Investors lament “weaponisation” of environmental review

A decision maker needs to be created to prevent drawn-out studies from blocking US projects, says a prominent industry commentator.

Infrastructure Investor recently had the opportunity to speak with Philip K. Howard, a respected lawyer, writer, and chair of Common Good, a nonpartisan legal reform coalition which is proposing to “restore common sense to America”. His latest book, The Rule of Nobody, delves into the inefficiencies that are plaguing the infrastructure approvals process in the United States. In the second installment of a four-part series, he dwells upon the partisan use of environmental review and its effects on infrastructure procurement.

Infrastructure Investor: What are the major problems facing infrastructure approvals in the US, and are there any precedents for fixing them?

Philip K. Howard: I divide up the legal problems into three categories: One is environmental review, two is multiple permitting – the kind of hydra-headed monster of government – and three is overly rigid procurement processes, including the special benefits from Davis-Bacon and other such laws.

Environmental review is incredibly important; we don’t want to get rid of environmental review. But it should address the material consequences of project, not overturn every pebble. In most rebuilding projects, there are few material consequences. There’ll be some: If you expand the capacity of a power line, it has environmental consequences, so describe them. But even in a big project, that shouldn’t take more than a year or two. Today, because there’s no decision maker, any agency involved can say, ‘oh I think we need to study this a little more’ and you get another year of study.

There’s a whole industry of people who do these studies, and there’s a kind of defensive medicine approach, which is, 'we’ll probably get sued, so let’s be sure and study as much as possible'. So Don Elliot, former general counsel to the Environmental Protection Agency, has estimated that 90 percent of all the detail in environmental review statements is not done because people really think the detail is needed; it’s because they’re trying to cover any potential question in case there’s litigation.

That problem needs to get solved by creating a decision maker. We have a proposal we’ve presented to the White House already to pursue this, which we think could be achieved via an Executive Order allowing an environmental authority to decide when there’s been enough review and have that be presumptively valid.

There might be other ideas too. Other, greener countries are able to finish their environmental reviews, even on major projects, within 18 months. Germany is an example we’ve studied.

II: As you speak about environmental review, I think of my time as a local newsman. One project in particular comes to mind. The NYC Department of Homeless Services was converting existing structures into group shelters in Queens in an attempt to address the growing homelessness crisis. One local community board in Glendale, in an effort to fight establishment of a shelter in their community, said the environmental review completed on one of the properties was a farce – and so they used this as their legal 'weapon' in an attempt to shut the project down.

PKH: That’s typical, and that was not the review’s original purpose. Environmental review was not intended to be this perfect process where if you didn’t dot every ‘i' and cross every ‘t’ then someone can go to court and stop you. The point was to look at material effects so that democratically accountable officials could make a decision with facts on the table. No one ever contemplated that the approval process for infrastructure would always stop in the chambers of a judge. That’s not what democracy is supposed to be. Democracy is supposed to be accountable officials making decisions.

A good example is the Bayonne Bridge, which is using the existing foundations and the existing right-of-way of the existing bridge so it has minimal environmental impact. The argument used in litigation to stop the bridge is that the environmental review is inadequate – even though it got bulked up to 5,000 pages for a project with almost no environmental impact – because its authors didn’t study the effects of having more efficient ships coming into Newark Harbor, from seven miles upstream, on the lives of the residents of Newark.

Now, all we’re talking about is just a bridge here. There might need to be another decision made about whether Newark should have big ships or little ships, but we’re just talking about making it possible for ships of a certain size to come into the harbour so that it isn’t foreclosed from commerce.

It’s absurd to suggest that every secondary, tertiary and quaternary effect doesn’t get addressed in a 10,000 or 20,000-page environmental review statement when all you’re doing is raising the roadway of a bridge. You’re not going to solve all the regions’ environmental or social problems, they’re just trying to raise the roadway of a bridge.

When you try to re-debate and litigate every single issue in this society every time you want to build an off-ramp, then nothing’s ever going to get done.

II: When it comes to the ultra-local groups, is there any way to assuage them without compromising on the common good?

PKH: I used to be on a community organisation, so I understand the instincts of the community. But you can’t have the tail by the dog. The community should be listened to but they shouldn’t have a veto. It’s one of many factors to consider.

There are thousands of jobs at stake in keeping Newark Harbor competitive. Probably tens of thousands. There are many people who are affected by this decision, mainly positively, but maybe a few negatively, and it’s the job of a democratically elected government to balance those considerations and make a decision. Its job is not to do whatever one local group wants to do. You have to have a decision maker and that decision maker needs to be at the right level of government so they can balance everyone’s needs.