Why It Takes So Long to Build a Bridge in America

[cpzilliacus]

[Paywall - Google the title and you should be able to see the entire article if it does not render]

Wall Street Journal Op-Ed: Why It Takes So Long to Build a Bridge in America - There's plenty of money. The problem is interminable environmental review.

President Obama went on the stump this summer to promote his "Fix It First" initiative, calling for public appropriations to shore up America's fraying infrastructure. But funding is not the challenge. The main reason crumbling roads, decrepit bridges, antiquated power lines, leaky water mains and muddy harbors don't get fixed is interminable regulatory review.

Infrastructure approvals can take upward of a decade or longer, according to the Regional Plan Association. The environmental review statement for dredging the Savannah River took 14 years to complete. Even projects with little or no environmental impact can take years.

Raising the roadway of the Bayonne Bridge at the mouth of the Port of Newark, for example, requires no new foundations or right of way, and would not require approvals at all except that it spans navigable water. Raising the roadway would allow a new generation of efficient large ships into the port. But the project is now approaching its fifth year of legal process, bogged down in environmental litigation.

Mr. Obama also pitched infrastructure improvements in 2009 while he was promoting his $830 billion stimulus. The bill passed but nothing much happened because, as the administration learned, there is almost no such thing as a "shovel-ready project." So the stimulus money was largely diverted to shoring up state budgets.

[NE2]

Fuck the planet.

[Duke87]

The problem is not specifically "interminable envrionmental review" so much as it is more generally "interminable litigation". Environmental issues are just one thing that happens over. You also have issues of human environment, aesthetics, historical preservation, etc.

You have a court case, then an appeal, then another appeal, then another appeal... then a new court case, and a new appeal, etc. Shit takes years because people that want to stop a project (who exist for every project under the sun) are permitted to drag it out. Our legal framework for such things strongly favors people who want to stop them. Things don't happen because NIMBYs always have the upper hand. 

[NE2]

We should round up all the Nimbyans and march them to Oklahoma.

[cpzilliacus]

The problem is not specifically "interminable envrionmental review" so much as it is more generally "interminable litigation". Environmental issues are just one thing that happens over. You also have issues of human environment, aesthetics, historical preservation, etc.

I disagree.  The expense and time associated with preparation of an Environmental Impact Statement is the bigger issue - and federal agencies can take their time in the review process.

Getting through litigation in the federal courts does take time (especially a long FEIS and Record of Decision), and the Court has to read same, but if the opponents lawsuit is dismissed, then there is usually only one appeal left, to the appropriate federal circuit court of appeals (the Supreme Court seldom is interested in hearing appeals in NEPA highway cases).

You have a court case, then an appeal, then another appeal, then another appeal... then a new court case, and a new appeal, etc. Shit takes years because people that want to stop a project (who exist for every project under the sun) are permitted to drag it out. Our legal framework for such things strongly favors people who want to stop them. Things don't happen because NIMBYs always have the upper hand.

Clearly there are people that want to stop projects for reasons of NIMBYism, but in the case of highways, there are plenty of groups that oppose any and all improvements to highways (including, but not limited to widening projects and new highways on brand-new alignments). 

[ZLoth]

Clearly there are people that want to stop projects for reasons of NIMBYism, but in the case of highways, there are plenty of groups that oppose any and all improvements to highways (including, but not limited to widening projects and new brand-new highways).

You are talking about those folks who believe that cars are EEEEVVVVVIIIILLLLLL, and manage to divert transportation funds to rail projects that don't go anywhere near where anyone lives, have inconvenient schedules, have less capacity, and cost more. 

[oscar]

The problem is not specifically "interminable envrionmental review" so much as it is more generally "interminable litigation".

But the prospect of litigation means longer and more expensive reviews, to try to head off litigation and (not always successfully) to win if a suit is filed.  An agency must balance the delay of a very detailed review, versus the delay of having a more streamlined review rejected then have to be redone.

Sometimes Congress can step in to streamline or waive environmental review requirements for a specific project, such as it did with Interstate H-3 in Hawaii to cut through a mass of legal snarls dragging out the project.  But there is reluctance for Congress to do so at all, and even if Congress were more inclined to do so, as a practical matter it can't do so very often, or very well. 

