It’s got a long name that belies its intent to streamline the process of getting things done. Constructor sat down with one of its architects to get some details on its content and the AGC collaboration that’s helping move its ideas forward.
BY A.D. THOMPSON
Limited delays. Efficient reviews. Reforms that the members of AGC of America have long recommended. They’re the core principles of The Building U.S. Infrastructure through Limited Delays & Efficient Reviews (BUILDER) Act, legislation championed by Rep. Garret Graves (R-LA).
The bill was included as part of H.R. 1 – the Lower Energy Costs Act – that was passed in the House back in March, and was then partially incorporated into the debt limit deal – the Fiscal Responsibility Act (FRA). Provisions from BUILDER expedite federal review and permitting decisions, affording constructors sleeker timelines while maintaining proper environmental protection standards.
“I spent many years of my life working on ecological restoration of coastal wetlands and found that some of the laws that purported to ‘protect the environment’ were actually thwarting our efforts to do just that,” Graves explained.
As far back as his teens, Graves did land surveying work.
“At that time, the environmental review process took a year, max. Now, road projects can easily take seven years to complete the review process.”
Such frustrations were in part what prompted Graves and his colleagues to bring the BUILDER Act, which modernizes long-standing NEPA processes, to the table with the goal of making the review process more efficient, lowering costs, sparking economic recovery and ultimately rebuilding America.
AGC sat down with Graves recently to discuss the BUILDER Act, its role in the business of moving important projects forward and what AGC members can do to help.
Q: WHAT WERE YOUR GOALS AT THE OUTSET?
A: Think for a minute: If I’m trying to carry out a coastal wetlands restoration project, the sole objective of the project is restoring coastal wetlands. That’s it. [And doing so] actually increases ecological pro- ductivity, something that environmentalists and others should be supportive and proud of and advocating for.
And, increasingly, these environmental reviews are taking way too long and costing too much money. Both problems have gotten out of hand. That was really the impetus for moving forward with legislation.
Q: THE BUILDER ACT IS DE- SIGNED TO REDUCE DELAYS, PARTICULARLY IN THE PERMITTING PROCESS. WHAT PROVISIONS GUARANTEE THIS OBJECTIVE? AND WHICH COMPONENTS MADE IT INTO THE FISCAL RESPONSIBILITY ACT?
A: Before the passage of the FRA, the first dollar of federal funds that went into a project triggered a full NEPA analysis. But the BUILDER Act and FRA set that threshold higher.
We also changed the scope of what a NEPA analysis must evaluate. For example, now you only have to evaluate reasonably fore- seeable impacts of the project. There had become a little bit too much art, rather than science, behind the scope of NEPA analysis, and folks were out there looking at all these scenarios that have virtually no possibility of occurring. It was just another opportunity to waste valuable time and money, so rescoping the goals of the analysis to focus on likely impacts is a big win.
We have also expanded the use of categorical exclusions from one agency to another, where [they now] can be shared between sister agencies, which will reduce the number of projects where NEPA requirements apply. The last thing I’ll bring up is that under the FRA, an environmental assessment is limited to one year and 75 pages, and environmental impact statements [are limited to] two years and 150 pages.
Q: LET’S TALK ABOUT PERMITTING REFORM AND WHY THAT IS SO IMPORTANT TO CONSTRUCTORS.
A: Over the last several years we’ve seen a trend where the amount of time it takes to do a project is increasing significantly…. But, it’s not just time, it’s also the amount of money that it costs to go through these more in-depth environmental reviews. It ends up driving up the cost of projects, and then it takes longer to get them done. [Elements within the BUILDER Act] help to focus the review on truly environ- mental impacts rather than looking at all of these other ancillary things that are distractions. The NEPA process has suffered from a kind of mission creep. What [the BUILDER Act] does is refocus the scope of a NEPA analysis to truly environmental impacts and quantify those that identify mitigating solutions.
Q: LAWSUITS, TOO, HAVE BEEN AN ISSUE. IS THIS CORRECT?
A: In an average year, more than 100 lawsuits are filed on NEPA. On average, they result in a delay of three and a half years for adjudication, but the majority of those lawsuits end up being settled in the government’s favor. There is a whole industry of trial lawyers out there – this is all they do. Environmental groups even raise money from these practices … [and together] they’ve weaponized the NEPA process. This new law helps temper the weaponization of NEPA and the number of frivolous lawsuits that result in a huge waste of time and money.
