FREE Act: Automatic Permit Approvals if Feds Drag Their Feet Past 180 Days

The Full Responsibility and Expedited Enforcement (FREE) Act aims to drastically overhaul federal permitting by forcing agencies to create a streamlined 'permitting by rule' process with strict deadlines. The core idea? If an agency doesn't approve or deny a complete permit application within 180 days, it's automatically approved. This is a potential game-changer for businesses and individuals who've faced long, costly waits for federal permits.

Speeding Up the Permit Process

The bill mandates that within 240 days, agencies must report to Congress on every permit they issue, outlining the requirements, review process, and estimated processing time. They also have to explain whether a 'permitting by rule' system—where applicants essentially certify their own compliance—could replace the existing process. If an agency misses this reporting deadline, they're on the hook for attorney fees and costs for applicants who successfully sue over delayed permits (SEC. 3). Within a year of that report, agencies must establish a 'permitting by rule' application process. This new process requires agencies to clearly spell out all permit requirements, and, as mentioned, triggers automatic approval if the agency doesn't act within 180 days of receiving a completed application. If an application is missing something, the agency has only 7 days to notify the applicant (SEC. 3).

Real-World Rollout: Who Wins, Who Loses?

Imagine a construction company needing a permit for a new development project that impacts wetlands. Under the current system, this could take years of back-and-forth with multiple agencies. Under the FREE Act, if the company submits a complete application under the 'permitting by rule' system, and the agency doesn't act within 180 days, that permit is automatically granted. This could significantly accelerate project timelines and reduce costs. However, it also shifts the burden of proof onto the agency. If an agency does deny a permit, or requires corrective action, and the applicant appeals, the agency has to prove in court that their decision was justified (SEC. 3). This could lead to agencies being more hesitant to deny permits, even if they have legitimate concerns.

Potential Pitfalls and the 'Substantive Standard' Problem

While the FREE Act aims for speed and efficiency, it also raises some red flags. Agencies can still audit and revoke permits granted under 'permitting by rule,' but the tight deadlines and shifted burden of proof could lead to less thorough reviews. The bill defines 'substantive standard' as a requirement in a statute or rule that "governs an activity for which a permit is required" (SEC. 3). This definition is quite broad, and differences in interpretation could lead to legal challenges. The bill also allows agencies to maintain their old permitting systems alongside the new 'permitting by rule' process, if the old system offers 'additional value' (SEC. 3). This could create a two-tiered system, and it's unclear what constitutes 'additional value,' potentially leading to agencies pushing applicants towards the older, more cumbersome process.

Oversight and Accountability

The Comptroller General is tasked with overseeing the implementation, assessing agency reports, and recommending improvements (SEC. 3). This oversight is crucial, but the bill's success hinges on agencies having the resources and capacity to meet these new requirements. The potential for increased litigation, especially with the shifted burden of proof, is also a significant concern. The FREE Act represents a major shift in federal permitting, with the potential for both significant benefits and unintended consequences. It is crucial to keep a close watch on how this plays out in practice.