This post is the fourth in a series on environmental review and permitting, guest-authored by experts from around the country, and intended to elevate differing perspectives and new ideas. The Bipartisan Policy Center has written extensively about the need for reforms to the federal permitting and environmental review process, outlining where we see room for improvement.
This issue of speeding up permits and environmental reviews is a sideshow intended to give politicians a political win while diverting attention from the real problem of infrastructure delays—funding. In fact, I am sure most members of Congress are unaware that the most critical changes in infrastructure policy in 2005, 2012, 2014, and 2015 were not changes to the transportation network but to the permit and environmental review process under the National Environmental Policy Act, or NEPA.
- The real problem with infrastructure development is not paperwork or environmental review. The problem is the lack of funding for infrastructure. Congressional hearings, hearing after hearing, have attacked the permitting process because members are afraid to address the real issue—paying for projects. NEPA and permitting are a diversion.
- Congress and the president have recently enacted so many streamlining “reforms” that many are contradictory and end up slowing the process. Those that might work have been underfunded or delayed.
- The benefits of NEPA and permitting are generally ignored.
I will address these in the opposite order.
NEPA requires the federal government to look before it leaps. For the most significant projects, just 1 to 3 percent of projects, NEPA requires public input and consideration of reasonable alternatives. In many cases, NEPA gives citizens their only opportunity to voice concerns about a federal project’s impact on their community—not just environmental impacts but economic as well. NEPA comes into play when the federal government undertakes a major project such as constructing a dam, a highway, or a power plant. NEPA is also triggered when a private entity requests an exception from our clean water and clean air law restrictions on discharging pollution into our air and water. In those cases, NEPA is the tool to ensure that the project’s impacts—environmental and otherwise—are disclosed to the public. The government doesn’t need to choose the least environmentally harmful alternative, but it does need to explain why it chose the option it did.
Because informed public engagement often produces ideas, information, and solutions that the government might otherwise overlook, NEPA leads to better decisions—and better outcomes—for everyone. The NEPA process has saved money, time, lives, historical sites, endangered species, and public lands while encouraging compromise and resulting in better projects with more public support. For example, NEPA was used to turn an unpopular, environmentally destructive plan for the I-70 Mountain Corridor in Colorado into an infrastructure project that won awards for innovative design and environmental sensitivity.1 In Mississippi, plans to build a hydraulic water pump that would have benefited a small group of farmers was scrapped when a NEPA review revealed that the expensive project would have damaged or destroyed 200,000 acres of wetlands that protected whole communities from storm surges.2
President Trump’s recent attacks on NEPA have been based on myths: In fact, every single project cited by the White House as a poster child of unnecessary NEPA delays was done in a reasonable timeframe, or, in one case, was a state project never subject to NEPA.3
Congress won’t address the real problem of infrastructure, so the fallback is “streamlining” or what we call “steamrolling.” Because many congressional committees have asserted jurisdiction over NEPA, there have been numerous and contradictory changes to the NEPA process made by Congress since 2005. Various bills have shortened public comment periods, changed the statute of limitations to four different time periods depending on the project, limited access to courts, and set up arbitrary deadlines for permit approvals. Projects led by the federal Department of Transportation (DOT) can now financially penalize other agencies that miss deadlines—a provision that makes as much sense as debtors’ prisons.
DOT’s Inspector General confirmed the agency has been hamstrung by repeated policy changes in recent Congresses. Although DOT had completed most of the changes to the NEPA process mandated by MAP-21 in 2012, the department was forced to delay implementation of others because they had to be revised to comply with additional requirements of the Fixing America’s Surface Transportation (FAST) Act.4
Major changes occurred in October 2015 with the passage of the FAST Act. Title 41 of that bill (FAST-41) mandated a new interagency administrative apparatus called the Federal Infrastructure Permitting Improvement Steering Council—to set presumptive deadlines, push the resolution of interagency disputes, and allocate funding and personnel resources to support the overall decision-making process.
This infrastructure council was barely operational when the administration changed. Still nascent, the council’s usefulness was undermined by the Trump administration’s actions upon taking office. President Trump’s first infrastructure permitting executive order—as the permitting council’s chief Senate sponsors, Sen. Rob Portman (R-OH) and then-Sen. Claire McCaskill (D-MO), wrote in a letter to the president—contradicted statutory authorities and responsibilities already in FAST-41, to the dismay of project sponsors that were already participating in the permitting board’s existing process. It took until President Trump’s revised infrastructure executive order, issued in August 2017, to ameliorate most of the inconsistencies from the earlier executive order. Finally, two years into his presidency, Trump appointed an executive director of the permitting council. However, the council’s critical authority to fund agencies with problems completing permit or NEPA responsibilities in a timely manner remains dormant—or possibly not relevant because agencies are not the cause of delays.
