Progress Being Made Against Drawn-Out Permitting Decisions
In 2014, in recognition of long-standing complaints about the length of time it took the Corps of Engineers to get projects reviewed (including complaints from within the Corps itself), the Water Resources Reform and Development Act (WRRDA) endorsed the Corps’ “3x3x3” rule, stating that a planning study shall take no more than three years, cost no more than $3 million, and have not more than three concurrent levels of review.
Presidential candidate Donald Trump had often complained about lengthy, expensive and conflicting permitting requirements, something he had experienced as a builder.
The federal permitting process—especially for projects with environmental implications—had become drawn out, complex and vastly more expensive. This was partly due to ever-expanding authorities granted by Congress to federal agencies, mission creep and bureaucratic inertia. Dozens of engineering consulting firms sprang up whose sole business was helping companies navigate the federal permitting process.
Permitting is supposed to ensure that proposed projects are safe, feasible and comply with existing regulations. The process was not originally designed to stop projects, except for grave reasons. But the process became vulnerable to abuse and capture by interests opposed to any and all new construction, especially energy infrastructure.
On the West Coast, efforts to develop six coal export terminals were underway a few years ago. Today, after many millions spent, all but one of those projects have been dropped, due in large part to opposition from anti-carbon groups that were able to manipulate and draw out—and in some cases, walk back—the permitting process.
In 2018, the Global Energy Institute’s analysis, “Infrastructure Lost: Why America Cannot Afford To ‘Keep It In the Ground,’” estimated that the anti-carbon “keep it in the ground” movement has prevented at least $91.9 billion in domestic economic activity and eliminated nearly 730,000 job opportunities. The same study estimated that federal, state, and local governments have missed out on more than $20 billion in potential tax revenue.
At the end of March of this year, Amy Larson, president of the National Waterways Conference, spoke to the American Bar Association at its spring conference in Denver on the Trump administration’s efforts to streamline the federal permitting process.
On August 15, 2017, President Trump issued Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” The order established what has become known as the One Federal Decision policy for infrastructure projects. It directs the lead federal agency to aggressively coordinate with other permitting agencies and to keep the review process moving.
Larson concluded that “when considered collectively, Executive Order 13807 and One Federal Decision, as well as WRRDA 14, WRDA 16 and most recently, WRDA 18, enhance and improve the development and oversight of water resources projects to provide much needed certainty, predictability and a timely decision process, while adhering to the environment protections provided by NEPA [the National Environmental Policy Act] and similar authorities.”
On April 10, President Trump issued another executive order specifically aimed at speeding up energy project permitting.
No one would argue that the permitting process is optimal or that no more remains to be done. But encouraging progress is being made against unnecessary permitting delays, progress that could help speed up necessary projects, enable needed infrastructure and save taxpayers millions.