[froggie]

I disagree.  The expense and time associated with preparation of an Environmental Impact Statement is the bigger issue - and federal agencies can take their time in the review process.

There's some time component, yes, but it can still be done within a 2-3 year period.  Also, based on my Minnesota experience, the typical environmental review process plus project development and engineering costs combined total about 20% of the total project cost.

[J N Winkler]

I am not sure the financial component is as unimportant as the article seems to suggest, since one reason many state DOTs allow the environmental process for major projects to drag out is that there is no funding to build a given project within a reasonable amount of time after conclusion of environmental review.  Late completion of the process can actually work in the state DOT's favor since it allows the project to go forward on the basis of fresh permits.

[Jardine]

A local Interstate bridge was held up after construction started when an old timer pointed out to the contractor the pilings being driven for the abutments were considerably shorter than the depth of the river at that location.

I think it is easier to get caught up in all the distractions of permitting, and regulations, and ancillary issues, and overlook something 'important' like "hmmm, how deep is the river here?".

[hotdogPi]

Does my Connecticut to Long Island bridge idea affect the environment at all?

[The High Plains Traveler]

Does my Connecticut to Long Island bridge idea affect the environment at all?

Not as long as it doesn't get built.

[Alps]

Aargh. Environmental review takes time, but that time is factored into project development and occurs on the sideline as other events in planning and design progress. If all goes well, permits are in place months before the project is bid. (Years before would be bad, because permits expire.) I think the article may be lumping "public involvement" into "environmental review". A lot of public involvement does fall under NEPA or similar, and is very important/valuable in a project, but probably the single most time-consuming component of planning. Individual examples of environmental processes taking a decade or longer don't prove anything, any more than your pet dog dying at age 30 proving that dogs live longer than cats.

[cpzilliacus]

Aargh. Environmental review takes time, but that time is factored into project development and occurs on the sideline as other events in planning and design progress. If all goes well, permits are in place months before the project is bid. (Years before would be bad, because permits expire.) I think the article may be lumping "public involvement" into "environmental review". A lot of public involvement does fall under NEPA or similar, and is very important/valuable in a project, but probably the single most time-consuming component of planning. Individual examples of environmental processes taking a decade or longer don't prove anything, any more than your pet dog dying at age 30 proving that dogs live longer than cats.

It took Md., Va. and D.C. about 8 or 9 years (1991 or 1992 to 1999) to get a Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) done for the Woodrow Wilson Bridge.  There were two Maryland governors, three Virginia governors and three District of Columbia mayors in office while the EIS process was going on.  That to me highlights that something is wrong with the process, especially when there was substantial agreement among most that the old bridge was structurally deficient and functionally obsolete (but opponents of the project repeatedly and cravenly claimed to the news media that there was nothing wrong with old bridge - I don't think there was a civil engineer among them).

There was a lot of public involvement (the three jurisdictions and the U.S. Department of Transportation had public outreach storefronts open during the planning process and into the construction phase). 

The design of the new bridge was intended to be visually attractive (a deliberate resemblance to the Arlington Memorial Bridge upstream), though the deck was doubled in height to reduce the number of draw span openings. 

The Sierra Club and friends still sued (the City of Alexandria, Va. was also a party to the suit, but dropped out before the litigation was done).  The suit came down to air quality impacts of building a 12 lane crossing instead of a 10 lane span.  At trial before a federal judge in Washington, D.C., Sierra won a remand of the FEIS, but the victory was short-lived, as the federal appeals court in D.C. reversed the lower court. The lawsuit was (IMO) not about air quality, but about delaying or cancelling the start of construction.

Was this an extreme case?  Perhaps.  It involved two states, the federal District of Columbia, the Federal Highway Administration and U.S. DOT (which directly owned the old and decrepit structure), one county and one municipality on the Maryland side, one county and one municipality on the Virginia side, the National Park Service and an assortment of other federal and state agencies. It also involved the total reconstruction of the Capital Beltway for several miles on either side of the bridge to an (almost) NJTP-style "dual-dual" configuration.

Now the two main agencies (Maryland SHA and VDOT) did do a lot of preliminary engineering during the planning process, which was good, and did speed things up (somewhat) when the litigation was finally over.  Still, it was not until 2012 that the project was complete (and that cannot be blamed on NEPA, but on inadequate highway funding, especially in Virginia).

