[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
PERMITTING: FINDING A PATH FORWARD
=======================================================================
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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Printed for the use of the Committee on Oversight and Government Reform
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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
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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
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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.]
APPENDIX
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