POLITICIANS, LOCAL ENTITIES GET IN WAY OF IMPROVEMENTS
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the amount needed to address the most urgent infrastructure needs. Along with roadblocks to speedy federal approval, the report blamed delays on such factors as fear of litigation and overly broad environmental reviews on all levels of government.
“They have embraced some of the goals and core ideas” in our report, said Philip K. Howard, who heads Common Good and is a lawyer at Covington & Burling in New York. He had been a member of Trump’s Strategic and Policy Forum, which disbanded in August after Trump’s remarks about the racial violence in Charlottesville, Va.
An analysis by the Congressional Research Service found that some of the claims in Common Good’s report, including the $3.7 trillion estimate, lacked a statistical basis, though the group had defended its work.
Infrastructure experts say that a lack of public and private funding, rather than bureaucratic delays, is the principal reason infrastructure projects stall. In its budget proposal, the Trump administration has issued a sixpage fact sheet about infrastructure funding, including private investment. Still, they agree that the permitting process can be improved and streamlined. In addition to federal reviews, states and local governments must also approve major proposals — frequently a fraught process — and residents and other interest groups often use the courts to block or delay construction.
Several recent projects illustrate the pitfalls new proposals confront and the challenge Trump faces in breaking the logjams.
Politicians want it their way,ornoway
Long-overdue maintenance this summer to the train tracks leading to Pennsylvania Station in New York came against the backdrop of a much more ambitious project that never happened.
The plan, known as Access to the Region’s Core, or ARC, would have created a new tunnel underneath the Hudson River for New Jersey Transit trains. First unveiled during the 1990s, it was promoted as the nation’s biggest public transportation infrastructure project and was supposed to cost $9 billion and create thousands of construction jobs. It was funded by the federal government, New Jersey Transit and the Port Authority of New York and New Jersey.
After years of environmental reviews, drilling of the ARC tunnel was underway in 2009. But construction stopped for a reason that has doomed other projects — disagreements among the various governments. In this case, New Jersey Gov. Chris Christie, who originally supported the tunnel, killed it in 2010 for what he said were issues related to potential cost overruns.
Today, nearly a decade and a thousand train delays later, the concept behind the ARC tunnel has re-emerged in a reconfigured form as the Gateway Program, a $20 billion design that also involves a new rail tunnel below the Hudson River and the rehabilitation of an existing one. It would be used by New Jersey Transit and Amtrak trains. A small portion of tunnel drilling for ARC will be used in Gateway.
New York and New Jersey officials support the project, and the environmental review for it took only two years rather than the usual four, said John D. Porcari, the project’s interim executive director. If all goes as planned, the Gateway project is anticipated to be completed in 2026.
But there is still one hang-up: The Trump administration has yet to climb onboard.
Local governments have ideas of their own
The law generally does not allow the federal government to pre-empt permitting decisions made by state and local officials. So even before federal delays might come into play, some projects are dead — or close to it — on arrival.
An exception, experts say, involves areas overseen by the Federal Energy Regulatory Commission, or FERC, which has jurisdiction over projects such as natural gas pipelines and electric power lines.
FERC’S authority recently came into play during a dispute in New York state over a relatively small project: a proposed $38 million plan to build a 7.8-milelong branch off an existing natural gas pipeline to connect it with a power plant near Middletown, NY.
When the Millennium Pipeline Co. announced the project in 2015, it drew opposition from communities opposed to hydraulic fracturing, a controversial method of extracting natural gas that is banned in New York. State officials also jumped into the dispute, arguing in court that FERC had failed, among other things, to account for the environmental impacts of added greenhouse gas emissions from the power plant before approving the pipeline.
But in June, a federal judge agreed with Millennium’s argument that state officials had failed to voice their objections in a timely fashion and referred the issue back to FERC, which has since issued a waiver to allow the company to proceed. State officials have asked FERC to review the case. The expected cost of the pipeline extension has since risen to $57 million based on actions that the company said it had taken to address the state’s concerns.
Howard, the lawyer from Common Good, has argued that Congress should enact legislation that would give the federal government more authority to overrule state and local permitting reviews. No such proposal exists in Congress.
The federal government is a bystander
Some projects that are big drivers of the economy do not involve federal approvals. Delays result from state and local decisions, and Trump — or any federal official for that matter — does not have the standing to intervene.
A good illustration is the long-delayed effort by the BNSF Railway to build a new intermodal facility in Southern California. The facility would transfer cargo containers arriving on ships from Asia to freight trains headed east to cities such as Denver and Chicago. BNSF says it has invested about $50 million for such things as studies needed to comply with the permitting process.
Currently, cargo containers arriving at the Ports of Long Beach and Los Angeles are picked up by tractor-trailers and driven to an existing BNSF site in downtown Los Angeles for transfer to trains. BNSF estimates show that it is a journey of 24 miles that 1,000 trucks make daily.
In 2005, BNSF announced a proposal to build a transfer point just 4 miles from the ports that would reduce truck travel, highway congestion and air pollution, according to the company. In 2013, Los Angeles approved the company’s environmental impact report and issued a construction permit. But an environmental group and a local air quality district challenged that decision, citing the facility’s potential impact on nearby residential communities.
In 2016, a California state judge upheld that challenge and ordered BNSF to expand its review to include a broader regional study assessing the facility’s environmental impact. The company has appealed that decision and expects a decision in coming months.
Environmental worries carry the day
Building of any sort has environmental consequences, and big building can have big consequences, making environmental objections a central factor in delaying federal projects. Such a case is playing out in Utah.
A proposed highway, known as the Northern Corridor, is intended to ease future congestion around St. George, one of this country’s fastest-growing metropolitan areas. But the 7-mile-long highway also raises an environmental dilemma because a portion of it would run through federally owned land that is home to a protected species, the Mojave Desert tortoise, which can live up to 50 years.
The dispute over the highway has been underway for more than a decade. Local officials have argued that they could build the road without endangering the tortoises, and in 2009, a federal law directed the Bureau of Land Management to identify a possible route.
But when the bureau released a plan last year, the agency was skeptical of the route favored by local officials because of its potential impact on sensitive habitat. Soon afterward, Rep. Chris Stewart, R-utah, introduced legislation that would require federal agencies, including the bureau, to approve the route if it met all other permitting requirements. In July, the bill passed a House committee and may be taken up by the full House later this year or next.
Federal agencies don’t always get along
Farmers in southern Missouri, who experience severe flooding, have long supported a plan to close a quarter-mile gap in a large levee along the Mississippi River. And since 1975, the Army Corps of Engineers has offered a variety of ways to plug the levee. But that would also drain wetlands and potentially increase flooding elsewhere, causing officials with the U.S. Fish and Wildlife Service to put on the brakes.
In 2007, a federal judge blocked further development on the $161 million project, which is known as the St. Johns Bayou and New Madrid Floodway, finding that the Army Corps had failed to use sound science to examine its environmental impact. The agencies then said they would work together to resolve their differences. But by 2013 the gridlock remained so intense that Sen. Roy Blunt, R-MO., placed a temporary hold on Gina Mccarthy’s nomination to head the EPA in an effort to resolve the standstill.
Last year, President Obama’s Council on Environmental Quality, the White House office, sided with the opponents. It held that efforts by the Army Corps to mitigate the project’s impacts, while extensive, were not enough.
That, however, might not be the final word. The environmental council left the door open to resolution of concerns, and Trump’s nominee to head the Army Corps, Rickey Dale James, owns a business in the area and has been a longtime supporter of the project.