[Alps]

I do agree that lawsuits are a significant impediment - and are usually based on environmental concerns - and there's really no way to avoid them on major projects.

[cpzilliacus]

I do agree that lawsuits are a significant impediment - and are usually based on environmental concerns - and there's really no way to avoid them on major projects.

Something is wrong when the people managing planning for a new highway project know, before the Purpose and Need part of the EIS is written, that they are going to get sued in federal court, no matter how much time and money they pour in to the entire process.

[froggie]

Was this an extreme case?

Considering it's a major interstate crossing on a mile-long bridge through a dense metropolitan area, do the math.  Oh, and with Section 104/106 impacts too...

Your typical project is a good bit less in scope/size/complexity.

Meanwhile, elsewhere, another lengthy Interstate bridge project (I-90 over the Mississippi) went from initial study to the beginning of construction over 7 years.  This would have been probably about 5 years longer had the 2008 Minnesota Legislature not passed a transportation funding package to replace/repair fracture-critical bridges (in wake of the 2007 I-35W bridge collapse).

[Duke87]

It took Md., Va. and D.C. about 8 or 9 years (1991 or 1992 to 1999) to get a Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) done for the Woodrow Wilson Bridge.  There were two Maryland governors, three Virginia governors and three District of Columbia mayors in office while the EIS process was going on.

And this precisely is the problem. The planning process for what's ultimately just a fairly ordinary bridge should not take nearly a decade. We planned an entire space program and put a man on the moon in less time than that. The public comment/environemtnal review process as it exists is ridiculously clunky and cumbersome. Too much talking, not enough doing.

[cpzilliacus]

Was this an extreme case?

Considering it's a major interstate crossing on a mile-long bridge through a dense metropolitan area, do the math.  Oh, and with Section 104/106 impacts too...

I still think that is too long.

Your typical project is a good bit less in scope/size/complexity.

But even a much simpler project downstream, the Gov. Harry Nice Memorial Bridge replacement, is taking a very long time, even though it is in every way a simpler project (and is effectively unopposed by the elected officials on both sides of the Potomac River). See: https://www.aaroads.com/forum/index.php?topic=8293.msg261236#msg261236

Meanwhile, elsewhere, another lengthy Interstate bridge project (I-90 over the Mississippi) went from initial study to the beginning of construction over 7 years.  This would have been probably about 5 years longer had the 2008 Minnesota Legislature not passed a transportation funding package to replace/repair fracture-critical bridges (in wake of the 2007 I-35W bridge collapse).

Certainly transportation funding limitations cause projects to be "stretched-out."  That was obviously the case with the Wilson Bridge, on the Virginia side, where the reconstruction of the Beltway at the Va. 241 (Telegraph Road) interchange was just getting started as most of the rest of the project was nearly complete.

It took Md., Va. and D.C. about 8 or 9 years (1991 or 1992 to 1999) to get a Final Environmental Impact Statement (FEIS) and Record of Decision (ROD) done for the Woodrow Wilson Bridge.  There were two Maryland governors, three Virginia governors and three District of Columbia mayors in office while the EIS process was going on.

And this precisely is the problem. The planning process for what's ultimately just a fairly ordinary bridge should not take nearly a decade. We planned an entire space program and put a man on the moon in less time than that. The public comment/environemtnal review process as it exists is ridiculously clunky and cumbersome. Too much talking, not enough doing.

Agreed on all counts.  Part of the problem is the potential for delay in every part of the environmental review process.  And parties opposed to the project can make wild environmental claims that cause the process to take longer and cost more.  Case in point:  Md. 200.  One of the hard-core opponents claimed that there were bog turtles in the master-planned alignment, and the state had to spend a huge amount of money looking for those turtles (no bog turtles were ever found, though plenty of box turtles were, and were relocated out of harms way).

[vdeane]

Perhaps a "the person who sues pays all costs of carrying out anything if they are found to be in error" system would mitigate that.  The first plaintiff who's on the hook for millions/billions spent on a wild goose chase would serve as an example not to sue unless there's a real issue.  I've always been a proponent of having the loser in court pay all related litigation costs as a means of attaching a penalty to frivolous lawsuits, so this really isn't that different.

