OPINION:
A recent story revealed that rural communities that were supposed to be getting high-speed internet for the first time are struggling to complete those projects.
The Biden administration highlighted broadband internet initiatives, including connecting rural areas to the internet, in the infrastructure law passed roughly two years ago. This is perhaps a noble goal (if one could overlook deficit spending), but the irony is that these objectives are undermined by the very same approach to governance that politicians pushing big government policies perpetuate.
The infrastructure bill committed the federal government to $1.2 trillion in spending. But factors like inflation, combined with the slow process of getting things built, reduced the overall “real” spending by 10%. The current rate of inflation (highway construction costs have increased 50% from 2020 to 2023, for example) works against the effort to expand infrastructure spending when other red tape causes projects to be significantly delayed by design.
Of course, some delay comes with the territory. Any construction project takes longer than expected, even without the government getting in the way. But a lot of delay is due to self-enforced errors. Take “Buy America” rules, which require things like racial equity, environmental stability, and fair wages.
These ideas, though supported by at least some of the public, unnecessarily inject bureaucratic hurdles and a disregard for the laws of economics into what should have been a straightforward mandate to build important infrastructure projects that make people’s lives better. Unsurprisingly, these rules have helped grind many projects to a halt. These are fundamental problems with the law Congress passed. But another problem permeates most of the country’s energy, manufacturing, and infrastructure goals: Permitting.
Both the federal government and the states have burdensome permitting requirements before any major project can be approved. As many people know, before a building project can occur, a government takes it upon itself to review the project and either give approval or deny the citizen the opportunity to move forward – usually on the government’s timeline.
And this is typical. The United States has operated under a system of permissive governance for decades now. Rather than the government allowing its citizens to act freely, stepping in only to correct bad actions, the government now requires the citizens to ask permission. This was not the way this country used to operate, as the government originally took after the English common law system. But, slowly, the government has gotten away from the system that made it so successful.
In application, the infrastructure law requires layers of permitting approvals before any project can move forward. Often, more than one jurisdiction has to weigh in, which multiplies the length of the review. Laws like the National Environmental Policy Act (NEPA) also require significant review before any project can proceed.
This dysfunctional system does not have to continue. The government could reduce the impacts of inflation by merely allowing the process to speed up. If the government prioritized ensuring enforcement over granting permission, builders could get to the construction projects quickly. The costs associated would be more closely aligned with the market value at the time the money is allocated. Inflation would have less opportunity to reduce its impact. The public would be better served.
One proposal gaining some steam to achieve this paradigm shift is permit-by-rule. This standards-based permitting system would create certain criteria for projects that exist before any project application ever arrives. These pre-set standards would be known to the applicant so it would know whether it qualifies for a permit before it ever applies. Additionally, the government would be required to approve the permit soon after the application is received (assuming that the applicant is able to verify all criteria have been met, perhaps even with a bond). The government’s time and attention would be focused on enforcement of the public health and safety standards, which is the driving need for a permitting process in the first place.
This expedites any project that does not require individualized assessments. For projects that are routine or similar to others, the government should already know what it needs to approve a permit. Performing the same assessment over and over again needlessly diverts limited government resources and is detrimental to the applicant (and, in the case of infrastructure, all citizens).
In many regards, the Infrastructure Law has proven to be a perfect example of the administration’s years-long spending spree, beset by self-inflicted errors. It also likely contributed to the inflation that is wreaking havoc on many important projects like rural broadband. Some rehabilitation is in order. One place to start would be by adopting permit by rule so American taxpayers can walk away with some benefit from what continues to be a very expensive “new normal.”
• Curtis Schube is the Executive Director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained. He is formerly a constitutional and administrative law attorney.
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