A Thought Experiment on Requiring a Permit to Apply for a Permit

Let me say this up front, plainly, so that nobody clips it and sends it around as a news item: what follows is a thought experiment. It is satire. The Office of Pre-Application Review does not exist, the forms I describe are invented, and no sentence in the first half of this column should be mistaken for a report about a real agency. The second half is about real law, and I will tell you exactly where the joke ends and the Federal Register begins.

Now, with the disclaimer filed in triplicate, let us visit a building that was never built.

Welcome to the Office of Pre-Application Review

Picture a gray building with a flag out front and a lobby that smells faintly of toner. Over the door is a brass plate: Office of Pre-Application Review, established by the (fictional) Orderly Permitting Act. Its mission statement, which took four years and two public comment periods to finalize, reads: "No one shall apply for a permit until it has been determined that they may apply."

You are a builder. You want to put up a small substation so that a new data center can plug into the grid. In the old days, which is to say in the real world, you would file an application with the agency that has jurisdiction. In our fictional world, you first go to the window marked Pre-Application Eligibility.

"Do you have a permit to apply?" asks the clerk.

"I'm sorry, a permit to apply?"

"Form PA-1, Permit to Apply for a Permit. You cannot get a permit without applying, and you cannot apply without the PA-1. It is the law, and the law is on the wall. Please see the laminated sign."

You look. The sign has been laminated so many times it has the structural integrity of a hockey puck.

"Where do I get the PA-1?"

"You apply for it."

"With what?"

"With a PA-0, the Notice of Intent to Seek Permission to Apply. That one is free. It is available at the window marked Pre-Pre-Application, which is closed for the Fiscal Year, but you may submit by mail."

I want to pause here and tell you something, folks. The scary part of this scene is not that it is absurd. The scary part is how little you have to change to make it a Tuesday.

The Environmental Review of the Environmental Review

Here is where our fictional office gets ambitious. Because the Orderly Permitting Act is itself a federal action, and because the Office of Pre-Application Review was created by that federal action, someone in the general counsel's suite points out the obvious: the office must study its own environmental impact before it may open the window.

So the office writes a draft study of the effects of the office. It considers alternatives, as such studies must. Alternative A: the office exists. Alternative B: the office does not exist. Alternative C: the office exists but is smaller. Alternative D: the office exists, but only on alternate Wednesdays. The study finds that Alternative B, no office, has the least environmental impact, and that it must therefore be rejected, because it would leave the statute without a purpose.

The study runs to thousands of pages and requires a supplemental study, because between the draft and the final a new form was invented. The supplemental study requires a notice, the notice requires a comment period, the comment period produces a flood of comments, and the comments require a response, which is itself a document that is subject to comment. A reader with a long enough life expectancy could follow this loop to its end. The reader would be buried with the file.

Meanwhile the data center sits unbuilt. The substation sits unbuilt. The electricity that would have flowed sits in a queue behind a queue. And at the end of it all, the office releases a statement saying it is "committed to delivering timely decisions."

The Paperwork Reduction Act Has a Surprise for the Office

The office, being fictional, is nonetheless a diligent student of the real law, and it knows that every form it invents must be cleared. Form PA-1 asks the public for information, so it is a "collection of information," and a collection of information needs approval before it can be used. The office must estimate how many hours the form will take the public to fill out. It must publish that estimate and take comments on it.

The office estimates that PA-1 takes forty-five minutes. This is the estimate a bureaucracy makes about a form the way a fisherman makes an estimate about a fish. The public comment period then brings in a letter from a mid-sized company that says it takes their team of three people most of a month to assemble the attachments. The office thanks the commenter, notes the concern, and keeps the estimate at forty-five minutes, which is the number written on the form.

Notice what the joke is made of. It is made of real machinery, run to the point where the machinery forgets what it was for. That is the whole genre of satire: take something true and follow it one step further than its defenders will. Let us now look at what is true.

The Real Machinery, Part One: NEPA

The National Environmental Policy Act was signed on January 1, 1970. It is a short statute, and its central instruction fits on a page. For "major Federal actions significantly affecting the quality of the human environment," the federal agency must prepare a detailed statement covering the environmental impact of the proposed action, any adverse effects that cannot be avoided, alternatives to the proposal, and the commitment of resources the action would involve. That detailed statement is the Environmental Impact Statement, the EIS.

