After three decades of relentless (a) offshoring of its manufacturing capacity and (b) deterioration of its essential infrastructures, the U.S. at long last is embarked on a grand national project of industrial and infrastructural renewal. Enactments including the Inflation Reduction Act and the CHIPS & Science Act include massive subsidies, tax abatements, and other inducements to investments in and purchases from what are expected to be the next generation of globally dominant industries.
Meanwhile, the author’s recently introduced National Development Strategy and Coordination Act (NDSCA), cosponsored by one House Democrat and one Senate Republican, reconfigures the White House Cabinet and the Federal Financing Bank (FFB) within Treasury to act as a coordinating body and central financing arm, respectively, assigned the tasks of (a) preventing inefficient duplications of efforts and (b) identifying regional and sectoral gaps in the national reconstruction effort.
The goal is to reestablish, in contemporary form, the pairings that streamlined efforts in previous national mobilizations like those during the First and Second World Wars.
In working to catapult the U.S. into a global leadership role both in presently and in future leading-edge manufacturing and infrastructural sectors, the aforementioned enactments aim to restore and revivify the American middle class, address serious national security vulnerabilities that have emerged in recent decades, and restore the U.S.’s status as a manufacturing powerhouse with a diversified continental economy again where consumer price inflations are preempted by mass production. In effect, the aim is to ‘Make America Make Again.’
One needless impediment, however, stands in the way of these efforts. Hosts of often duplicative, and sometimes even mutually contradictory, permitting requirements imposed by multiple state and local authorities both slow the process of reconstruction and, worse, in some cases dissuade builders from even so much as applying for permits in the first place. In effect, the centralized coordination enabled by the NDSCA is de facto preempted by uncoordinated sub-federal permitting authorities.
The bill I propose here – the Expedited National Reconstruction Permitting Act of 2023 – works to enable the Council and upgraded FFB to discharge their appointed tasks by centralizing the permitting function just as the NDSCA centralizes the coordination and financing functions. It does not repudiate the values that permitting procedures are meant to vindicate – quite the contrary.
What it does do is to assign the permitting function to one federal authority – the Council itself. It does this by (a) preempting state and local permitting authorities’ jurisdiction over projects deemed by the Council to be crucial to national reconstruction; (b) replacing state and local permitting in such cases with expedited federal permitting; and (c) imposing, as conditions on expedited permits, the same requirements now imposed by state and local authorities, while adding a bonding requirement.
The bill also reaffirms the Council’s, the FFB’s, and other federal agencies’ subjection to all requirements of the Administrative Procedure Act.
Herewith the bill …
The Expedited National Reconstruction Permitting Act of 2023
(1) Short Title—This Act may be titled The Expedited National Reconstruction Permitting Act of 2023.
(2) Definitions— …
(3) Findings and Statement of Purpose—Congress finds that:
(a) The Nation’s Infrastructural and Manufacturing Capacities have deteriorated markedly since the acceleration of global trade liberalization and associated ‘offshoring’ of Manufacturing Capacity over the past several decades, thereby—
(i) Worsening U.S. Current Account Balances;
(ii) Lessening the Percentage of Well-Paying Manufacturing Jobs in the Private Sector;
(iii) Worsening Wealth and Income Inequality in the Private Sector;
(iv) Threatening Product Supply Chains and U.S. National Security; and—
(v) Causing recent Consumer Price Inflation.
(b) In response to the ills just recited, Congress and the White House have passed and signed into law new legislation, including but not limited to the Inflation Reduction Act and the CHIPS
HIPS
and Science Act, aimed at restoring the Nation’s Primary Infrastructures and renewing its Manufacturing Industries;
(c) Notwithstanding these salutary developments, multiple overlapping sets of permitting requirements imposed both by States and by Municipalities are delaying repair, construction, or both of Infrastructure Projects, Manufacturing Facilities, and Complementary Projects including Worker Housing, Schooling and Daycare for Workers’ Children, and like projects on which the Nation’s Productive Renewal Depends;
(d) While the mentioned Permitting Requirements promote crucial values, the fact that multiple Authorities impose them, often in either needlessly duplicative or mutually incompatible ways, impedes the expeditious Reconstruction of the Nation’s Vital Infrastructures and Productive Capacities, while—
(e) A Univocal Set of Standards, imposed by just one Public Authority, can vindicate the same values both more effectively and more efficiently;
(f) Wherefore be it enacted that—
(4) Expedited, Single Permitting Made Available—The National Reconstruction & Development Council (‘Council’) established by the National Development Strategy and Coordination Act of 2022 shall develop a single Expedited National Reconstruction Permit and associated Permitting Process available to any Entity Contracting with the Council, the Federal Financing Bank (FFB), or any Federal Agency associated therewith to execute a Project that the Council determines to be in the interest of National Reconstruction or Development;
(5) Conditions on Expedited Permitting Imposed—The Council shall require that the following Criteria be met by any Project receiving the benefit of Expedited Permitting:
(a) Only American Labor shall be paid to execute on the Project;
(b) Only American-made Inputs shall be used in executing the Project;
(c) All applicable Laws and Regulations prohibiting Invidious Age, Gender, Racial, or Anti-Union Discrimination shall be strictly followed;
(d) All Entities Contracting with the Council and seeking Expedited Permitting shall post Bond in the amount of the probable Dollar Cost of possible Environmental or other Harms found by the Council to constitute Non-Trivial Risks; and
(e) The Council shall Demand Damages in Adjudicative Proceedings against any Entity found to have violated any of Conditions (a) through (d).
(6) State and Local Permitting Requirements Preempted—Permitting done in compliance with this Act shall expressly preempt any State or Local Permitting Requirements or Processes, such Preemption to be Coextensive with the Commerce Power implied by the Commerce Clause, and with the Legislative Supremacy vouchsafed by the Supremacy Clause, of the U.S. Constitution.
(7) Applicability of Administrative Procedure Act, and Expedited Review of Contested National Reconstruction Permits—The Council shall render its Permitting Decisions in conformity to the requirements of the Administrative Procedure Act, and any Aggrieved State or Local Agency wishing to contest any such Permitting Decision may, after Exhaustion of Remedies afforded by the Council, receive Expedited Judicial Review of the Decision in the appropriate Federal Court of Competent Jurisdiction.
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