    [House Hearing, 115 Congress]
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                       PERMITTING: FINDING A PATH FORWARD

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                                 JOINT HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                           INTERGOVERNMENTAL AFFAIRS

                                    AND THE

                                SUBCOMMITTEE ON
                     THE INTERIOR, ENERGY, AND ENVIRONMENT

                                     OF THE

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               SEPTEMBER 6, 2018

                                   __________

                               Serial No. 115-102

                                   __________

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                  Committee on Oversight and Government Reform

                      Trey Gowdy, South Carolina, Chairman
    John J. Duncan, Jr., Tennessee       Elijah E. Cummings, Maryland,
    Darrell E. Issa, California              Ranking Minority Member
    Jim Jordan, Ohio                     Carolyn B. Maloney, New York
    Mark Sanford, South Carolina         Eleanor Holmes Norton, District of
    Justin Amash, Michigan                   Columbia
    Paul A. Gosar, Arizona               Wm. Lacy Clay, Missouri
    Scott DesJarlais, Tennessee          Stephen F. Lynch, Massachusetts
    Virginia Foxx, North Carolina        Jim Cooper, Tennessee
    Thomas Massie, Kentucky              Gerald E. Connolly, Virginia
    Mark Meadows, North Carolina         Robin L. Kelly, Illinois
    Ron DeSantis, Florida                Brenda L. Lawrence, Michigan
    Dennis A. Ross, Florida              Bonnie Watson Coleman, New Jersey
    Mark Walker, North Carolina          Raja Krishnamoorthi, Illinois
    Rod Blum, Iowa                       Jamie Raskin, Maryland
    Jody B. Hice, Georgia                Jimmy Gomez, Maryland
    Steve Russell, Oklahoma              Peter Welch, Vermont
    Glenn Grothman, Wisconsin            Matt Cartwright, Pennsylvania
    Will Hurd, Texas                     Mark DeSaulnier, California
    Gary J. Palmer, Alabama              Stacey E. Plaskett, Virgin Islands
    James Comer, Kentucky                John P. Sarbanes, Maryland
    Paul Mitchell, Michigan
    Greg Gianforte, Montana
    Michael Cloud, Texas

                         Sheria Clarke, Staff Director
                        William McKenna, General Counsel
                              Emily Wong, Counsel
                             Kiley Bidelman, Clerk
                     David Rapallo, Minority Staff Director
                   Subcommittee on Intergovernmental Affairs

                         Gary Palmer, Alabama, Chairman
    Glenn Grothman, Wisconsin, Vice      Jamie Raskin, Maryland, Ranking
        Chair                                Minority Member
    John J. Duncan, Jr., Tennessee       Mark DeSaulnier, California
    Virginia Foxx, North Carolina        Matt Cartwright, Pennsylvania
    Thomas Massie, Kentucky              Wm. Lacy Clay, Missouri
    Mark Walker, North Carolina          (Vacancy)
    Mark Sanford, South Carolina
                                     ------

              Subcommittee on the Interior, Energy and Environment

                       Greg Gianforte, Montana, Chairman
    Paul A. Gosar, Arizona, Vice Chair   Stacey E. Plaskett, Virgin Islands
    Dennis Ross, Florida                 Jamie Raskin, Maryland
    Gary J. Palmer, Alabama              Jimmy Gomez, California
    James Comer, Kentucky                (Vacancy)
    Michael Cloud, Texas
                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on September 6, 2018................................     1

                                   WITNESSES

    Mr. Frank Rusco, Director, Natural Resources and Environment
      Issues, U.S. Government Accountability Office
        Oral Statement...............................................     7
        Written Statement............................................    10
    Mr. Philip K. Howard, Founder and Chair, Common Good
        Oral Statement...............................................    24
        Written Statement............................................    26
    Ms. Christy Goldfuss, Senior Vice President, Energy and
      Environment Policy, Center for American Progress
        Oral Statement...............................................    35
        Written Statement............................................    37
    Mr. Daren Bakst, Senior Research Fellow, The Heritage Foundation
        Oral Statement...............................................    42
        Written Statement............................................    44

                                    APPENDIX

    Letter for the Record from Ms. Plaskett regarding Limetree Bay
      Terminals, submitted by Ms. Plaskett...........................    78
    Letter for the Record from Earthjustice, submitted by Mr. Raskin.    80

