Permitting reform must protect property owners

OPINION:

America’s permitting system is broken. Energy projects, transmission lines and other essential infrastructure spend years navigating overlapping reviews and uncertain decisions.

Those delays discourage investment, increase costs and undermine economic growth. Congress is right to pursue reform, and the bipartisan effort now underway deserves serious consideration.

Yet decades of working on conflicts between federal agencies and private landowners have taught us something lawmakers should remember: Giving an agency greater authority, or requiring it to act faster, does not guarantee that it will treat people fairly, especially when that authority comes at the expense of local decision-making.

Among its other benefits, permitting reform is an opportunity to correct long-standing failures in government’s treatment of property owners. We should not reproduce those failures in a faster system.

The Senate’s Bipartisan American Affordability and Jobs Act of 2026 presents an important opportunity to improve how America builds. As the legislation moves forward in the Senate, it addresses the central problem facing those seeking to build large-scale infrastructure and manufacturing projects: projects mired in an endless cycle of paperwork driven by historically leftist ideological agendas.

Yet as Congress considers that legislation, it should pay particular attention to the protections afforded to people whose homes, farms and businesses stand in the path of a proposed project. This bill will infringe on the rights of local decision-makers and property owners. Their constitutional rights deserve the same seriousness as the infrastructure objectives driving this debate.

Anyone who has spent decades dealing with federal agencies and the landowners affected by their decisions has encountered a familiar pattern: Officials settle on an outcome, treat objections as obstacles to overcome and approach compensation as an expense to minimize. Property owners receive assurances that their concerns matter, only to discover that the decisions affecting them have already been made.

Under the Constitution’s Fifth Amendment, when government wants private property, three things must happen: First, the “taking” must be for a legitimate public use; second, due process must be accorded to the property owner; and third, just compensation must be paid if the taking is actually going to occur. These protections must guide the exercise of government power from the beginning.

Unfortunately, that “public use” definition has been watered down over time, such that now even a private company can benefit from that public taking. American law has long recognized that privately operated infrastructure, including railroads, can serve a public use.

Yet that history does not relieve government of its obligations. A project’s public importance cannot excuse unfair treatment of the people required to surrender property for it.

Start with compensation. The usual standard is fair market value: what a willing buyer would pay a willing seller. Yet the government enters these negotiations with an advantage no ordinary buyer possesses. It can threaten condemnation. An owner who rejects an inadequate offer may face a lengthy and expensive fight against an institution with far greater resources.

History has taught us that agencies too often exploit that imbalance. An owner’s willingness to accept a settlement can reflect the cost of fighting rather than agreement that the price is fair. Congress should insist on credible appraisals, transparent explanations of valuation and a practical opportunity to challenge an inadequate offer.

Then there is condemnation blight. Long before the government formally acquires property, the prospect of condemnation can cast a shadow over it. Potential buyers hesitate. Investments are postponed. A family can find itself unable to sell with confidence or plan for the future while officials deliberate on a project’s route.

The government should not be allowed to benefit from the uncertainty it helped create. Reform should address the prolonged acquisition limbo and ensure that project-related depreciation is not used to acquire property cheaply. Faster, clearer decisions could help landowners as well as developers — provided those decisions come with enforceable protections.

Due process deserves equal attention. A public meeting, comment portal or listening session means little if officials treat participation as a procedural box to check. Landowners need timely notice, access to the information affecting their property and a meaningful opportunity to raise objections while alternatives remain under consideration.

Promising that an agency will “consider” those concerns is insufficient if nobody can hold it accountable for doing so.

These concerns are magnified when federal policy preempts state policy, as would be the case with this legislation. Federalism secures to individuals the liberties that derive from the diffusion of sovereign power — the manifestation of the idea that government is most responsive when it is at the level closest to the people.

Any attempt at permitting reform must address the potential unintended consequences of federalizing so many aspects of it.

Deadlines, coordinated reviews and predictable decisions are entirely compatible with these protections. Indeed, prolonged uncertainty is one of the ways government harms property owners. A better permitting system should reduce that uncertainty while preserving meaningful review of government action and fair procedures for determining compensation.

Congress should move forward with permitting reform. As it does so, it should draw on the hard-won experience of Americans who have dealt with federal land acquisition firsthand.

We need infrastructure, and we need a government that honors its constitutional obligations to the people who make room for it. Reform should accomplish both.

• Andrew Langer is president of the Main Street Foundation.