Philip K. Howard: Blame Congress for our crumbling infrastructure
The infamous Bayonne Bridge.
President Trump has signaled that one of his next big initiatives will be to jump-start a trillion-dollar program to rebuild America's fraying infrastructure. As a former builder, Trump would seem to be uniquely qualified to oversee this initiative.
Rebuilding infrastructure enjoys broad public support, unlike, say, the failed rewrite of Obamacare, The economic benefits will be huge — not only improving America's competitiveness, but returning upwards of $5 on each $1 invested, according to the American Society of Civil Engineers. Two million new jobs would be created.
But it's all talk. What's missing is pretty basic: No one has the authority to say Go. Although supposedly in charge of the executive branch, Trump finds himself in a kind of mosh pit of overlapping statutory responsibilities and inconsistent legal mandates.
Approval processes can take a decade or longer. Environmental reviews, meant to highlight important choices, obscure them in thousands of pages of mind-numbing detail.
For projects that survive this gantlet, the delay dramatically increases costs. Uncertainties over time and cost keep many projects on the sidelines.
Governing shouldn't be this hard. Traffic bottlenecks, overflowing wastewater, rickety power grids, and crumbling dams desperately need to be fixed. All that's needed are responsible officials to give permits and allocate funding.
Who's to blame here?
Shine the spotlight on Congress. For 50 years, under Democratic and Republican control alike, Congress has piled up law after law, many with absolute mandates to protect endangered species, preserve historic structures, guarantee access to the disabled and scores of other well-meaning goals.
The accretion of statutes is matched 10:1, more or less, by agency regulations written to implement Congress's mandates. All these laws give enforcement power to 18 or so separate federal agencies — sometimes all on the same project. To top it off, almost anyone can sue based on alleged failure to comply with any of the countless requirements.
It's amazing anything gets built.
The red-tape idiocies are illustrated by the project to raise the roadway of the Bayonne Bridge, which spans the Kill Van Kull connecting New York Harbor with the Port of Newark. The roadway is too low for the larger "post-Panamax ships" (designed for the newly-widened Panama Canal), and the Port Authority thought it needed to spend $4 billion to build a new bridge or tunnel.
Then a long-time Port Authority employee, Joann Papageorgis, figured out that the roadway could just be raised within the existing arch of the bridge. The solution was like a miracle: It not only reduced costs from $4 billion to $1 billion, but also had virtually no environmental impact since it used the same foundations and right of way as the existing bridge.
Raising the Bayonne Bridge roadway was pro-environmental in every meaningful way. It would permit cleaner, more efficient ships into Newark Harbor, and avoid the environmental havoc to surrounding neighborhoods of a new bridge or tunnel.
But no official had authority to approve it without hacking through a jungle of red tape.
Here's some of the red tape: a requirement to study historic buildings within a two-mile radius even though the project touched no buildings; notice to Native-American tribes around the country to participate even though the project would not be disturbing any new ground; and 47 permits from 19 different agencies.
It doesn’t get more complicated than this
The environmental review for this project — again, a project with virtually no environmental impact — was 20,000 pages, including appendices. Proceeding on an expedited timetable, permits were finally awarded after five years. Then some self-styled environmentalists sued claiming….you guessed it, "inadequate review." The Port Authority started construction anyway, and hopes to complete the project in 2019, 10 years after the application was filed.
Where is Congress?
Only Congress has the power to change old laws, to make sure they work in the public interest. Congress's responsibility also includes making sure laws work together. Viewed alone, a law may seem perfectly reasonable.
But if all the laws cumulatively harm the public, then Congress has the obligation to change them.
The problem is, in the vast majority of cases, Congress doesn't even have the idea of fixing old law. It treats old law like the Ten Commandments — except that now it's more like the Ten Million Commandments.
Like sediment in a harbor, the accretion of old law prevents America from getting where it needs to go. What's missing is not mainly money: President Obama had over $800 billion in the 2009 stimulus but, five years later, had been able to spend only 3.6 percent on transportation infrastructure. As he put it, "there's no such thing as shovel-ready projects."
What's missing is that no human has authority to use their common sense.
The harm to the public is intolerable. A study by Common Good, which I chair, found that the red-tape delays for infrastructure more than double the cost of large projects. The study also found that lengthy environmental review is dramatically harmful to the environment by prolonging polluting bottlenecks.
Environmental review is a good idea, but something is obviously amiss when the review of the environmental effects actually is environmentally harmful.