                       PERMITTING: FINDING A PATH FORWARD

                                  ----------

                          Thursday, September 6, 2018

                      House of Representatives,
      Subcommittee on Intergovernmental Affairs, joint
    with the Subcommittee on the Interior, Energy, and
                                            Environment
                  Committee on Oversight and Government Reform,
                                                       Washington, D.C.
        The subcommittees met, pursuant to call, at 10:02 a.m., in
    Room 2154, Rayburn House Office Building, Hon. Greg Gianforte
    [chairman of the subcommittee on Interior, Energy, and
    Environment] presiding.
        Present: Representatives Gianforte, Palmer, Grothman,
    Duncan, Comer, Plaskett, and Raskin.
        Mr. Gianforte. The Subcommittee on Intergovernmental
    Affairs and the Committee on the Interior, Energy and
    Environment will come to order. Without objection, the chair is
    authorized to declare a recess at any time.
        Good morning. Today the committee on the Interior, Energy
    and the Environment and the Subcommittee on Intergovernmental
    Affairs will examine permitting and environmental review
    process for infrastructure projects.
        This is the third permitting hearing this committee has
    held this Congress. Previously we have heard from many
    witnesses about the ways in which convoluted requirements and
    lengthy application periods for Federal environmental permits
    negatively affect infrastructure projects.
        Today we will continue to explore this important topic and
    discuss how delaying infrastructure projects hurts the economy
    and communities in need of modernize improved infrastructure.
        Environmental protection statutes like the Clean Air Act,
    the Clean Water Act, and the National Environmental Protection
    Act were passed with noble intentions years ago. And no one
    disputes the need for a healthy environment. In recent years,
    however, Federal agencies have taken it upon themselves to
    broaden their interpretations of these statutes and made too
    many rules and regulations that stretch the bounds of the
    authority that Congress has provided. As a result, permitting
    workloads and associated delays have increased. For example,
    the EPA lowered the national ambient air quality standards for
    ozone in 2015. Under the new lower standard, 209 counties in 22
    States are designated as nonattainment areas subjecting all
    projects in those counties that could produce emissions to more
    rigorous permitting requirements.
        Similarly, the Obama administration's EPA, along with the
    U.S. Army Corps of Engineers finalized the Waters of the United
    States Rule which vastly expanded their jurisdiction to issue
    permits under the Clean Water Act. These Federal power grabs
    have increased the number of project applicants, lengthened
    wait times, and caused the cost of projects to balloon.
        Under President Trump, the administration has prioritized
    infrastructure modernization and Federal permitting reform. The
    President's management agenda and the one Federal decision
    policy implemented by executive order direct Federal agencies
    with permitting responsibilities to reduce permit application
    processing times by instituting a number of best practices.
        Some of our witnesses today will discuss how these
    proposals can move the ball forward to address well-known
    problems with the Federal permitting and environmental review
    status quo. We will also hear from the Government
    Accountability Office. GAO has done extensive research into
    Federal agencies' management of their permitting
    responsibilities and, in the process, has observed both common
    problems and best practices.
        One major issue GAO has identified across Federal agencies
    is the lack of quality data on permitting milestones. Many
    agencies with permitting responsibilities are simply not
    tracking when applications are submitted or approved. While the
    administration's proposals are a step in the right direction,
    their success relies heavily upon the ability to hold agencies
    accountable. GAO's work suggests the data necessary to do so
    may not be readily available.
        To that end, my subcommittee has initiated conversations
    with GAO about creating a permitting scorecard that can be used
    as a tool to measure agencies' progress as they begin to
    implement these necessary reforms. The scorecard would
    determine a letter grade, A through F, for each agency based on
    their adoption of agreed-to permitting best practices.
        Last month I sent a letter to GAO requesting a review of
    efforts to streamline the Federal permitting process including
    an assessment of key permitting related indicators from
    monitoring agency progress.
        As we discuss permitting reforms and recommendations today,
    I hope the conversation will contribute to developing a
    scorecard that can be used now and in the future to promote
    best practices and incentivize agencies to improve their
    permitting processes.
        Today's hearing will provide an opportunity to discuss how
    we can ensure our future where Federal permitting functions are
    more efficiently achieved and better serves the American
    people. I look forward to hearing, our witnesses'
    recommendations.
        And I now recognize the ranking member of Interior, Energy
    and Environment subcommittee, Ms. Plaskett, for her opening
    statement.
        Ms. Plaskett. Thank you very much, Mr. Chairman. And thank
    our witnesses for being here, and my colleagues for coming to
    this important hearing.
        Mr. Chairman, thank you for calling today's hearing
    concerning the Federal permitting process and how it relates to
    infrastructure development. The idea that environmental
    protection, not just of the natural environment but also the
    human environment, goes hand-in-hand with infrastructure
    development is now an old one. It goes back nearly 50 years to
    the passage of the National Environmental Protection Act,
    commonly known as NEPA. And the call that the environmental
    review and permitting process become more efficient and
    streamlined is nearly as old. The Virgin Islands sees both
    sides of this coin. With tourism and travel accounting for
    nearly 30 percent of the island's GDP right now, we are highly
    aware of the need for environmental protection. But because of
    our higher cost of living, anything that potentially slows our
    economy, including unnecessary delays to infrastructure and
    responsible development, must be addressed.
        Delays to some projects are ongoing, and that is an
    impediment to our economic health. The need to fast track
    projects in the Virgin Islands is especially urgent as the
    economy recovers from the 2017 hurricane season. Today marks 1
    year that Hurricane Irma hit the Islands of St. John and St.
    Thomas.
        My office has provided assistance with numerous projects
    that have been delayed in the permitting progress. In some
    instances, these delays go back as far as 12 years or more.
    That is outrageous.
        Mr. Chairman, I would like to have included in the record a
    letter I recently wrote to Rear Admiral Tim Gallaudet,
    assistant secretary of commerce for Oceans and Atmosphere, and
    Mr. Chris Oliver, assistant administrator for Fisheries for
    assistance with the Federal permitting of an energy
    infrastructure on St. Croix.
        The permit application to install a single----
        Mr. Gianforte. Without objection.
        Ms. Plaskett. Thank you.
        The permit application to install a single point mooring
    buoy system to allow the Limetree Bay terminal facility to
    receive shipments from very large bulk fuel carriers has now
    been pending for a year. This is just one example of the list
    of projects that I have been asked to assist with the
    permitting application. Applicants incur extraordinary costs as
    a result of the delays in the process, and developers are
    thwarted and sometimes discouraged from bringing projects out
    because of this.
        In 2017, President Trump issued two executive orders with
    the aim of streamlining the environmental review and permitting
    process. But it turns out that these executive orders are
    mostly redundant, a superfluous to bipartisan laws already on
    the books.
        Since 2012, Congress has passed three major laws designed
    to streamlined NEPA. Each one refined some permitting
    requirements and provided the Federal Government with new tools
    to speed up environmental reviews. The FAST Act in particular
    created the Federal permitting improvement steering council
    which answers to the President. Compromising members from 13
    agencies, it is designed to coordinate and expedite the
    permitting process. But President Trump has yet to appoint a
    permanent executive director of the council. And a fee
    structure to collect money from project sponsors so the council
    can facilitate faster reviews has yet to be established.
        So we have all the tools we need to expedite the permitting
    process if we fully fund them. But this is where President
    Trump's proposed budget for fiscal year 2019 fell short, a call
    for a staggering one-third cut in the budget of the
    Environmental Protection Agency and a 16 percent cut from the
    Department of the Interior. It's hard to see how we can speed
    up the permitting process when the President is calling for
    drastic cuts to the agencies that oversee much of that process.
    We know what the answers are. We just need to--find to fund
    them.
        I thank the witnesses for their appearance today and look
    forward to their testimony.
        Mr. Gianforte. Thank you.
        I now recognize the ranking member of the Intergovernmental
    Affairs Committee, Mr. Raskin, for his opening comments.
        Mr. Raskin. Mr. Chairman, thank you very much. And thanks
    for calling this hearing on how we can develop our
    infrastructure without sacrificing the environment and the
    rules that protect it. Welcome to our witnesses today.
        I wanted to start, Mr. Chairman, by introducing a very
    thoughtful letter that we received from Earth Justice to the
    committee, if that is----
        Mr. Gianforte. Without objection.
        Mr. Raskin. Great. Thanks so much.
        Mr. Chairman, NEPA was signed into law nearly a half
    century ago when experience showed the dangers of not examining
    the environmental implications of development before building
    took place. And those dangers involved the creation of perilous
    environmental harms and also dealing with environmental
    problems that came up through the litigation process which was
    obviously divisive and polarizing and took years to get
    through.
        And so NEPA was established so that the environmental
    questions could be considered first before the building process
    took place. Leap before you look was the old way of doing
    things, and this was look before you leap so we wouldn't
    destroy neighborhoods and environments unnecessarily before
    projects took place.
        So the rules arising out of NEPA and other environmental
    statutes like the Clean Air Act and the Clean Water Act were
    designed to enable planners to build environmental planning
    into the development process.
        Now, President Trump, of course, is in the real estate
    development business, and declared himself the number one
    champion of the eminent domain process which has trampled so
    many Americans' property rights and environmental quality of
    life, has been, you know, full-blown offensive against the
    permitting process under NEPA. And the suggestion, of course,
    from the very beginning of this administration has been, as
    Steve Band put it, to dismantle the regulatory state, and
    obviously the permitting process is an important part of the
    regulatory process that has grown up under our environmental
    laws.
        As I noted in July, the Office of Management and Budget
    every year issues a congressionally mandated report that
    identifies the cost of government rules on the private sector
    and then the estimated financial benefits of the rules for the
    American public. The most recent report found that Federal
    rules imposed just under $5 billion in costs on business but
    resulted in more than $27 billion in benefits to the American
    public. That is a benefit-to-cost ratio of more than 5 to 1. So
    instead of permitting rules being some kind of staggering
    burden on the American people, they actually help everyone
    across the board.
        Now, blaming environmental permitting rules is a way to
    flatten out and demolish the regulatory process to benefit
    specific corporations and developers. The BP oil spill is a
    good example of why environmental enforcement and permits are
    so essential. In the wake of the oil spill, which created 11
    human deaths and the deaths of a million sea birds and
    contamination of an entire ecosystem, the Bureau of Safety and
    Environmental Enforcement was established to oversee offshore
    oil drilling. But President Trump's proposed 2019 budget called
    for slashing, by 43 percent, environmental enforcement by this
    bureau. This is obviously the wrong way to go. Permitting is
    not the problem. It should be seen as part of the solution.
        Studies have shown that project funding, developing a local
    community census, and dealing with residences and businesses in
    the path of a proposed development are far greater sources of
    delay than the permitting process.
        So let's focus on what the real problems might be.
    Everybody is for simplifying government and reducing red tape
    where we can do it, but certainly not at the expense of
    maintaining the environmental safeguards that the American
    people have established.
        I thank all of the witnesses in advance for sharing their
    insights today. I look forward to continuing this important
    discussion.
        Mr. Chairman, I yield back to you.
        Mr. Gianforte. Okay. Thank you.
        I now recognize chairman of the Intergovernmental Affairs
    Subcommittee, Mr. Palmer, for his opening statement.
        Mr. Palmer. Thank you, Mr. Chairman. I thank the witnesses
    for being here.
        I think it goes without saying that infrastructure is a
    critical issue that directly affects the quality of our life
    and our communities, and I think we can have good
    infrastructure without compromising environmental quality. The
    issue is have we gone overboard to the degree that we now have
    infrastructure that basically gets a D grade. We have got a
    deteriorating infrastructure that is having a significant
    impact on the economy. We have got congestion on the highways
    that cost us $160 million a year in lost time and wasted fuel,
    which, by the way, when you have that kind of congestion,
    increases some of the air quality issues that we are all trying
    to deal with. We have got power outages that have an additional
    impact of $150 million a year. All these costs, by the way, get
    passed on to the consumer in one form or another.
        In 2017, the American Society of Civil Engineers analyzed
    the state of the Nation's infrastructure and estimated that
    American families lose upwards to $3,400 each year because of
    it. And they further scored our country's infrastructure, as I
    said before, and gave it a grade of D.
        Fixing failing infrastructure should be a top priority. It
    is certainly a top priority with me. And not only just fixing
    the failing infrastructure but improving the quality of what we
    have and expanding it as our economy grows, and it's growing as
    the Atlanta Fed announced just last week, that they expect GDP
    to be 4.6 percent for this quarter, which is a huge improvement
    over the economic conditions of the country over the last few
    years.
        We are going to need higher quality, better infrastructure,
    but only if the permitting process and multiagency approvals
    and the tens of thousands of pages of environmental impact
    assessments are causing all kind of delays, and they have been
    for decades. The cost to rebuild infrastructure will
    dramatically increase due to inflation and prolonged
    construction cost.
        Having worked for two engineering construction companies, I
    know the time and money it takes to get a project off the
    ground. And I've used this example in a couple other hearings
    of what happened down in Texas where you had a State road, a
    U.S. highway, and an infrastructure. The State road was delayed
    33 1/2 months. It added over $5 million to the cost of the
    project.
        The State road was the delayed 5 years. That added almost
    $18 million to the cost of the project. And the interstate,
    it's a mile and a half adding an interchange, was delayed for
    11 months. And it cost about $447,000 a month in delay costs.
    That added almost $4 million to the project, which all of that
    is infrastructure money.
        Contractors and project developers are forced to comply
    with dozens of permitting requirements spread across multiple
    agencies. They're subject to reviews and often duplicative and
    redundant, and then they wait. They wait for responses and
    approvals from Federal agencies. Waiting cost money. Delays
    cost money.
        We see it--as I just gave those examples from Texas, when a
    project started and then they have to delay, these contractors
    are forced--you have to pay the contractors for their people
    being on-site and their equipment on-site. And if you shut it
    down, a 5-year delay, they got to move off-site and then
    restage. People are hired, and they're ready to work, and they
    expect to get paid regardless of whether or not the Federal
    Government is meeting the deadlines. As I said, moving
    equipment around, compliance, administrative tasks, updating
    contracts, they're grown out-of-date, delays, these are all
    delays that cost money. And it adds up over years.
        These delay costs take away the resources that could be put
    to other critical projects. And my home State of Alabama has
    experienced infrastructure projects delay firsthand. We've been
    trying to get the Northern Beltline, I-459, built. And the
    funding for that was first approved in 1989. We've built 2
    miles of road.
        The project would create a six-lane beltway around the City
    of Birmingham. We're the largest city in the country without a
    complete belt line. So 30 years later, 2 miles of road. The
    Federal Highway Administration recently predicted that
    construction of the remaining 50 miles will take another 35
    years. I'll be 100 years old. And, Mr. Chairman, I promise, if
    they take that long, I'm going to drive on it, so--we're
    literally throwing our infrastructure dollars down the drain
    with these delays.
        The current administration is working to modernize the
    Nation's infrastructure and cure the permitting inefficiencies.
    In August of last year, the President issued Executive Order
    13807 to streamline the environmental review and permitting
    process. The executive order established a one Federal decision
    when it comes to major infrastructure projects. This gives a
    single agency the authority to navigate the project through the
    permit authorization process as well as the Federal
    environmental review. The President also encouraged cooperation
    between the executive branch and Congress to shorten the time
    consuming environmental review process to 2 years.
        I look forward to hearing from today's witnesses about the
    Federal permitting process including how it contributes to a
    backlog of needed improvements and how reform proposals can
    address these problems.
        I thank the witnesses for being here, and I yield back.
        Mr. Gianforte. Okay. Thank you.
        And I'm pleased to introduce our witnesses at this time.
    Mr. Frank Rusco, director of natural resources and
    environmental issues at the U.S. Government Accountability
    Office. Thank you for being here.
        Mr. Philip K. Howard, founder and chair of Common Good. Ms.
    Christy Goldfuss, senior vice president of energy and
    environmental policy at the Center for American Progress. And
    last, but not least, Mr. Daren Bakst, senior research fellow at
    the Heritage Foundation.
        Welcome to all of you. Thank you for being here.
        Pursuant to committee rules, all witnesses will be sworn in
    before they testify.
        Please stand and raise your right hand.
        Do you solemnly swear or affirm the testimony you're about
    to give is the truth, the whole truth, and nothing but the
    truth, so help you God?
        Please be seated.
        The record will reflect the witnesses have answered in the
    affirmative.
        In order to allow time for discussion, I would ask the
    witnesses to please limit your testimony to 5 minutes. Your
    entire written statement will be made part of the record. As a
    reminder, the clock in front of you shows your remaining time.
    The light will turn yellow when you have 30 seconds left and
    red when your time is up. Please also remember to press the
    button to turn your microphone on before speaking.
        And at this time I recognize Mr. Rusco from GAO for 5
    minutes.

