Infrastructure funding might throw environmental protections under the bus

Congressional failure to pass major infrastructure legislation has come at a heavy cost. U.S. investment in infrastructure has fallen from 4.2 percent of GDP in 1930 to 1.5 percent by 2016, and is far below other developed countries. The funding gap, estimated to be as high as $2 trillion by 2025, might finally be addressed if Congress responds positively to President Biden’s jobs and infrastructure proposals.  

Smart solutions are essential to building with climate resilience and economic empowerment, responsive to environmental and social concerns. We should implement the environmental processes that deliver these smart solutions efficiently and effectively using good governance best practices decades in the making by a succession of Democratic and Republican administrations. History has demonstrated that draconian measures to curtail environmental processes will result in higher costs and lower benefits.

The National Environmental Policy Act (NEPA), signed Jan. 1, 1970 by President Nixon, provides the perfect mechanism to realize those smart solutions. NEPA requires each federal agency to:

• Consider the impact of its decisions on human and natural environment
• Anticipate needs of future generations
• Improve outcomes with better design and decision-making

NEPA augments the agencies’ narrow missions and forces a broader perspective to avoid adverse and enhance beneficial outcomes, opportunities that smart infrastructure investment can bring.

Federal agencies must cooperate with other federal, state, local and tribal governments to do this. Agencies must consider reasonable alternatives, irreversible harm and irretrievable loss of cultural, historic and natural resources. They must transparently document their analyses and engage the public. Adequate agency staffing, expertise and resources are needed to support the additional coordination and analysis NEPA requires, something we have to take steps to remedy.

Executive actions under Republican and Democratic presidents have led to a set of consensus best practices to make environmental processes — including NEPA environmental reviews and permitting — more efficient and effective. These include meeting early with project proponents and providing information on what is required to meet requirements. It also includes rationalizing federal governmental, state and tribal responsibilities for environmental reviews and permitting by creating consolidated project-specific schedules and milestones and working to focus, identify and resolve issues as early as possible. This requires using a single NEPA analysis for all federal compliance with NEPA and providing transparency and accountability for meeting schedules on a public dashboard. These best practices have driven improvements in both timeliness and outcomes.

While we seek to be as efficient as possible without sacrificing good outcomes, good governance dictates that project schedules be project-specific. For projects posing the potential for significant impact — typically less than 1 percent of projects, the average time to solely complete the NEPA process was 4.5 years in 2020, skewed by an even smaller percentage of projects that have taken many more years to resolve.

Reducing this time is no doubt important as an overall goal. However, some in Congress prefer to impose a “pit and the pendulum” approach, moving to a “one size fits all” fixed 2-year average — revised every year or two for both NEPA environmental reviews and permitting.

This approach is as foolish as imposing an average miles per hour on drivers, resulting in speeds too fast for cities and winding rural roads and too slow for highways.

Not only are the numbers of projects insufficient to provide a rational basis for setting a single fixed deadline, but it ignores the variability of projects in their complexity and historic performance. For purposes of accountability these schedules also fail to distinguish between situations in which responsibility for progress resides with a project proponent versus the government. This will likely result in gaming of the system and undermine the ability to benefit from the NEPA process. Without the flexibility to tailor project-specific schedules, it also does not allow for vanguard projects, which might take longer at the outset but provide lessons for future projects.  

At a minimum, any project-specific schedules for holding project proponents and officials accountable should commence under NEPA when a Notice of Intent to develop a draft Environmental Impact Statement is issued, and not when it is first listed on the dashboard. This is something some but not all proposals would do. This would allow project proponents to meet with agencies early in the process without triggering deadlines.

Similarly, any schedules for timely issuance of environmental permits should begin when an application is received and deemed complete. The NEPA process ideally should include information needed for permitting to save time, but this is not always possible.

Short cuts can be costly. Failed project retrospectives highlight the importance of doing a better job analyzing and exploring solutions for better outcomes up front to avoid the need for litigation or unanticipated costs. Climate change costs in the billions every year are expected to rise, so ignoring its impact imposes other high costs.

During the last administration, courts rejected NEPA reviews that eliminated consideration of climate, flood risks and other concerns, making those projects take longer to get shovel ready — and also cost more. Congress limited independent federal review of spill prevention plans in the Gulf in order to expedite drilling — a precautionary tale for those assuming environmental safeguards can be easily discounted in the name of cutting red tape. Deepwater Horizon’s oil spill cost the company over $20 billion to aid with cleanup and economic recovery.

Improving the pace of public infrastructure construction from design to shovels in the ground is important — but fast is not always better. Remember: Haste makes waste.

Cheryl E. Wasserman is the former associate director for Policy Analysis at the U.S. Environmental Protection Agency with a distinguished 43-year career leading reforms to reconcile development and protection, including one stop new source permitting and emissions offset policy. She is president of the Environmental Governance Institute International, and chairs the Governance and Implementation Systems Section of the International Association for Impact Assessment. Wasserman is a member of the bipartisan Environmental Protection Network.