On February 12, President Donald Trump unveiled his long-awaited principles for infrastructure legislation, a third of which are devoted to weakening the nation’s bedrock environmental laws in the name of permitting reform. The proposal would require significant changes to nine environmental laws, including the National Environmental Policy Act (NEPA), Clean Water Act, and Clean Air Act.*
The Trump administration’s legislative plan places NEPA squarely in the crosshairs. When a corporation or government proposes an infrastructure project using federal funds, NEPA provides a framework for prudent planning and democratic decision-making. The project sponsor must complete an environmental review to identify the project’s potential impact on the environment, public health, and social and cultural resources; offer stakeholders an opportunity to comment on that review; and, where possible, adjust the project proposal to mitigate any environmental harm. In its new proposal, the Trump administration falsely blames the NEPA process for delays in infrastructure development. In reality, though, fewer than 1 percent of projects even require a full environmental impact statement.
Since 2012, Congress has enacted legislation on three separate occasions to modify the infrastructure permitting process. As such, President Trump has numerous tools at his disposal to find efficiencies. Rather than maximizing these tools, President Trump has issued two ineffective and confusing executive orders; called for unnecessary environmental rollbacks; and proposed slashing the budgets of agencies in charge of permitting processes.
Congress has reformed permitting processes numerous times
Congress has taken up permitting reform three times over the past six years—passing the Fixing America’s Surface Transportation (FAST) Act in 2015, the Water Resources Reform and Development Act (WRRDA) in 2014, and the Moving Ahead for Progress in the 21st Century Act (MAP-21) in 2012. The FAST Act, WRRDA, and MAP-21 contained some of the most significant legislative rollbacks of NEPA and the environmental review process in history. The three laws, however, also included bipartisan provisions to clarify several permitting requirements and provide the federal government with many new tools to expedite review processes without sacrificing environmental considerations and community input.
Federal agencies often coordinate their review processes so that experts on a range of environmental impacts or infrastructure types can weigh in on projects’ potential outcomes. The FAST Act also provided project sponsors with a checklist to help them identify potential environmental impacts as well as agencies with jurisdiction over affected natural, cultural, and historic resources. Thanks to MAP-21 and the FAST Act, agencies with jurisdiction now have improved early coordination procedures; clarified roles and responsibilities; and dispute resolution practices. Projects must follow a single government-wide project schedule and can carry planning-level decisions forward into the NEPA process.
In 2015, two new offices were established to focus on permitting—the Infrastructure Permitting Improvement Center (IPIC) at the Department of Transportation (DOT) and the Federal Permitting Improvement Steering Council (FPISC). The IPIC oversees DOT implementation of MAP-21 and the FAST Act. The FPISC is a cross-governmental body that develops new procedures to standardize interagency consultation and coordination practices. The council is also in charge of coordinating the permitting process for nonhighway infrastructure projects that cost more than $200 million as well as any infrastructure project of its choosing. Ideally, the FPISC is able to move large projects through the review process efficiently and without putting environmental considerations or community input at stake.
The Trump administration has ignored existing tools
Given the scope of congressional action in recent years, President Trump took office with pre-existing tools at his disposal to expedite the permitting process. He has ignored unimplemented provisions in the FAST Act and instead called for extreme environmental rollbacks.
Despite being passed in 2012 and 2015, respectively, MAP-21 and the FAST Act have yet to be fully implemented by the federal government. DOT’s Office of Inspector General (OIG) investigated the implementation of MAP-21 and FAST Act project delivery provisions and found that duplicative and contradictory provisions slowed implementation of both statutes. As of March 2017, DOT had completed 27 of its 42 planned actions for the implementation of MAP-21; the Trump administration, however, has done little to help DOT catch up since then. Under President Trump, DOT has issued only one additional guidance document but has not issued rules under FAST Act Sections 1304—“Efficient Environmental Reviews for Project Decision-making”—or 1309—“Program for Eliminating Duplication of Environmental Reviews”—which would complete implementation of nearly all remaining provisions. President Trump has not finalized these outstanding provisions nor evaluated the effectiveness of recently implemented ones, and these actions reveal his true goal—to undermine safeguards and move toward a rubber-stamp permitting process.
