Permit-by-rule, a simplified process for obtaining permits, has gained traction as a solution to expedite government approvals for various projects. This approach allows permit applicants, referred to as "sources"; to certify their compliance with pre-set criteria, eliminating the need for extensive review and having to submit documentation. By simply submitting a “notice” confirming their fulfillment of the predetermined requirements, the default position is automatic approval and permit issuance, unless specific claims of non-compliance are presented by the government.
The primary goal of permit by rule is to streamline the approval process, making it faster and more predictable. By shifting the burden of proof from the source to the government, the focus shifts to enforcement and ensuring compliance with substantive standards rather than lengthy case-by-case analysis for sources who are likely to be granted a permit anyway. This approach minimizes wait times, reduces arbitrary decision-making, and optimizes the allocation of limited taxpayer resources for enforcing the established standards.
Recognizing the need for permitting reform, there has been a growing appetite for change in recent years. Legislative efforts, such as H.R. 1, aim to reform permitting laws and introduce more efficient processes. For instance, proposed amendments to the Solid Waste Disposal Act and the National Environmental Policy Act (NEPA) seek to expedite permit issuance and streamline environmental studies. Bipartisan support for permitting reform is evident, with representatives from both major political parties advocating for change.
At the federal level, the Environmental Protection Agency (EPA) has already implemented permit-by-rule systems for certain activities, including ocean disposal, injection wells, and treatment works facilities. The EPA's model simplifies the permitting process, providing a potential framework for other federally regulated industries, such as the energy sector, to adopt.
Permit by rule is not limited to federal regulations; many states have also embraced this approach. At least 38 states have implemented permit-by-rule systems, covering a wide range of activities, from hazardous waste management to pharmaceutical take-back programs. Each state has its own criteria, tailored to fit their specific needs and risk assessments, demonstrating the flexibility and effectiveness of this permitting approach.
The advantages of permit by rule are evident. By reducing the need for case-by-case permit development and expediting the application process, efficiency is promoted, enabling private parties to initiate projects promptly. It provides predictable project schedules, reduces transaction costs, and enhances development opportunities without compromising regulatory standards.
While permit by rule offers significant benefits, it is crucial to strike a balance between streamlining procedures and safeguarding public health, safety, and the environment. The criteria must be well- defined, periodically reviewed, and aligned with the overall regulatory framework. Studying successful state implementations can provide valuable insights for federal policymakers considering adopting a more efficient permitting system.
Permit by rule offers a modernized and streamlined approach to the complex process of obtaining government approvals. By simplifying the requirements and shifting the burden of proof, it expedites permit issuance, enhances efficiency, and encourages economic development. As the appetite for permitting reform grows, permit by rule presents an opportunity for bipartisan collaboration to achieve much-needed improvements in the federal and state regulatory landscape.
Curtis Schube is the Executive Director for Council to Modernize Governance.
