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Does Interminable Environmental Review Hinder Infrastructure Development?

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by Publius
Posted November 25, 2013, 4:18 PM

Philip K. Howard, a partner at Covington & Burling LLP and chairman of Common Good, comments in the Wall Street Journal:

President Obama went on the stump this summer to promote his "Fix It First" initiative, calling for public appropriations to shore up America's fraying infrastructure. But funding is not the challenge. The main reason crumbling roads, decrepit bridges, antiquated power lines, leaky water mains and muddy harbors don't get fixed is interminable regulatory review.

Infrastructure approvals can take upward of a decade or longer, according to the Regional Plan Association. The environmental review statement for dredging the Savannah River took 14 years to complete. Even projects with little or no environmental impact can take years.

Raising the roadway of the Bayonne Bridge at the mouth of the Port of Newark, for example, requires no new foundations or right of way, and would not require approvals at all except that it spans navigable water. Raising the roadway would allow a new generation of efficient large ships into the port. But the project is now approaching its fifth year of legal process, bogged down in environmental litigation.

Mr. Obama also pitched infrastructure improvements in 2009 while he was promoting his $830 billion stimulus. The bill passed but nothing much happened because, as the administration learned, there is almost no such thing as a "shovel-ready project." So the stimulus money was largely diverted to shoring up state budgets.

Building new infrastructure would enhance U.S. global competitiveness, improve our environmental footprint and, according to McKinsey studies, generate almost two million jobs. But it is impossible to modernize America's physical infrastructure until we modernize our legal infrastructure. Regulatory review is supposed to serve a free society, not paralyze it.

Other developed countries have found a way. Canada requires full environmental review, with state and local input, but it has recently put a maximum of two years on major projects. Germany allocates decision-making authority to a particular state or federal agency: Getting approval for a large electrical platform in the North Sea, built this year, took 20 months; approval for the City Tunnel in Leipzig, scheduled to open next year, took 18 months. Neither country waits for years for a final decision to emerge out of endless red tape.

In America, by contrast, official responsibility is a kind of free-for-all among multiple federal, state and local agencies, with courts called upon to sort it out after everyone else has dropped of exhaustion. The effect is not just delay, but decisions skewed toward the squeaky wheels instead of the common good. This is not how democracy is supposed to work.

America is missing the key element of regulatory finality: No one is in charge of deciding when there has been enough review. Avoiding endless process requires changing the regulatory structure in two ways:

Environmental review today is done by a "lead agency"—such as the Coast Guard in the case of the Bayonne Bridge—that is usually a proponent of a project, and therefore not to be trusted to draw the line. Because it is under legal scrutiny and pressure to prove it took a "hard look," the lead agency's approach has mutated into a process of no pebble left unturned, followed by lawsuits that flyspeck documents that are often thousands of pages long.

What's needed is an independent agency to decide how much environmental review is sufficient. An alteration project like the Bayonne Bridge should probably have an environmental review of a few dozen pages and not, as in that case, more than 5,000 pages. If there were an independent agency with the power to say when enough is enough, then there would be a deliberate decision, not a multiyear ooze of irrelevant facts. Its decision on the scope of review can still be legally challenged as not complying with the basic principles of environmental law. But the challenge should come after, say, one year of review, not 10.

It is also important to change the Balkanized approvals process for other regulations and licenses. . . .

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