission of the Council on Environmental Quality (CEQ)’s regulations has created an opportunity for agencies to rewrite the rules of NEPA and reduce the permitting burden.
But there’s no guarantee of what will come out of Congress, and while the rescission of CEQ’s regulations creates an excellent opportunity, it will likely take years for agencies to go through the full notice-and-comment process to remake their procedures.
There is, however, an opening to speed up the pace of permitting immediately – without an act of Congress, and without a dramatic reshaping of existing authorities. Ideological constraints led this authority to be underutilized in the Biden administration, but the current administration can and should wield it more aggressively.
A Fast Track Already Exists
In 2015, under Title 41 of the Fixing America’s Surface Transportation (FAST) Act, Congress created a separate permitting track specifically designed to accelerate infrastructure deployment. FAST-41 also established the Federal Permitting Improvement Steering Council, now simply known as the Permitting Council, an independent agency responsible for determining project eligibility and coordinating the NEPA process across agencies.
Under FAST-41, “covered projects” get a specified lead agency, a public permitting timetable, oversight from the Council, and a dispute resolution mechanism if there are permitting delays. But perhaps more importantly, these projects benefit from limitations on litigation. FAST-41 projects have a truncated two-year statute of limitations for judicial review – as opposed to the conventional six-year statute of limitations under the Administrative Procedure Act. Furthermore, plaintiffs must have participated in the comment process in order to sue – and that comment must describe in detail what the issue is on which the plaintiff seeks judicial review. This is not an insignificant reform: In fact, Rep. Westerman’s discussion draft in the 2024 Energy Permitting Reform Act (EPRA) negotiations had an identical provision which would have expanded this requirement to all NEPA litigation.
In short: The benefits of the FAST process are real. The question is how we can use it more broadly.
The Mechanics and Benefits of the System
The Council's authority under FAST-41 operates through a straightforward mechanism. Any project subject to NEPA can be designated as a covered project if, "in the opinion of the Council," its "size and complexity make the project likely to benefit from enhanced oversight." This criteria explicitly includes projects requiring either an environmental impact statement OR authorization from more than two federal agencies.
Critically, FAST-41 empowers the Executive Director to "make a final and conclusive determination" on covered project status – meaning once a project receives this designation, there are virtually no grounds for further review of this determination as long as it fits in one of the Council-designated categories.
The benefits of this approach are not just speed. FAST-41 creates certainty for businesses investing billions in critical infrastructure, and it allows targeted acceleration of projects within the administration’s priorities.
FAST-41 does not represent a get-out-of-jail-free card for developers. The process allows for supplemental environmental impact statements, for example, if the original NEPA document is determined to be inadequate by the courts. Fortunately, grounds for litigation against these supplemental statements are restricted. New legal challenges can only address modifications in the supplemental document, reducing the potential for frivolous litigation.
Why This Tool Remains Underutilized
Despite these powerful authorities, as of 2023, the Permitting Council had only designated 71 projects. This under-use stems from a few factors. First, the Council has historically lacked resources and has struggled to get its message out. Second, the legal community's risk-averse approach favored more conservative interpretations of these authorities.
But most significantly, the Council itself has historically been led by individuals with traditional environmental backgrounds rather than those focused on permitting reform and energy deployment. Like any tool, FAST-41's effectiveness depends on who wields it and for what purpose.
What the Permitting Council Should Do
The path forward is simple. The Permitting Council should pursue a mass approval initiative for projects meeting FAST’s statutory criteria. The Council should establish a streamlined application process allowing energy projects to rapidly receive covered project designation.
These actions do not require new legislation or complex regulatory rewrites. They simply demand the political will to use existing authorities to their fullest extent. The Council already possesses every necessary tool to accelerate America's energy infrastructure development while adhering to congressional intent.
The president's energy dominance agenda need not wait for comprehensive permitting reform legislation. A statutory framework already exists – it’s time to use it.
Good post, Thomas and Sam! FAST-41 designation would help streamline permitting. And the Council already has a dashboard for tracking those permits.
While the radical environmentalist lobby certainly seeks to hold back all challengers to their solar and wind program using delay tactics to run up the cost and run out the clock, there has now emerged a severe vulnerability with energy production shortages due to the advent of AI and EV technology, plans for manufacturing reshoring and the obvious inability of solar and wind power alone to address this looming problem.
What is called for now is a coherent strategy from those in government to address this situation. Not simply a "free for all" hodgepodge of a smorgasbord of energy sources, nor an acquiescence to private industry to go it alone and build their own large scale production facilities, but a thoughtful and well-reasoned plan that will cope with the publics now already highly sensitized environmental concerns which have been cultivated for decades
Most likely this will require educating, articulating and socializing the benefits of SMR advanced nuclear power along with a rational transitional approach using highly efficient and economic fracked natural gas turbine kits. All to be employed on a distributed Grid. A plan that fully addresses where we are today and the measurable, incremental interim steps that need to be achieved, until that day of clean, inexpensive and plentiful energy can be fully realized.
Probably a ten-to-fifteen-year plan to achieve a relative degree of success.