                           WITNESS STATEMENTS

                        STATEMENT OF FRANK RUSCO

        Mr. Rusco. Thank you.
        Chairman Gianforte and Palmer, Ranking Members Plaskett and
    Raskin, and members of the subcommittees, I'm pleased to be
    here today to discuss GAO's work evaluating Federal agencies'
    permitting processes for energy infrastructure. While my
    testimony focuses on energy infrastructure permitting, GAO has
    done work looking at many other infrastructure projects, and
    many of the issues around permitting are broadly applicable.
        It is essential to understand that permitting large
    infrastructure projects is a complex process involving
    adherence to Federal, State, and local laws and regulations. As
    such, it is often the case that multiple Federal, State
    agencies as well as other stakeholders will be involved.
        Our work on energy infrastructure permitting has identified
    five broad categories of factors that can affect the timeliness
    of the permitting progress. First, coordination and
    communication are essential. In particular, having a lead
    Federal agency to coordinate the efforts of other Federal,
    State, and local stakeholders can be beneficial to expedite
    permitting processes. For example, the Federal Energy
    Regulatory Commission takes a lead role in coordinating
    environmental reviews with other Federal agencies and
    stakeholders in pipeline permitting.
        As such, FERC and nine other agencies have signed
    interagency agreements for early coordination of environmental
    and historic preservation reviews in order to encourage timely
    development of pipeline projects. Both industry representatives
    and public interest groups have told us that having FERC as a
    lead agency has made the process for permitting interstate
    pipelines more efficient than that of intrastate pipelines
    where FERC is not involved.
        A second factor involves human capital, or more simply,
    having the right Federal employees with the right skills in the
    right places to perform environmental reviews and other
    required actions for permit approval. For example, in 2016, we
    reported that the bureau of Indian Affairs longstanding
    workforce challenges had contributed to lengthy and
    unpredictable permit reviews, that it hindered Indian energy
    projects and, therefore, cost tribes and their members
    significant time and money in lost or delayed opportunities.
        We recommended that BIA assess critical skills and
    competencies needed to effectively perform permit reviews. And
    BIA has begun developing a workforce plan to address these
    skill and competency gaps.
        Federal agencies must also set reasonable timeframes for
    completing permit reviews and measure their performance using
    reliable data. Only then can agencies identify and address
    inefficiencies in their processes. We have often found that
    while agencies may have guidelines for how long permit reviews
    should take, they often do not record key dates such as when a
    permit application was first received, when it was deemed to be
    complete, and when the agency began conducting its review.
    Without such simple measures, we have sometimes found it
    impossible to know whether or not the agency is meeting its
    timelines.
        Another recurring issue in our work has been the agency's
    report that applications are sometimes incomplete when
    submitted and cannot be reviewed until applicants provide
    additional information. Sometimes this appears to be the result
    of a lack of experience of some applicants, but other times it
    seems that the requirements for having a complete application
    may be unclear or that different agency offices have different
    standards for completeness or for when to start the review.
        Lastly, changes to laws, regulations, or policies can cause
    longer permitting times. For example, after the 2010 Deepwater
    Horizon oil spill in the Gulf of Mexico, Interior reviewed and
    revised decades-old safety requirements for offshore drilling.
    We found that permit review times increased after these new
    requirements were adopted as applicants and agency officials
    became familiar with the new process.
        To help make permitting processes more efficient, we have
    made numerous recommendations over the years, and agencies have
    generally been in agreement and taken steps to improve their
    performance. As always, more can be done. We look forward to
    taking a broad look at energy permitting processes for your
    subcommittees in the coming year and looking for additional
    ways to improve efficiency and performance.
        This ends my oral remarks. I'll be happy to answer any
    questions you may have.
        Thank you.
        [Prepared statement of Mr. Rusco follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Gianforte. Okay. Thank you.
        We now recognize Mr. Howard for his opening--his statement.

                     STATEMENT OF PHILIP K. HOWARD

        Mr. Howard. Thank you, Chairman Gianfonte, Palmer, Ranking
    Members Plaskett and Raskin, members of the subcommittee.
        The problem that we're faced with is that--is that the
    goals of environmental review are indisputably valid. It's very
    important to look at a project and its effects before sometimes
    billions of dollars are spent on the project. So that the
    public knows what they're in for. And the regulatory complexity
    that causes delay is also, to an extent, unavoidable. There are
    fire code requirements as well as environmental requirements.
    But most of these requirements are legitimate.
        The problem is that there's no mechanism in the government
    and among the different levels of government to make the value
    judgements that prioritize these concerns and then make a
    judgment to move forward.
        So in an effort to achieve a perfect compliance with often
    hundreds, sometimes thousands, of regulatory requirements, it
    can take years, sometimes more than a decade. And that's the
    problem we're confronted with here, which is the absence of
    decisionmaking authority to make practical judgments.
        America is a country of practicality. The environmental and
    permitting process in this country is a process of dysfunction
    and paralysis is the opposite the practicality.
        In 2015, Common Good, which I chair, released a research
    paper 2 years, not 10 years, which tried to, on order of
    magnitude, evaluate the cost and the harm caused by permitting
    delays. And while there's no comprehensive data on large
    projects, it was common that projects would be delayed by
    years, sometimes more than a decade.
        We also found that in countries such as Germany and Canada,
    with which our economy competes, typically projects like this
    were approved within 1 or 2 years at most.
        In calculating the harm, we--assuming a 6-year delay in a
    large project, found that the delay more than doubled the cost
    of infrastructure. That's wasted money for the American
    economy. Thirty percent of the increase is in direct cost,
    inflation and an extra overhead, and the indirect cost of
    sustained inefficiencies and loss of benefits, being stuck in
    traffic jams or waiting for, as inefficient century-old locks
    on rivers finally open up, lost electricity and inefficient
    power lines more than doubles the cost of the infrastructure.
        We also found that lengthy environmental review is
    typically harmful to the environment because it delays--when
    you have half-century or century-old infrastructure, it delays
    the improvements to infrastructure that get rid of the traffic
    jams or the waste of electricity.
        The cause of delay is not the fact that we do environmental
    review. It's that there are no clear lines of authority to make
    the needed practical choices. So, for example, environmental
    review statements on large projects now are typically
    characterized by a flood of detail that can be characterized as
    no pebble left unturned. A project of a pipeline in Wyoming,
    for example, had detail about the possibility of gates being
    left open when the power line was built so that cows might
    wander off.
        It had a point about the trucks using construction-emitted
    fumes and, therefore, that caused pollution. These are
    completely self-evident points that are not at all important to
    the decision whether to build this power line. There were big
    issues and material issues involved with the power line and
    shouldn't have thousands of pages of detail like this.
        And the Bayonne Bridge, a project to raise the roadway of a
    bridge using its existing foundations to permit more efficient
    ships into New York harbor, the environmental assessment ended
    up being 10,000 pages plus another 10,000 pages of exhibits and
    took 5 years, including studies of historic buildings within a
    2-mile radius of either end of the bridge even though the
    project was not touching any buildings, and traffic studies
    even though the project was not changing the flow of traffic
    over that bridge.
        That's the kind of detail that ends up adding cost and time
    to these projects, because no one has authority to actually
    make a choice about what's important on a particular project.
    It doesn't help public policy, and it doesn't help public
    debate to get it lost in detail.
        But environmental review is not the only problem. There's
    also permitting. For example, the Bayonne Bridge, 47 permits
    from 19 different agencies. The effect of all this in our view
    is that the White House cannot solve the problem. Its goals, we
    think, are all valid. As Ranking Member Plaskett said, many of
    these goals have been set forth in prior statutes. But what's
    needed is congressional help in clarifying lines of authority
    so that the chair CEQ can decide what's important in a project.
    Someone in the White House, to resolve disagreements among
    different agencies and so forth.
        And if Congress would do that, we propose legislative
    language, I think it would go a long ways be towards getting
    the decrepit infrastructure rebuilt in this country.
        Thank you.
        [Prepared statement of Mr. Howard follows:]
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        Mr. Gianforte. Thank you.
        Ms. Goldfuss.

