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The most important part of the infrastructure bill is little noticed

Construction sign on road

Amid the swirl of discussion around how much should be spent on infrastructure and whether the bill can pass a divided Congress, legislative policy observers have missed a brief, somewhat technical provision with the punch to materially impact U.S. infrastructure policy in an extraordinarily helpful way. The major constraint on most infrastructure is not funding, but permitting — that is, obtaining governmental approval to actually build a project. In hundreds of meetings during our government service at the U.S. Department of Transportation and the White House, the message from governors, mayors and county executives was clear: Additional federal funding is helpful, but providing relief from the government’s byzantine permitting process is critical. 

By now, many people have heard of the federal permit approval nightmares that contributed to the 26 years it took to build the Bonner Bridge connecting the Outer Banks of North Carolina to the mainland, or the more than two decades it took to build a second runway at the Taos, New Mexico, airport. Less known are permitting delays, such as the case where reports of an Indiana Bat having wandered into the state of Georgia triggered protection requirements that impacted projects as modest as removing roadside trees, as well as more extensive ventures in multiple counties. The fact is that in recent decades, significant infrastructure projects often have faced permit approval delays of five to 10 years, or longer, and incurred huge costs because of them.

Fortunately, it appears that relief is on the way. Tucked inside the 2,700-page Senate infrastructure bill are 15 pages of legislative text codifying a process — known as One Federal Decision (OFD) — that promises to shorten the permit review process from as much as 10 years to only two years.

One Federal Decision has had bipartisan support. It was developed during the Trump administration and issued as an executive order in 2017 as part of the administration’s overall effort to improve infrastructure development. In 2019, OFD was included by the U.S. Senate Committee on Environment and Public Works in a proposed transportation bill which, while not made into law, was approved unanimously in committee by both sides of the aisle. Given that permit reviews can involve up to 30 statutes, and as many as a dozen departments and agencies, the OFD modifications were essentially commonsense changes to a broken process. The framework required that agencies coordinate from the outset by using a joint schedule, empower a lead agency to enforce it, require agencies to work at the same time and not wait in turn, generate a readable review document with page limits, and produce a timely decision within 90 days of finishing the review document.

Preceding the development of the OFD framework, studies had suggested that the cumulative impact of six-year permitting delays would impose an estimated $3.7 trillion in additional costs (for roads, rail and bridges alone, the approximated extra cost was $1.65 trillion). Avoiding these costs saves more than the entire cost of the current bipartisan infrastructure bill — savings that could be used for actually building infrastructure projects. And none of this involves circumventing environmental or other permitting requirements. Even if a project’s requested permits are denied, learning that regulatory result early on avoids fruitless expenditures over another extended period of years.

Inexplicably, on his first day in office, President Biden revoked the OFD executive order by using his own executive order, which also canceled the Keystone pipeline permit. It is, therefore, good news that the current bipartisan infrastructure bill will codify OFD as permanent federal law and overrule President Biden’s executive order.

It is also helpful that numerous Cabinet officers had signed a detailed memorandum of understanding to implement the OFD in April 2018. The results over the next two years justified the effort. It has been reported that even during the pandemic in 2020, the improved permitting process enabled more than 130,000 permanent and temporary construction jobs that year, and reduced permit review times by 45 percent, with commensurate economic savings. 

A reality of infrastructure policy is that, while the additional funding included in the Senate bill will take years to trickle out to projects across the country, the One Federal Decision process can provide dramatic results in the near term by speeding projects through the permitting process with timely and prompt decisions. For this reason, we are encouraged that bipartisan negotiators including Sens. Krysten Sinema (D-Ariz.) and Rob Portman (R-Ohio) would re-establish OFD as federal law, and that the Biden administration has shown the flexibility and humility to reverse its initial decision to eliminate this vital step that rationalizes our nation’s permitting process. 

Jeffrey A. Rosen is a nonresident fellow at the American Enterprise Institute and a former deputy secretary of transportation. DJ Gribbin served in the White House, where he led the effort for One Federal Decision.

Tags biden executive orders Biden infrastructure bill Infrastructure permitting Joe Biden Rob Portman

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