How to Fix a Pothole With Bipartisan Approval

What if Republicans agreed to fund infrastructure in exchange for Democrats agreeing to cut red tape?

AP Photo/Carlos Osorio
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Philip K. Howard, The Atlantic
Dec. 28, 2015, 11:20 a.m.

Fix­ing Amer­ica’s de­crep­it in­fra­struc­ture shouldn’t be con­tro­ver­sial—it en­hances com­pet­it­ive­ness, cre­ates jobs, and helps the en­vir­on­ment. And of course, it pro­tects the pub­lic. Re­pair­ing un­safe con­di­tions is a crit­ic­al pri­or­ity: More than half of fatal vehicle ac­ci­dents in the United States are due in part to poor road con­di­tions.

After years of dither­ing, Wash­ing­ton is fi­nally show­ing a little life for the task. Con­gress re­cently passed a $305 bil­lion high­way bill to fund ba­sic main­ten­ance for five years. But the high­way bill is pretty an­em­ic—it barely cov­ers road-re­pair costs and does noth­ing to mod­ern­ize oth­er in­fra­struc­ture. The total in­vest­ment needed through the end of this dec­ade is ac­tu­ally $1.7 tril­lion, ac­cord­ing to the Amer­ic­an So­ci­ety of Civil En­gin­eers. Fur­ther, the high­way bill does noth­ing to re­move the bur­eau­crat­ic jungle that makes these pro­jects so slow and costly.

But these two fail­ures—mea­ger fund­ing and end­less pro­cess—may ac­tu­ally point the way to a po­ten­tial grand bar­gain that could trans­form the U.S. eco­nomy: In ex­change for Demo­crats get­ting rid of nearly end­less red tape, Re­pub­lic­ans would agree to raise taxes to mod­ern­ize Amer­ica’s in­fra­struc­ture.

Stalled fund­ing. The re­fus­al to mod­ern­ize in­fra­struc­ture is mo­tiv­ated by polit­ics, not ra­tion­al eco­nom­ics. By im­prov­ing trans­port­a­tion and power ef­fi­cien­cies, new in­fra­struc­ture will lower costs and en­hance U.S. com­pet­it­ive­ness—re­turn­ing $1.44 for every dol­lar in­ves­ted, ac­cord­ing to Moody’s. That’s one reas­on why busi­ness lead­ers, led by the U.S. Cham­ber of Com­merce and the Na­tion­al As­so­ci­ation of Man­u­fac­tur­ers—nor­mally on the same page as con­gres­sion­al Re­pub­lic­ans—have been plead­ing for ro­bust pub­lic fund­ing. As an ad­ded be­ne­fit, 2 mil­lion jobs would be cre­ated by an in­fra­struc­ture-mod­ern­iz­a­tion ini­ti­at­ive, jump-start­ing the eco­nomy. That’s why labor lead­ers and eco­nom­ists have joined with the busi­ness com­munity to ad­voc­ate for it.

But these be­ne­fits largely ac­crue to so­ci­ety at large—not to the pub­lic en­tit­ies fund­ing the in­fra­struc­ture. Be­cause tolls and oth­er user charges, where ap­plied, rarely cov­er all the cap­it­al costs, the fed­er­al gov­ern­ment of­ten must sub­sid­ize pub­lic works if the United States wants mod­ern in­ter­state trans­port­a­tion, wa­ter, and power sys­tems. As a mat­ter of party ideo­logy, however, Re­pub­lic­ans have stead­fastly re­fused to raise the gas tax and oth­er taxes needed to fund in­fra­struc­ture. This line in the sand was drawn in the 1990s be­cause of the Re­pub­lic­an con­vic­tion, widely shared by the pub­lic, that gov­ern­ment is waste­ful.

So when the high­way trust fund ex­pired this year, Con­gress found it­self in an ideo­lo­gic­al struggle over how to fix potholes. Un­for­tu­nately, Wash­ing­ton’s an­swer is an in­ad­equate fund­ing plan that is also ba­sic­ally dis­hon­est, re­sort­ing to gim­micks such as selling oil from the na­tion’s stra­tegic pet­ro­leum re­serve at more than $90 per bar­rel (when the mar­ket price is closer to $40).