Greener countries like Germany are able to do environmental reviews and permitting on major projects in one to two years. The secret to their success is — hold on to your hats — to let officials take responsibility to make needed decisions.
All the red tape in America comes from a deliberate congressional philosophy to prevent humans from making decisions. Everything is preset in laws and rules. Thus, in American government, the concept of relevance is irrelevant.
That's why the Bayonne Bridge required a study of historic buildings even though no buildings were affected. That's why the new Tappan Zee Bridge project was required to do traffic studies even though the new bridge was not affecting traffic flow.
Restoring responsibility to officials to make decisions is the only way to end this red tape paralysis. It doesn't mean they can do whatever they want — they would still have to do an environmental review, accountable to the President and to courts in egregious cases.
But instead of overturning every pebble, officials could focus on what's important. "Oh, you're just raising the bridge roadway using the same foundations? Give 50 pages on construction impacts of the project" (not 20,000 pages).
Restoring clear lines of authority is actually simple. Common Good has proposed three pages of legislative fixes to make this vision a reality. The proposal empowers officials to determine the scope and adequacy of review, to intercede in inter-agency disputes and to expedite lawsuits to keep projects moving.
Trump recently signed an executive order designed to expedite approvals a little by giving coordinating authority to a designated official. That recommendation was based in part on Common Good's work. Transportation Secretary Elaine Chao declared recently: "Business as usual is just not an option anymore." Even Senate Democrats'' proposed infrastructure plan commits to "accelerated project delivery." But talking about fixing the problem isn't enough.
Trump ultimately doesn't have legal authority to ignore these statutory dictates. Congress created all this bureaucracy. Only Congress can fix it.
And how about funding the infrastructure initiative, whenever it materializes? Congress has its head in the sand here as well.
Trump has vowed to push for a decade-long, $1 trillion initiative. According to the American Society of Civil Engineers, the infrastructure backlog is actually over $4 trillion, including: congestion on 40 percent of Interstate Highways; an antiquated power grid that wastes the equivalent of 200 coal-burning power plants; in New York State, 2,000 structurally deficient bridges and, in New York City leaky water mains that are almost a century old.
Delays on some of these projects could be disastrous. The two rail tunnels under the Hudson River, for example, are over 100 years old, and were damaged by superstorm Sandy. When they are forced to shut down for emergency repairs, the traffic jams could stretch for 25 miles.
Two new tunnels and other rail upgrades in and out of Penn Station are almost ready for construction. But this "Gateway Project" costs over $20 billion. Even with expedited reviews, and funding from state and local government, it will take a major financial contribution from Washington.
Yet Congress, or more accurately, the Republicans in Congress, refuse to advance any responsible plan to fund an infrastructure initiative. They don't dispute that infrastructure funding would be an excellent public investment — improving competitiveness, adding jobs and building a greener footprint. The sticking point is the Republican mantra — almost a theology — that they can never, never ever, raise any taxes.
Infrastructure does not, however, grow on trees. Trump in his campaign suggested that infrastructure could be funded with private investment.
Indeed, some infrastructure projects, such as transmission lines and toll roads, can be financed privately because they have revenue streams. But adding new lanes on congested highways, shoring up old dams and expanding sewage capacity will generally require public funding.
Where can infrastructure funding come from? One obvious source is the gasoline tax, which hasn't increased in 24 years. Raising the gasoline tax by 25 cents would raise over $40 billion per year, and fund most needed highway and transit projects. This could be supplemented by a "carbon tax" on other fossil fuels. Another funding source would be tax revenue from repatriated offshore corporate earnings.
New fees and taxes come out of our pockets, of course. But kicking the can down the road will cost us far more. An hour stuck in a traffic jam is multiple times more expensive than an extra 25 cents on each gallon of gasoline. Deferring maintenance is generally economically disastrous — increasing costs by a factor of 10, as occurred when the cables and girders of Williamsburg Bridge had to be replaced due to decades of neglect.
Doesn't Congress have a responsibility to do what's right here? Our parents and great-grandparents paid for the infrastructure that we now use. A great city, a great country, can't thrive with decrepit roads, rails and pipes.
Every time you're in a traffic jam — starting, say, this afternoon — think about Congress. It created a paralytic regulatory structure that prevents fixing infrastructure. Now it also refuses to help pay for it. Only Congress can cut these bureaucratic knots, raise funds, and get America moving again.
Philip K. Howard is chairman of Common Good, a legal- and regulatory-reform organization, a New York City-based civic leader, a lawyer, author of, most recently. The Rule of Nobody and a photographer.