President Trump posted on Truth Social that he would give “Any person or company investing one billion dollars, or more, in the United States of America…fully expedited approvals and permits, including, but not limited to, all environmental approvals.” The time and expense saved would, understandably, be very attractive to businesses.
Permits, after all, are a major roadblock to progress. Often, permits are held up while a government official uses arbitrary discretion to over notoriously indefinite time periods to grant or deny the application.
For large projects that require building on federal lands, or otherwise require a federal action, a huge hindrance is the National Environmental Policy Act (NEPA) – the environmental approvals that Trump likely is referring to. NEPA, in most cases, requires environmental studies that take years, sometimes even a decade, to complete. Federal permits all require this process to occur before the project can commence.
Skeptics question how President Trump’s ability to bypass the permitting red tape, including NEPA. Forbes, for example, stated that “How Trump will help investors get around regulations isn’t clear.”
But permitting reform efforts have already begun. Previously, Congress introduced the FREE Act, which would require executive agencies to examine the permits under their jurisdiction and convert some permits to what is called a permit by rule (PBR).
PBR is a solution to the problems that President Trump has tapped into. It is simple. It starts with government determining a set of standards that a person or company must meet to conduct a regulated activity and codify them. For example, government may pre-set emissions standards for a factory or an oil plant. Once those standards are created and codified, those who can meet those standards is granted a permit “by rule.” Anyone who can satisfy those standards is deemed to be permitted.
At that point, all that a person or company would need to do is to certify to the government that it has met those standards. The government, in turn, has a brief, limited amount of time to confirm the certification, or the applicant is automatically approved.
As a result, government’s role is far more limited. The government can only deny a permit if any certification is missing. It cannot deny for discretionary reasons. Government can also take enforcement actions against a party if, in fact, it is found that the standards are not met. But for those who are following the rules, government would not hold them back. This enforcement focused approach to government would serve as a deterrent to bad actors because, if a permittee were to make investments, only to be later shut down, it would stand to lose its investment.
This process would allow projects to start much quicker than under the current permitting process. Additionally, the process would be far less expensive for the permitted parties. As a result, the barriers to entry are significantly reduced.
Specific to President Trump’s claim that he can help expedite environmental approvals, PBR can accomplish this too. PBR is treated similarly to a permit itself. This means all of the NEPA studies are conducted when the PBR is created as opposed to conducting those studies on each project individually. Once a permitted party comes to the table to certify its compliance, the NEPA studies would already be completed.
PBR is hardly a new idea. It has been implemented in at least 38 states already. It has been used in a wide variety of projects, from oil and gas production to shellfish collection. It is a proven system of permitting.
President Trump was not just blowing smoke on Truth Social.. PBR can accomplish the goals he described. And he does not have to wait for Congress to enact these changes. Any activity where Congress has already granted the executive the authority to issue permits can benefit from PBR. President Trump is capable of introducing PBR to federal permitting in his first 100 days.
Fix permitting and watch investment in America soar.
Curtis Schube is the Executive Director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained. He is formerly a constitutional and administrative law attorney.
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