Jeff Rosen’s tenure as the Deputy Secretary of Transportation and Acting Attorney General provided him with a front-row seat to the intricate gears of the federal bureaucracy, specifically how those gears can grind vital national projects to a halt. His perspective is rooted in a decades-long observation of the administrative state, tracing the shift from the environmental consciousness of the 1970s to the modern era’s realization that procedural friction has become a primary obstacle to economic growth. As we navigate the landscape of 2026, his expertise in federal administrative law and infrastructure policy offers a vital roadmap for understanding why “shovel-ready” projects so often remain buried under mountains of paperwork. This conversation explores the evolution of permitting reform, the specific stages where projects fail, and the radical shifts in policy that have defined the transition between administrations over the last several years.
The discussion centers on the structural anatomy of federal delays, categorizing the problem into three distinct phases: pre-filing compliance, agency review, and post-approval litigation. We analyze the historical arc of legislative efforts, from the modest streamlining of the late 90s to the high-stakes codification of the “One Federal Decision” framework in 2025. The dialogue also investigates the economic toll of these delays, the efficacy of market-based solutions like fee-for-service fast-tracking, and the emerging potential for self-certification models to replace traditional, multi-year bureaucratic approvals. Ultimately, the expert weighs the necessity of permanent legislative fixes against the volatility of executive orders, emphasizing that the future of American prosperity depends on our ability to build again without the crushing weight of institutional inertia.
Federal infrastructure projects often face delays during pre-filing, agency review, and post-approval. How do these three distinct stages interact to create the massive bottlenecks we see today?
To understand the scope of the problem, you have to look at the process as a gauntlet where a project can be struck down at any moment. The first stage, pre-filing, is often overlooked but it is where the foundational complexity begins; project sponsors might have to navigate as many as 60 separate federal statutes and coordinate with a dozen different agencies before they even formally submit an application. This is not just a matter of filling out forms, as it involves expensive engineering studies and environmental data collection that can take years, costing the public an estimated $100 billion per year in delayed benefits. Once a project enters the second stage—the actual federal review and approval—the National Environmental Policy Act, or NEPA, becomes the primary hurdle. Agencies are forced to gather massive amounts of public input and conduct Environmental Impact Statements that assess every conceivable alternative, a process that frequently drags on because there is no “shot clock” that begins the moment a developer first approaches the government.
The third stage is perhaps the most frustrating for those of us in the legal field because it occurs after a decision has already been made. Even after a “Finding of No Significant Impact” or a formal “Record of Decision” is issued, the project enters a window of extreme litigation risk. Under the Administrative Procedure Act, this window traditionally lasted six years, meaning a project could be tied up in court long after construction was supposed to start. When you consider that McKinsey reports roughly a third of projects requiring a full EIS are litigated, and those lawsuits take an average of 4.2 years to resolve, you start to see why the direct spending on permitting reaches up to $14 billion annually. The emotional toll on the communities waiting for a new bridge or a cleaner energy source is significant, especially when you realize that project sponsors eventually win 80% of these lawsuits, meaning the delay was often for naught.
Looking back at the legislative history from TEA-21 in the late 90s to the more recent reforms, why have most efforts focused almost exclusively on the middle stage of agency review, and what have we missed by ignoring the bookends of the process?
Historically, Congress has treated permitting reform as a “streamlining” exercise rather than a fundamental restructuring of the law, which is why early efforts like TEA-21 were often referred to as “weak tea.” Lawmakers in 1998 focused on the “concurrent review” of highway projects because it was the most visible point of friction—different agencies weren’t talking to each other, and documents were being produced in silos. This focus on the middle stage continued through SAFETEA-LU in 2005 and MAP-21 in 2012, where the primary innovation was simply designating a “lead agency” to set non-binding deadlines. While these were meaningful incremental improvements that eventually reduced the statute of limitations for transportation projects from six years to 150 days, they did very little to address the substantive laws that make the pre-filing stage such a nightmare.