                     STATEMENT OF CHRISTY GOLDFUSS

        Ms. Goldfuss. Good morning, everyone.
        Thank you, Chairman Palmer and Gianforte, and Ranking
    Members Raskin and Plaskett, for inviting me to participate in
    this important discussion about Federal permitting process and
    finding a path forward.
        Both Republicans and Democrats have sought to improve the
    process by which we permit major infrastructure projects while
    also ensuring community input and clean air, clean water, and
    wildlife are protected. The U.S. Congress has acted to address
    this issue three times in the past 6 years. Passing MAP-21 in
    2012, WRRDA in 2014, and most importantly, the FAST Act in
    2015.
        The three laws included bipartisan provisions to clarify
    several permitting requirements and provide the Federal
    Government with many new tools to expedite the review process
    without sacrificing environmental considerations and community
    input. The Trump administration has not used these tools to
    maximize permitting efficiencies. Instead of recognizing its
    own failures and addressing them, the administration has asked
    Congress to cut corners and gut cornerstone environmental laws.
        My experience in the U.S. Federal Government both as deputy
    director of the National Park Service and leading the Council
    on Environmental Quality gave me a front row seat to the inner
    agency difficulties that can slow this permitting process. This
    confirmed for me that the permitting reforms are necessary. But
    those calling for gutting the environmental laws were using the
    reform process as a trojan horse.
        Give my experience, I recommend five steps for
    consideration by the committee when reviewing the path forward.
    First, hold the administration to account for implementing the
    recent permitting reforms and authorities that Congress
    enacted. For example, recognizing the need for further study of
    the cause of project delays, the Congress directed DOT To
    establish a public facing online tracking system for projects.
    This is called the Federal Infrastructure Permitting Dashboard,
    and it can help to expedite projects and understand the true
    cause of the delays. The permitting dashboard is still very
    much a work in progress with incomplete data and limited
    mapping capabilities. But it really does have significant
    untapped potential.
        Next, appoint people with collaborative project
    implementation and permitting expertise. The Federal Highway
    Administration, which processes approximately 10 percent of the
    Federal Government's environmental impact statements in any
    given year, still does not have an administrator. Also, key
    positions in the EOP are left vacant. In 2015, the Federal
    permitting improvement steering council whose core function is
    to coordinate these agencies was established with an executive
    director appointed by the President. The connection to the EOP
    is integral to the success of the executive director who needs
    to build relationships with deputy secretaries and staff across
    these agencies. Incredibly important position. President Trump
    still has not appointed anyone to this position.
        Third, both Congress and the administration should fund
    environmental review through implementing existing fee
    authority for cost recovery and the regular appropriations
    process. The FAST Act gave TIFIA fee authority, and the notice
    to implement that fee authority was put out this week. That's
    great news but still way too slow for an administration that
    places priority on permitting.
        Fourth, a lot can be learned from studying and collecting
    data on environmental review about contracting practices.
    Congress could work with GAO to make sure that incentives for
    Federal contractors are appropriately structured to achieve
    efficient and quality environmental analysis and not
    extraordinarily long documents.
        Lastly, the permitting review process must be objective and
    free from political interest and conflicts. The
    administration's handling of the Hudson Tunnel project, an
    infrastructure proposal to modernize bridges and tunnels that
    ferry commuters from New Jersey to Manhattan, lays bear the
    current level of political meddling.
        Since a bipartisan meeting in September, the President has
    refused to fund the project unless the Senate agrees to fund
    the southern border wall. The Trump administration points to
    burdensome environmental reviews as the culprit, yet recently,
    a senior administration official was quoted as saying they are
    slow walking the review and the release of that document.
        In conclusion, there is already evidence that the new
    administrative tools, when used, can ensure that environmental
    review of major infrastructure projects is efficient. Instead
    of rushing into future gutting of statutes that provide for
    public input on infrastructure and clean air and clean water,
    we need to make sure that we implement the existing tool kit
    that the administration already has.
        Thank you for allowing me to testify, and I look forward to
    your questions.
        [Prepared statement of Ms. Goldfuss follows:]
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        Mr. Gianforte. Thank you.
        Mr. Bakst, you are recognized for 5 minutes.

