President Trump’s infrastructure plan includes a number of important proposals. My initial reaction is consistent with my view of many of the President’s initiatives – he gives regulatory reform a bad name. We do need to reform the way we implement infrastructure projects in the US, but this President is not the one to lead the effort.
Here are some of the problems I see.
First, the President wants a hard deadline, requiring that infrastructure projects be permitted within 24 months (21 months for NEPA review and three months more for permitting). Having suffered the slings and arrows of NEPA delays, I understand the frustration, but this is not the place for a Gordian Knot solution. For complicated projects, which are likely to be the ones we care about, these reviews just take time. And what happens to the projects when a court finds the review to be inadequate because it was done in a slapdash manner?
Second, he wants to limit injunctive relief to “exceptional circumstances.” As someone who almost always represents project proponents, I can tell you that the common sense advice to get shovels in the ground is always wise. Once these projects start, it’s going to be very difficult to stop them. Precluding injunctive relief is just saying that NEPA is nothing more than an annoyance.
Finally, the proposal would eliminate EPA’s authority to veto Army Corps permits under § 404 of the Clean Water Act, calling it “duplicative” authority. Sorry, to me, the situation is analogous to when Congress realized that having the Atomic Energy Commission both cheerlead for and regulate nuclear power was probably a bad idea. Let’s face it, the Corps likes projects. To have the Corps be the final word on the environmental impacts of projects is probably not a wise idea, regardless of the Corps’ obvious expertise.
We need Nixon in China for real regulatory reform. Instead, we get the fox in the henhouse.