Getting to "Yes" or "No" - Faster

The Obama Administration first faced this dilemma when implementing the 2009 Recovery Act and launched an effort in 2011 to untangle the nest of 35 sets of permitting and review responsibilities across 18 different agencies.  It concluded, drolly, that the interplay among these different statutory requirements “is challenging and can sometimes result in uncertainty.”

Background.  Historically, no coordinating mechanism existed to bridge the different laws administered by different agencies at the federal level, let alone at the state or local levels.  Each agency focused on its own mandates, largely without any awareness of what other agencies are doing, or if there would be any benefit from coordinating efforts.

While it is important to weigh competing interests and values around historical, safety, environmental, and social justice values that are reflected in the reviews, there is growing agreement among various stakeholders that there needs to be a process clear enough to reach a resolution – whether it is “yes,” or “no.”

Former Harvard president Larry Summers points to a local Boston bridge rehabilitation project as an example of “American sclerosis” where repairs have been delayed more than four years with no end in sight: “a gaggle of regulators and veto players, each with the power to block or to delay, and each with their own parochial concerns. All the actors – the historical commission, the contractor, the environmental agencies, the advocacy groups, the state transportation department – are reasonable in their own terms, but the final result is wildly unreasonable.”

It is this lack of clarity that has triggered outrage and frustration among some, leading to charges that the government is broken.  The advocacy group Common Good claims “that a six-year delay in starting construction on public projects costs the nation over $3.7 trillion, including the costs of prolonged inefficiencies and unnecessary pollution. This is more than double the $1.7 trillion needed through the end of this decade to modernize America’s infrastructure.”  The group recommends cutting the review process to two years for major projects.

But is it possible?  The Obama Administration has taken an iterative approach to improve the permit and review processes, with increasingly hopeful results.  Historically, streamlining was viewed by some stakeholders as an attack on environmental, endangered species, historical preservation, or other policies.  Instead, the Office of Management and Budget framed the new streamlining effort as a management improvement challenge, which was acceptable to a wide range of stakeholders.

A Series of One-Off Heroic Efforts.  The Obama Council on Jobs and Competitiveness(2009 – 2012) recommended establishing an infrastructure steering committee and a permitting dashboard for about 50 priority projects, many associated with the Recovery Act or rebuilding after Superstorm Sandy.  The steering committee improved the timelineon a number of these projects – largely by encouraging concurrent rather than sequential reviews. For example, it reduced the timeline for the replacement of the Tappen Zee Bridge in New York by two to three years, and reduced project timelines for selected rail projects in Minneapolis and California by up to 30 percent.

To support these efforts, the president signed a directive in 2011 that instructed Federal agencies to prioritize and expedite the environmental review and permitting process for a set of infrastructure projects with significant potential for job creation, and to improve the accountability, transparency, and efficiency of those processes.  This led to the piloting of the Federal Infrastructure Permitting Dashboard to track progress on 14 significant projects.

In 2012, building on lessons learned from the pilot projects, the president signed an executive order that expanded use of the dashboard to additional types of projects.  It also created a Steering Committee on Federal Infrastructure Permitting and Review Process Improvement.  The committee worked to expedite over 50 major infrastructure projects, including bridges, rail, waterways, roads, and renewable energy generation projects. Of these, 30 had been completed by 2014 (and one was denied).

However, these time-intensive efforts did not result in systemic changes to the permitting and review systems.  Therefore, in 2013, another presidential directive directed the Steering Committee to come up with an implementation plan to move from an ad hoc process to a more standardized, repeatable process with an overall governance structure.  That plan was completed in 2014 and laid the groundwork for the initiative to be designated as a Cross-Agency Priority Goal.  The plan set out 96 milestones with a goal of cutting the permitting and review process time in half, “while improving outcomes for communities and the environment.” Much of this would be done by creating greater interagency coordination and transparency. 

Moving to a Systematic Approach.  Designating the steering committee’s implementation plan as a Cross-Agency Priority Goal for the administration in 2014 gave it new prominence.  Having the plan in hand resulted in a high degree of clarity for what needed to be done to move the Priority Goal forward – albeit, much of the plan’s success hinged on the creation of a central office to manage the cross-agency efforts and this required congressional support and funding.  The CAP Goal team -- co-led by OMB, the Council on Environmental Quality, and the Department of Transportation – ensured that the required quarterly progress reviews by top leadership focused attention on the need for a central office.

In the Fall of 2015, the Administration released guidance that would expand the process improvement efforts to all major infrastructure projects.  As the Administration was gearing up to implement the guidance, Congress passed the Fixing America’s Surface Transportation Act in December of 2015.  According to a brief history on the Dashboard’s website, Title 41 of the Act (dubbed “FAST-41”) created “a new entity – the Federal Permitting Improvement Council – to oversee the cross-agency Federal permitting and review process, composed of agency Deputy Secretary-level members and chaired by an Executive Director appointed by the President.” 

The law also required each of the 13 participating agencies to designate a Chief Environmental Review and Permitting Officer which will serve as the agency point of contact responsible for agency-specific training and process improvements as well as facilitating efficient and timely processes for environmental reviews and authorizations for FAST-41 covered projects, including dispute resolution. In addition, the CAP Goal team focused the existing working group of operational staff (from each participating agency created by the 2012 executive order) on FAST-41 implementation.

The new law also expands the range of infrastructure projects that could be included, such as conventional energy generation and manufacturing.  In addition, it “establishes new procedures that standardize interagency consultation and coordination practices” and granted the authority to collect fees from major projects in order to fund the new cross-agency coordination processes for federal permits and reviews.

Funding of $4.5 million and staff first became available in early 2016 to support the new Council and an updated Permitting Dashboard.  Richard Kidd was named the first executive director by mid-summer, and an updated inventory of projects being tracked on the Dashboard was posted on the website to reflect new statutory requirements in mid-September.  The 34 projects on the Dashboard have 60 days to develop the statutorily-required Coordinated Project Plans and post project timelines on the Dashboard.

Next Steps.  Now that there is a governance structure, legal authority, an implementation plan, an inventory of major infrastructure projects, staff, and funding, can agencies actually streamline the permitting and review process in a meaningful way? 

One of the surprising early observations of the initiative was how there were no data or timelines for projects facing various review and permitting processes.  As a result, the Office of Management and Budget in 2015 directed participating agencies to develop two categories of measures to provide more transparency into the permitting process: (1) metrics to track project review timeframes, and (2) metrics to describe environmental, cultural, and community outcomes of the processes (e.g., actions to avoid, minimize, or mitigated potentially detrimental actions).  Although not specifically required by FAST-41, the Administration has committed to creating such a data baseline to inform implementation efforts going forward.

Most stakeholders understand the need for more dependable and predictable processes – or Congress could channel public frustration and impose arbitrary deadlines.  So the challenge facing the next president is what path to take.  He or she will inherit a new capability that didn’t exist before, and could make a real difference, if there is sustained attention to the iterative approach to working across multiple agencies and statutes.  This will be a key enabler to meeting either candidate’s promise to revitalize America’s infrastructure.  

This is the third in a series about the progress of the 15 Cross-Agency Priority Goals.

Graphic Credit:  Courtesy of blackzheep via FreeDigitalPhotos.net