Opinion: NEPA Roll Back Vital Step to Any Realistic Infrastructure Plan

Philip K. Howard, chair of Common Good, says that overall the new regulations to streamline permitting are good for the construction industry

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Fixing America’s decrepit infrastructure serves every legitimate public interest—creating a greener footprint, adding a million or more jobs (mostly outdoors), and enhancing America’s competitiveness. While we take issue with two aspects of the regulations, overall the new regulations to streamline permitting are a vital step to any realistic infrastructure plan:

  • By establishing presumptive time limits of two years for large projects, the new regulations avoid the nearly endless bureaucratic bickering that can stretch approvals out to a decade or more. That lengthy process is what sabotaged President Obama’s hopes of using the 2009 stimulus for meaningful infrastructure improvements.  
  • By establishing limits of 300 pages for large projects, the regulations will focus environmental reviews on important impacts instead of, today, an exercise of no-pebble-left-unturned that often results in thousands of pages of opaque detail. 
  • By limiting litigation to material impacts, the regulations restore the original goal of NEPA as an informational tool for policy choices, not an action-forcing mechanism allowing judges to overrule executive choices that comply with underlying statutes. 

It is ironic that both political parties seem determined to cast the new regulations in extreme terms instead of recognizing them as practical ways to advance the public interest, with new rules fully consistent with those of greener countries such as Germany. Contrary to the Trump Administration’s assertion that with these changes “President Trump is making good on his promise to conduct historic deregulation,” the new regulations do not undermine or change environmental laws. Nor do the new regulations give polluters “carte blanche to do what they want,” as stated by Rep. Kathy Castor, D-FL, Chair of the House Select Committee on the Climate Crisis. 

A few of the changes to the regulations are unnecessary, and rightfully controversial. The limitation on consideration of cumulative impacts may be appropriate with most projects—for example, eliminating bottlenecks in highway projects. But certain large projects should involve consideration of complex and relatively remote phenomena such as climate change. Similarly, the requirement in the new regulations that comments provide citations, as well as data and methodological support, may prevent most Americans from participating in a review process that is meant to be participatory.  

Philip Howard is chair of Common Good, a nonpartisan reform coalition that recently launched a Campaign for Common Good to reboot the operating systems of government. The vision is to re-empower officials and citizens alike to use common sense in daily decisions. The Founder and Chair of Common Good is Philip K. Howard, a lawyer and author, most recently, of Try Common Sense (W. W. Norton, 2019).