                        STATEMENT OF DAREN BAKST

        Mr. Bakst. Thank you.
        Chairman Gianforte and Palmer, Ranking Members Plaskett and
    Raskin, and distinguished members of the subcommittees, thank
    you for this opportunity to discuss the Federal regulatory
    obstacles facing infrastructure development.
        My name is Daren Bakst. I am a senior research fellow at
    the Heritage Foundation. The views I express in this testimony
    are my own and should not be construed as representing any
    official position of the Heritage Foundation.
        Protecting the environment and building critical
    infrastructure are not mutually exclusive goals, yet Federal
    environmental regulations are creating unnecessary obstacles to
    effectively and efficiently build critical infrastructure
    projects.
        There are three Federal regulatory obstacles that I'd like
    to discuss today. First, let's took at the National
    Environmental Policy Act, or NEPA. There's a bipartisan
    recognition that there are problems with the NEPA process. For
    example, to facilitate projects that were funded by the
    American Recovery and Reinvestment Act, better known as the
    stimulus package, the Obama administration recognized that NEPA
    reviews can be expedited to speed up project investment without
    sacrificing the environment by effectively relinquishing NEPA
    requirements for projects. Trying to expedite the development
    of projects by cutting the red tape should not be the exception
    but the rule.
        In the NEPA conference report nearly 50 years ago,
    legislators made it clear that they did not want undue delay in
    the processing of Federal proposals. Yet a recent National
    Association of Environmental Professionals report found that
    the average preparation time of 177 final EIS' was 5.1 years in
    2016.
        Second, let's look the Endangered Species Act. The ESA was
    created and enacted into law in 1973 to promote the
    conservation of species. Unfortunately, the laws failed to
    achieve its mission. For example, only about 3 percent of
    species listed have been recovered and delisted as a result.
    But making matters worse, the law has created obstacles for
    major infrastructure projects. For example, according to a 2014
    New York Times article, quote, already Federal officials had
    delayed, altered, or denied permits for more than two dozen
    energy projects in the west because of the bird. And the bird
    they're referring to is a sage-grouse.
        There are very important reasons to protect endangered
    species, but that's not the same thing as protecting the
    Endangered Species Act. After 45 years, valuable lessons have
    been learned regarding the law and specifically whether or not
    it achieves its purpose. Those lessons need to be applied and
    not ignored.
        And then, third, let's look at the Clean Water Act. I'd
    like to highlight two issues with the Clean Water Act--with the
    implementation of the Clean Water Act, not the statute itself
    but the implementation. And these two issues will also
    demonstrate some issues common across many environmental
    statutes.
        One, there's an agency disrespect for States. The Clean
    Water Act expressly indicates right at the outset of the
    statute that the primary role of States in addressing water
    pollution, yet the EPA and Corps, even before the 2015 Clean
    Water Rule, had been trying to have--there has been Federal
    overreach, and they try to regulate in waters and intrude on
    traditional State and local powers.
        The second issue is unclear and subjective Federal
    regulations. Objectivity and clarity of regulations is
    certainly important to regulated parties. For a law like the
    Clean Water Act that has civil and criminal penalties, it's
    really important.
        Clear regulations, though, are also very beneficial to
    those officials enforcing the law. It allows agencies such as
    the EPA and the Corps to have consistency across districts or
    regions and to focus resources on the primary problems, not on
    waters that may not even be covered under the law. As it
    connects to permitting, these two issues lead to overbroad
    definitions of what waters are covered under the Clean Water
    Act.
        The EPA and Corps are requiring more permits for more
    people and for more activities than is consistent with the text
    and intent of the underlying law.
        In conclusion, protecting the environment does not have to
    mean blocking infrastructure projects, trampling on property
    rights, or ignoring principles of Federalism.
        Thank you. I look forward to your questions.
        [Prepared statement of Mr. Bakst follows:]
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        Mr. Gianforte. Okay. Thank you to all the witnesses for
    your testimony today.
        We'll move now to the period where we ask some questions
    and have some dialogue and dig a little deeper. And I'll
    recognize myself for 5 minutes to begin the questioning.
        I'd like to start with you, Mr. Howard. You made an
    interesting comment. I'm a business guy. I'm always looking for
    best practices to adopt. And you made a comment about how other
    countries like Germany, Canada, and Australia have managed to
    reduce permit processing times while maintaining environmental
    quality.
        Could you explain a little bit before what they've done
    achieve to that?
        Mr. Howard. Yes. Quite interesting.
        So, for example, with Germany, they divide projects into
    local or regional, national projects. And so with more local
    projects, the presumptive authority goes to a local body, the
    State, and it is in charge of doing all that's required,
    including complying with the Federal laws. It can't ignore the
    Federal laws, but it's in charge of making the decisions.
        And if it acted in a way that was arbitrary, that is to say
    it ignored the Federal laws, it could--someone could go to
    court. So there are courts in Germany just as there here, and
    say they ignored the law.
        But, in general, they have clear lines of authority. And so
    if it's a Federal--a big Federal project that's an offshore
    platform in the North Sea, or some other sort of large project,
    the Federal Government has presumptive authority.
        And officials actually can make decisions. This is what we
    think is important to study when doing the tunnel under the
    City of Leipzig. And they will focus on the large environmental
    effects, and they won't talk about whether the construction
    trucks are emitting fumes. You know, they'll have a--they'll
    have a 50-page document that talks about what's important so
    the people can see it.
        Mr. Gianforte. So making those observations, what lessons
    can we learn to apply here?
        Mr. Howard. Very clear. I think that the head of CEQ, was
    appointed as part of NEPA, which I believe is quite a good
    statute and an important statute, should have authority to
    resolve all issues about scope and adequacy of environmental
    review, for example.
        Mr. Gianforte. Do those other countries have the same level
    of litigation that the United States has?
        Mr. Howard. Not the same level. They do have litigation.
    But, again, the difference is the courts in this country tend
    to focus on, well, did you leave the pebble unturned? And the
    process goes on for years. And it has all kinds of negative
    effects just in the way we write projects. That's why they're
    as thick as they are, because people are trying to avoid
    litigation.
        The courts there focus on materiality. They look at the
    benefits of a project as well as the harms of a project and
    make a decision.
        Mr. Gianforte. Okay. Mr. Bakst, while we're on this topic
    of litigation, what impact does litigation have on permit
    applicants' efforts to prepare environmental impact studies?
        Mr. Bakst. So in 1970, when NEPA was enacted, there were
    none of these Federal environmental statutes. There were no
    citizen suit provisions that exist now. At the time, Congress
    didn't envision that plaintiffs would be able to get standing
    like they do now. And, unfortunately, what's happening is, even
    when you have a final EIS, there is--can be up to 6 years for a
    lawsuit to be brought. It just extended and delays the project.
        And, quite simply, if you're an investor or somebody who's
    thinking about being a part of this infrastructure project,
    this delay may just be a reason not to even go forward in the
    first place. So we may focus on the delays of the projects that
    we know about. The problem is where the projects that we don't
    know about that never came to be. And I think a lot of that has
    to do with the litigation.
        Mr. Gianforte. Okay. I'd like to follow on that with Mr.
    Howard.
        What changes could Congress or the executive branch make
    that would respect the judicial process while reducing the
    incidence of frivolous lawsuits?
        Mr. Howard. I think you have to change the standard of
    review and instruct the courts to try to abide by an expedited
    schedule. I'm sorry, and also shorten the statute of
    limitations dramatically to probably a matter of 60 or 90 days
    for most projects, because people know what the issues are by
    the time the environmental review statement is done.
        And there should be a materiality standard that makes it
    clear that the court shouldn't intervene unless someone has
    really done the review in bad faith or made a conclusion that
    can't withstand any sort of reasonable standard. And the
    Congress can change that standard.
        Mr. Gianforte. Okay. Mr. Bakst, would you like to add
    anything to that?
        Mr. Bakst. Yeah. I would just say that I think one of the
    key issues is that the courts are in a position reviewing
    things that they shouldn't be reviewing. It shouldn't be a
    gotcha type of system where if you make one little mistake,
    then there goes the project. I think there needs to be some
    type of deference that exists. And certainly, for these
    projects, if there's some type material problem with an EIS,
    that's one thing. But if it's just a minor little defect, that
    shouldn't, you know, mean the end of the project. The courts
    shouldn't be trying to make those decisions. They're not in the
    right--they're not in a position to do so.
        Mr. Gianforte. Okay. Thank you.
        I'd now like to recognize the ranking member, Ms. Plaskett,
    for her questions.
        Ms. Plaskett. Thank you.
        Ms. Goldfuss, thank you for your insights you are providing
    here into the Federal permitting process.
        You mentioned that instead of issuing new executive orders,
    the administration should have its focus on what's already in
    place. The Federal permitting improvement steering council,
    which was created under what we all know as the FAST Act,
    Fixing American Surface Transportation.
        As I understand it, the FAST Act and the council it created
    enabled agencies with jurisdiction over projects to have
    improved early coordination, clarified roles and
    responsibilities, establishment of milestones and better
    transparency when it comes to environmental reviews; is that
    correct?
        Ms. Goldfuss. That's correct.
        Ms. Plaskett. An that sounds like streamlining and
    efficiency to me. Can you elaborate on how the council was
    specifically designed to streamline projects and make
    environmental reviews or permitting more efficient?
        Ms. Goldfuss. So just as Mr. Howard has been discussing,
    there is an issue with so many different statutes and decision-
    making deep within the agencies. So both when I was at the
    National Park Service and then moving to the White House, I saw
    how people could have disagreements, and there was no one that
    forced those disagreements to be resolved.
        And what the permitting steering council allows is all
    those agencies and their deputy secretaries to sit at the
    table, see a dashboard of the major projects that they are
    facing and the timelines that they agreed to.
        So what it was envisioned to do was look at the sticking
    points and the issues that needed to be resolved, bring them
    into the secretary's office early, and make sure that those
    difficulties were resolved so that the timeline would be
    adhered to.
        What we haven't talked a bunch about is that there are many
    different factors around funding and design and local
    requirements and State requirements that also hold up this
    process. And because we have so little data on when the
    timeline starts and what agencies are doing, it's very easy to
    blame the statutes and blame these agencies. That's why the
    steering committee allows us to----
        Ms. Plaskett. And who would have that data? Where would
