September 13, 2018

Environmental regulation streamlining has been a hot topic on Capitol Hill recently as infrastructure projects in the United States inch forward while building on the other side of the globe accelerates. On September 6, the House Subcommittee on Intergovernmental Affairs in conjunction with the House Subcommittee on the Interior, Energy, and Environment held a hearing to examine the economic cost of delays and inefficiencies in the federal environmental review and permitting system for infrastructure process. Witnesses included Daren Bakst of the Heritage Foundation, Philip Howard of Common Good, Frank Rusco of the Government Accountability Office (GAO), and Christy Goldfuss of the Center for American Progress.

The subcommittees are concerned that federal agencies have made too many rules and regulations and that they “stretch the bounds of the authority that Congress has provided.” While some of the witnesses expressed agreement with this, others suggested that the delays lie more in the execution than the rule making and that budget cuts and employee attrition may account for decreased efficiency in environment document development and review. Congress members and witnesses on both sides of the aisle agreed that permitting workloads and project delays are too high, though opinions differed on the best way to streamline environmental review moving forward.

Even though the FAST Act requires lead agencies to post completion dates on the Permitting Dashboard, many agencies are not tracking project timelines. Without this information it becomes difficult to hold agencies accountable for staying on track. The lack of data also hinders the ability to identify sources of delay and work towards identifying areas for improvement.

The GAO studied documents from between 2012 and 2017 to evaluate factors affecting timeliness and efficiency in the energy permitting process. The resulting report divides efficiency factors into the following five categories, each of which were touched on further over the course of the hearing.

Coordination and Communication

This factor includes designating a lead coordinating agency and establishing coordinating agreements among agencies. For pipeline projects, witnesses agreed with the GAO report findings that designating the Federal Energy Regulatory Commission (FERC) as the lead agency helped decrease permitting delays, perhaps partly due to their interagency agreement with nine other agencies facilitating early coordination. For an overall institution change, Ms. Goldfuss also suggested appointing people throughout various government agencies involved in permitting processes with collaborative project implementation and permitting expertise across the government. 

Human Capital

Witnesses and Congress members spoke to the need for both human and financial capital to assist in advancing the timelines for documents preparation and review. They notably mentioned the attrition at the Environmental Protection Agency (EPA), delays on appointment of an Federal Highway Administration (FHWA) administrator, and the empty position of Executive Director of the Federal Permitting Council. The EPA processes applications, provides guidance, prepares its own NEPA documents, and has additional responsibilities; the FHWA processes approximately 10 percent of the federal government’s environmental impact statements in any given year; and the Federal Permitting Improvement Steering Council oversees and tracks projects.

Collecting and Analyzing Accurate Milestone Information

Although the permitting Dashboard is up and running, the GAO found that many agencies do not properly track their progress in the permitting process. Reporting data is the first step towards being able to self-assess and provides larger data for agencies such as the GAO to analyze and base recommendations on. Encouraging better tracking and organization within agencies could also help decrease the number of incomplete applications.

Incomplete Applications

More oversight from the EPA and the Federal Permitting Council may help agencies ensure that they submit complete documentation. Shorter timelines could also help avoid changes in personnel or other communication problems that may result in incomplete applications. Submission of a complete instead of incomplete application both speeds up the permitting process and reduces workload for the reviewing agency, allowing them to spend personnel time on other tasks.

Significant Policy Changes

Streamlining within NEPA can improve efficiencies, but also policies and culture not directly written into environmental and historic preservation laws and regulations can influence the ease, cost, and timeframe for permit applications and review. Mr. Howard noted the problems of the litigious nature of the United States, which can draw permitting approval on for years. Ms. Goldfuss also noted the problematic confluence of political bartering and advancing significant infrastructure projects, giving the example of the Hudson River Tunnel’s stall due to the Administration’s ask for a border wall.

The challenge is always to find balance between cutting red tape without jeopardizing environmental and historic protections. Members of the House and witnesses at this hearing, as well as previous hearings and roundtables, have identified steps to take towards increasing efficiencies in permitting, some of which have already begun to prove fruitful such as the FAST-41 legislation.