Trump Call for Faster Infrastructure Permits Faces Uncertain Road (Corrected)

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By Alan Kovski

Several federal agencies are working to speed permitting of infrastructure projects, even though it remains to be seen whether Congress will act on President Donald Trump’s related request to move things along.

There is much that agencies can do within the restrictions of existing laws, though they can expect legal challenges to many permits for roads, ports, dams, pipelines, airports, and other basic infrastructure.

The Environmental Protection Agency has a role in administrating the Clean Air Act and the Clean Water Act, among other environmental laws. The agency will make environmental permitting decisions within six months under a program the agency plans to launch at the end of 2018, EPA Administrator Scott Pruitt told state agriculture officials Jan. 31.

As the primary manager of federal land, the Interior Department has a large role in energy development as well as permitting for anything crossing federal lands. Interior’s Bureau of Land Management posted an instruction memorandum Jan. 31 with details on expediting oil and gas leasing.

The U.S. Army Corps of Engineers, with a big role in Clean Water Act permitting, is working on permitting improvements. During the Obama administration the Corps set a target for completing project feasibility studies in three years, a target that was then written into the Water Resources Reform and Development Act of 2014. If the Corps achieves that goal, it will be a substantial change.

Agencies Work on It

Federal agencies across the administration are working on permitting improvements, said Jimmy Christianson, vice president of government relations at Associated General Contractors of America.

“This hasn’t been done to the same degree ever before, and we welcome it,” Christianson said.

“I think that there’s a lot of common-sense proposals put out by the administration,” he said. “The conversation has to begin somewhere, and we think the administration has taken a holistic approach.”

Environmental impact statements can take two years or more and amount to thousands of pages, because the writers try to cover every possible objection out of fear of lawsuits. Interior Deputy Secretary David Bernhardt issued a memorandum last year setting a target of one year for completing an environmental impact statement, with flexibility to go beyond as needed.

Christianson said the lawsuits happen anyway, so federal officials might as well write much shorter documents in much less time—months rather than years, and hundreds of pages rather than thousands—then learn in the inevitable court case what fixes need to be made.

Complications Entangle Highways

If Trump was referring to environmental permitting alone, it is possible to streamline the process to under one year, said Daniel Blevins, principal planner at the Wilmington Area Planning Council, which coordinates transportation investments in two adjacent counties of Delaware and Maryland.

It took federal agencies, his group, and the Delaware Transportation Department, however, four years to complete the environmental permitting for a 14-mile U.S. 301 highway project that spans the Delaware and Maryland state line, Blevins said.

The highway projects can include analysis of affected wetlands and protected species, noise, and vehicle pollution, as well as consideration of such things as impacts on burial sites, Blevins said.

Federal highway legislation in recent years has not overlooked expedited permitting for some categories of work, such as emergency repairs.

Some Moves in Congress

Lawmakers see some opportunities for legislation to expedite permitting. The latest move came from Sen. John Boozman (R-Ark.), who introduced a bill with bipartisan support Jan. 30 to strengthen existing financial assistance programs for drinking water and wastewater infrastructure.

The bill, Securing Required Funding for Water Infrastructure Now Act (S. 2364) was written in part to simplify and speed up the federal approval process. Boozman’s co-sponsors were Sens. Dianne Feinstein (D-Calif.), James Inhofe (R-Okla.), and Cory Booker (D-N.J.).

The bill was referred to the Senate Environment and Public Works Committee, chaired by Sen. John Barrasso (R-Wyo.), who has said infrastructure investments should be a priority.

Also awaiting Senate action is the Energy and Natural Resources Act of 2017 (S. 1460), a bipartisan compromise bill sponsored by Sens. Lisa Murkowski (R-Alaska) and Maria Cantwell (D-Wash.). It builds on a bill that passed the Senate 85-12 in 2016 but stalled in bicameral negotiations.

The bill includes provisions intended to pick up the pace of permitting for natural gas pipelines, gas exports, oil and gas drilling permits, and the addition of hydroelectric turbines to existing dams. It especially requires more coordination of action between agencies, and the setting of schedules, with a lead agency designated to ride herd over the process.

The ideas on agency coordination follow a pattern set by highway and water infrastructure bills in recent years.

“Any infrastructure plan should include streamlining,” Barrasso said recently. But that leaves the question of how much streamlining would be found acceptable to Democrats, who could block a bill with a filibuster.

A Question of Money

Whether Congress will provide the appropriations needed is to be determined.

“Congress doesn’t have the will to find the money to do infrastructure,” said Scott Slesinger, legislative director at the Natural Resources Defense Council, an environmental advocacy group.

Trump hasn’t proposed a spending boost. In the State of the Union address, he called for an infrastructure bill that will “streamline the permitting and approval process, getting it down to no more than two years, perhaps even one.”

His references to infrastructure investments have left open the question of supporting greater appropriations or settling for steady spending levels with money redirected to infrastructure.

Bill Snape, senior counsel at the Center for Biological Diversity, said it was possible that some sort of language concerning permitting could be added to a spending bill, but then he added that he did not see a spending bill passing this year with new significant infrastructure spending.

Snape said he doesn’t think Congress has any interest in changing the Clean Water Act or other fundamental environmental laws. He added, in reference to some categories of highway projects, “They already have abbreviated and truncated permitting.”

Big Projects, Many Impacts

Large water projects take longer. They ought to take longer, in the view of environmental advocates, because they can have very elaborate implications for river systems, wildlife, and people living in the region.

The Army Corps of Engineers has a backlog of more than $90 billion in authorized projects, most with completed environmental impact statements—and it has annual funding of about $5 billion, said Slesinger. There again, the holdup is funding—not environmental reviews—in his view.

Airport projects also can have many ramifications. The delays are almost never over the National Environmental Policy Act, said Snape of the Center for Biological Diversity.

Airport projects are complicated by community-related issues such as property rights, noise abatement, and state and city zoning—in addition to environmental laws, Snape said. He questioned whether Congress would want to tangle with such things as property rights and zoning laws to speed permitting.

—With assistance from Amena Saiyid and Jennifer Lu.

(Corrects to clarify that Snape did not think there would be significant infrastructure spending being added to a spending bill this year.)

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