President Trump Announces “Massive Permit Reform” Push
Capping off his Administration’s ‘Infrastructure Week,’ President Trump held an event this morning on permitting reform at the U.S. Department of Transportation. President Trump, joined by Secretary of Transportation Elaine Chao and Secretary of Interior Ryan Zinke, met with heads of state departments of transportation and then addressed a group of transportation officials and stakeholders. President Trump reiterated his commitment to fixing the nation’s infrastructure and named the existing infrastructure project approval process as a major impediment to that goal, saying “one of the biggest obstacles to creating this new and desperately-needed infrastructure…is the painfully slow, costly and time-consuming process for getting permits and approvals to build.”
President Trump is not alone in this view. Secretary Chao has repeatedly said over the last several months that “money is not the problem” when it comes to improving the nation’s infrastructure and instead cutting red tape to speed up the approvals process is the most important thing for restoring the nation’s infrastructure systems. Last month the Senate Environment and Public Works Committee held a hearing on the topic, where Chairman John Barrasso (R-MT) called for simplifying the government review process and making it more flexible to meet the different natures of rural and urban states. However, Ranking Member Tom Carper (D-DE) pushed back on the Secreatary Chao’s comments, declaring lack of funding the biggest impediment to infrastructure improvements and calling for the full implementation of changes to permitting laws passed in recent legislation before Congress takes further action.
Almost everyone agrees the federal infrastructure approval process is a long way from perfect, but there are strongly contrasting ideas about how to improve it. The National Environmental Policy Act of 1969 (NEPA) requires federal agencies to consider the environmental effects of an action and to involve the public in their decision-making process. The law is a frequent target of criticism from some sectors because it can add years to a project.
Congress has tried to fix the pain points in several recent pieces of legislation. The FAST Act included new procedural requirements aimed at ensuring early collaboration and efficient environmental reviews for complex infrastructure projects including: the use of a single NEPA document as much as possible with one agency serving as lead and ensuring the review meets the needs of the other agencies; requiring a schedule to be a part of a project coordination plan; and creating a publicly accessible dashboard to publish the status of NEPA and permitting for all projects requiring an environmental impact statement or environmental assessment. MAP-21 and the Water Resources Development Act also included permitting reforms, but these reforms have not been fully implemented yet.
A Department of Transportation Office of the Inspector General report from March found that the streamlining provisions in the FAST Act have possibly delayed the improvements expected from the streamlining measures in MAP-21. This should give Congress pause as they contemplate more permitting reform, as the already approved reforms have not had the opportunity to be tested yet.
ASCE has called for mandating concurrent reviews by agencies; a single administrative permitting agency to shorten and improve the approval process and improve inter-agency collaboration; and time limits for decisions on infrastructure projects. To some extent these reforms have all been included in recent legislation (particularly the FAST Act), but their effect is not yet clear.
Today President Trump announced the creation of a new council to help project managers navigate the permitting process including the creation of a new online dashboard. He also announced the creation of a new office within the White House Council of Environmental Quality “to root out inefficiency, clarify lines of authority, and streamline federal, state and local procedures so that communities can modernize their aging infrastructure without fear of outdated federal rules getting in the way.”
While it is obviously too early to know the effect of the Administration’s new efforts to streamline the permitting process, it’s assertion that regulations, not funding, are the real problem in infrastructure ignores the true infrastructure challenges we face. A 2012 Congressional Research Service report questioned the degree to which the NEPA compliance process is a significant source of delay, noting “causes of delay that have been identified are more often tied to local/state and project-specific factors, primarily local/state agency priorities, project funding levels, local opposition to a project, project complexity, or late changes in project scope.” A 2016 report prepared for the U.S. Treasury on proposed major infrastructure projects stated, “A review of the 40 transportation and water infrastructure projects…suggests that they face four major challenges to completion: (a) limited public resources, (b) significantly increased capital costs, (c) extended program and project review and permitting processes, and (d) lack of consensus among multiple public and private sector entities. A lack of public funding is by far the most common factor hindering the completion of transportation and water infrastructure projects.”
ASCE’s 2017 Infrastructure Report Card graded the nation’s infrastructure a D+ and estimates that $4.59 trillion in infrastructure investment will be necessary from federal, state, local, and private sources between 2016 and 2025 to reach a state of good repair and earn a grade of B. However, only just $2.5 trillion is likely to be invested, leaving a $2.0 trillion funding gap. The investment gap led ASCE to make the first key solution of the Report Card increased investment; no amount of streamlining and expediting alone will close the infrastructure investment gap and solve our infrastructure challenges. The Report Card also recommends streamlining the permitting and approval process, but the goals of such changes should to be provide greater clarity to regulatory requirements, bring priority projects to reality more quickly, and secure cost savings. Attempts to shorten the permitting and approval process should not come at the expense of public health, public safety, and the environment.
While we should continue to strive for an efficient and effective federal approval process, addressing the nation’s infrastructure needs requires investing real money in our communities.