Today, building the infrastructure necessary to maintain America’s prosperity often requires navigating a maze of permits, lawsuits, and regulatory delays. The power to block has systematically triumphed over the freedom to build.
Yet our infrastructure paralysis is self-inflicted. Whether it is a natural gas pipeline, a transmission line, or mines for the building blocks of modernity, building anything at scale now requires navigating an unpredictable legal gauntlet.
Fears of reforming these regulations are often overblown. Just as older cars eventually require major maintenance to stay roadworthy, the same is true for the decades-old slate of U.S. environmental laws.
PERMITTING REFORM CAN UNLOCK AMERICA’S ENERGY FUTURE
Sen. Alan Armstrong (R-OK) has introduced the American Energy and Mineral Infrastructure Act, a bill that represents a comprehensive modernization of our bedrock environmental laws. And while Armstrong’s bill includes dozens of important reforms, it’s worth highlighting three that would have a massive impact on our ability to reclaim our heritage as a nation of builders.
First, the bill makes common-sense changes to the Clean Water Act’s Section 401 Water Quality certifications. Section 401 of the Clean Water Act requires applicants for federally permitted projects to obtain state certification that the project will comply with applicable water quality standards. This open-ended discretion has effectively allowed states to veto large projects for reasons unrelated to water quality.
For example, a recent analysis by the nonpartisan experts at the Breakthrough Institute reveals that the justifications for the Clean Water Act — specifically Section 401 water quality certifications — are shockingly poorly documented. Decisions are fragmented and buried in inaccessible agency files. Regulating in the dark, the Breakthrough authors call it, though we go further and call it regulators being asleep at the wheel.
Without immediate reform, Section 401’s institutional vagaries will continue to claim new victims. Armstrong forcefully made this point at an event Pacific Legal Foundation hosted on June 23, warning that the current framework has become an indiscriminate killer of vital projects. He highlighted the Constitution Pipeline project, a proposed 124-mile pipeline that would have delivered abundant natural gas from Pennsylvania to energy-hungry consumers in New York and New England. The project was ultimately killed after New York denied its Section 401 certification – illustrating how a permitting provision intended to protect water quality can instead be used as a political tool to block critical infrastructure projects outright.
To neutralize this risk, the new legislation closes the precise legal loopholes that allow states to stall disfavored projects for years. By capping application timelines so projects receive a final response within one year and narrowing environmental reviews to proximate, nonspeculative impacts, the bill delivers ironclad certainty to America’s builders.
Second, the bill provides much-needed certainty to the mining sector. A recent PLF report found that it takes, on average, 29 years to obtain a permit for a new mining project in the United States. These outrageous delays make it harder to produce in the U.S. and increase our dependence on mined materials from other countries — often our geopolitical foes. Armstrong’s bill would nullify a wrongheaded Ninth Circuit Court opinion that vacated federal approval of the proposed Rosemont Copper Mine in Arizona and, if left in place, would threaten future American mining projects.
Third, and perhaps the most consequential yet least understood, reform in the entire package is ending the weaponization of “vacatur” in federal courts. Under the current system, when a special interest group uncovers a minor paperwork error or a technical omission in a thousands-of-pages-long environmental review, courts routinely “vacate” — or completely invalidate — the project’s federal permits. In practice, this means multimillion-dollar construction projects are brought to a halt, multiyear delays are incurred, and construction crews are left waiting on the sidelines. At the same time, agencies resolve bureaucratic differences unrelated to the ultimate environmental outcomes.
AMERICAN ENERGY DOMINANCE DEPENDS ON PERMITTING REFORM
Armstrong’s bill fixes this structural vulnerability across the National Environmental Policy Act, the Clean Water Act, and Army Corps dredge-and-fill permits by barring courts from nullifying federal approvals over minor procedural flaws. Instead, courts will only be permitted to “remand” decisions back to the agency. Paperwork errors would then be corrected in tandem with construction, except in cases of outright negligence.
The choice before the country is simple. We can maintain a broken, litigious status quo that allows opportunistic entities to inflate costs for vital projects in litigation limbo and veto American progress. Or, we can establish a transparent, predictable, and accountable permitting system. Armstrong’s bill provides the structural reform necessary to usher in a new era of innovation, American infrastructure, and economic abundance.
Josh T. Smith is the senior fellow for Abundance and Environment & Natural Resources at Pacific Legal Foundation. John Nagle is a federal policy manager at PLF.