By ignoring the pre-filing stage, we have allowed a system to persist where developers are essentially guessing what will satisfy an agency until they are deep into the process. We also missed the opportunity to address the “post-approval” stage more broadly for non-transportation projects until much later, such as with the FAST Act in 2015, which finally extended some of these protections to energy, mining, and broadband. The result of this middle-heavy focus is that we have become quite good at managing the paperwork flow within an agency, but we remain paralyzed by the external forces of pre-application uncertainty and post-approval lawsuits. It is a staggering indictment of our administrative efficiency when you look at projects like the Bonner Bridge in North Carolina, which took 26 years from its initial environmental statement to completion, or the I-49 expansion in Arkansas that has been in the permitting process for 28 years.
You have a unique perspective on the “One Federal Decision” (OFD) framework. Can you quantify the impact this approach had during your tenure and explain why its intermittent repeal and reinstatement has been so disruptive?
The “One Federal Decision” framework, which I saw firsthand while serving as Deputy Secretary of Transportation, was a game-changer because it replaced the “Mother May I” approach of multiple agencies with a single, coordinated schedule. We set a presumptive two-year target for federal reviews and required a full green-light for projects within 90 days of the Record of Decision. The data spoke for itself: in the first year of the OFD process, the time it took the federal government to complete a permit fell by an average of 45%, and by the second year, we saw a 60% reduction in processing time. By the end of 2020, this approach had helped green-light more than $200 billion in infrastructure projects that might otherwise have languished in bureaucratic limbo.
The disruption began when the executive branch shifted in 2021 and the OFD executive order was revoked in its entirety without a clear alternative, which sent a signal of massive uncertainty to the private sector. Fortunately, the Infrastructure Investment and Jobs Act eventually reinstituted OFD for transportation projects, and the “Builder Act” in 2023 codified it for non-transportation projects as well. This “yo-yo” effect of policy, where a framework is erased by an executive pen and then slowly rebuilt through legislation, is incredibly damaging to long-term planning. It creates a “wait and see” attitude among investors who are hesitant to commit billions to a critical mineral mine or a new transmission line if the regulatory goalposts might move again after the next election cycle.
Environmental litigation is often cited as a major hurdle for development, with a significant portion of environmental impact statements ending up in court. How does the current statute of limitations framework impact investor confidence and project viability?
The threat of litigation is the single most effective weapon for those who wish to stop a project through attrition rather than through the merits of their case. When you have a 4.2-year average resolution time for lawsuits, even a “win” in court can feel like a loss for a developer who has been paying interest on loans and keeping teams on standby for half a decade. This is why the reduction of the statute of limitations is so critical; we’ve seen it move from the standard six years down to two years for many major projects, and as low as 150 days for certain transportation initiatives. However, for most major infrastructure that isn’t highway-related, the window remains wide enough to invite “nuisance” lawsuits that drive up costs by an average of 20% to 30%.
Investor confidence is built on predictability, and the current system is anything but predictable. When 80% of lawsuits are eventually won by the project sponsors, it suggests that the legal challenges are often based on procedural technicalities rather than substantive environmental harm. The “Builder Act” and the “One Big Beautiful Bill” of 2025 have attempted to mitigate this by setting more rigid timelines and giving sponsors a new right to seek a court-imposed schedule if agencies delay. But until we address the standing requirements—perhaps requiring litigants to have submitted comments during the original review process—we will continue to see the legal system used as a tool for intentional delay rather than a legitimate check on government overreach.
Recent developments like the “Builder Act” and the “One Big Beautiful Bill” in 2025 introduced fee-based fast-tracking. How do these market-based solutions shift the dynamic for project sponsors compared to traditional bureaucratic mandates?
The introduction of a fee-based model represents a pivot toward a more entrepreneurial government, acknowledging that agencies often lack the manpower to meet aggressive deadlines. Under the legislation signed last year, a sponsor can pay a fee equal to 125% of the expected study costs to trigger a one-year time limit for completing an EIS and a 180-day deadline for an Environmental Assessment. This essentially allows the private sector to fund the capacity needed to review their own projects, which is a significant departure from the old model where you were simply stuck at the back of the line regardless of your project’s economic importance. It shifts the dynamic from a passive waiting game to an active, participation-based process.
