The big NEPA roundup
Have we found the regulation that's strangling the U.S. economy?
For as long as I’ve been involved in economic policy debates, I’ve heard free-marketers and libertarians complain to me about regulation strangling our economy. And yet the rebuttal to this has always been: “Which regulations?” It turns out that “regulation”, as an aggregate phenomenon, is extremely hard to quantify. Some might be good for growth, and some might be bad. When the economists Nathan Goldschlag and Alex Tabarrok tried to measure regulatory burdens by analyzing the text of regulatory rules across various industries for restrictive-sounding terms like “may not” and “prohibited”, they found no relationship at all between overall regulation and economic dynamism in the United States.
But that doesn’t mean the relationship isn’t there; it could just mean it’s hard to measure. And in the past two years, as battles over the construction of new housing and energy infrastructure have heated up, attention has settled on one particular government regulation that could be preventing it from happening: NEPA, the National Environmental Policy Act. This law, enacted under Nixon in 1970, requires any project with federal involvement to do a review of the environmental impacts before starting construction. (California and some other states have their own even more stringent local versions of the law; California’s is called CEQA, and is often blamed for the state’s failure to build adequate housing).
Have we finally found the one big regulation that’s holding back the American economy?
I’ve been meaning to write about NEPA for a while, but the issue is so complex, and requires so much background knowledge, that it’ll take a while for me to come to a definitive conclusion. In the meantime, a lot is being said about NEPA out there in the opinion-sphere, especially because it coincides with Joe Manchin’s battle for permitting reform for energy infrastructure projects. So I thought that I’d start this topic off by doing a big roundup of things that other people have been writing about NEPA, just to organize some of the information and the key arguments. I’ll continue adding to this roundup over time.
I’ve organized the articles into five basic categories:
“How NEPA Works”, by Brian Potter
This post is a great overview of the basics of NEPA, and I found this to be the most helpful out of all the articles I read. The basic point is that NEPA is not a law about what a project is allowed to do to the environment; it’s a law about how the government is required to assess the environmental impacts of a project before starting. In other words, it’s a procedural requirement, sort of like IRB requirements for human subjects research in academia. There are basically three levels of review — a Categorical Exclusion (easiest), an Environmental Assessment (mid), and an Environmental Impact Statement (hardest). Some projects start out with an EIS, while others get upgraded from EA to EIS. Here was a helpful chart:
EISs are the really time-consuming ones, generally taking several years to complete. Here’s another helpful chart:
These completion times have been increasing over the years.
And as Potter writes, it tends to be infrastructure projects that are forced to do these:
Agencies charged with management of federal lands (such as the Forest Service and the Bureau of Land Management), and responsible for building large scale infrastructure (such as the Federal Highway Administration and the Army Corps of Engineers) are responsible for an overwhelmingly large portion of NEPA efforts - those 4 agencies are responsible for more than 50% of environmental impact statements produced over the last 35 years…The same seems to be true for EAs (though the data here isn’t great.) In 2015 (the last year we have data), just 2 agencies (the Bureau of Land management and the Corps of Engineers) were responsible for more than 50% of environmental assessments.
Interestingly, the number of NEPA reviews seems to be falling over time, though this could be because the U.S. is simply proposing a lot fewer projects out of fear of NEPA reviews.
Potter makes two other very important points. First, NEPA enforcement is done by the courts, so people can sue the people doing construction projects and say that they haven’t done a proper NEPA review. And they do sue, quite frequently. Potter writes:
The frequency of NEPA litigation is partly due to the fact that…they are sometimes used as a weapon by activist groups to try to stop projects they don’t like. While lawsuits can’t stop a project permanently, the hope is that a lawsuit will result in an injunction that stops the project temporarily, and that the delay will make the project unattractive enough to cancel.
He gives several examples of cases where environmental groups (or “environmental” NIMBYs) admitted that the goal of their lawsuits was to delay a construction project so much that it got cancelled entirely. Even worse, these lawsuits cause would-be builders to spend lots of time and effort trying to make their projects lawsuit-proof in advance, which adds enormous delays and costs; Potter cites some research demonstrating this. And even worse, many projects simply never get started in the first place because people are too afraid they’ll get killed by lawsuits.
