Perspective: Principles to Inform Permitting Reform

“The call for permitting reform often is another way of saying National Environmental Policy Act (NEPA) reform specifically, but focusing solely on NEPA does not address the challenges and inconsistencies encountered when permitting a project within the matrix of other foundational national environmental laws, which can contribute as much or more to the unpredictability of infrastructure permitting.”

The Administration and Congress have been hard at work to update the way we use the environmental review and permitting process to inform decisions around infrastructure. As with any change in Administration, there are pendulum swings, and this is no different. What is different now is the speed with which these changes are occurring and the apparent appetite to do more. Given the level of disruption to date in federal policy, process, and the agencies that implement federal environmental review and permitting—and with more to come—there will be no “going back to the way it was before.” Rather, there is an opportunity, if not an imperative, before us to build a new environmental permitting process that is both more efficient and more effective. We feel that it is important to contribute perspectives of environmental practitioners to this conversation. Establishing basic principles for permitting reform is important. It provides guardrails against aggressive deregulation while also recognizing that greater efficiency need not come at the cost of environmental stewardship.

We’ve developed ten permitting reform principles to support infrastructure development while strengthening effective environmental stewardship. These are the principles that guide our thinking when we are asked about how to make the process better. These principles, summarized below, will guide our efforts when contributing our voice to various coalitions forming around this topic.

Environmental review and permitting for infrastructure projects can be difficult and take a long time (in some cases, an inordinate amount of time): timelines for required process steps are sometimes unpredictable, data needs inconsistent, and who is responsible for what and when can be unclear. That unpredictability affects both project sponsors and other interested parties. For project sponsors, the unpredictability creates inflated risk assessments due to the potential for schedule slippage and cost escalation. For interested parties and the affected public, the unpredictability can create distrust in government processes and confusion regarding how best to participate in the decision-making process.

The call for permitting reform often is another way of saying National Environmental Policy Act (NEPA) reform specifically, but focusing solely on NEPA does not address the challenges and inconsistencies encountered when permitting a project within the matrix of other foundational national environmental laws, which can contribute as much or more to the unpredictability of infrastructure permitting. A myopic focus on NEPA also misses an opportunity to take a comprehensive look across the federal system to understand interdependencies and pain points that can cause project delays and cost escalations. NEPA has historically been sacrosanct to the left and a target of the right’s ire in permitting discussions and, as such, changes have been incremental and have not yet solved our permitting challenges as we continue to revisit this topic.

Admittedly, these challenges are broad and not easily remedied; however, with bold action, the environmental review and permitting process can be improved to deliver a faster, more predictable process that produces measurably better outcomes for both project sponsors and the communities where these projects are located.

There is no one-size-fits-all solution. Each challenge likely has important nuances that must be explored and defined to avoid creating unintended consequences—particularly those that result in a process or outcomes worse than the status quo. However, to start to define the solutions, we must first establish the principles of what we want to accomplish. What are the structural tenets of permitting and environmental review that should be integrated into any reform idea? We offer that the following foundational principles should inform how we consider reforming federal law and regulations to plan, evaluate, permit, and construct infrastructure in this country. 

Principles of Effective Environmental Review and Permitting Processes

1. Accountability –Perhaps the most meaningful principle of effective environmental review and permitting is accountability. Schedules and deadlines must be maintained so that all stakeholders—from developers to the public to agency partners—have a reasonable assurance of when decisions will be made so that they can plan accordingly. For developers, this could mean ordering materials or securing equipment for construction. For agencies, it’s about managing workload and resources. If deadlines are missed, that time has real cost associated with it. As with any other part of business, schedules dictate resource allocation, affect risk profiles, and inform other decisions beyond the specific permit in question. We must hold ourselves—industry and government—to an agreed upon schedule and disincentivize schedule slippage without adequate justification.

2. Transparency – Byzantine permitting requirements without visibility into the process often creates confusion and inconsistency and can instigate a lack of trust by the public and project sponsors alike. Processes that are transparent—where all parties understand the requirements, who/which agency has an action, when that action will occur, and what happens next—generate confidence in all stakeholders.

3. Predictability – Clearly articulating the requirements necessary to reach a decision is a minimum level of customer service that federal permitting should achieve. Too often we have ambiguous standards for what constitutes a “complete” application or the level of detail necessary to support decisions. This lack of predictability in the process creates unnecessary risk and uncertainty about what will be required by whom and when.

4. Consistency – Similar to predictability, we must have consistency across field and regional offices such that national policy is implemented with common standards. While decision-making is appropriately delegated down, the process and information necessary to reach that decision must be consistent regardless of the office making the decision. Regional or district variances create uncertainty and introduce unnecessary risk to projects. While rigid processes that do not allow for case-specific flexibility are not the answer, giving full delegated discretion to field and regional offices introduces unnecessary unknowns into permitting requirements. Similarly, the conditions an agency applies to a permit approval should be consistent based on the impact or project type, with minimal variability across applicants. Inconsistent application of permit conditions creates cost and timing uncertainty in project delivery and should be avoided.

5. Meaningful Public Involvement –Infrastructure has impacts. Those impacts can have real tangible effects on residents, landowners, communities, Tribes, and others. Agencies and developers must inquire and understand those effects and factor those considerations into the decision-making process. Public involvement provides a two-way means of information sharing that can help improve project designs and build awareness within the affected community.

6. Promote Positive Environmental Outcomes –Reform efforts to accelerate the process to reach permitting decisions faster cannot come at the expense of protecting critical natural and community resources. As we rethink the process, we should consider the outcomes we seek and integrate those considerations into reforms. Acknowledging that development will have adverse effects but requiring consideration of strategies to offset those effects through mitigation that is based in empirical data—but also reasonable in cost to deploy—will help ensure that our natural and cultural resources are considered and integrated into project development, encouraging greater harmony between the human and natural environment.

7. Competing Agency Missions Should Not Delay Projects – Complex infrastructure has the potential to impact numerous different resources that are regulated by different statutes, and different agencies with different missions. Sometimes this results in competing interests and conflicting missions of agency or purpose of statute. In such instances, there should be a means of balancing the trade-offs with a single decision-maker authorized to set the path forward, potentially overriding one or more agencies when the benefits, in total, outweigh the discrete negative impacts to one or more regulated resources.

8. Invest in and Leverage Technology –Permitting efficiency is only achievable when information flows effectively and when we harness the potential of technology to operationalize and manage routine actions, freeing up staff to do critical thinking and coordinating. Permitting reform must also focus on “how” we do our work and invest in solutions that support and advance common data standards, integration of artificial intelligence, online applications, and other tools to improve timeliness and data tracking.

9. Adaptability –Permitting guidelines and related policies should consider ways to evolve as technology, critical needs, and national priorities change. While permitting standards must maintain a baseline of protection for environmental and community concerns, there should be mechanisms to thoughtfully and efficiently revise permitting requirements to accommodate future scenarios. Similar to adaptive management for projects, new regulations may include evaluation procedures, opportunities for iterative feedback, and a well-established process for making appropriate minor adjustments without the need for wholesale reform.
10. Ensure Adequate Agency Staff Capacity – Efforts to accelerate permitting often demand that agency staff do more with less, but recent budget cuts and staff reductions create a circumstance that will limit our ability to fully optimize permitting efficiency. Even as we advance the use of information technology such as artificial intelligence to automate and streamline administrative processes, agencies still need expert staff to oversee programs, engage with applicants, and perform the critical thinking to leverage these tools and implement future reforms. Any permitting reform proposal cannot ignore the need to maintain adequate skilled staff to manage and implement programs.