While immensely flawed, the recently enacted Infrastructure Investment and Jobs Act (IIJA) contains an important taxpayer victory that streamlines the federal environmental review processes for major infrastructure projects. This expedited process, known as One Federal Decision (OFD), was a significant achievement established under the previous administration but was revoked by President Biden via executive order at the start of his term. Though we were sharply critical of IIJA and urged lawmakers to oppose its passage, we were supportive of the few regulatory reforms within the legislation, such as OFD. Since that provision would reform a broken bureaucratic process that stymies infrastructure projects and wastes taxpayer dollars, we referred to OFD as a “standout regulatory change… that has been a priority for NTU in transportation infrastructure legislation.” The gimmicky $1.2 trillion IIJA was proof that even bad bills sometimes contain positive regulatory reforms.
Despite the benefits of OFD, the Biden administration has failed to implement this key regulatory reform in a timely fashion. According to Section 11301 of Subtitle C, within sixty days of the bill’s enactment the Biden administration is required to provide agencies a list of categorical exclusions, the first major step towards implementing OFD. Since the IIJA was signed into law by the President on November 15th (P.L 117-58), the sixty day deadline for such exclusions was January 14th, over one week ago as of this writing. Delay of OFD will be particularly harmful for taxpayers, construction workers, and employers.
These developments are disappointing - but not surprising. The Biden administration has spent the past year attempting to balloon the size and scope of the federal government, so it makes sense that deregulation would not be a front-and-center issue for the White House. Despite the appetite for less regulation, the timetable mandated within the bipartisan infrastructure law is clear, and the Administration is either purposefully, or incompetently behind schedule.
So what does this mean for the billions of dollars worth of infrastructure projects that are set to be funded by IIJA? They too will likely fall behind schedule, costing taxpayers an unknown amount of resources.
Since so much infrastructure funding is squandered by a federally driven process, the inclusion of OFD was a critically important component of ensuring taxpayer dollars are maximized when building roads and bridges. Under the current process, government review of private sector plans involving environmental impacts has no deadline, with a myriad of agencies that each can independently approve or reject the proposal. One Federal Decision coordinates the government’s response so that the applicant receives one decision within two years of the application date. This consolidates the federal process to make it more efficient, and limits the degree to which the federal government can impede construction projects. NTU has advocated for passage of One Federal Decision for years, as it represents a significant step in the direction of a streamlined approval process.
Decreasing the regulatory burden on private construction can accelerate key projects, leading to better results for the average American. Curtailing federal involvement smartly (that is, by reducing the strain on private companies without abandoning the original goal of the regulation) stands to benefit everyone. As NTU consistently points out, our ability to build impressive structures isn’t hampered by a lack of investment, but rather an overly bureaucratic system that stymies the construction of infrastructure.
OFD has the ability to change the game and reduce the time it takes to get a project approved by Washington. Yet, if the Biden administration continues to drag its feet on its implementation, we all will be stuck with the status quo - an outcome that benefits no one. The President loves to tout IIJA as one of his signature accomplishments, but without OFD many of his projects won’t break ground for years to come.