    that ideally be situated?
        Ms. Goldfuss. Ideally, at this point, it would be on the
    dashboard. And the dashboard that was also created through the
    FAST Act is a public facing technological tool that would allow
    project sponsors and the agency to see what the timeline is and
    the progress that's being made.
        Ms. Plaskett. So can you give an example or two of projects
    that benefited from the council or in your past experience
    would have benefited from the council if the--it was working at
    the time that those projects were in place?
        Ms. Goldfuss. Yes. I mean, the highest profile--obviously
    the council has only been around for 3 years. We had a
    transition in the middle and still no executive director. But
    the highest profile example that we have is the Mid Barataria
    wetlands sediment project in Louisiana. This was an enormous
    project that involved State agencies and U.S. Corps, EPA, and
    many other agency across the Federal Government.
        And initially it was thought it was going to be a 10-year
    time frame to get through the permitting project. But through
    working with the council, working with the State, and then
    having funds from the BP oil spill settlement, they've been
    able to get to an agreed-upon timeline that is actually 2
    years. And it will be on the dashboard so everybody can see the
    progress being made on that timeline.
        Ms. Plaskett. Okay. We were just talking about the two
    executive orders that the President has made. Executive Order
    13766, which was intended to identify, quote, high priority
    infrastructure projects. And the other was Executive Order
    13807, which created a, quote, one Federal decision mechanism
    to supposedly expedite major infrastructure projects.
        So with, as you discussed, the Federal permitting
    improvement steering council already in place, were these
    executive orders necessary?
        Ms. Goldfuss. The first executive order that you
    referenced, which----
        Ms. Plaskett. The high priority.
        Ms. Goldfuss. --would identify high priority projects was
    within the first week of the administration. And it seemed as
    if they didn't know the Federal permitting council existed. The
    second one came along, put the one decision-maker policy in
    place, and corrected some of the high priority issues that were
    in the first executive order.
        So although there has been a large priority on permitting
    and press releases, I would say, and executive orders, there's
    very little attention on the authority that the White House and
    these agencies already have to speed up the process.
        Ms. Plaskett. And you discussed needing an executive
    director.
        How would that facilitate the council being able to
    operate?
        Ms. Goldfuss. This is a person that would have a connection
    to the EOP, connection to the President, and ideally a
    relationship with the project sponsors. So the executive
    director is that person that can unstick the problems and
    really make sure that we move these projects along. That is a
    key, key position that needs to be filled.
        Ms. Plaskett. Okay. Quickly, and Mr. Rusco, in your
    testimony, you cite different factors, and we've heard that
    there are other factors that are involved. You also note that
    the FAST Act include provisions for streamlining the
    infrastructure permitting process and codified into law
    permitting dashboard to track project timelines. Core
    coordination among agencies has been a problem. What do you
    think the solutions to that are?
        Mr. Rusco. Well, I think, you know, we have found that
    there have been some examples of attempts to improve
    coordination and communication. So one is obviously FERC, being
    a lead agency, has helped in permitting pipelines. Another
    example is the Indian Energy Service Center, which has been
    proposed to be a one-stop shop for information about permitting
    for energy projects on tribal and Indian lands.
        Now, they have not set it up effectively to be a
    coordinating body, but they have the intent to do so. And if
    they do that and they get all of the resource agencies that are
    going to be involved, they will be able to improve the access
    for applicants to information they need to pursue applications,
    and they will also be able to help agency offices process those
    applications.
        Ms. Plaskett. Thank you.
        I yield back.
        Mr. Gianforte. Okay. At this time, I recognize Mr. Comer
    for his questions.
        Mr. Comer. Thank you, Mr. Chairman.
        And I appreciate this committee hearing, because this is
    one of the biggest complaints that I get. As I have traveled my
    district, a couple of projects I wanted to mention and then ask
    some questions.
        First, in my district in Kentucky, southern Kentucky, we
    have eight lakes with marinas. Every lake--and that's from 6
    hours from east to west in my southern Kentucky congressional
    district. Each lake is at maximum capacity with their current
    boat slips.
        We've had permits, they've had permits, several of the
    lakes, to build new marinas, to even expand the number of slips
    they have to increase their capacity. This has to go through
    the Army Corps of Engineers. The permitting process is a
    nightmare. We recently announced a new marina opening on Lake
    Cumberland in eastern Kentucky. It took 12 years for that to
    get approved.
        Is there anything that can be done with respect to the
    Corps of Engineers permitting for infrastructure projects? Can
    anyone answer that question?
        Mr. Howard. I grew up in Whitesburg, Kentucky, and then
    moved to Mount Sterling, so I'm one of your----
        Mr. Comer. Okay. Yeah, I know where Mount Sterling is.
        Mr. Howard. Yeah, historically a constituent. So I know of
    many of the lakes in question. Ultimately, the choices should
    be politically accountable, including, in my view, choices by
    the Corps of Engineers. There are laws that they have to comply
    with that Congress passed. And there's a rule of reason
    typically that applies to things like docks and permits. And if
    there's too much delay, there ought to be political
    accountability to the people in the Corps.
        And what's happened with all the bureaucracy that's grown
    up, really just over the last 50 years, is that there's no link
    between the White House, or virtually no link, and the Corps of
    Engineers. And one of the reasons to restore clear lines of
    authority is to actually reconnect us, not to let the White
    House make a decision about docks or lakes. But if some agency
    is dragging its feet, to make it make a decision and then call
    the question and get it resolved.
        Mr. Comer. Another very important project that I'm working
    with Congressman Bucshon on is a new bridge, Interstate 69
    between Evansville, Indiana, and Henderson Kentucky. We are--
    have been waiting for a long time on the environmental impact
    study. And I appreciate the question the chairman asked about
    litigation and things like that. This project is a number one
    priority for both Congressman Bucshon and myself. A very
    important link between an interstate that goes through
    Tennessee and basically from Canada to Mexico, really will open
    up a rural part of America. And the permit process, you know,
    every time that we check with the government agencies, they'll
    blame another agency. They'll say it's delayed.
        What can--what can Congress do to try to streamline the
    process? Because if you meet with one of the bureaucrats, they
    will always say, well, we're doing better than we've ever done.
    They'll pat themselves on the back, but it's still--it's
    delayed and it's a frustration that's holding America back, not
    just my district. I don't think my district's unique to
    anything.
        What, legislatively, or is there--are there any legislative
    solutions or is this all an executive branch function to try to
    streamline the process to get the permitting process? If we
    have an infrastructure bill next year, a major infrastructure
    bill like the President wants, I'm concerned that this won't go
    anywhere near the timeline that Congress hopes.
        So I guess I'll let anyone answer any questions on advice
    on how we as Congress or as representatives can encourage the
    administration to try to streamline the process.
        Mr. Howard. You know, the bureaucrats probably are doing a
    good job. The problem is there are 12 different agencies that
    have jurisdiction. And so if there's not a motivated political
    figure at a very high level forcing it to happen, as happened,
    I think, in Louisiana, it's happened with the Gateway Tunnel
    process that got expedited, it's happened with the Tappan Zee
    Bridge in New York, if you don't have that front page political
    willpower to make that bridge happen, it will get bogged down
    for--it could be decades.
        And, again, I think there is a legislative solution. You
    need to reconnect the lines in the hierarchy. We'd be happy to
    work with your office and talk about what the really quite
    simple legislative reconnections are that don't involve
    changing the underlining substantive law.
        Mr. Comer. Right.
        Thank you, Mr. Chairman, I yield back.
        Mr. Gianforte. Thank you.
        At this time, I will recognize Mr. Duncan for his
    questions.
        Mr. Duncan. Well, thank you very much, Mr. Chairman.
        First of all, when I chaired the Aviation Subcommittee in
    another committee several years ago, we had a hearing one time
    with the head of the Atlanta airport and other witnesses, and
    he told--testified that the newest runway at the Atlanta
    airport took 14 years from conception to completion. It took--
    they were so happy to get all the final approvals, and all the
    problems were environmental rules and regulation. They did
    the--they built the runway in 33 days. They did--they were so
    excited, they worked around the clock. So I guess you could say
    it's 99 workdays.
        Then when I chaired the Highways and Transit Subcommittee,
    there were two different Federal highway studies which said
    that the average highway project took--one study said 13 years
    from conception to completion, one said 15 years. This puts us
    at a disadvantage globally because most developed countries and
    even many developing countries are doing these major
    infrastructure projects in about a third of the time that we
    are and at about a third or less of the cost. In addition, it
    hurts--it's unfair to our taxpayers and it hurts our economy.
        I want to mention another thing. These things kind of are
    all tied in together because--I really appreciate the work, Mr.
    Howard, that you've done through the years on legal reform, and
    you've been complimented by people on both sides of the
    political spectrum. And I understand now you're working with
    former Senator Bradley and Governor Kaine in your Common Good
    organization.
        But you've written a book called Too Many Lawyers, and
    you're a lawyer yourself. I was a lawyer and a judge before I
    came to Congress. But this ties in together because I can tell
    you I've read that, over the last 50 years, we've sent 50,000
    or 60,000 factories to other countries and it's mostly because
    of environmental overregulation and rules, and red tape. And
    when I graduated, got my undergraduate degree, almost any young
    person with just a bachelor's degree could get a really good
    job, because we didn't just lose factory worker jobs when we
    sent all those factories away, we lost many white collar jobs.
    And so half the young people in the country started going to
    law school. And as you've noted in your book, Too Many Lawyers,
    it's--the number of lawyers has doubled in this country over
    the last 30 years or so.
        And I want to read something from my last newsletter--or
    one of my last newsletters. There's so many rules, regulations,
    and laws on the books today that no human being could even come
    close to knowing about or understanding all of them. Harvey
    Silverglate, a Boston lawyer who studied in Princeton and
    Harvard, has written a new book. On the cover is the following,
    quote: ``The average professional in this country wakes up in
    the morning, goes to work, comes home, eats dinner, and then
    goes to sleep, unaware that he or she has likely committed
    several Federal crimes that day. Why? The answer lies in the
    very nature of modern Federal criminal laws which have exploded
    in number, but also have become impossibly broad and vague,''
    unquote.
        The Code of Federal regulations is now 178,277 pages long;
    the Federal Register, 81,402 pages; and the U.S. Tax Code is
    73,954 pages. This does not even count all the State and local