Meanwhile, in June 2019, the head of Council on Environmental Quality testified before the Senate Environment and Public Works Committee. Yet every Republican asked about NEPA streamlining, ignoring climate change, toxic water, and the myriad issues also under the purview of the president’s leading environmental advisor.
Numerous studies from the Government Accountability Office and Congressional Research Service show that it is not federal rules that are causing delays. The number one problem is lack of funding, followed by state and local laws, citizen opposition to projects, and zoning restrictions. When President Obama was concerned about the timeframe for important federal projects, he commissioned the Treasury Department, as opposed to the Council on Environmental Quality or the Environmental Protection Agency, to determine what the problem was. It studied 40 projects of national significance and found that 39 were delayed primarily because of funding. The last was delayed because the governors disagreed on the location for an interstate bridge.5 The widely quoted “Two Years Not Ten: Redesigning Infrastructure Approvals” is based on questionable logic and outdated statistics, which has since been debunked by the Congressional Research Service and Kevin DeGood of the Center for American Progress.6
The problem, again, is money. The Army Corps of Engineers currently has a pipeline of over $90 billion in approved projects with completed permits and environmental reviews. However, the Corps’ construction budget is about $5 billion a year—leaving the real problem, where is the $85 billion?7 A Republican memo highlighting this fact was even made in preparation for a hearing—on the further streamlining of permitting for Corps water projects!
NEPA streamlining may be a cheap applause line in front of the local Chamber of Commerce, but we cannot “streamline” our way to universal broadband access, new tunnels under the Hudson River, a bridge over the Ohio River, or new sewer systems.
I am not saying NEPA implementation is flawless. But problems with NEPA are grossly exaggerated by those who want to villainize the environmental movement and a Congress that wants to avoid talking about the need to tax their constituents for what constituents want. Free lunch anyone?
Scott Slesinger was formerly Senior Advisor for Federal Affairs at the Natural Resources Defense Council.
1 Elly Pepper, “Never Eliminate Public Advice: NEPA Success Stories,” NRDC, February 2015. Available at: https://www.nrdc.org/resources/never-eliminate-public-advice-nepa-success-stories
3 Scott Slesinger, “Of Course, It’s OK, We Are Only Lying About NEPA,” NRDC, June 2018. Available at: https://www.nrdc.org/experts/scott-slesinger/course-its-ok-we-are-only-lying-aboutnepa
4 U.S. Department of Transportation Office of the Inspector General, “Vulnerabilities Exist in Implementing Initiatives Under MAP-21 Subtitle C to Accelerate Project Delivery,” March 2017. Available at: https://www.oig.dot.gov/sites/default/files/DOT%20Implementation%20of%20MAP-21%5E3-6-17.pdf .
5 AECOM et al., “40 Proposed U.S. Transportation and Water Infrastructure Projects of Major Economic Significance,” 2016. Available at: https://www.treasury.gov/connect/blog/Documents/final-infrastructure-report.pdf.
6 Kevin DeGood, “Debunking False Claims of Environmental Review Opponents,” May 2017. Available at: https://www.americanprogress.org/issues/economy/reports/2017/05/03/431651/debunking-false-claimsenvironmental-review-opponents/. For instance, the “Two Not Ten” study claimed the average permit time was 10 years for completion of an EIS but those statistics covered 1999 to 2011. DeGood’s analysis shows the average length is down to 3.6 years between 2012 through 2016. Newer data within the administration will show the trend toward faster processes is continuing.
7 Committee on Transportation and Infrastructure, U.S. House of Representatives, “Republican Committee Staff Memo,” January 2018. Available at: https://republicans-transportation.house.gov/uploadedfiles/2018-01-18_-_water_ssm_final.pdf. “However, according to the Corps, there is a current backlog of projects valued at $96 billion ($75 billion in project construction and $21 billion for dam safety and operations and maintenance). In comparison, Corps funding between FY2004-FY2018 has only averaged just over $5 billion (in nominal terms) annually.”