Potter’s final point is that because NEPA is just a procedural requirement instead of a substantive requirement about how the environment should be protected, a lot of other environmental regulation gets lazily misclassified as “NEPA” when people discuss project delays and cancellations. Substantive environmental regulation is a whole category that needs to be evaluated separately from NEPA’s procedural holdups when figuring out how to get America building stuff again.
“Much more than you ever wanted to know about NEPA”, by Eli Dourado
This explainer is helpful because it clarifies some of the interesting properties of NEPA that make it such a target for reform. Dourado points out that in most cases where the federal government has the statutory authority to do something, the civil service doesn’t get successfully sued by citizens — but with NEPA this happens all the time, since all NIMBYs have to do is to challenge one little piece of an Environmental Impact Statement.
Dourado also explains that since NEPA’s wording is vague, a lot of the cumbersome requirements and procedures that have grown up around it are custom and precedent rather than strict legal requirements. To name just one such example, NEPA says it applies only to “major” actions by the government, but effectively any government action is automatically counted as “major”. Additionally, many of the procedures around NEPA — for example, the requirement to solicit public comments on projects, which basically invites challenges by NIMBYs — were not in the original law, but came from executive orders issued later.
Another issue with NEPA is that because we have fragmented government agencies, and most projects have the involvement of multiple agencies, the same project can end up having to submit a whole bunch of different NEPA reviews. He shows a graphic of how it would take a geothermal plant 7 to 10 years and six separate NEPA statements:
Finally, Dourado goes through various past attempts to reform NEPA:
the Safe, Accountable, Flexible, Efficient Transportation Equity Act under Bush
the Moving Ahead for Progress in the 21st Century Act under Obama
the Fixing America’s Surface Transportation Act under Obama
some modest administrative revisions by the Trump administration
These don’t seem to have made a huge difference.
Op-eds arguing for NEPA reform
“Not Everyone Should Have a Say”, by Jerusalem Demsas
In this article for the Atlantic, Jerusalem Demsas argues that NEPA’s big weakness is that it allows excessive community input. NIMBYs are able to stop local energy or housing projects under the pretext of wanting more environmental reviews, and courts are often willing to oblige. She points out that this is inherently un-democratic, because it means that projects supported by the majority can be blocked by a tiny unrepresentative minority.
Demsas does consider the perspective of some NEPA defenders, but is not particularly impressed with their arguments:
Environmental-justice groups and two of their strongest allies in Congress—Representatives Raúl Grijalva, the chair of the House Natural Resources Committee, and McEachin—reject the notion that permitting reform is necessary to combat climate change…
Grijalva argued that criticisms of NEPA were “talking point[s] by industry and those speaking on behalf of industry, whether they’re elected officials or not.” McEachin said, “I want to push back against this notion that NEPA leads to lawsuits and, second of all, that lawsuits are per se bad … I have every confidence that our court system will do the right thing at the end of the day.”
I struggle to reconcile these positions with the reality that NEPA and similar state-level laws have delayed congestion pricing in New York City and solar power in the Nevada desert, forced Seattle to draft an 8,000-page environmental-impact statement for a light-rail project, stopped a rezoning effort in Minneapolis aimed in part at reversing segregation … I could go on for days.
“Climate Hawks Should Have Given Joe Manchin His Pipeline”, by Eric Levitz
Levitz makes an eloquent and thorough argument that progressives are doing themselves, the country, and the environment a disservice by opposing Manchin’s proposed permitting reforms. Progressives have made big plans for decarbonization — and, with the IRA, some of those plans are now official policy. But without NEPA reform, Levitz argues, that might all come to little:
The amount of offshore wind power currently tied up in permitting fights in the U.S. is about 20 times greater than all of the offshore wind power currently in operation or under construction. Solar developments, meanwhile, routinely die at the hands of NIMBY opposition even in ostensibly liberal and climate-conscious areas. As of 2021, 42 percent of all projects stalled by the National Environmental Policy Act’s review process involved green infrastructure or conservation…[T]he U.S. needs to build transmission lines at twice its current rate to achieve net-zero emissions by mid-century. Yet over the past decade, America’s rate of transmission construction has actually slowed…Thus, there is no way to rapidly decarbonize the U.S. economy without streamlining the permitting process for green projects.
