In the American interior, there is a proposed highway that would cut commute times in half, reroute freight traffic, and reduce accidents on a dilapidated two-lane that has been “temporary” for forty years. However, construction has stalled for reasons other than money, politics, or even public opposition. A nest has caused it to stall.
Not a nest of metaphors. A real one, constructed by a species of protected bird, situated in the exact wrong scrub patch along the intended corridor. A stop is mandated by federal law. So the dozers do nothing.
It sounds almost comical until you consider how frequently it occurs. Governors, broadband providers, and infrastructure planners all seem to agree that America’s permitting system is flawed, which is nearly unprecedented in and of itself. Not because regulators are bad people. Not because the laws serve no purpose at all. However, as a result of the system’s layers of paralysis, no agency can act without waiting on three others, and over time, justifiable environmental protections have turned into tools of nearly irreversible delay.
Written in 1918, when market hunters were still selling songbirds by the cartload and the passenger pigeon had just gone extinct, the Migratory Bird Treaty Act now has sufficient legal weight to halt a highway project for the entire nesting season. A project’s federal permitting may be suspended for years while biological assessments are being reviewed under the Endangered Species Act, which was passed in 1973. These laws were drafted to address actual issues. In fact, the passenger pigeon had vanished. The bald eagle was almost completely gone. There is no serious argument against the idea of protecting ecosystems.
However, there’s a feeling that the original intent was somewhat lost somewhere between safeguarding an ecosystem and blocking a highway due to a single nest.
The story’s obvious antagonists are not the ones who experience this the most. They are county officials in rural areas who are observing the deterioration of their roads. They are broadband engineers whose fiber crews are prepared to wire a school district, but they are unable to start construction because a permit from one agency is awaiting approval from another that has a backlog of 14 months. The funding, engineering plans, and contractor bids are all in the hands of state transportation departments, but there is no set start date. The issue is rarely a permit that is actually denied, as one recent commentary in Route Fifty stated. The slow roll is what it is. Agencies’ overlapping reviews, lacking coordination and accountability for delays, can cause projects that should take weeks to take years.
The issue isn’t really the nest. Simply put, the nest is the easiest aspect of the problem to picture.
The underlying protections have real constituencies and real histories, which makes this genuinely challenging to resolve. The Dakota Access Pipeline protests, which garnered national attention in 2016, focused in part on water rights and in part on whether or not federal permitting reviews had been sufficiently thorough in the first place.
States that responded by enacting new critical infrastructure laws, such as making it illegal to interfere with pipelines or refineries, immediately faced constitutional challenges; South Dakota courts blocked some of these laws on the grounds of free speech. There will always be a conflict between creating new things and preserving what already exists, whether it be communities or ecosystems.
However, it’s difficult to ignore the fact that other nations—even those with similar environmental standards—manage to construct rail lines, highways, and broadband networks much more quickly. The accumulation of process appears to be the particular issue in America. When each review was added, it all made sense. When combined, they resemble a veto machine.
Washington appears to be beginning to take this seriously. This year, the Build AMERICA 250 Act was introduced, and it appears that both parties are genuinely interested in allowing reform. Faster review doesn’t have to equate to careless review, as several states with governors from both parties have already demonstrated. Massachusetts shortened the time for energy permits without eliminating environmental input. To attract investment, West Virginia streamlined its procedures. Rather than waiting another decade to take action, Washington might learn from those examples.
However, the nest will remain. The dozers will continue to sit until someone finds a way to uphold the law, save the bird, and relocate the highway all at once. America will continue to wait.