What that statute does not say is how long the statement must be, how many alternatives must be studied, or how many years the process may take. The details came from agency regulations, from a Council on Environmental Quality that was created by the act, and above all from decades of lawsuits that told agencies how much was enough. Every time a court found an analysis too thin, agencies learned to write thicker ones, and the thicker the document, the larger the target for the next suit. I wrote a longer account of how a two-page law became a shelf of studies in A Two-Page Law From 1970 Now Produces Studies Longer Than a Novel, and I will not repeat all of it here. The point for our purposes is simple: the statute asks an agency to look before it leaps, and the practice has become a ritual in which the agency must also photograph the leap from every angle.

Congress did eventually notice. In the Fiscal Responsibility Act of 2023 it amended NEPA to set presumptive page limits, 150 pages for an environmental impact statement and 300 for projects of extraordinary complexity, along with deadlines of two years for an EIS and one year for the shorter environmental assessment. Whatever you think of the details, consider what that amendment admits. For more than fifty years the country ran a review process that had no firm limit on length or time, and a statute was needed to say that a study should end.

A builder of a transmission line or a substation or a pipeline lives in this world. When we hear that the grid cannot keep up with new demand, the usual explanation is about generation and technology. Part of the explanation is paperwork, a queue of studies waiting on a queue of other studies.

The Real Machinery, Part Two: The Paperwork Reduction Act

The second layer in our satire is also real. Congress passed the Paperwork Reduction Act in 1980, and amended it substantially in 1995. Its purpose is stated in the name: to reduce the burden of federal paperwork on the public. The mechanism is the Office of Information and Regulatory Affairs, a small office inside the White House's Office of Management and Budget, which reviews proposed collections of information.

The way it works is this. An agency that wants to ask ten or more people for the same information must justify the request, estimate the hours it will take the public to respond, publish a notice in the Federal Register inviting comment on that estimate, and submit the request for approval. If approved, the form gets an OMB control number, and the approval runs for a limited period, after which the agency must go through it again. I explain what that number does for you, and how to check it, in That Little Number on a Federal Form Can Protect You From a Penalty.

I want to be fair to this act, because it is a conservative idea, a good one. It forces an agency to count what it costs the public to answer its questions. The total of those burden estimates is published each year, and the number is enormous. You do not have to trust the arithmetic in any particular year to see what that tells us: the paperwork we are asked to provide is a cost, it is counted, and the counting is built into law.

Where the satire bites is in this: the act measures the burden of each form, one at a time, and the permit-to-apply-for-a-permit problem is a burden that is spread across forms, stages and offices. No single form is the problem. The sequence is the problem. The Paperwork Reduction Act can ask whether Form PA-1 is necessary. It cannot easily ask whether you need PA-0, PA-1 and PA-2 in the first place, because each of them is approved in its own docket, one at a time, by a different official, on a different clock.

The Real Machinery, Part Three: Notice and Comment

The third layer is the Administrative Procedure Act of 1946, and in particular the section on rulemaking, now codified at 5 U.S.C. 553. When an agency writes a legislative rule, the ordinary path is the one our fictional office followed: publish a notice of proposed rulemaking in the Federal Register, give interested persons an opportunity to submit written comments, consider what comes in, and, when the final rule is issued, include a concise general statement of its basis and purpose. A final rule generally cannot take effect until thirty days after it is published.

That is a sensible design, and I would defend it against anybody who wanted to scrap it. It is the closest thing the administrative state has to a town hall, and it is the reason that a citizen, a trade association or a small business can say to an agency, on the record, "you have not considered this." If you want to understand why the courts insist on it, and why agencies sometimes try to avoid it with other documents, see Guidance Documents Are Rules That Skipped the Line, and Families Pay for It.

But notice that the steps stack. A rule that creates a new form will be subject to notice and comment under the APA, a paperwork review under the Paperwork Reduction Act, and, if it is a major federal action, an environmental review under NEPA. Each of those is defensible alone. Each has its own clock, its own record and its own lawyers. And each one gives a person who dislikes the project a new place to file a challenge. That is the real-world version of our fictional office: no one decided that a building should need a permit to apply for a permit. It happened one reasonable layer at a time.

The Strongest Objection

I promised to be straight, so here is the best case against what I am saying.