Red-tape waste. The Re­pub­lic­an frus­tra­tion about gov­ern­ment waste is il­lus­trated by the in­ef­fi­cien­cies of in­fra­struc­ture pro­cure­ment and pro­cess. The ar­du­ous pro­ced­ures by which pub­lic in­fra­struc­ture gets ap­proved and built shows that total costs could be cut in half by dra­mat­ic­ally sim­pli­fy­ing the en­vir­on­ment­al re­view and per­mit­ting pro­cesses—which can of­ten con­sume a dec­ade or longer. The wa­ter-de­sal­in­a­tion plant in San Diego, for ex­ample, which is vi­tal for wa­ter-parched Cali­for­nia, began its per­mit­ting in 2003. It fi­nally opened in Decem­ber, after 12 years and four leg­al chal­lenges.

Even pro­jects with little or no en­vir­on­ment­al im­pact can take years. The plan to raise the Bay­onne Bridge road­way, which spans a strait that con­nects New Jer­sey to Staten Is­land—in or­der to al­low a new gen­er­a­tion of post-Panamax ships in­to Ne­wark Har­bor—had vir­tu­ally no en­vir­on­ment­al im­pacts be­cause it used the same found­a­tions and right of way as the ex­ist­ing bridge. Yet the pro­ject still re­quired five years and a 20,000-page en­vir­on­ment­al as­sess­ment. Among the re­quire­ments was a study of his­tor­ic build­ings with­in a two-mile ra­di­us of the Bay­onne—even though the bridge touched no build­ings. Once ap­proved, the pro­ject was then chal­lenged in the courts based on—you guessed it—in­ad­equate en­vir­on­ment­al re­view.

All of this pro­cess is ex­pens­ive. The non­par­tis­an group Com­mon Good (which I chair) re­cently pub­lished a re­port on bur­eau­crat­ic delays, Two Years, Not Ten Years, which found that dec­ade-long re­view and per­mit­ting pro­ced­ures more than double the ef­fect­ive cost of new in­fra­struc­ture pro­jects. Delay in­creases hard costs by at least 5 per­cent per year. Delay pro­longs bot­tle­necks and in­ef­fi­cien­cies, which totals 10 to 15 per­cent of pro­ject costs per year (de­pend­ing on the in­fra­struc­ture cat­egory). A six-year delay, typ­ic­al in large pro­jects, in­creases total costs by more than 100 per­cent.

Care­ful pro­cess, the the­ory goes, makes pro­jects bet­ter. But the U.S. ap­prov­al pro­cess mainly pro­duces para­lys­is, not prudence. Amer­ica’s glob­al com­pet­it­ors don’t weigh them­selves down with these un­ne­ces­sary costs. Take Ger­many: It is a far green­er coun­try than the United States, yet it does en­vir­on­ment­al re­view in a year, not a dec­ade. Ger­many is able to ac­com­plish both re­view and per­mit­ting in less than two years by cre­at­ing clear lines of au­thor­ity: A des­ig­nated of­fi­cial de­cides when there has been enough re­view and re­solves dis­putes among dif­fer­ent agen­cies and con­cerned groups. The stat­ute of lim­it­a­tions on law­suits is only one month, com­pared with two years in the United States—and that two years is only be­cause it was shortened un­der the new high­way bill. Fol­low­ing Ger­many’s lead, Canada re­cently changed its per­mit­ting pro­cess to com­plete all re­views and oth­er in­fra­struc­ture de­cisions with­in two years, with clear grants of au­thor­ity to of­fi­cials to meet dead­lines.

Like most laws, Amer­ica’s in­fra­struc­ture pro­cess has its sup­port­ers. Any de­term­ined op­pon­ent of a pro­ject can “game” the pro­ced­ures to kill or delay pro­jects it doesn’t like. And, just as most Re­pub­lic­ans are adam­ant about not rais­ing taxes, many Demo­crats are adam­ant about not re­lin­quish­ing the ef­fect­ive veto power en­vir­on­ment­al­ists cur­rently wield. After all, who knows when a new Robert Moses might ap­pear to flat­ten urb­an neigh­bor­hoods?