Levitz describes what Manchin’s original permitting reform proposal would have done. Among other changes, it would have set a 2-year time limit (still really long!) on NEPA reviews for major energy infrastructure projects and a 1-year time limit (still really long!!) for minor projects, and reduced the statute of limitations for filing NEPA lawsuits from 6 years to 5 months for renewable energy projects.
The bill would have also streamlined permitting for Manchin’s favorite fossil-fuel projects, which is why many progressives opposed it. But Levitz argues that allowing green infrastructure will ultimately accelerate the transition away from fossil fuels, thanks to learning curves. At the end of his post, he excoriates progressives for their myopia on this issue:
But if left-wing Democrats have a detailed vision for how they can free the green transition from red tape while making fewer concessions to carbon energy than Manchin’s bill would have, few are spelling it out. Rather, most are unequivocally celebrating the failure of a bill that would have made it easier to build solar farms and transmission lines without articulating any politically viable alternative.
There is no decarbonizing the economy without permitting reforms…Voting against any and all concessions to the fossil-fuel industry, even when doing so undermines clean energy’s expansion, may win progressives the plaudits of environmental groups that specialize in obstructing development. But it won’t win future generations a maximally hospitable planet.
“The Case for Abolishing the National Environmental Policy Act”, by Jeremiah Johnson
Abolishing NEPA and replacing it with other procedures for enforcing environmental law is certainly an interesting idea. Unfortunately this article gives basically no guidance on how to do that.
Johnson doesn’t mention this, but NEPA is basically what historian Ian Morris calls a “low-end strategy” of state formation — farming enforcement of environmental regulations out to citizens instead of having the government do it. Though Johnson doesn’t give much detail in this article on what exactly he would replace NEPA with, my own instinct is to simply have an empowered federal bureaucracy get much more directly involved. That’s not a solution free-marketers are likely to appreciate, but it’s somewhat similar to what Japan does. Anyway, I digress.
What Johnson’s article does do is to provide a great list of examples of environmental projects that got delayed by NEPA:
In fact, NEPA has a long history of delaying explicitly environmental projects. It’s worth belaboring this point at some length to drive home exactly how anti-environment NEPA is. There’s the congestion pricing plan in New York which was delayed by NEPA. There’s the 1353 pages, 2.5 years, $1 million+ review of adding bike lanes in San Francisco. A $3 billion offshore wind project at Martha’s Vineyard was delayed for years due to NEPA. A separate $2.6 billion offshore wind project off Cape Cod was ultimately cancelled after 16 years of legal wrangling. Yet another $3 billion dollar wind project in Wyoming was ultimately approved after 11 years of review process. Hydroelectric dam projects in Oregon have been delayed. A different dam modernization project in Arizona faced a five year delay for review where the executive summary of the EIS is 76 pages long. A reservoir expansion in Denver (despite having the NEPA lawsuit ultimately dismissed) was still delayed by 2.5 years. A lake restoration effort in Utah was delayed 5-7 years. California’s high speed rail plans were delayed in 2017 by CEQA, and then again in 2019 (California ultimately gave up on connecting San Francisco to Los Angeles with high speed rail). Sometimes it’s “environmental” groups themselves who use NEPA as a tool to obstruct environmentally friendly projects. These groups used NEPA to attempt to halt a solar power project in California, to sue a different solar project in Nevada, to stop clean hydropower contracts in Maine, and to stop Minneapolis’s rezoning initiative. The examples are numerous and absurd — the Forest Service’s wildfire prevention projects are delayed an average of 3.5 to 7.2 years due to NEPA. In one instance a wildfire prevention plan was delayed so long that the impacted forest, which wasn’t aware of the importance of bureaucratic process, caught fire and burned 90,000 acres to the ground while the plan to stop said wildfire was still in review. Seattle’s light rail expansion, crucial for fighting climate change, was delayed by an 8,000+ page EIS. The federal government can’t even install solar panels on the roofs of federal buildings without a NEPA review.
This is obviously not a description of a functional country.