The objection goes like this. Process is protection. NEPA exists because federal projects once bulldozed neighborhoods, wetlands and rivers with no accounting for the damage. The Paperwork Reduction Act exists because agencies once asked for the same information over and over and called it oversight. The notice-and-comment rule exists because agencies once wrote binding rules in secret. Every one of those steps was built in response to a real abuse. If you simplify the steps, the abuses return, and the people who bear the cost are the poor and the powerless, who cannot hire lawyers to chase a bureaucrat down a corridor.

That is a serious argument, and it deserves a serious answer. Here it is, in four points.

1. Nobody is arguing for no process. The question is not whether to look before leaping. The question is whether the look has an end. A review with a deadline, a page limit and a single decision-maker is still a review. Congress itself said so in 2023, when it wrote limits into NEPA.
2. Delay is not neutral. A project that waits ten years for a decision has been decided against, just without the courtesy of a vote. The people who bear that cost are not only builders. They are the families who pay more for electricity because the line was not built, the workers whose plant never opened, and the town whose tax base went elsewhere.
3. Process favors the organized. A permit system that needs a lawyer, a consultant and a year is a system that big companies can afford and small ones cannot. Complexity is a moat. That is why the incumbents sometimes defend it. See Big Companies Can Afford Regulation, Which Is Why Some of Them Ask for More.
4. Accountability, not volume, is the safeguard. A decision by an official who answers to the voters is a stronger protection than a thousand-page study no one reads. If we want the powerless protected, we should put a name and a deadline on every decision, and let a court ask whether the person decided correctly, not whether the paper was thick enough.

What the Founders Would Have Asked

The Constitution gives Congress the legislative power, and the President the duty to see that the laws are faithfully executed. Nowhere does it create a power to require permission to ask for permission. What the Founders understood, and what Federalist 62 puts so memorably, is that a government that makes laws too voluminous to be read, or so incoherent that they cannot be understood, cannot be called a government of laws in any real sense. Madison's complaint in that paper is about the people's inability to know what the law is. A system in which you cannot tell which form comes first has the same flaw, and it arrives at the same place.

The Anglo-American tradition has a name for the opposite: the rule of law. It means that the rules are known in advance, that they apply to everyone, and that a citizen can read them and plan. A permit regime with a hidden order of operations, where one office's approval is a precondition of another's, and the sequence is learned only through trial and error, fails that test even when every individual rule is reasonable.

A Reform That Is Boring, and Therefore Possible

I have promised you jokes and I will not leave you with a lecture, so let me end with a practical proposal, the least funny thing in this column and the most useful.

Imagine a rule, applied to any federal permit, that works like a receipt. When you file an application, the agency must, within a fixed number of days, tell you in writing every approval, study and form it will require of you, in order. That list is binding on the agency. It cannot add a step later without a written reason that you can challenge. In the fictional world, that is the end of the Office of Pre-Application Review, because the first act of the first clerk would be to hand you a list, and the list would have to be shorter than the lobby.

Add two more features. First, a single lead agency for each project, which owns the schedule and answers for it. Second, a regular accounting, public and plain, of how long each kind of permit takes, so that the country can see which offices are fast and which are slow. Sunlight does for a permit office what it does for a restaurant kitchen. See also A Regulatory Budget Would Make Washington Count the Cost of Its Rules, which makes a related case for counting the cost of rules before they are issued.

None of this is radical. All of it can be done by statute, and all of it respects the very real purposes the old laws served. What it requires is the thing the Office of Pre-Application Review lacks: someone, somewhere, who is permitted to say that the process is complete.

The Case in Brief

1. The Office of Pre-Application Review is fiction, but the layers it stacks are real: NEPA's environmental review, the Paperwork Reduction Act's burden estimates and the Administrative Procedure Act's notice and comment.
2. Each layer began as a defensible answer to a real abuse, and each layer is reasonable alone. The harm comes from the sequence, the delay and the absence of any official who owns the schedule.
3. Delay is a decision made without a vote. It raises costs for families, favors the companies that can afford lawyers, and leaves projects, including the grid capacity that new demand requires, stuck in a queue behind a queue.
4. Congress's own 2023 limits on NEPA concede the point. The fix is deadlines, a binding list of required steps, a lead agency and public timing data, not the abolition of review.

What you can do: look up the permit process for a project in your own town on the website of the agency involved, and write to your representative through the House and Senate directory asking for a binding, written list of every required approval and its deadline.