COMMENTARY: Permitting is to protect the public, not a roadblock to progress

Members of the Senate Committee on Environment &Public Works recently announced a bipartisan agreement promising significant permitting reform in the Bipartisan American Affordability and Jobs Act, providing “certainty that permitted energy infrastructure projects will retain their permits absent extraordinary circumstances.”

Committee statements made it clear that its members recognize the need for reliability and predictability in the permitting process. Providing reliability and predictability will lower energy costs.

My organization, the Council to Modernize Governance, has been championing permitting reform since its inception.

Indeed, as one council report details, permitting was once a far simpler process. Under English common law, the king was a watchdog — to correct subjects for wrongdoing, but to otherwise leave them alone. Contrast this with the French system, where the king had to run activities. There, the king was a gatekeeper.

The United States initially adopted the English system, which is why the U.S. economy boomed from virtually nothing into a world economic power. Progress was far easier to achieve because only bad actors were under the aim of government.

However, we have slowly become the French. Now, virtually everything requires government permission. Economic activity is slow to develop and often never occurs because it is too time-consuming and difficult. Infrastructure is now expensive and takes years to start, much less complete.

The council has offered a solution called permit-by-rule, which would benefit most standard permits. That system would establish all standards by rule or statute, so all interested parties would understand the expectations and would only have to certify compliance. This effort would drastically speed up permitting and allow projects to move forward without unnecessary government review delays.

Several key principles from the council’s permit-by-rule approach are reflected in the permitting reform provisions in the reform legislation. For instance, the act would give specific requirements to start the permitting clock. This is significant because it would give project sponsors a clearer idea of when work can begin. They can plan accordingly and hit the ground running once the deadlines — and decisions — happen.

Additionally, the bill would set rules for how agencies handle permit applications. This would prevent agencies from delaying permits by claiming applications are incomplete and indefinitely requiring more information.

It also updates the National Environmental Policy Act to create clear milestones and deadlines that are enforceable to prevent delays. It limits the ability for outside parties to use the courts to delay or prevent projects. It creates a presumption of validity for permits already granted so future administration changes don’t result in agencies going back on their word.

Also important is that, for permits not invoking NEPA, the deadline is rather short: one year. This would eliminate yearslong permitting processes that are all too common.

Each step reduces the arbitrary nature of the permitting process, especially for projects involving NEPA, the Clean Water Act and the Endangered Species Act.

Bureaucrats can no longer veto projects that are otherwise lawful. This is good for American energy development because it takes away risk for project sponsors.

Ultimately, these changes will also help the nation’s energy infrastructure deliver more energy at more affordable rates. When projects are more likely to receive permits, supply goes up, which drives down energy prices. In this age of inflation and an affordability crisis, these developments can make a real difference.

The Senate, House and president should prioritize this legislation. It is time for the United States to take a step toward returning to its English-system roots. Reform is needed, and the bill is a strong step in the right direction.

Curtis Schube is the executive director for the Council to Modernize Governance. He wrote this for InsideSources.com.