Federal roadblocks: a saner regulatory regime would help us update our transportation infrastructure.

AS part of his stimulus plan--which in total adds up to nearly $1 trillion--President Obama has proposed investing $85 billion in the nation's infrastructure. Many have asked: Why not spend more in this area? U.S. infrastructure is under severe stress, with highways congested and roads and bridges in need of repair, and Obama's planned investments will hardly make a dent in the problem. The U.S. will need to spend $225 billion annually for a half century to "upgrade our existing transportation network ... [and build] more advanced facilities," according to the government's National Surface Transportation Policy and Revenue Study Commission.

One likely reason for Obama's modest goal: regulation. The theory behind the stimulus is that immediately pumping money into the economy can pull the country out of a recession--and by the time many projects jump their various regulatory hurdles, it will be too late. To the degree these hurdles are necessary, the delays they cause are acceptable. But many of the regulations burdening construction projects give no apparent benefit.

The biggest culprit is the National Environmental Policy Act (NEPA), enacted in 1970. The act seems sensible enough: It doesn't even prohibit anything. It just states that for all federally funded projects, builders must explain how the construction could harm the environment, whether there are less harmful alternatives, and what the builders plan to do to mitigate the harm. They must also allow the public to comment.

Thousands of times each year, this process takes the form of an "Environmental Assessment" document, and hundreds of times, the more detailed "Environmental Impact Statement" is needed. EAs add about 1.4 percent to a project's construction costs, and EISs add about 2.3 percent, according to a study by the National Cooperative Highway Research Program. When a project falls under a "categorical exclusion"--that is, it's a common type of project known to have no serious environmental impact, so no review is necessary--obtaining the exclusion adds only about 1.1 percent.

NEPA isn't always such a mild nuisance, however. In 1989's Robertson v. Methow Valley Citizens Council, the Supreme Court confirmed that the law is "procedural" rather than "substantive," mandating only that those executing federal projects document potential environmental harm. But this leaves a window open for abuse, and gives builders a big reason to worry--if an activist group can point to some flaw, real or imagined, in a builder's NEPA process, it can file a lawsuit and tie up construction.

In 2005, A. Kathleen Craft of Nevada's Frehner Construction testified about such lawsuits before the House Committee on Resources (on behalf of the American Road and Transportation Builders Association, or ARTBA, a construction-industry interest group). At the time, the committee was considering various changes to NEPA.

Craft's company had obtained a final Environmental Impact Statement and begun widening U.S. 95 (outside Las Vegas) in 1999, but in 2004, a Sierra Club lawsuit halted the process. The Sierra Club alleged that car exhaust from the highway would hurt those living nearby. Craft suggested a time limit for complaints, and a requirement that complaints deal only with issues raised during the public-comment period. A subsequent law has put a 180-day deadline in place for activists to challenge approvals, but they still aren't required to limit their suits to issues that actually came up during the NEPA-required debate time. They're free to keep silent about their grievances until after the final impact statement, and then complain that the statement doesn't address their problems.