New 'FREE Act' Demands Federal Agencies Fast-Track Permits, Shifts Risk to Post-Approval Audits

The Full Responsibility and Expedited Enforcement Act, or the FREE Act, aims to tackle the notorious slowdowns in federal permitting. The core idea is to replace the current system, where agencies review every single application, with a new process called “permitting by rule.” This is a major shift: instead of waiting for a lengthy government review, applicants simply certify that they meet all the required standards. If the agency doesn't act on a completed application within 180 days, the permit is automatically granted.

The Bureaucracy Speed Run: Certify and Go

This bill is essentially forcing federal agencies—from the EPA to the Forest Service—to get out of the way of new projects, at least initially. Congress found that the current system, with its broad agency discretion and missing deadlines, costs everyone time and money. The FREE Act is the fix. It mandates that agencies define clear, written standards for permits. If you, as an applicant, can certify that you meet those standards, you get the permit. Think of it like the DMV allowing you to skip the driving test if you simply sign a form stating, "I can parallel park and I know what a yield sign is."

For businesses, especially those involved in infrastructure or development, this is huge. If you’re a small engineering firm waiting years for a wetland permit, this bill could slash that wait time from years to months, or even just 180 days. The bill requires agencies to identify every permit they issue, determine if the "permitting by rule" alternative works, and then set up the new system within a year. If they miss the deadline to report on their current system, they have to pay the attorney fees for any applicant who successfully sues them for unreasonable delay. That’s a serious financial incentive for the government to move fast.

The Catch: Enforcement After the Fact

While the front end gets streamlined, the back end gets tougher. The government isn't giving up its oversight; it’s just shifting the timing. Agencies retain the right to audit, suspend, or revoke permits after they are issued if they find you didn't actually meet the standards you certified. The idea is to focus enforcement on those who break the rules, not on gatekeeping. This means if you’re a developer who self-certified compliance for a major project, you better be sure you dotted every 'i' and crossed every 't.' If you weren't truthful, the agency can come back and shut down your project after the fact.

Who Carries the Burden in Court?

One of the most significant changes for everyday people and businesses is how disputes are handled. If an agency denies your application, requires corrective action, or revokes your permit under the new system, and you appeal that decision to a U.S. district court, the burden of proof shifts entirely to the agency. The agency must prove that its decision was lawful. Furthermore, if the court rules in your favor and finds the agency was not "substantially justified" in its action, the agency has to pay your attorney fees and costs. This provision is designed to keep agencies honest and prevent them from using their enforcement powers arbitrarily, but it also makes it harder for them to defend necessary regulatory actions in court, potentially chilling enforcement efforts when they need to protect public interests like clean water or air quality.