We Cannot “Streamline” Our Way to New Infrastructure

Rather than address the need for dollars to build our water, transportation and other failing infrastructure, Congress blames the requirement to evaluate the environmental and community impact of a project, as the major reason for project delays.

Rather than address the need for dollars to build our water, transportation and other failing infrastructure, Congress blames the requirement to evaluate the environmental and community impact of a project, as the major reason for project delays. Study after study has proven that is not the case and the record is clear that the National Environmental Policy Act (NEPA) is not the cause of delay but improves projects as our website shows. The reason for delay—lack of funding, not regulation.

In fact, NEPA improves projects and gives citizens sometimes the only opportunity to participate in activities that impact their community.

Developers would rather build and think later. For instance, they convinced the President to reject an Obama executive order that required federal funded projects to be built two feet above the 100-year floodplain. That looks incredibly short-sighted as we sit today between Hurricanes Harvey and Irma.

So rather than address the real problem with our infrastructure, Congress continues to try to “streamline” the review process with multiple amendments to make the NEPA process easier for one type of project or another. I testified on these issues on September 7, 2017.

My oral testimony addressing the changes to NEPA and its impact is below. My full testimony is here.

Thank you for the opportunity to testify today. My name is Scott Slesinger, and I am the Legislative Director for the Natural Resources Defense Council (NRDC).

I appreciate the opportunity to testify, and hope that my remarks will assist the Subcommittee as it considers the important issues raised by Title 41 of the FAST Act.

Over several years, NRDC worked cooperatively with the U.S. Chamber of Commerce, the Administration, and Senators Portman and McCaskill to work out a compromise on what became FAST 41. Although we opposed many provisions, we appreciate the compromises that were worked out to improve the system to be more efficient and lead to better environmental outcomes.

One reform that the Chamber and NRDC both agreed on from the beginning was the need for more funding and more staff to do permitting and environmental reviews. As I mentioned in my written statement, the loss of agency expertise and the lack of support for NEPA and permitting staff in the agencies is responsible for many problems in implementing NEPA. In our eyes, the key reform in the legislation is the authority to use non-appropriated dollars to augment agency funds to complete the required reviews. We urge the permitting board to quickly implement a system to collect fees from project sponsors to address bottlenecks by allocating those funds to agencies whose regulatory budgets have been decimated.

Additionally, we have all heard the President talk about launching a major infrastructure program. For this to succeed, the permitting board needs close to $30 million to get up and running. The House Committee's token appropriation to the board of $1 million is barely enough to carry out its statutory duties in hosting the Dashboard’s tracking of projects.

The permitting board needs strong leadership to carry out its statutory mandate. We applaud Senator Portman’s and Senator McCaskill’s letter urging the President to quickly appoint an executive director. This law gives the executive director significant authority. The person selected must have the political skills to bring the siloed interests within the federal family together—not just to make a faster system, but one where the environment outcomes are better. Leaving in place an acting executive who is not a political appointee, despite her skill, undercuts the Board’s ability to get significant cooperation from department and agency leaders.

[I would also note that the permitting process and NEPA are complicated area of multiple scientific disciplines and the law. The executive director must have broad experience and sufficient qualifications to successfully lead in the implementation of this statute.]

Despite the enactment of this legislation in 2015, we are very concerned with the number of bills in both houses of Congress that would further amend the NEPA process without regard for their impact on process changes already made in Fast-41. If these bills became law, instead of making things simpler, they would create new conflicts, sow confusion, and delay project reviews, all of which would unfairly be blamed on NEPA, even though the real culprit is Congress passing contradictory legislation.

Bills have reached the House floor to establish different permitting and NEPA processes for hydroelectric power projects, water supply projects, natural gas pipelines, international pipelines, fisheries management, forest management and several others—all inconsistent with each other. The same for the Senate energy bill.

President Trump’s first Infrastructure Permitting Executive Orderas Senators Portman and McCaskill wrote in a letter to the Presidentalso contradicted authorities and responsibilities already in FAST-41, to the consternation of project sponsors that were already participating in the permitting board’s existing process.  

The President’s revised EO of August 15, ameliorated most of the inconsistences with the earlier order. However, it also gave a green light to wasteful federal construction in areas susceptible to flooding by revoking an executive order that previously updated flood protection standards. As Harvey will show, revoking these standards will ensure that billions of dollars are wasted rebuilding vulnerable public facilities that could have been built more safely or in a safer location.

I cannot conclude without noting that the emphasis on “streamlining” seems to be a diversionary tactic from the real problem of our failing infrastructure. Countries all over the worldincluding those with better infrastructure than our ownhave adopted statutes based on our NEPA statute; bullet trains, modern subways, and efficient airports around the world have been built subject to NEPA-like requirements. What these countries have that the United States currently lacks is a national commitment to adequately funding infrastructure to compete in the 21st century. Recent studies by the Department of Treasury and CRS show that funding, not regulations, are the major source of project delay.

 Thank you again for the opportunity to participate in this hearing and I look forward to your questions.

Read my full written testimony here.

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