OPINION:
Despite bold promises by President Trump to ” build gleaming new roads, bridges, highways, railways ” not much has actually been done. The president’s infrastructure spending plan hit a predictable and inevitable quagmire — Congress.
But the greater obstacle to the Trump administration’s desire to improve our infrastructure, one that affects the money already being spent as well as any new money he might get from Congress, are burdensome and needless review procedures, especially the National Environmental Policy Act (NEPA). If America is to achieve a significant infrastructure facelift, it needs a clean slate; it must dramatically alter NEPA.
Drafted in 1970, NEPA imposed a requirement for federal agencies to prepare a report called an “Environmental Impact Statement” (EIS), which served to detail any environmental consequences of federal agency proposals for “major federal actions significantly affecting the quality of the human environment.” That was it. It was intended to inform these agencies of environmental concerns. In the early days of the law, large, complex projects could anticipate nearly 12 months of delay for review. Now the process to complete an EIS averages six years.
Early Environmental Impact Statements were 10-page reports. Now they often are thousands of pages long and cost millions of dollars to complete. The review process is expensive and time-consuming. There is failed interagency coordination and administrative bottlenecks. Add in the years it takes to get relevant permits and wade through potential litigation and it’s a wonder how anything can get done.
In some areas, our aging transportation systems are hampering the nation’s ability to compete on a global scale. Germany and Canada, countries often touted as the leaders in environmentally progressive policies, have streamlined approaches to environmental review which require a fraction of the cost and time compared to NEPA’s outdated model.
Extreme environmental policies are a political non-starter that don’t win elections. That’s why environmental activists are instead bypassing traditional democratic structures in favor of a decidedly more duplicitous route: Inundating agencies with lawsuits. Mere threats of litigation under the auspices of NEPA have delayed infrastructure projects by years. The power doesn’t rest with the president, congressmen or the American people; a litigation team of environmental activists serve as a lone veto voice.
NEPA has played a large role in obstructing the development of some of the country’s most vital infrastructure projects. The environmental review process for the dredging of the Savannah River to create a shipping channel took 14 years. Elevating the Bayonne Bridge, a now-infamous case study in how bureaucratic roadblocks can indefinitely delay a project, received consideration comments from 307 organizations or individuals, including 55 state and local agencies, and 50 Native American tribes. The environmental review report, in total, was 20,000 pages long and cost more than $2 million. Just recently, the Keystone pipeline, delayed for so many years by the hostility of the previous administration, is now being sucked into the environmental review litigation quagmire, too.
Countless other projects have been bogged down by this obsolete law, which was drafted with good intentions but has been distorted to fulfill political causes. Many environmental groups still consider NEPA to be the Magna Carta of environmental law, but the implications of NEPA continuing to exist in its current form represent the greatest obstacle to improving infrastructure in the United States.
The way that current NEPA implementation seeks to achieve its purpose of “prevent[ing] or eliminat[ing] damage to the environment” is by paralyzing all major infrastructure projects. These delays come at the cost of public safety and economic growth, though they do provide a convenient make-work program for environmental lawyers.
That’s not to say progress hasn’t been made on streamlining NEPA. The EPA has recently eliminated a letter grade criterion, which was inconsistently applied. This allowed many more projects to get done within a normal timeframe, but these changes are still ultimately only minor in scale.
It was never anticipated that what began as a low-impact act by Congress to manage federal construction projects would eventually morph into a bureaucratic monster and one of the nation’s costliest ways to protect the environment.
The Obama administration found the federal government could speed up the permitting process without sacrificing environmental protection by ignoring NEPA requirements for a number of projects — specifically “179,000 categorical exclusions for stimulus projects” — funded by the American Recovery and Reinvestment Act. Now it’s up to the Trump administration to act on these findings and reform NEPA by eliminating redundancies, ensuring scientific transparency and integrity, restricting the input of other agencies, and establishing functional equivalence of a NEPA analysis through federal and state statutes that already require an environmental impact analysis. Only after reconstructing NEPA, then can we start to discuss sweeping infrastructure and development reform.
The true path toward building gleaming roads and bridges while enjoying cost-effective environmental protections means dismantling the outmoded relic that is NEPA.
• Kenny Stein is the director of policy for the Institute for Energy Research.
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