The first transcontinental railroad ran 1900 miles across an unsettled frontier of plains, deserts, and massive mountain chains. It was built in six years. 

By contrast, SEPTA’s extension of the Elwyn Line to Wawa would run just short of five miles over tracks that already exist, and that hosted passenger traffic until 1986. The effort to build it has been going on for fifteen years and has at least one more year to go. Somewhere between these two extremes there must be a happy medium, where transit companies can build safely to expand services in reasonable time, while still taking public concerns into account.

Now SEPTA is embarking on its biggest project in years, the King of Prussia Spur of the Norristown High-Speed Line. The 4.5-mile line has been in the planning stages since 2013 and construction is not expected to begin until 2025 at the earliest. The same costly delays plague this project as many others: in 2016, the estimated cost was $1.1 billion. Four years later it has nearly doubled. Most cost increases are not accidents but purposeful choices by federal officials and lawmakers that bog down projects like this across the country.

The biggest obstacles in railway construction in the 21st century are not geography and weather, but courts, regulators, and endless public consultations. These rules — many of them stemming from the National Environmental Policy Act of 1970 (NEPA) — are tiny strands of red tape that constrain an entire nation as the Lilliputians did to Gulliver, minor depreciations and limits suffocating a big idea. None of the requirements, taken alone, is onerous. Taken together, and exploited by professional activists and neighborhood NIMBY-ers who would rather see nothing built at all, they freeze up development that would benefit the region and the entire country.

The biggest obstacles in railway construction in the 21st century are not geography and weather, but courts, regulators, and endless public consultations.

Everyone likes to trash our region’s subpar public transit authority, but these endless delays are not the agency’s fault. SEPTA, like most transit authorities, wants to build and expand, to serve more people and communities. But its desire to do so, and commuters’ desire to take advantage of these potential services, is stymied by a sclerotic bureaucracy built up around and after NEPA. In the name of environmental policy, regulators and lawsuit-happy plaintiffs do their best to cancel trains that are far greener than the status quo. In doing so, they waste the public’s time and money while making many people’s lives worse.

NEPA began as an overreaction to a bad policy. In the 1950s and ‘60s, neighborhoods across the country were bulldozed for highway construction with little or no input from the people who lived there. These tragedies played out across the country, dressed up as “slum clearance” or “progress.” In our own area, a planned I-695 was going to do to South Street what I-676 did to Vine, until the outrage against such projects convinced politicians to cancel it. That, combined with the growing popularity of environmental causes among the nation’s elites, led to NEPA.

As far as highways go, NEPA is better than what came before. But for railroad construction, the delays and cost overruns it has led to have shown it to be in need of significant reform, especially relating to projects that are merely restoring or enhancing service to existing rail lines. The King of Prussia line will be mostly built on land owned by the government or a public utility until it reaches the King of Prussia Mall and the Valley Forge Business Park, where it traverses areas that are already busy business districts. It is a smart project that connects our region’s two largest commercial areas by rail. It would ease the significant traffic on the local roads and highways — consider the ever-growing pile-up as I-676 feeds into King of Prussia and its surrounding areas — and make visiting the mall or commuting easier and greener. 

So why should an environmental law hold this progress up?

The problems begin with the time it takes to consult the public. They are made worse by the length of time it takes to resolve court challenges from people who are not satisfied with the results of this consultation. The process requires a statement of goals and a list of alternatives to achieve them. These are discussed at public meetings. In the King of Prussia project, SEPTA presented scores of alternatives, with which they used public input to gradually winnow down.

In the name of environmental policy, regulators and lawsuit-happy plaintiffs do their best to cancel trains that are far greener than the status quo.

So far, so good, but the process requires listing every impact, with special attention being paid to the so-called “section 4(f) resources”: parks, wildlife refuges, and historic sites. The regulations require that impacts be discussed “in proportion to their significance,” and notes that they “shall not be encyclopedic,” but what is meant by “impact” far exceeds what a normal person thinks of as an “impact”. Impact statements often run hundreds of pages in length and must “discuss all major points of view on the environmental impacts of the alternatives including the proposed action”. Just seeing or hearing the proposed project counts, even if there is no harm caused. All of these impacts are endlessly discussed and balanced.

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The idea of public consultation is good. No one wants to wake up one day and see a highway or rail project outside his door without any notice. But the need to catalogue every single impact, even the most minor, makes a charade of a good idea in principle.

What makes things worse is that anyone who believes such an impact would be “adverse” can take SEPTA and other transit agencies to court — a boon for lawyers, but not for the greater public. These challenges could come from well-funded non-profits that are not even located in the area affected by the project, but claim an interest in some aspect of wildlife protection or historic preservation. This has been less of a problem for the King of Prussia project, but it added years to the timelines of other projects essential to the region, including the Blue Route. The threat of such challenges also keeps planners from pushing bigger ideas; there’s a reason the King of Prussia line does not get into Valley Forge Park, even though it would be a fantastic way to get there without using a car.

If the litigants win, the government must redo the analysis to take these adverse effects into account; but even if they lose, the process has been delayed, often for years. Hence, a seven-year planning stage for less than five miles of track to connect King of Prussia to Center City, a no-brainer from a transit standpoint. 

Meanwhile, SEPTAspends its limited funds on fighting even the most frivolous claims in court instead of on building the actual project.

We will soon have in Joe Biden a president who famously loves rail transit. How could he help projects like the King of Prussia line along? As always, a loser-pays law in litigation would discourage frivolous lawsuits. Time limits on the NEPA process, like the ones President Trump enacted by executive order in 2017, should be sustained and expanded with regard to rail construction. Challenges to the analyses should be limited to people that actually reside in the area, cutting out the professional gadflies who have no real involvement with the project.

Public transit benefits the environment, so why should environmental laws make it harder to expand public transit? President-elect Biden should work with the new Congress — where moderates and “Problem Solvers” may be emboldened — as well as regulators to streamline the process so that transit projects can benefit the public without taking decades to get built.

Kyle Sammin is a senior contributor to The Federalist, co-host of the Conservative Minds podcast, and resident of Montgomery County. He writes regularly for Broad + Liberty. @KyleSammin