Op-ed: Clearing a Path for New Infrastructure

The United States seems incapable of developing modern infrastructure, despite bipartisan support for that goal. Since 2008, China has built more than 15,000 miles of high-speed rail, while the U.S. has built none and is unlikely to do so anytime soon. According to the American Society of Civil Engineers’ most recent report card, the U.S. scores a D+ on infrastructure.

Environmental review plays a major role in America’s infrastructure paralysis. As a consequence of the National Environmental Policy Act of 1970 (NEPA), “major Federal actions” that could “significantly affect” the human environment must be accompanied by an Environmental Impact Statement (EIS)—a process that often takes years. Between 2010 and 2017, the Department of Transportation completed 170 EISs, taking an average of six and a half years each. In the EIS preparation stage, no groundbreaking or other work can occur, a restriction that applies both to federal projects and to private ones that require federal permits. When a private project needs a federal permit, the burden to perform the environmental review usually falls on the private entity.

Projects with limited, if any, environmental impact must still obtain EIS exemptions through an Environmental Assessment (EA) document. The federal government produces an estimated 10,000 EAs annually. Many run hundreds of pages long.

All that paperwork might be worth the trouble if NEPA really protected the environment. But environmental review is a procedural hurdle, not a conservationist step. Even if an EIS identifies negative environmental effects, an agency remains within its rights to proceed with the project or approval, as the Supreme Court has affirmed. NEPA provides no substantive protections. The lawsuits that NEPA generates get resolved by EIS revisions, not by the application of better environmental standards.

NEPA also slows projects dear to progressives and greens, such as offshore wind farms. The Boring Company’s 150-mph zero-emissions “loop” tunnel between Washington and Baltimore remains at the beginning of an environmental review process, though a 500-page draft of its EA was submitted last year. Imagine how quickly Elon Musk could build high-speed transport in the U.S. if freed from excessive paperwork.

Every recent presidential administration has tried to speed up environmental review. The Obama administration issued memoranda and executive orders for this purpose. The Trump administration has proposed revisions to the NEPA-implementing regulations administered by the Council on Environmental Quality. These revisions put a presumptive time and page limit on EAs and EISs. EAs would be limited to 75 pages, to be completed within one year, and EISs would be capped at 150 pages and meet a two-year timeline. Such limits can be overridden by a senior agency official.

Since the original NEPA-implementing regulations were written, the Supreme Court has unanimously held on multiple occasions that NEPA requires “a reasonably close causal relationship” between cause and effect, and that a “rule of reason” applies. The Trump administration’s proposed revisions define the effects that must be considered by quoting or paraphrasing these unanimous decisions. Numerous environmental lawyers and activists oppose the proposed changes because they want the law to consider the effects of climate change in every report. Their opposition is futile, though, because regulations can’t change Supreme Court precedent on what effects are covered by NEPA. The proposed regulations adhere closely to case law, directing federal agencies to follow the Court’s standards.

Some Democratic members of Congress have also opposed the changes, arguing that they would lead to more pollution, but the Trump administration is proposing a set of good-government reforms designed to achieve bipartisan ends—more effective and efficient federal permitting for infrastructure projects—while adhering closely to the text of the statute and the body of case law it has spawned. To deliver the infrastructure improvements that it needs, the United States must reform its environmental-review process. The Trump administration’s proposed regulatory changes take an important step in that direction.

CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.