[J N Winkler]

Perhaps a "the person who sues pays all costs of carrying out anything if they are found to be in error" system would mitigate that.  The first plaintiff who's on the hook for millions/billions spent on a wild goose chase would serve as an example not to sue unless there's a real issue.  I've always been a proponent of having the loser in court pay all related litigation costs as a means of attaching a penalty to frivolous lawsuits, so this really isn't that different.

It is already a rule (in the federal courts, at least) that the prevailing party is reimbursed costs.  This includes attorneys' fees, and I believe it also includes costs necessarily incurred as part of the process of developing exhibits and testimony for trial, but I don't believe it includes escalation in overall project cost as a result of delay.  (The latter would be difficult to calculate since delay can result from factors completely independent of the issues at trial, including activity programming decisions which lie at the entire discretion of the state DOT.)

I don't think the loser-pays principle would prevent lawsuits against road projects on environmental grounds.  And, as a general rule, I don't think such lawsuits meet the criteria required for peremptory dismissal as frivolous actions.  I think the only remedy that would yield what various commenters on this thread want--an end to delays related to litigation--is straight-up forum denial, and that is a risky strategy, especially for high-profile projects which have strong environmental opposition.  It is foolish, for example, to try to save the 15% or so in added cost you might have to pay as a result of environmental litigation you are virtually assured to win, if that means you have to lock the environmentalists out of court and then pay an additional 20% of the project cost in site security, policing, cleanup of sabotage, etc.

[oscar]

It is already a rule (in the federal courts, at least) that the prevailing party is reimbursed costs.  This includes attorneys' fees, and I believe it also includes costs necessarily incurred as part of the process of developing exhibits and testimony for trial, but I don't believe it includes escalation in overall project cost as a result of delay.

The "costs" that can be reimbursed in most Federal cases are pretty small, and usually do not include attorney's fees.  That's the so-called "American Rule", which in the U.S. is the default rule for both Federal and state court cases.  Some Federal and other statutes expressly provide for an award of attorney's fees to prevailing parties, or at least prevailing plaintiffs.  AFAIK, in Federal environmental cases attorney's fees usually are eligible for reimbursement, but it's much easier for prevailing plaintiffs to get them than prevailing defendants. 

[cpzilliacus]

Perhaps a "the person who sues pays all costs of carrying out anything if they are found to be in error" system would mitigate that.  The first plaintiff who's on the hook for millions/billions spent on a wild goose chase would serve as an example not to sue unless there's a real issue.  I've always been a proponent of having the loser in court pay all related litigation costs as a means of attaching a penalty to frivolous lawsuits, so this really isn't that different.

Give that young lady a (virtual) cigar.

You just hit the nail on the head. 

Never understood why the U.S. does not make it a lot easier for a winning litigant to recover costs from losing plaintiffs, especially when the suits not about the merits of a project, but merely to delay or stop something.

[cpzilliacus]

The "costs" that can be reimbursed in most Federal cases are pretty small, and usually do not include attorney's fees.  That's the so-called "American Rule", which in the U.S. is the default rule for both Federal and state court cases.  Some Federal and other statutes expressly provide for an award of attorney's fees to prevailing parties, or at least prevailing plaintiffs.  AFAIK, in Federal environmental cases attorney's fees usually are eligible for reimbursement, but it's much easier for prevailing plaintiffs to get them than prevailing defendants.

Wonder how much the Sierra Club would have had to pay out for filing lawsuits that were ultimately dismissed in bids to stop the ICC and and to stop the Wilson Bridge reconstruction?

[ARMOURERERIC]

I would advocate a streamlined enviromental review process for road projects whee a certain fatality threshold has been met.  We ahould not be waiting for all kinds of lawsuits to be heard for roads where 10,15, 20 people are dying every year.

I am thinking of CA 67 in NE San Diego, Lakeside to Ramona.  Mutple entities have already stated their intent to sue as soon as anything is approved, especially a local group SOFAR that claims, that as soon at the road is widened, there will be massive growth between Ramona and Julian, the fact that there is not enough water out there and the 10+ number of annual fatalities is irrelevant to their worldview.  For all you in the now, this is a 2 lane road with a 39000 ADT.  Caltrans told us in 2000 it should be a 6 lane freeway.  There are plans to make it a 4 lane expressway sometime in the next 20 years.