Spending years arguing about if the project is worthwhile rarely improves the decision. 

The tra­gic flaw in this po­s­i­tion, however, is that lengthy en­vir­on­ment­al re­view is dra­mat­ic­ally harm­ful to the en­vir­on­ment. Pro­long­ing traffic and rail bot­tle­necks, the Com­mon Good re­port found, means that bil­lions of tons of car­bon are un­ne­ces­sar­ily re­leased as of­fi­cials, en­vir­on­ment­al­ists, and neigh­bors bick­er over pro­ject de­tails. Amer­ica’s ar­cha­ic power grid—not re­placed in part be­cause of per­mit­ting un­cer­tain­ties—wastes elec­tri­city equi­val­ent to the out­put of 200 coal-burn­ing power plants. At this point, the de­crep­it state of Amer­ica’s in­fra­struc­ture means that al­most any mod­ern­iz­a­tion, on bal­ance, will be good for the en­vir­on­ment. Wa­ter pipes from 100 years ago leak an es­tim­ated 2.1 tril­lion gal­lons of wa­ter per year. Faulty wastewa­ter sys­tems re­lease 850 bil­lion gal­lons of waste in­to sur­face wa­ters every year. Over­all, Amer­ica’s in­fra­struc­ture re­ceives a D+ rat­ing from the Amer­ic­an So­ci­ety of Civil En­gin­eers. For every pro­ject that is en­vir­on­ment­ally con­tro­ver­sial, such as the Key­stone pipeline, there are scores of pro­jects that would eas­ily provide a net be­ne­fit to the en­vir­on­ment.

In some vi­tal pro­jects, ad­her­ing to ri­gid leg­al pro­cesses could even lead to cata­strophe. For ex­ample, the pro­posed new rail tun­nel un­der the Hud­son River must be com­pleted be­fore the ad­join­ing tun­nel is shut down to re­pair dam­age caused by Hur­ricane Sandy. Any delay in ap­provals would cut rail ca­pa­city to Man­hat­tan from New Jer­sey in half, with un­think­ably bad con­sequences on traffic, car­bon emis­sions, and the eco­nomy.

En­vir­on­ment­al re­view is im­port­ant, but the tough choices re­quired can usu­ally be un­der­stood and aired in a mat­ter of months not years. The trade-offs for the most part are well known: A de­sal­in­a­tion plant will pro­duce one gal­lon of briny byproduct for every gal­lon of clean wa­ter; the new rail tun­nel un­der the Hud­son River will re­quire dis­lo­cat­ing homes and busi­nesses at either end; a new power line will emit elec­tro­mag­net­ic en­ergy and mar scen­ic vis­tas. But Cali­for­nia’s fresh wa­ter must come from some­where, New York needs to elim­in­ate rail bot­tle­necks, and new power lines will carry clean elec­tri­city to cit­ies from dis­tant wind farms. In each case, the rel­ev­ant ques­tions are wheth­er the new pro­ject is worth the costs and, some­times, wheth­er there’s a prac­tic­al way to mit­ig­ate the ef­fects. Spend­ing years ar­guing about if the pro­ject is worth­while rarely im­proves the de­cision—it only makes pro­jects more ex­pens­ive while pro­long­ing pol­lu­tion.

A new bar­gain. There’s a way to break the lo­g­jam caused by a lack of needed fund­ing and an over­abund­ance of pro­cess. Con­ser­vat­ives con­cerned about waste­ful gov­ern­ment should agree to raise taxes to fund in­fra­struc­ture if lib­er­als agree to aban­don the bur­eau­crat­ic tangle that causes the waste. This deal will cut crit­ic­al in­fra­struc­ture costs in half, en­hance Amer­ica’s en­vir­on­ment­al foot­print, and boost the eco­nomy.

Ad­equate fund­ing will get Amer­ica mov­ing with safe and ef­fi­cient in­fra­struc­ture. And abandon­ing years of pro­cess need not un­der­mine en­vir­on­ment­al goals or pub­lic trans­par­ency. The key, as in Ger­many and Canada, is to al­loc­ate au­thor­ity to make needed de­cisions with­in a set time frame. Pub­lic in­put is vi­tal, but it can be ac­com­plished in months. Plus, in­put is more ef­fect­ive at the be­gin­ning of the pro­cess, as ad­just­ments can be made be­fore any plan is set in the leg­al con­crete of multi-thou­sand-page en­vir­on­ment­al-re­view state­ments.

