[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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              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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