Q: AND WHAT ABOUT THOSE WHO OPPOSE THE BUILDER ACT? IS THIS SHORTER TIME FRAME AN ISSUE?
A: When Jimmy Carter was president, he limited environmental impact statements to one year. So, right now, we’re giving more time than there was under the Carter Administration. If folks want to argue that we’re being unreasonable, good luck.
Q: NOT EVERYTHING IN THE BUILDER ACT PASSED, SO WHAT’S THE NEXT PART OF THE CONVERSATION?
A: We’re working with folks like Chairs Bruce Westerman (R-AR), Cathy McMorris Rodgers (R-WA), and Jim Jordan (R-OH), as well as members of their committees (Natural Resources, Energy & Commerce, and Judiciary, respectively) to talk through a framework of how we build upon the progress we made in the FRA with additional improvement.
Personally, I think we need to take a look at reforming Waters of the United States (WOTUS) and Section 401 and 404 of the Clean Water Act permitting processes, as well as ensuring better federal integration of aspects of the Marine Mammal Protection Act, Endangered Species Act, Migratory Bird Treaty Act, and Clean Air Act. This will ensure that our environmental laws are more compatible, not contradictory, with the goal of environmental protection.
Q: HOW HAS AGC HELPED TO FURTHER ADVANCE THIS LEGISLATION?
A: AGC members are the practitioners, the regulated community who are there on the ground, actually doing the building – or trying to. They are the ones who unfortunately find themselves on the other side of lawsuits and frivolous litigation, which result in unnecessary delay and expense.
AGC has been really helpful in sharing stories with us about members’ experiences and the challenges that they’ve faced. It’s hard to figure out a solution if you don’t understand the problem, and so our engagement with AGC helps move us toward the goal of actually turning dirt, laying asphalt and pouring cement while spending less time doing studies.
Q: WHAT CAN MEMBERS DO TO KEEP THINGS MOVING FORWARD?
A: Stay in touch with your members of Congress and share experiences, because we found a number of cases where the practices of the agencies are actually disconnected from what the law says or what the regulations require. That’s one of the reasons why we meet with AGC on a regular basis.
Something that’s really important that a lot of people discount is most infrastructure projects carried out across America today do not actually go through NEPA environmental reviews. Again, this is because the only cases where [these] apply are when you’re using federal funds and where you’re impacting federal resources. The majority of infrastructure projects – such as local roads – do not actually trigger those thresholds.
That gives the contractors a unique perspective in that they’ll often go through and build projects for local governments without having to jump through all these hoops. Yet, you don’t have widespread destruction of the environment because of those local projects. Well, how is that the case if the majority of projects built across America today do not require these federal environmental reviews? What is out there to protect the environment if NEPA doesn’t apply?
The answer is that there is actually a public conscience and if there are projects that will affect the environment, there’s a public participation process that ends up pushing back on these bad ideas. The second thing is that you still have strong state and local requirements that are designed to protect the environment.
And so the contractors have the perspective of doing things under more efficient scenarios outside the federal family. They can share those experiences with us and with others to say, “Hey, we actually did it this way. It was half the cost, half the amount of time, and we actually improved the environment” rather than spending all this time and money studying potential impacts on the environment that never ended up materializing.
Q: IS THIS A ONE-SIDED ISSUE?
A: Most people have looked at amending NEPA as a Republican-only idea … but the truth is that not only did the president of the United States agree and sign our NEPA changes into law, but the White House has come back and re-engaged us repeatedly about the need to streamline environmental laws as they try to implement all of these renewable energy projects, build transmission lines connecting renewable energy projects to the grid and implement additional projects funded by the infrastructure bill. They’re realizing that their regulatory agenda is incompatible with their political agenda.
And so, it’s been really interesting that something that historically has been believed to be a partisan issue has very quickly become a bipartisan issue, because the White House now understands what we’ve been saying for years: that the environmental laws and the regulatory red tape that’s out there is not advancing public purpose; to the contrary, it’s driving up costs and the amount of time [each project takes].
Q: SO, THIS BODES WELL.
A: I think so, yes. We had a bipartisan meeting on this just yesterday.