Polit­ic­ally, of course, get­ting Re­pub­lic­ans and Demo­crats to strike a bar­gain—more fund­ing for less bur­eau­cracy—won’t be easy. Spe­cial in­terests on both sides have their claws deep in­to the status quo. It is no­tori­ously dif­fi­cult to raise taxes, and curb­ing re­view timelines can sound like cut­ting corners. But Amer­ica can’t move for­ward on in­fra­struc­ture built two gen­er­a­tions ago. Elim­in­at­ing traffic jams, elec­tri­city out­ages, air­plane delays, and un­ne­ces­sary tra­gic ac­ci­dents will be more than worth the small in­crease in taxes and a short­er re­view peri­od.

Con­gress knows there’s a prob­lem­. The 1,300-page high­way bill tip­toes to­ward stream­lin­ing de­cisions. Un­for­tu­nately, these good in­ten­tions may ac­tu­ally make mat­ters worse. The bill cre­ates a 16-agency com­mit­tee to re­view pro­jects and defines elab­or­ate pro­ced­ures on how to set a per­mit­ting timetable. But the timetable can be waived, and the new pro­ced­ures as­sidu­ously avoid the one in­dis­pens­able ele­ment for en­for­cing dead­lines: a fi­nal de­cision maker. In­deed, the re­luct­ance to grant any­one the abil­ity to re­solve dis­agree­ments is al­most com­ic­al. The dir­ect­or of the Of­fice of Man­age­ment and Budget is sup­posedly in charge, but the dir­ect­or’s ul­ti­mate grant of au­thor­ity amounts to no au­thor­ity all: “If a dis­pute re­mains un­re­solved … the Dir­ect­or … shall … dir­ect the agen­cies party to the dis­pute to re­solve the dis­pute.”

But a new bi­par­tis­an bar­gain doesn’t re­quire com­plic­ated draft­ing. It only takes a few words for Con­gress to ap­prove a gas tax or oth­er taxes to fund in­fra­struc­ture-mod­ern­iz­a­tion pro­grams. And the rad­ic­al change needed to re­duce per­mit­ting from ten years to two years will not be made in sub­stant­ive law—un­der­ly­ing en­vir­on­ment­al re­quire­ments, for ex­ample, would re­main the same—but rather in au­thor­iz­ing spe­cif­ic of­fi­cials to make and re­view de­cisions. Cre­at­ing clear lines of au­thor­ity is much sim­pler than de­fin­ing the in­tric­a­cies of a pro­ced­ur­al labyrinth. The law can give the chair of the Coun­cil on En­vir­on­ment­al Qual­ity re­spons­ib­il­ity over de­cid­ing when there has been enough en­vir­on­ment­al re­view, and it can give the OMB dir­ect­or re­spons­ib­il­ity over resolv­ing dis­putes among squab­bling agen­cies. They will both be ac­count­able to the pres­id­ent and, if ne­ces­sary, to the courts. Com­mon Good, at the re­quest of rel­ev­ant com­mit­tees in Con­gress and with the help of two former En­vir­on­ment­al Pro­tec­tion Agency gen­er­al coun­sels, has already draf­ted pro­posed amend­ments that es­tab­lish these lines of au­thor­ity as well as over­sight stand­ards for the pres­id­ent and the courts.

The good news is that the polit­ic­al winds are shift­ing. Hil­lary Clin­ton re­cently pro­posed a $500 bil­lion in­fra­struc­ture ini­ti­at­ive that in­cluded a call to rad­ic­ally stream­line per­mit­ting and re­view pro­cesses. And Jeb Bush re­cently called for per­mits to be gran­ted “with­in two years in­stead of 10.” With strong lead­er­ship, the na­tion can get there: If the Demo­crats cut waste and the Re­pub­lic­ans provide fund­ing, Amer­ic­ans will have bet­ter rules and bet­ter roads.

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