On Tuesday, March 21, 2023, the Roosevelt Institute will host a one-day in-person conversation about permit reform in Washington D.C. Common conversations about permit reform focus on speeding up the process of approving big projects—pipelines, transmission lines, renewable energy projects, mines. These discussions would suggest that the goal of permitting is speed. While that may be true for project proponents, it is not true for the rest of society. Three recent events demonstrate this tension.
In Turkey, we watched in horror as multi-story apartment buildings collapsed onto their occupants. As news coverage continued to play footage of the earthquake, many of us wondered why some buildings collapsed while their neighbors remained standing. A New York Times investigation revealed that the difference was permitting enforcement. President Erdogan had treated construction permits as political bargaining chips. In an effort to garner popularity, his political party had pushed through legislation that forgave building code permit violations without requiring the underlying problem to be addressed. The ultimate price was borne by the residents of those buildings who died or lost loved ones. The lesson for permit reform should be to ensure that political horse-trading does not sacrifice safety.
In Ohio, a toxic plume of black smoke billowing above East Palestine reminded us that accidents happen, and can have long-term catastrophic consequences. As the response unfolded, it became clear that Norfolk Southern did not know what had happened to many of the cars carrying toxic substances, like ethylene glycol monbutyl ether and butyl acrylate. The long-term consequences of exposure to the soup of chemicals released during the accident is still unknown. However, this accident was not unforeseeable. An investigation launched by NTSB into Norfolk Southern’s safety practices has already revealed that this was the third derailment in the past year due to overheated bearings. Since December 2021, the company has had five major accidents, three of which included fatalities, suggesting a poor internal safety culture. This track record serves as a reminder that without external pressure, some companies will not invest in the safety of their employees or society. Those companies are also likely to resist investing in compensation for individuals harmed by their accidents. This tension was on full display when Norfolk Southern’s chief executive, Alan Shaw, testified before Congress. Though he was “deeply sorry” for the derailment and promised “to make it right,” he would not commit to compensating victims of the accident. This incident serves as a reminder that the permitting process is one way to enforce safety requirements. Permit reform proposals that reduce regulation and oversight focus on protecting the profitability of companies, instead of enhancing mechanisms designed to protect workers and communities.
Finally, as we move into spring, the 13th anniversary of the BP Deepwater Horizon oil spill approaches. Many reform proposals promote the expansion of categorical exclusions, urge a reduction in the scope and frequency of NEPA review, restrict public comment, impose rigid approval timelines, and limit the involvement of other agencies in the NEPA process. These are the same practices that contributed to the severity of the Deepwater Horizon oil spill, according an illustrious bi-partisan commission tasked with investigating accident. Due to several streamlining measures, including a statutory exemption from NEPA for leases in the west and central Gulf, a vast categorical exclusion for exploratory drilling, a culture within Mineral Management Service focused on permitting speed, and an elimination of public participation measures, several errors in BP’s Application for Permit to Drill and its Oil Response Plan went undetected. As the Commission summarized in its introduction, “Regulators, however, failed to keep pace with the industrial expansion and new technology—often because of industry’s resistance to more effective oversight. The result was a serious and ultimately inexcusable, shortfall in supervision of offshore drilling that played out in the Macondo well blowout and the catastrophic oil spill that followed.” A few years ago, on the tenth anniversary of the BP Oil disaster, all seven members of the bipartisan commission reported that the risks identified in their report have not been addressed. Instead, safety requirements have been relaxed along with environmental review procedures. The Deepwater Horizon oil spill should serve as a potent reminder of what can happen when permitting devolves to rubber stamping. Permit reforms that focus on speed, eliminate site-specific considerations, reduce the scope of risks to be considered, diminish the obligation to consider comments from other authorities, and exclude public review do not contribute to safety or foster informed decisions.
There are ways to improve permitting without eliminating reasoned decision making, such as increasing agency capacity, and enhancing opportunities for coordinated decisionmaking. The Best Practices Report, issued annually by the Federal Permitting Improvement Steering Council since 2017, identifies several ways to increase efficiency while supporting informed decisionmaking. That report also illustrates that efficiency reforms are not one-size fits all. Each agency operates differently, and efficiency must be tailored to the agency’s practices. Permit reform should focus on exploring these strategies. There are also long-term consequences when permitting becomes a political bargaining chip. Permit reform should learn from lessons of the past. These are just some of the themes I expect will be explored next week.
Building the Green Transition: A Justice Centered Vision for Permitting Reform
Jamie Pleune is an Associate Professor of Law (Research) and a member of the Law and Policy Group in the Wallace Stegner Center.