As anyone who has tried to make an improvement to their property knows, a government agency must sign off on — i.e., permit — many things that citizens might want to do. Often, this involves delays due to the application sitting on some bureaucrat’s desk, only to have that bureaucrat tack on a bunch of requirements, further delaying the process and making the project more expensive.
On the federal level, at least, the government finally sees the problem and is starting to address it. On July 23, President Donald Trump issued an executive order directing his agencies to take steps to expedite permitting technological or artificial intelligence facilities. Ordering agencies to create expedited or simplified permitting processes has been a consistent theme in this second Trump administration.
More recent efforts include a bill, the PERMIT Act, introduced in the House that would change water disposal permitting. The bill would do a number of things, notably requiring what is called a “general permit” for certain specific categories of activities under the Clean Water Act.
A “general permit” would be a permit issued to an entire category of activity. In oversimplified terms, the government essentially says, “Anyone who wants to build xyz may do so.” Any person who wishes to perform that activity can simply do it. They would not have to submit an application.
Another bill, dubbed the FREE Act, may be just what is needed in this moment. Introduced last term and again in January, it would require executive agencies to evaluate the permits under their jurisdiction and determine whether the process can be replaced by a permitting system called “permit by rule.”
Permit by rule is similar to general permits, but it lets the government retain more control. It would drastically simplify permitting. The government would create a list of preset standards that must be met to grant a permit. All that an applicant would have to do is submit a notice to the government informing the agency that it will commence a project. After a small amount of time, say 30 days, the applicant would be free to commence the project.
The government can only deny the applicant that opportunity if the applicant does not sufficiently certify that it meets all the required standards. Otherwise, the government’s role shifts to a watchdog. The government would retain the ability to take disciplinary measures against a noncompliant bad actor. But the government would no longer be a gatekeeper, holding up projects or requiring unnecessary changes to the project.
Permit by rule would be a win for all involved. For the applicant, what is expected would be spelled out, which eliminates guesswork. It also allows the applicant to commence the project nearly right away. Both of these benefits make projects cheaper, savings that ultimately trickle down to the consumer.
The government will no longer expend resources on applications that check all the boxes and will only have to focus on the bad actors. And, for those worried that permittees will cut corners, those fears are misplaced. Permittees would not risk the resources required to commence a project that could potentially be stopped at a later date.
Trump, if he wishes, does not have to wait for Congress to act. He could transform the same ideas in the FREE Act into an executive order requiring agencies to evaluate whether they could accomplish their permitting application process through permit by rule, too.
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A sweeping requirement for all agencies to do this work makes sense. It would not require numerous law changes that look like the PERMIT Act. This simple reform does not need a separate bill or executive order within each specified subject area. It can be done with one effort.
Regardless of whether it is an act of Congress or an executive order, the government would be wise to reform permitting by implementing permit by rule. It is far simpler, cheaper, and fairer.
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 was formerly a constitutional and administrative law attorney.