Think tank reports on NEPA reform
“How to Stop Environmental Review from Harming the Environment”, by Brian Potter, Arnab Datta, and Alec Stapp
In this post, Potter teams up with some co-authors from think tanks. First, they reiterate Potter’s explanation of NEPA and its discontents, in a more condensed form, noting that NEPA often hurts projects that would actually improve environmental quality:
NEPA acts as a delay on both fossil fuels and clean energy projects. As stated by one environmental lawyer, “NEPA, being procedural and not substantive, is a hefty sword. It stops the projects many groups do like, along with the ones they don’t like.” NEPA reviews…stop highway projects, but also offshore wind projects. Projects in the American Recovery and Reinvestment Act of 2009 were subject to more than 192,000 NEPA reviews, including more than 7,000 EAs and more than 800 EISs.
If anything, NEPA likely stifles newer, environmentally-friendly industries more than older incumbents, which have had many years to work the process in their favor. 42% of the Department of Energy’s (DOE) active NEPA projects are related to clean energy, transmission or conservation, while only 15% are related to fossil fuels. Based on available data, offshore wind offers one of the starkest examples: The U.S. has 42 MW of offshore wind production that is operational, 932 MW under construction, and 18,581 MW bogged down in permitting, most of which are waiting on NEPA analyses to be completed. The climate crisis requires a rapid build-out of clean energy infrastructure but current NEPA permitting processes enforce the status quo, benefiting the fossil fuel industry.
They then suggest some remedies. First, noting that fossil fuel infrastructure, like gas pipelines and offshore drilling, is often given favorable NEPA treatment through FERC (the Federal Energy Regulatory Commission); they propose extending this favorable treatment to electrical grid lines and renewable energy projects. Second, they propose some limits on NEPA-based judicial review of construction projects, And third, they propose creating special “corridors” with reduced permitting requirements.
“America’s Clean Energy Transition Requires Permitting Reform”, by Paul Bledsoe and Elan Sykes
Writing for the Progressive Policy Institute, Bledsoe and Sykes pull absolutely no punches about what’s at stake:
Ironically, in the name of environmental protection, a perverse process has set in whereby often unnecessary and duplicative government reviews and nuisance lawsuits have pushed average time for permitting to 4.3 years for transmission, 3.5 years for pipelines, and 2.7 years for renewable energy generation projects. Notably, these numbers don’t include those many hundreds of projects that are abandoned and never built because costs — often in the millions or tens of millions — and delays have become too burdensome for developers….[I]nitial studies note that without permitting and regulatory reforms, projected climate and economic benefits of these recent laws would be artificially limited and fail to meet policy goals…
The authors spend some more time illustrating the sheer size and urgency of the green energy buildout, and showing that NEPA reviews of the type we’re used to will basically make that impossible:
Between 2001 and 2021…projects as small as 0.1 GW (10 MW) of solar and as large as 3 GW of wind were subject to NEPA reviews…where renewable project permitting times stretched for an average of 2.7 years each. If each fraction of a gigawatt takes almost 3 years to secure federal permits, and the transmission upgrades needed to carry that power to consumers takes over 4 years per project, the modeled effects of the [Infrastructure Investment and Jobs Act] and [Inflation Reduction Act] will never come to pass.
In addition to passing Manchin’s permitting reform bill, Bledsoe and Sykes make some other bold recommendations, including:
Copying the FCC’s use of time limits (“shot clocks”) for review of cell phone tower projects
Unify all transmissions under FERC, by passing the SITE Act
Specify that lots of green energy projects should be subject to Categorical Exclusions, the fastest and least onerous NEPA report type
“Addressing NEPA-Related Infrastructure Delays”, by Philip Rossetti
This report from the free-market think tank R Street makes some interesting arguments. Rossetti argues that most NEPA delays are actually due to underlying environmental regulation (something Potter also pointed out), and suggests broader environmental regulatory reform rather than focusing mainly on NEPA. He also argues that lengthy Environmental Impact Statements are an often successful defensive measure against litigation, and forcing these statements to be shorter in order to save time might just make projects more vulnerable to lawsuits. In terms of reforms, Rossetti focuses on limiting the power of lawsuits, suggesting:
Reducing the statute of limitations for NEPA lawsuits to be in line with other environmental lawsuits,
Setting clear guidelines for NEPA lawsuits, and
Clarifying the rules associated with the underlying environmental regulations that NEPA supports, rather than leaving this up to the courts’ discretion.
