- - Thursday, March 8, 2018

ANALYSIS/OPINION:

President Trump’s ambitious infrastructure plan faces a frustrating roadblock of the government’s own making. The National Environmental Policy Act (NEPA), a regulatory relic of the Nixon administration, can tie-up infrastructure projects in miles of red-tape and bog-down any progress in a regulatory swamp. One of the key reasons President Obama’s vaunted nearly trillion dollar stimulus plan was a bust was thanks to NEPA; shovel ready jobs were nowhere to be found.

Thankfully, the Trump administration says it will tackle permitting and NEPA head-on, laying out a comprehensive plan in the administration’s budget to cut through the red tape and streamline approval for major infrastructure projects.

NEPA exemplifies the all-too-common problem of government regulators getting in the way of development. A 2016 report from the National Association of Environmental Professionals found a bevy of cost overruns, project delays and bureaucratic reviews that were caused by NEPA’s regulatory regime. The report found that, on average, the permitting process — governed by laws such as NEPA — delayed most major public projects by more than five years, costing the nation $3.7 trillion.

This includes the costs of prolonged inefficiencies and unnecessary pollution caused by delay. Tellingly, this $3.7 trillion overregulation price tag is more than double the $1.7 trillion needed to modernize America’s infrastructure through the end of the decade.

Take the Bayonne Bridge — which connects Bayonne, New Jersey with Staten Island, New York. Because it required an increase in span elevation to allow for the clearance of larger ships under the bridge, the permitting for this project was a five-year process, including a 10,000-page environmental assessment required by NEPA with another 10,000 pages of required permitting and other materials required by state and local authorities.

The legal roadblocks as a result of NEPA led to the permitting of a desalination plant in San Diego to take nine years, after 14 legal challenges. The plant will now start producing water about the year 2024. And, in one of the most stunning examples of NEPA’s ability to strangle federal infrastructure projects in red tape, the expansion of the Port of Savannah has been stalled for almost 30 years. The environmental review of the project took 14 years alone.

It should be noted that the length of NEPA’s Environmental Impact Studies grows by an average of 110 days a year — meaning that nearly a year in red tape delays are tagged onto our nation’s construction projects every three years. Per the Heritage Foundation, the average time to complete an environmental impact statement increased from 2.2 years in the 1970s to 8.1 years in 2011.

Currently, 148 energy and transit projects are tied up by the NEPA review process, leaving $230 billion on the table in stalled investment. The Common Ground report also highlights the shocking fact that other Western democracies such as Germany and Canada typically grant permits for major infrastructure projects in two years or less (this includes an environmental review process), well outpacing the time it would take in the United States.

The crux of President Trump’s NEPA reforms is “one agency, one decision.” Instead of having environmental permits bounce around multiple federal agencies, amounting to years — even decades — in delays, a lead agency would produce a single, encompassing and realistic review. These reviews would have to meet a two-year deadline, putting us on par with the pace of permitting approval seen in Germany and Canada.

The designation of a lead agency and a two-year deadline are critical reforms that will help undue needless and expensive red tape. A key addition is litigation reform. The White House would also create a 150-day window of opportunity for litigation to be filed.

Mr. Trump’s plan to tackle NEPA may seem simple on its face, but the streamlining of the environmental review and permitting process, combined with the enforcement of certainty in the validity of those permits by capping the statute of limitations for NEPA claims, are critical reforms. If the Trump administration is successful, gone will be the days of half-decade environmental reviews, 10,000-pages, confused multi-agency assessments, and in its place a sensible permitting and review process not too dissimilar to many of our global competitors.

Horace Cooper is a legal commentator and a fellow with the National Center for Public Policy Research.

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