Federal permitting reform means new opportunities for counties

Key Takeaways

Permitting reform is once again at the top of the to-do list this Congress as lawmakers on Capitol Hill work to overhaul a process that has operated mostly unchanged for decades resulting in delays and increased costs for counties. 

What exactly does “permitting reform” mean? Securing a federal permit is an essential step for the construction of critical infrastructure such as highways and bridges, power plants, transmission lines and housing developments. Federal permits also provide protection for the environment and federally owned land. There are multiple federal statutes that require federal permits for projects such as the National Environmental Policy Act (NEPA), the Clean Water Act, the Clean Air Act, the National Historic Preservation Act and the Endangered Species Act.

Although federal permits are required for a variety of infrastructure projects, the discussion around reforming the federal permitting process in both the halls of Congress and the White House has focused on permitting energy projects and streamlining the environmental reviews required by NEPA. However, it is important to note that any changes made to NEPA or any other permitting statutes are not exclusive to energy and will affect all project types. 

Why counties care

The current federal permitting process is lengthy and burdensome for counties which means higher project costs and budget uncertainty, delayed safety improvements on roads, bridges and water systems and lost economic development opportunities. 

Rural counties are especially affected, as many lack the staffing or technical capacity to navigate complex, multi-year federal reviews. As Congress works to reform the federal permitting process, it is vital that county governments have a seat at the table as counties play a crucial role in building and maintaining local infrastructure and ensuring local compliance with federal regulations.

State of play

Last Congress, the Senate Energy and Natural Resources Committee took the lead with the Energy Permitting Reform Act (S. 4753). This legislation ultimately did not advance due to disagreements among congressional leadership. 

This Congress, House Republicans have led the charge. The primary piece of permitting reform legislation this Congress is the Standardizing Permitting and Expediting Economic Development (SPEED) Act (H.R. 4776) led by U.S. House Natural Resources Chairman Bruce Westerman (R-Ark.) and Rep. Jared Golden (D-Maine). The SPEED Act would strengthen county involvement in decision-making and make needed commonsense reforms to the federal environmental review process. 

NACo worked with congressional staff to secure provisions in the SPEED Act that would guarantee counties a seat at the table during NEPA reviews by codifying counties as cooperating agencies. This bill language is essential for counties as multiple federal agencies published interim final rules updating their internal NEPA guidance last summer that made the role of counties as cooperating agencies uncertain.

In addition to codifying counties as cooperating agencies for NEPA reviews, the SPEED Act would place limits on the scope and scale of NEPA reviews, codify the Seven County Infrastructure Coalition v. Eagle County, Colo. decision and prevent the federal government from rescinding permits for already approved projects. The notable exception to the permit certainty provision is offshore wind projects, a frequent target of the administration, due to an amendment approved during floor debate on the House floor. 

The SPEED Act passed the House by a bipartisan vote of 221-196 on Dec. 18 and now awaits consideration in the Senate. Unfortunately, the path forward is unclear. In response to the administration’s latest action pausing five ongoing large-scale offshore wind projects on Dec. 22, Senate Democrats have halted formal negotiations about the future of permitting reform legislation. Senate Democrats insist that the administration must reverse this action and stop all attacks on offshore wind construction to resume discussions on permitting reform legislation. While informal discussions between members are ongoing, it remains to be seen if the Senate will come to an agreement on a permitting reform package as the administration is unlikely to reverse their position on offshore wind. 

Looking ahead

The reforms proposed in the SPEED Act would expand county involvement in the environmental review process and ensure that counties face fewer costly delays during infrastructure, land management planning, housing and broadband projects. As Congress and the administration consider permitting reform, counties need a seat at the table to ensure reforms work on the ground, protect local authority and deliver results for residents. NACo will continue to advocate for county involvement in decision-making procedures in any changes to federal permitting processes.