Permitting reforms in the Bipartisan American Affordability and Jobs Act may help streamline some transportation projects. But without prioritizing which infrastructure we should build, we will still fail to achieve a safe, cost-efficient, and well-maintained transportation system.
Current processes for building necessary infrastructure produce costly delays and lawsuits, especially for transit projects. But permitting reform alone won’t fix America’s current inability to build.
Some provisions in the Bipartisan American Affordability and Jobs Act—which was introduced at the end of September and is expected to reach the Senate after midterm elections—would shorten agency review timelines and designate a lead agency to avoid duplicative reviews, potentially helping speed up projects. Parts of the bill could also successfully encourage state departments of transportation to prioritize state of repair projects.
As Stephanie Pollack noted in a blog for the Eno Center for Transportation:
“…critical projects would be relieved of NEPA delays or claims of controversy: rail agencies could correct dangerous highway crossings, transit agencies could add infill stations or make stations accessible, bridge owners could lift weight restrictions and correct structural problems, highway agencies could make roads resilient to flooding, high temperatures or earthquakes, and local agencies could build safe infrastructure for pedestrians and cyclists.
Agencies that want to expand the capacity of a bridge or highway do not receive this exemption from NEPA: BAAJA excludes any bridge or highway project that results in additional travel lanes from the definition of lifeline infrastructure. Indeed, with NEPA review required for capacity expansions and eliminated for state of good repair projects, agencies may choose to direct more federal dollars to building the easier, faster ‘fix it first’ projects.”
But other changes could be harmful and limit opposition to bad projects like unnecessary, budget-busting highway expansions. With the bill still in draft form and many of the details left to implementation, it is unclear whether the bill will be effective at pushing state departments of transportation toward a “fix-it-first” approach.
Streamlining should still give communities clear opportunities to challenge bad projects
The Bipartisan American Affordability and Jobs Act would limit lawsuits to members of the public who commented on that specific matter during the given period. This may not sound like a major change, but it could create unfair advantages for more engaged and wealthy residents and interest groups, which are more likely to be aware of proposed projects and have the time and resources to submit formal comment.
Another part of the proposed legislation says that no federal agency would be “required to consider scientific or technical research that becomes publicly available after the date of publication of a notice of intent or decision to prepare an environmental document for a proposed agency action.” That means federal agencies would not be required to consider research that becomes publicly available after a certain point in National Environmental Policy Act (NEPA) review. As it exists, NEPA is an important tool for communities to speak up against harmful infrastructure decisions, and parts of this bill will undermine that. And some formal analyses of proposed agency actions are not finished before a Notice of Intent is released.
Highways get the fast lane while transit projects get stuck
This bill is also missing critical components to speed up new transit and active transportation infrastructure—the kind of transportation infrastructure that brings the most benefits, especially in accessibility and environmental outcomes. While 95 percent of transit projects already qualify for a categorical exclusion under NEPA, securing that exclusion takes time and effort, defeating the purpose of the exclusion in the first place. A categorical exclusion would help advance projects with no significant negative environmental impacts, allowing faster project delivery.
Unlike highway projects, transit agencies have to prepare extensive documentation and get approval from the Federal Transit Administration (FTA) before work can begin. This requirement puts local agencies in delay-plagued holding patterns determined by FTA capacity and their eagerness to advance projects, which is at an all-time low under the current administration. Highway projects don’t face this same bottleneck because state departments of transportation are allowed to handle low-risk environmental reviews themselves.
For example, the Texas Department of Transportation has been conducting its own NEPA reviews since 2014. That allowed nearly 30,000 lane-miles of public roads to be added across the state between 2014 and 2024, while transit options barely changed. Groups across the political spectrum, from the Institute for Progress to the Build America Caucus, have suggested providing transit agencies the same opportunity as state DOTs to get transit projects moving faster.
Beyond that potential change, the federal transit program needs to be dramatically reformed to speed up project delivery and to ensure that projects are actually achieving their stated goals. For more on T4America’s reauthorization priorities for transit, see here.
Streamlining alone isn’t enough to fix our transportation system
Permitting reforms in the Bipartisan American Affordability and Jobs Act will fail to achieve their stated outcomes without other reforms. More than anything, we need policymakers to actually track outcomes and make decisions based on those findings. Capacity at all levels of government has been systematically undermined over the last 50 years, affecting our ability to collect critical information and get projects across the finish line. Changing an agency review period from 90 to 45 days is not going to be a magic solution to get America building again.
We don’t just need streamlined processes and more resources to create a modern, safe, and sustainable transportation system that achieves its intended outcomes. We also need new priorities for what we’re trying to build or accomplish in the first place—not just streamlining the building of the same expensive stuff that serves yesterday’s needs. For starters, we need transportation reauthorization to actually make state departments of transportation prioritize safety and hold them accountable for improving the condition of their roads, bridges, and transit systems.
T4America recognizes the need for permitting reform as one part of a new approach to transportation. But at the end of the day, any permitting reform that impacts the buildout of transportation infrastructure must center a fundamental value: It should not be easier to expand highways than to build new transit infrastructure or other low-cost facilities like sidewalks, crosswalks, and bike lanes that improve safety and connection within our communities.
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