Last month, Baltimore’s Key Bridge came falling down after a cargo ship ran into one of its support piers. The bridge served as a thoroughfare for East Coast travelers and distribution for major U.S. companies that have warehouses in the region. Additionally, the Port of Baltimore, which is now closed, is essential for foreign trade and its closure costs millions of dollars every day that it is closed. Needless to say, the longer it takes to rebuild, the more negative impact it has on travel and commerce for Americans (and even the world).
This is a time to start considering the removal of red tape for both the rebuilding of the Key Bridge or other future disasters (or really any projects). Any federal project requires layers of approval permits that can hold back the start date for years. The bridge will likely require a review under the National Environmental Policy Act (NEPA). While the environmental studies (which usually take years) may be expedited under categorical exclusions under the law, any modernization efforts or new structures would likely invoke more lengthy reviews. Other state and local permits may come into play as well.
Permitting is often a roadblock to completing projects in a timely and efficient manner. The permitting process can cause lengthy delays while government bureaucrats act as gatekeepers. They also can be costly for companies as applicants have to sufficiently prove to the government that the project is worthy of approval. And even time can be costly in an inflationary economy. A budget that may cover the costs in 2024 may not do so in 2026.
These problems are already worthy of attention for projects that are not the result of a disaster. But in cases like this or hurricanes or any other future event that creates urgency, the need for permitting reform becomes even more apparent.
There is a simple fix that could drastically speed up projects subject to permitting. Permit by rule (PBR) presents all of the benefits of traditional permitting while offering many significant improvements.
PBR is simple. A government will create a list of pre-set standards for any applicant to meet in order to commence a project. Any party who wishes to build simply has to certify that it has complied with the pre-set standards. Once the certifications have been received by the government and the government verifies that the application is complete, the government must approve the project. Any inaction within a short period of time will result in an automatic approval.
The government’s primary focus is on enforcement. If the government finds that a project is not in compliance with the pre-set standards, the government can take disciplinary actions against the bad actor. But this means that all parties who are complying with the law will be left alone. Only the bad actors draw government attention.
Some may argue that permitting is needed to ensure that projects are complying with laws, such as environmental and property regulations. But parties who are operating under a permit by rule are incentivized to comply with the law on their own. A company that invests money to begin a project will lose that investment if the government shuts it down for non-compliance. Government micromanagement is unnecessary and only slows things down.
This form of permitting can even aid with NEPA. A NEPA analysis for any project, such as building a bridge, can be done one time. From that analysis, the standards for the PBR can be developed. This would prevent the years-long NEPA studies from being necessary for each and every project. If a NEPA-compliant PBR were in place, the Key Bridge rebuilding could commence months or even years earlier than otherwise.
The problems associated with permitting delay should be apparent to everyone. It is not a partisan issue. This is especially true when disaster strikes. Now is the time to implement this simple and commonsense solution.
Curtis Schube is the executive director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative and restrained. He is formerly a constitutional and administrative law attorney.
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