How to Fix U.S. Infrastructure Project Approval Process

Everyone knows that Washington is broken. Reformers on the right want to cut useless programs, and reformers on the left want to streamline rules and procedures. But neither reform approach will remove the red tape that suffocates common sense. There’s always another rule, another process needed to discuss a new issue.

Americans are harmed, not helped, by all this process. In a 2015 Common Good report, I found that a six-year delay more than doubles the effective cost of projects, and usually causes environmental harm by prolonging infrastructure bottlenecks.

The modern state is built on a flawed philosophy of law. Governing requires officials, not law, to make decisions. Approving infrastructure projects requires judgments about tradeoffs, which are unavoidably subjective. Officials making those judgments should be politically accountable but not delayed by years of legal handwringing. The operating structure of government should be remade to strive for results, not procedural compliance.

The current approach is exhausting. An environmental review process for infrastructure can drag on for years: negotiations among multiple agencies, public hearings, then a huge report meant to satisfy a court that no pebble was left unturned. Opponents of the project then sue, eating up another three or four years.

Projects often get abandoned—as happened with Los Angeles’s efforts at controlled burns to minimize fire risk. Sometimes a court overturns a permit—as when the D.C Court of Appeals recently blocked a liquified natural gas facility in Texas because its owners did not sufficiently study issues of “environmental justice.”

Reforms meant to streamline process—imposing page limits and time limits—aren’t working. The stated restrictions immediately disappear under the quicksand of 150 million words of accumulated law and regulation.

When leaders prioritize results over procedure, we all cheer. Pennsylvania governor Josh Shapiro justly won praise for rebuilding a fallen section of I-95 in 12 days instead of 12 months. He waived every rule.

Before the 1960s, this exercise of official responsibility would have been taken for granted. Why don’t we have a governing framework that works that way now?

Governing for results requires not clipping red tape here and there but giving designated officials the authority to balance tradeoffs and make value judgments. All these judgments should be subject to oversight up the chain of command, with ultimate accountability lying with elected officials. 

What would that look like for permitting? Environmental review and public process should aim for transparency, not perfection. Return to the original conception of the National Environmental Policy Act of 1970, under which permit-seekers would summarize issues in short reports made public after a few months of study.

Court jurisdiction should be sharply limited to reviewing whether officials transgressed the boundaries of official authority—say, whether the environmental review was so shoddy as to be arbitrary and capricious. Voters haven’t elected courts to decide where LNG facilities should go.

Create clear lines of official authority. For interstate projects, this authority should preempt state and local approvals.  

Replace detailed mandates with simpler goals and principles that permit officials to balance conflicting dictates. In the meantime, for projects of national importance—like a new transmission grid or defense-related projects—give the political hierarchy authority to waive conflicting legal mandates.

The biggest impediment to change is distrust. Americans distrust government, for good reason, and instinctively demand more legal controls. Civil servants, in turn, distrust their political overseers, and take comfort in rote compliance: “I followed the rules.”

Overcoming this suspicion requires a new oversight mechanism. Just as nonpartisan base-closing commissions use the moral authority of independent experts to deflect partisan bickering over which military bases to shutter, so, too, an independent “national infrastructure board” could build trust in official decisions by opining on projects in the works. Such a board’s validation of a project would encourage fast approvals by providing “cover” to official decision-makers.

“The difficulty lies, not in the new ideas,” economist John Maynard Keynes observed, “but in escaping from the old ones.” The main flaw in modern government is the post-1960s notion that public choices should have to pass through the eye of a legal needle. The litmus test for a functioning governing framework is whether it leaves ample room for officials to achieve public goals.

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