This market-based approach also creates a form of accountability that traditional mandates lack. If an agency is receiving direct funding from a sponsor to expedite a review, there is a much higher level of transparency and a clear expectation of performance. We’ve already seen how effective targeted attention can be; for instance, when an energy emergency was declared recently, the Department of the Interior was able to expedite the review of the Velvet Wood uranium mine in Utah and finish it in just 14 days. While not every project can move that fast, the option to pay for priority suggests that we are finally moving away from a one-size-fits-all bureaucracy and toward a system that values the time-value of money and the urgency of modern infrastructure needs.
Beyond traditional streamlining, there has been talk of “self-certification” and “permit by rule.” How could these concepts fundamentally transform the way the federal government interacts with the private sector without compromising safety?
Self-certification is a powerful concept that we already use in high-stakes industries, such as automotive safety standards regulated by NHTSA. Car manufacturers certify that they meet federal safety standards without a pre-approval process for every single bolt and wire; the government enforces these standards through audits and penalties if a failure occurs. Applying a similar “permit by rule” model to infrastructure—as proposed in the FREE Act—would allow a developer to file a short certification and receive a permit automatically within 180 days unless the agency affirmatively rejects it for cause. This flips the “burden of proof” from the citizen to the government, which is a revolutionary change in administrative law.
This wouldn’t compromise safety because the government retains its full inspection and enforcement powers. In fact, it might improve safety and environmental outcomes by allowing agency staff to focus their limited resources on high-risk, complex projects rather than getting bogged down in the routine approval of low-impact installations or projects in “pre-cleared” locations. If we can trust manufacturers to certify the safety of vehicles traveling at 70 miles per hour on our highways, we should be able to trust developers to certify compliance for a broadband tower or a solar farm that meets well-defined regulatory criteria. It’s about moving from a “permission-based” society to an “accountability-based” one.
As we look at the landscape in 2026, particularly with the expiration of the IIJA, what specific loopholes in NEPA regulations still allow projects to stall despite decades of “streamlining” efforts?
One of the most persistent loopholes is the “appendix bloat.” Even though the Builder Act and subsequent executive orders have imposed page limits on Environmental Impact Statements, agencies often circumvent these limits by moving the bulk of the controversial or detailed material into massive appendices that aren’t technically part of the core document but still require months of review and invite litigation. Furthermore, the “notice of intent” still serves as the starting gun for most official deadlines, but agencies can delay issuing that notice for years while they “informally” review a project. This means the official clock doesn’t start ticking until much of the work—and the delay—has already occurred.
We also see “policy add-ons” where agencies use the NEPA process to push social or economic goals that weren’t explicitly authorized by Congress, such as specific anti-fossil-fuel measures or labor requirements that are layered onto the environmental review. Even with the recent executive orders like 14154, which aimed to repeal Carter-era regulations in favor of expedited practices, the institutional will to revert to slower, more cautious methods remains strong within the permanent bureaucracy. As of January 2025, 61% of permits were still missing their deadlines, which tells us that page limits and soft deadlines are not enough; we need real penalties for agencies that fall behind and a “shot clock” that starts at the first point of contact between a developer and the government.
What is your forecast for the future of American infrastructure if we fail to achieve a permanent, cross-cutting legislative fix for the permitting crisis?
My forecast is that America will continue to lose its competitive edge to nations that can build in three years what takes us thirty. If we do not move beyond the “weak tea” of incremental reform and pass something with the teeth of the SPEED Act or the PERMIT Act, we will see a continued flight of capital away from large-scale domestic projects. We are currently in a moment where both the left and the right want to build—whether it’s transmission lines for renewables or new lanes for highways—but we are being held back by a regulatory structure designed for the 1970s. The expiration of the IIJA this year provides a rare window of opportunity; if Congress fails to use the 2026 reauthorization to codify a universal “One Federal Decision” and meaningful litigation reform, we will remain a nation of “proposed” projects rather than “completed” ones.
The stakes are higher than just roads and bridges; this is about our ability to produce energy, secure our supply chains through mining, and build the AI infrastructure of the future. If the permitting process remains a 10-year gauntlet, we will find ourselves with an aging, inefficient national grid and a transportation system that cannot support a modern economy. However, if we can bridge the gap between “permit by rule” concepts and environmental stewardship, we can unlock a period of prosperity that rivals the interstate era. The technology and the will are there; the only thing standing in the way is the paperwork.
