Infrastructure Week is underway in Washington, DC, and across the country, highlighting the importance of investing in and modernizing America’s aging infrastructure. The emphasis is on the essential role infrastructure plays in our economy.
Covington & Burling, together with Common Good, the Bipartisan Policy Center, and the National Association of Manufacturers, co-hosted an event on Tuesday bringing together experts to discuss the infrastructure approval process, and ways to improve or reform the current system to increase efficiency. The half-day forum presented new perspectives and a conversation on why an overhaul is needed. Boosting the economy and improving environmental outcomes can move in tandem but current structures and regulatory barriers prevent such paradigm shifts. The forum also included a presentation of best practices from other countries and opportunities created by consolidating decision-marking and early consideration of environmental impacts. Philip Howard, founder of the Common Good and partner at Covington & Burling, convened the event, acknowledging on Tuesday that “No one designed the system we have now – it just grew.” The forum’s goal was to explore bold proposals for simplifying, accelerating, and improving the infrastructure approval process. Red tape must be cut if America wants to reap all the benefits of new infrastructure projects—enhanced competitiveness, millions of jobs, and a greener environmental footprint.
Deputy Secretary of Transportation Victor Mendez was the keynote speaker, remarking on the new Department of Transportation (DOT) “Beyond Traffic” survey that accounts for current infrastructure and transportation needs and forecasts future trends. The most recent survey, Beyond Traffic: Trends and Choices 2045, predicts a population increase of 70 million people by 2045 and demographic shifts across the country. Mr. Mendez acknowledged that our current infrastructure will not be able to sustain that growth. He stated that our infrastructure will not get better by itself. He believes we can improve the current system to provide for more efficiencies, starting with the passage of a long-term surface transportation authorization from Congress. Should Congress continue to pass only short-term fixes, Mr. Mendez believes infrastructure stakeholders and the American public should begin considering mechanisms to keep innovation occurring outside of legislative action.
The first panel, moderated by Covington & Burling’s Gary Guzy, brought together international and domestic experts to discuss how the U.S. infrastructure approval system compares to that of other countries. Nick Malyshev, head of the Regulatory Policy Division at OECD, observed that while the U.S. has a great system for instituting laws and regulations, we could do a much better job of evaluating the regulations in place. He and the other panelists, John Porcari of Parsons Brinckerhoff and Shawn Denstedt of Osler, Hoskin & Harcourt (Canada), discussed how Canada, Australia, and many European Union countries are light years ahead of the United States in terms of their regulatory framework and approval processes. Mr. Denstedt discussed how Canada in particular revamped its environmental review process in 2012 to make it more consistent and timely and the outcomes more predictable. All of the panelists remarked on how the convoluted approval process, not necessarily the substance of projects, is dragging down the infrastructure system here in the United States, and how there must be better coordination between federal and state entities to reduce overlap and inconsistencies.
A second panel discussed the environmental review process and the devolution of the National Environmental Policy Act (NEPA). While the original intent of the act was to balance interests and understand the consequences of different choices in infrastructure projects, panelists remarked on how the process has become cumbersome, with overlapping oversight authority and review processes that have resulted in delays, escalation of costs, and an overall burden on the American economy. Attendees were reminded that the law was only 7 pages when enacted in 1970; several panelists commented that it is time to go back to the law’s original intent. There was also a consensus among panelists that there needs to be more of an evidence-based discussion around environmental review. There is little analytical data on NEPA policy, but a better model could exist that is based on metrics and outcomes that can better inform decisions. Covington & Burling’s Don Elliott discussed the judicial review process under NEPA, which he said has become a process for stopping projects, rather than facilitating how a project gets done. One fix he noted was for preliminary injunctions to be done away with and for CEQ to issue guidelines for judicial standing.
The final panel discussed the challenges and bright spots in the current permitting process. Joann Papageorgis of the Port Authority of New York and New Jersey discussed the Bayonne Bridge navigational clearance project as an example of how complicated the review process can be and how inefficiencies can be solved. This project in particular required approximately 50 permits from 20 different agencies. They found the complicated regulatory review contained multiple duplicative regulatory processes and conflicting federal requirements. She outlined several strategies and recommendations based on the experience of this project, many of which were echoed by the other panelists, including how important it is to enforce early coordination and synchronization between agencies, and to work on a schedule. Shoshanna Lew from DOT agreed there is no reason certain processes cannot happen simultaneously, and multiple agencies could participate as part of the same review, rather than duplicating it multiple times.
There was broad consensus across these three panels and participants that all parties should work toward permanent solutions that increase efficiencies, improve outcomes, and balance interests to advance our infrastructure systems and meet the current and future demands of our country.