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
Add to Briefcase
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.


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.