The Trump administration and others point to the permitting process as the main cause for project delays. Existing data show that delays are more often the result of a lack of funding. Recognizing the need to further study the causes of project delays, the U.S. Congress directed DOT to establish a public-facing online tracking system of projects in the permitting process. Project sponsors and the public should be able to use the tracking system—known as the Federal Infrastructure Permitting Dashboard to expedite projects and understand the true causes of any delays. The Permitting Dashboard is still very much a work in progress, with incomplete data and limited mapping capabilities, but it has significant, untapped potential. The IPIC, too, is only just getting started. In its Annual Report to Congress, the IPIC notes that its “accomplishments this past year have laid the foundation for the time and resource efficiencies that DOT expects will soon be realized in the environmental review and permitting of infrastructure projects.” Like many of the other provisions Congress provided, the Permitting Dashboard and the IPIC have not had sufficient time to demonstrate success in expediting project delivery. Before requesting new tools, the Trump administration should finalize and evaluate the initiatives already in place.
President Trump has also failed to appoint people to key positions that could help accelerate project delivery. The Federal Highway Administration, which processes approximately 10 percent of the federal government’s environmental impact statements in any given year, is still without an administrator. The FPISC executive director position is also vacant. This person would have broad authority to advance the group’s mission and move large projects forward. The FAST Act allowed FPISC to establish a “fee structure for project proponents to reimburse the United States for reasonable costs incurred in conducting environmental reviews and authorizations” for certain projects. The FPISC has not yet implemented this initiative, which would help facilitate faster reviews at the expense of project sponsors—in this case, private developers. By failing to utilize these existing tools, the Trump administration has demonstrated indifference toward advancing established goals within the agreed-upon frameworks of MAP-21, the FAST Act, and WRRDA.
Executive orders have added confusion
In one of his first actions after taking office, President Trump signed an executive order (EO) on expediting environmental reviews and approvals for high-priority infrastructure projects. This EO effectively duplicates or conflicts with many of the permit-streamlining provisions in the FAST Act. It also requires the White House Council on Environmental Quality to decide which projects qualify as high-priority and to help expedite relevant reviews and permits, which is essentially the role of FPISC. The EO did nothing to accelerate project delivery and instead further complicated the implementation of the FAST Act.
In August 2017, President Trump signed another EO on establishing discipline and accountability in the environmental review and permitting process for infrastructure projects. It instructed agencies to have a so-called One Federal Decision mechanism by designating a lead federal agency to work with relevant agencies to complete a single record of decision; to establish a predictable and transparent project schedule; and to complete all environmental reviews and permits in just two years. These goals are duplicative and aspirational and do little to advance permitting reform.
The Trump administration has failed to provide funding—the most powerful tool
Permitting and regulatory agencies often cite resource constraints as the primary reason for why they cannot accelerate their reviews. In DOT’s guide for synchronizing environmental reviews, it notes that a lack of trained staff can prevent projects from receiving the attention needed to complete NEPA reviews, planning, and development. Rather than providing adequate funding for the Environmental Protection Agency, U.S. Army Corps of Engineers, DOT, and other permitting agencies, the Trump administration has proposed budget cuts that would only make it more difficult to fast-track permitting timelines.
Conclusion
President Trump repeatedly claims that one of his top priorities is to speed up the delivery of infrastructure projects. Over the past six years, Congress has adapted the permitting and environmental review process in three separate pieces of legislation: MAP-21, the FAST Act, and WRRDA. Existing statutes provide ample flexibility to move projects along quickly without compromising the environment. Rather than spending time understanding and utilizing the tools at his disposal, President Trump has ignored unimplemented provisions, failed to appoint necessary staff, and signed confusing executive orders. Now, his administration is proposing a suite of new provisions that reveal his true goal—to destroy environmental safeguards in favor of advancing projects that benefit developers more than the public. Building projects quickly while preventing harm to the environment is necessary, possible, and broadly supported. Instead of kowtowing to corporate interests and proposing useless environmental rollbacks, the Trump administration should govern with the many tools already at its disposal.
Lia Cattaneo is a research associate for Energy and Environment Policy at the Center for American Progress.
*Correction, February 16, 2018: This column has been corrected to accurately represent the nine environmental laws that would be changed by the Trump administration’s February 12, 2018, proposed principles for infrastructure legislation.