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It seems natural enough, at least based on US experience, to believe that building and permitting are in a natural opposition: that is, stronger permitting means less building. Zachary Liscow has been looking for a way out of this opposition. He spells out some of his thoughts in “Reforming Permitting to Build Infrastructure” (Hutchins Center on Fiscal & Monetary Policy at Brookings, September 2025).

I confess that I was drawn to the paper, in part, by footnote 1 after the first sentence. (Have I ever written a sentence more geeky than that? Probably.) It reads: “This report builds on Zachary Liscow, “Getting Infrastructure Built: The Law and Economics of Permitting,” Journal of Economic Perspectives 39, no. 1 (2025): 151–80). As the Managing Editor of JEP, I recommend the earlier paper as well.

In particular, Liscow is concerned that the US needs more infrastructure, in particular for energy and transportation, and that the existing system of permitting has evolved in such a way that it can allow a well-funded and/or noisy minority to have effective power to slow and to block the needed infrastructure. Liscow’s central idea is to have permitting work better, in particular by thinking of ways that permitting might work better at allowing open consideration and evaluation of environmental and other issues, and also allowing for adjustments to the original plans. However, once this improved permitting process has occurred, the follow-up part of Liscow’s proposal is that judges would be considerably more hesitant to intervene in the decision of the permitting process, whether that interference would allow or block the proposed construction.

In this paper, Liscow offers a four-part plan to reform the permitting requirements created by the National Environmental Policy Act (NEPA). I’ll quote here from the summary of the paper at the Brookings website:

1. Shifting legal power: Judicial oversight should be curtailed to reduce excessive litigation. This includes reforming the “hard look” standard courts use to assess agency actions, limiting the range of alternatives agencies must consider, shortening statutes of limitations for lawsuits, restricting standing to sue, and limiting the scope of judicial injunctions.
2. Facilitating popular decision-making and negotiated agreements: Since the permitting process often pits government agencies against fragmented community opposition, we need new tools to foster popular decision-making and negotiated agreements that would bindingly preclude litigation. These could include mechanisms like local legislative approval, compensation through community benefit agreements, or more experimental models in which the government would designate a representative set of interest groups to negotiate on the public’s behalf.
3. Strengthening state capacity: A well-functioning permitting regime requires well-resourced institutions. Agencies should be able to expand staffing, collect better data, coordinate their efforts, and make greater use of categorical exclusions and expedited reviews—especially for critical clean energy and transit projects.
4. Improving public participation: A more democratic and equitable permitting process requires early and broad-based outreach. Such outreach should include not only the most vocal opponents but also previously marginalized groups and those who would stand to benefit from planned development. Experimentation with new models to ensure diverse stakeholder involvement should be encouraged.

The summary continues: “Taken together, these reforms comprise a `green bargain,’ speeding construction and lowering costs, allowing the construction of the infrastructure needed for the green transition, and empowering the broader public—especially lower-income communities most hurt from failing infrastructure—over narrow interests.”

It’s of course, uncertain whether Liscow’s proposals will work. Would the increases in public/popular input and decision-making end up creating an even bigger obstruction to building infrastructure? Would judges actually back off, if the earlier process had taken place? What are the chances of a substantial increase in state and federal capability to oversee these kinds of changes? But it also seems clear to me that the current permitting system isn’t working well. Liscow’s proposed course of action seems better than at least one alternative, which would involve a dramatic reduction or outright scrapping of permit requirements.

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