    laws. An innocent mistake is not supposed to be criminal, but a
    zealous, publicity-seeking prosecutor can make even the most
    innocent mistake look criminal.
        And there's a retired law professor from Louisiana State
    University, John Baker, who told the Wall Street Journal
    recently that said there is no one in the United States over
    the age of 18 who cannot be indicted for some Federal crime.
    That is not an exaggeration.
        What I'm getting at, we've got way too many laws, rules,
    and regulations on the books in this country. We have made some
    improvements in the last few years in this permitting process,
    but we still go ridiculously overboard and it takes far too
    long. The environmental impact statements now take, I think it
    says in our briefing material, 4.6 years, just that part of it.
        What do you have to say about all that, Mr. Howard?
        Mr. Howard. Most of the detail in modern regulation is not
    setting goals like clean air and clean water; it's telling
    people exactly how to meet those goals. And so we've got this--
    might call it a theory of correctness where you're not actually
    free, you're free to go and comply with thousands of pages of
    rules that you can't know. But in my view of the judgment, the
    problem here is not mainly in the goals, certainly not in
    having clean air and clean water; it's in the micromanagement.
        Environmental impact statements were supposed to be,
    according to the CEQ regs, no more in the most complex project
    than 300 pages long, the most complex project. You can find
    them, they're 10,000 pages or 20,000 pages. That's all
    unnecessary detail. Most regulation, in my judgment, is
    unnecessarily detail telling people how to make a safe
    workplace, how to do everything, rather than saying, we're
    going to hold you accountable for a safe workplace or for, you
    know, a reasonable environmental stewardship.
        So I think the solution lies in restoring human
    responsibility in place of these dense, mindless bureaucratic
    structures that built up in the last 50 years.
        Mr. Duncan. All right. Thank you very much.
        Mr. Gianforte. At this time, I'd like to recognize the
    ranking member, Mr. Raskin, for his comment--for his questions.
        Mr. Raskin. Mr. Chair, thank you very much for your
    flexibility.
        So, Ms. Goldfuss, let me ask you. The CRS has said that
    environmental review is typically not the greatest source of
    delay in surface transportation projects, and went on to say,
    quote: ``Developing community consensus on what to do, securing
    the funding in dealing with effects of residents and
    businesses, including utilities and railroads, also contribute
    to the long timelines required to complete certain projects.''
        Do you agree with that general assessment?
        Ms. Goldfuss. Completely agree.
        Mr. Raskin. A recent memo written by CRS in response to
    questions about Mr. Howard's 2-years now 10-years report found
    that in the reports he cited, quote:A common, if not the
    primary, issue identified in each report relates to funding.
    And then again, quote:No outside report or study cited in the
    Howard report identified permitting generally or compliance
    with specific local, State, or Federal requirements, in
    particular, as a primary barrier to completing various
    infrastructure projects.
        Now, from 2015 to 2017, you were managing director of the
    White House Council on Environmental Quality. Is that right?
        Ms. Goldfuss. Correct.
        Mr. Raskin. And in that time, you oversaw, as part of
    setting up the Federal Permitting Improvement Steering Council,
    the creation of an online Federal Infrastructure Permitting
    Dashboard to track the progress of different infrastructure
    projects. Is that right?
        Ms. Goldfuss. Yes. We worked with National Economic Council
    and OMB to set that up, and all the agencies that participate.
        Mr. Raskin. Okay. So based on that experience and the data
    received on the Dashboard, would you agree that project delays
    are primarily caused by some factor other than the permitting
    process?
        Ms. Goldfuss. The point of the Dashboard is to collect that
    information. GAO's report from 2014 showed that we have very
    little data. That data is just coming about. And so,
    anecdotally, we know that we can point to, all right, this
    project has its EIS, here's the timeframe, we met it or we
    missed it. So the Dashboard is designed to show us what the
    real delay is.
        The reality is you can have your environmental impact
    statement. If you don't have funding to build the bridge, the
    bridge doesn't get built.
        Mr. Raskin. Gotcha. Okay. I want to go to the question of
    how agency budgeting cuts affect the permitting process. In its
    2015 Red Book, the Federal Highway Administration said that
    limited budgets and staffers were to preclude agencies from
    assigning staff to work on reviews when staff may already be
    strained to process pending workload in a timely manner.
        Do you agree with that assessment?
        Ms. Goldfuss. Completely agree. We now have NEPA officials
    that are wearing multiple hats, and this is just a small part
    of their job, if they are overseeing large contracts for
    environmental impact statements or other environmental reviews,
    it's very difficult for them to keep on top of it.
        Mr. Raskin. Okay. I read an article that you wrote with
    Allen--Alison Cassady in which you said: ``The best way for the
    Trump administration to speed up permitting without sacrificing
    environmental protection is to adequately fund the relevant
    Federal agencies involved in the permitting and environmental
    review process. Without funding, the Federal agencies cannot
    hire and train staff to complete environmental reviews or
    invest in technology that provides efficiencies.''
        Do you want to elaborate on that point?
        Ms. Goldfuss. My point there, and I do think again, it's
    something similar to what Mr. Howard said. I mean, you'd be
    shocked at the antiquated tools that some of these agencies
    have with doing the review and the small number of human
    capital, the small number of people we have actually doing the
    reviews.
        These are highly important projects. Industry would demand,
    corporations would demand using the best digital tools, the
    best information sharing so that we wouldn't have redundancies,
    so agencies could coordinate early on to make sure that we're
    expediting this process. Instead, we have limited talent,
    people who are doing multiple jobs, and as a result,
    potentially even misaligned incentives with our environmental
    review contracting process that pays for more pages rather than
    quality and efficiency.
        Mr. Raskin. The President has proposed a cut of $2.8
    billion in the EPA. And I assume, based on what you just said,
    that what this would mean would be further delays and further
    postponement of the process. So why would we be actually
    defunding the agencies that could make the permitting process
    work?
        Ms. Goldfuss. This is a fact of governing. I mean, the
    agencies have to be funded, the ones that have the talent. And
    EPA has the most talent and tools to share with the other
    agencies. They're also responsible for tracking and signing off
    on EISs. So if you're cutting the workforce that needs to do
    the work, it does not make sense that you're going to speed up
    the timeframes. So the rhetoric doesn't match the governing
    that's happening in the administration right now.
        They need to fund EPA. They need to fully implement the fee
    authority they have through the Federal Permitting Council to
    put the money towards new tools, and really use the Dashboard
    and make sure that we take advantage of all that we can in
    modern tools of data sharing and data collection.
        Mr. Raskin. Thank you. I yield back, Mr. Chairman.
        Mr. Gianforte. Okay. Thank you.
        At this time, I'd like to recognize Mr. Palmer for his
    questions.
        Mr. Palmer. Thank you, Mr. Chairman.
        This question is for Mr. Howard and Mr. Bakst. Do we need
    all of the various agencies and subagencies and that linear
    structure of people out there that have to give approval to get
    a project done or can we do this in a more expedited manner
    with fewer people?
        Mr. Howard. I believe in the one lead agency idea. So I
    think decisionmaking should be clarified, which isn't to say
    that you leave them out completely, but you don't necessarily
    give everybody an equal voice.
        I would second what Ms. Goldfuss says about funding,
    particularly for CEQ. I would give CEQ more authority and three
    times as much money and put the spotlight on them and say, if
    this is not moving forward, it's your fault. I mean, just put--
    you know, that's the agency that's supposed to be in charge of
    environmental review. I wouldn't give undue power to the Corps
    of Engineers.
        Mr. Palmer. Are you suggesting we should hold anybody in
    Federal Government accountable for something?
        Mr. Howard. Yeah, I know it's a radical idea.
        Mr. Palmer. Well, I think that we're at a point now, Mr.
    Chairman, where we need to consider some radical ideas.
        Mr. Bakst, would you like to respond to that?
        Mr. Bakst. I would just say that I think--I agree with the
    one agency idea, but I think there is kind of an underlying
    assumption with a lot of these projects that some type of
    precautionary principle have a concept that these projects are
    not going to go forward, unless you can pretty much prove in
    extreme detail that there's not going to be any environmental
    problem whatsoever. And the reality is there's many benefits to
    these projects, including being very critical infrastructure
    needs, which is water and transportation, and we tend to forget
    that.
        And I think it's--regardless of how many people are working
    at the agencies doing NEPA, how much money is spent, if you
    have a lot of people doing a lot of inefficient and duplicative
    work, then you're just wasting their time and more money. The
    reality is that's the cart before the horse. What we need to do
    is have a more efficient process in the first place.
        We need to have specific deadlines for projects. When
    developing these projects, you shouldn't have to look at every
    possible alternative that you have and examine that you're
    going to identify the alternative that definitely is going to
    have the least impact on the environment. The idea would be to
    identify those alternatives, they are actually feasible, not--
    --
        Mr. Palmer. Let me suggest something here. And I think it's
    easy to disparage Federal regulators and people that are trying
    to do their job. I don't think that's how you solve the
    problem. I think, having worked for a couple of international
    engineering construction companies, I have a pretty good idea
    of how you get things done. I can go back to Mr. Howard, I
    think you have to assign accountability. But there's also a
    quality of life issue here when it comes to infrastructure that
    impacts both the environment, public safety, and public health.
        When you have, particularly cities in the South that are
    subject in the summertime to higher ozone levels, the more
    traffic congestion you have, the worse those levels become.
    Consequently, when you tie up projects that could reduce that
    amount of congestion and you have far more pollution produced
    by cars sitting on the highway than driving on the highway,
    that becomes a balancing act that the people in charge of
    permitting have to take into account. And then you have to take
    into account the economic benefits of it. They get delayed
    because of this, and the city of Birmingham is a prime example
    of this by not completing that northern belt line. So I think
    that's all part of the issue here.
        The other thing that I want to ask about is, and the
    ranking member, Ms. Plaskett, has lived through this, as have
    other Members of Congress, from natural disasters, and how we
    expedite the permitting process to rebuild infrastructure, and
    some of the very frustrating things we've gone through, like
    the Stafford Act and having to build things back.
        I think that--we could take--we can learn some lessons from
    how we recovery from natural disasters for improving our
    overall infrastructure, because I think everybody in this room
    knows that we're in a real critical point in this country in
    regard to, first of all, rebuilding our infrastructure and
    getting it up to speed, whether it's highways or, as we've
    seeing in other parts of the country, our waterworks. And the
    longer we take to get this done, the worse it's going to get
    and the more it's going to cost and the more negative benefit
    it's going to have on public well-being.
        With that, Mr. Chairman, I yield back.
        Mr. Gianforte. Okay. Thank you.
        I want to follow on with one additional question for you,
    Mr. Rusco. The GAO has shown that many agencies are not
    tracking permitting milestones, like the date a permit was
    submitted or the final date of approval and, therefore, have no
    data to determine if they're achieving expected results. Can
    you shine a little more light on that, what you found as you
    have done this research?
        Mr. Rusco. Sure. For example, I'll just take applications
    for permits to drill for onshore BLM. You go to different field
    offices, you get different approaches to documenting when
    applications come in, when they're complete, and when they
    start the review process. So that--you're going to get what you
    measure. And you can't go to a central database in BLM,
    although the databases exist, and track permitting times. And
    you should be able to, because sometimes--you know, sometimes
    they get an application, it's not complete. Well, they have to
    send it back. That's not their fault, that shouldn't count
    against them in the time. Sometimes they get an application,
    they get it all the way to the end, and they--and then the
    company just abandons it.
        All that needs to be known, but there are other times
    when--when they're understaffed and they don't--they don't get
    to it and they're missing their timeframes. And we need to know
    what the difference is so that they can fix the ones they can
    fix. If they need more staff, they have to have the data to
    say, we're missing these deadlines because we don't have the
    staff to do the permit reviews.
        Mr. Gianforte. So adoption of some standard practices and
    tracking methodologies would help us at least instrument the
    permitting process and have a basis then to improve?
        Mr. Rusco. Absolutely, and better IT tools.
        Mr. Gianforte. Okay. In your written testimony, you
    identified incomplete applications as a contributing factor to
    delays. Could you talk a little bit about that in more detail?
        Mr. Rusco. Yes. So where we found that typically, you
    know--and, again, I'll refer to oil and gas development. So as
    you know, the oil and gas business is kind of boom and bust.
    And when it's booming, all kinds of folks are coming in and
    they're filing applications for rights-of-ways and permits to
    drill, and they don't necessarily understand the process. So
    there's an opportunity for better communication and explanation
    about what the process is, that's something the agency could
    do, but sometimes it is just a learning curve for applicants.
        The same thing happens when you have a change in
    regulations, as happened in the Gulf after the BP disaster,
    that they strengthened some safety requirements. It took people
    a lot to figure out how to do those, and then the permitting
    times settled down.
        Mr. Gianforte. In your research, have you found agencies
    that do a good job of educating applicants on how to navigate
    the process?
        Mr. Rusco. Well, I've sort of repeatedly brought up FERC,
    that in some cases--so, for example, for permitting an LNG
    facility, you have an option of doing a pre-application
    process. And in that pre-application process, you basically get
    a primer on here's all the boxes you're going to have to tick,
    here's all the agencies you're going have to deal with. And
    that, according to a lot of the folks we've talked to, helps
    them understand, okay, we know what we have to do and we know
    the timeframes.
        And by and large, the permitting process for LNG facilities
    has not been as slow as some things that you've seen. There was
    a large delay, while DOE made a determination, they basically
    stopped the process, and DOE made a determination that LNG
    exports was in the national interest. But in terms of the FERC
    process and all, you know, coordinating with Coast Guard and
    coordinating with resource agencies where necessary, that
    process went fairly smoothly.
        Mr. Gianforte. So you believe there's a role for the agency
    in helping applicants navigate the permitting process instead
    of it being a black box where you don't know what you're going
    to get----
        Mr. Rusco. It's very important for there to be transparency
    in what is required and also the timing. When can you go to the
    next step? And there should be a place where you can go and
    track your progress online and see where it is, and that often
    doesn't exist.
        Mr. Gianforte. Okay. I'd like to recognize Mr. Palmer for a
    follow-on question.
        Mr. Palmer. Thank you, Mr. Chairman.
        I had written myself a note and I overlooked it, and I
    apologize. I just want to know how much input do the State and
    local governments have in the permitting process and getting to
    a final approval?
        Mr. Howard?
        Mr. Howard. It depends on the project. A power line from
    the wind farm in Wyoming to the Pacific Northwest had to get
    the approval of every county in Idaho over which the line
    passed, which I find to be absurd. It's an interstate line.
    They shouldn't have to go to 100 hearings in Idaho for--you
    know, to get the approval. So it depends on the project.
        As I suggested earlier--people--it shouldn't be a gauntlet.
    You know, people should honor the legitimate regulatory goals
    at each level of government, but it shouldn't be a gauntlet. If
    it's an interstate project, I think the Feds ought to be in
    charge. If it's local, I think the local ought to be in charge.
        Mr. Palmer. All right. The reason I bring that up is we had
    a hearing with some county engineers, one of whom was from
    Alabama, and they had a culvert washed out of a county road,
    and that is a no-brainer. I mean, just--okay. Just replacing
    the culvert and putting the road back is the only--it gave
    access to residents, to the property. I want to say it took
    almost a year to get that put in. That should have been weeks,
    not months.
        Mr. Howard. Right.
        Mr. Palmer. And that should have been a local deal. Now,
    there was Federal intervention in that on permitting. It
    involved water that--you know, there needs to be a level at
    which, and I think it's been suggested in MAP-21, that there
    could be a level of costs under $2 million or under $5 million,
    I don't remember exactly which one it was, that is an expedited
    permitting process where you leave that to the county or to the
    municipalities.
        Mr. Howard. Mr. Rusco made a good point. The OECD countries
    in Europe now have established some one-stop shops for
    everyone. So there were offices where the government was
    supposed to help you get the permit. If a culvert washes out
    and you need to get the road fixed, there ought to be some
    place you can go that will coordinate all of that and raise
    holy hell if somebody is holding it up for a year. And instead,
    you're going to literally 11 different agencies to try to get a
    permission.
        Mr. Palmer. I thank the chairman for his indulgence. I
    yield back.
        Mr. Gianforte. Okay. The chair recognizes Mr. Grothman for
    his questions.
        Mr. Grothman. Thank you.
        First for Mr. Bakst. Do you feel the Federal environmental
    review and permitting system currently functions as Congress
    intended when it originally passed the legislation?
        Mr. Bakst. No. In--when President Nixon signed NEPA into
    law on the first day in 1970, there was no other Federal
    environmental statutes. We don't have the Clean Air Act, Clean
    Water Act, et cetera. There was no citizen suit provisions. The
    idea was to take into account environmental considerations,
    which is very reasonable. Unfortunately, what's happened over
    time is that through the agencies and through the courts, NEPA
    has evolved into something that Congress never envisioned when
    they passed it in 1970--or they passed it in 1969, set into law
    in 1970.
        I think if Congress--if NEPA didn't exist now and we looked
    at the existing Federal statutes that are on the books and the
    way citizen suit provisions exist now, and we wanted to create
    a procedural statute like NEPA is, we'd be trying to figure out
    ways to expedite the permitting process to help people to
    navigate through all these different Federal environmental laws
    and State and local laws. Unfortunately, NEPA has become a law
    that existed before these other statutes that's created kind of
    a--it's made things more difficult, and I think the reality is
    we need to make it simpler, not more difficult.
        Mr. Grothman. Okay. In general, the amount of things one
    requires permits for, the time it takes to get permitting done
    for whatever, I don't know how long all of you've been involved
    in this game, but you use the general opinion of where the
    world stands today or the country stands today compared to,
    say, 25 years ago. It seems to me things only always get worse.
    And I'm old enough to remember the 1970s, and I thought the
    world was pretty idyllic then.
        Could you comment on that? Have you ever, in all your
    experience, seen things ever go the other way, or do we always
    march steadily for more requirements, more paperwork, more
    time?
        Mr. Bakst. Unfortunately--it's one of the points I made in
    my written testimony was I think looking at the permitting
    process on how to be more efficient in dealing with the permits
    that exist in some ways is an after the fact type of solution.
    And in reality, we need to look at the before the fact issue,
    which is looking at why permits require----
        Mr. Grothman. Can you give us any examples, any of the four
    of you, in which you can say, over the entire time
        you've been following this, that, yeah, we've improved
    things since 20 years ago and it's less paperwork and less
    time? Can you think of any examples of that where you can
    really say, man, this used to be burdensome, but now we've sure
    straightened this out?
        Mr. Howard. Yeah, there are a few things that have
    happened. People--on a local level, Mayor Bloomberg put in a
    311 process. It's like a one-stop shop. You call in, you've got
    a----
        Mr. Grothman. Yeah. On a Federal level.
        Mr. Howard. Yeah. On the Federal level, not too many. The--
    I worked with Clinton and Gore in the Reinventing Government
    Program, they dramatically simplified the way officials could
    buy small items. You know, get a credit card instead of going
    through a procurement process. So in some ways it got----
        Mr. Grothman. Well, that's kind of a Federal thing. How
    about the way you deal with not the Federal Government? How
    about how you deal with industry or business? Can you think of
    any examples in which it's now----
        Mr. Howard. No. The regulations have only gotten thicker,
    and the solution, in my view, is not to reform it but to
    replace it. And that's the lesson of history. The Uniform
    Commercial Code replaced 50 complicated commercial codes, and
    it was great for the country. And most of these areas,
    including this one, permitting, in my view, we need to replace
    it with a simpler program that doesn't change the goals.
        Mr. Grothman. So there is no example right now, no good
    examples where any of the four of you can say, man, we're
    turning things around quicker than we used to, less paperwork,
    less cost?
        Mr. Bakst. Let me reiterate that if you look at the Federal
    environmental statutes, the agencies are only expanding their
    power and they're taking very broad interpretations of statutes
    and not really meeting the will and intent of the statutes. And
    they're continuing to expand their power, not limit their
    power, which means more regulations and more permitting
    requirements.
        Ms. Goldfuss. So I can say, from my time in the last
    administration, that tools like dashboards, tools like
    scorecards have done a lot to provide transparency into what
    the agencies are doing, and people do move faster when they're
    held to account. So from a very macro level, I can't say
    whether or not it's worse than 20 years ago, but I saw change
    in a very short period of time.
        Mr. Grothman. I guess I'm out of time.
        Mr. Gianforte. I want to thank the witnesses for appearing
    before us today.
        The hearing record will remain open for 2 weeks for any
    member to submit a written opening statement or questions for
    the record.
        If there's no further business, without objection, the
    subcommittee stands adjourned.
        [Whereupon, at 11:32 a.m., the subcommittee was adjourned.]

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