“Building Cleaner, Faster”, by the Aspen Institute
This report is just a whole bunch of proposals for speeding up and streamlining the NEPA process for decarbonization-related projects. Most of the stuff is pretty similar to what others suggested above, but there was one very interesting and important addition. The Aspen Institute suggests forcing states to speed up their permitting process as well:
Acceleration only works if the federal, state, and local government are fully aligned on fast and certain permitting and adjudication. To this end, we propose that eligibility for any federal infrastructure or climate-related funding, tax incentives, or grants should be conditioned on a state or locality conforming to the same framework and timeline for fast approval and adjudication of projects. The best way to secure this alignment is for Congress to prohibit states from receiving federal clean infrastructure funds and incentives, unless they adopt permit acceleration measures equal to or better in speed and certainty than the federal standards.
Something like this seems absolutely necessary, since many states have their own, even more stringent local versions of NEPA.
“How are we going to build all that clean energy infrastructure?”, by the Niskanen Center
This report is very useful because it covers a whole lot of issues related to building energy infrastructure quickly, not just permitting. It only briefly touches on NEPA, but I included it because its proposed solution is interesting. Basically it proposes centralizing a lot of energy infrastructure under the auspices of the federal government, which can do a lot of stuff quickly using existing laws:
Planning and permitting within the same federal agency could effectively utilize existing rights-of-way, including establishing proper incentives for maximizing existing electricity corridors, brownfields, and already disturbed land such as rail and highways…Permitting in a decentralized fashion still presents a potential problem for transmission and generation, particularly for non-incumbent actors and interstate lines. The Federal Power Act could be revised to have transmission fall under federal authority for lines within the national transmission plan, similar to the Natural Gas Act. The federal government could streamline NEPA regulations, open up federal lands to projects, and facilitate permitting on mine lands, brownfields, and federal transportation ROWs and utility ROWs.
Another Niskanen article, by Brink Lindsey and Samuel Hammond, also stresses federal government centralization, suggesting “consolidation of decision-making, with federal preemption of permitting authority on all interstate projects and ultimate permitting authority clearly vested in specific agencies for specific kinds of projects.”
If I were designing a solution to the NEPA problem, this is the kind of thing I think I’d start with. It’s what the historian Ian Morris would call a “high-end strategy” of government, and it requires a well-financed and competent civil service that can centralize a lot of the functions of government instead of farming those functions out to local courts and citizens. It’s the kind of thing we did during the New Deal and during World War 2.
Defenses of NEPA
“Why Doesn’t America Build Things?”, by Aaron Gordon
Gordon starts by telling the story of a NEPA review that protected a village in upstate New York from a Trump golf course that would have poisoned their water. He then argues that while NEPA’s failures are well-known, its successes are invisible:
It is “the dog that didn’t bark,” as several people interviewed for this article characterized cases where environmental protection laws—most prominently the National Environmental Policy Act of 1969, otherwise known as NEPA—did their jobs. They are the stories of lakes not poisoned, forests not cut down, air not polluted, and dams not built[.]…Almost everyone I spoke to agreed that the environmental review process can and should be improved just as anything needs to be maintained and improved to adapt to changing times, but that doing so doesn’t require changing a single line of text in the law. They also almost all agreed NEPA is deeply, fundamentally necessary…In 2015, the National Resource Defense Council put together a list of NEPA “success stories.” Many of them never resulted in lawsuits, but instead saw agencies do the right thing after the public comment period yielded significant legitimate concerns.
(Of course, “success stories”, “the right thing”, and “legitimate concerns” are fairly subjective measures here.)
Gordon notes that many other countries have NEPA-like laws but manage to build big environmental infrastructure projects efficiently and quickly nonetheless. He claims that understaffing of the civil service and lack of coordination between agencies is more to blame than the structure of NEPA itself. He also notes that most projects aren’t required to submit a cumbersome NEPA EIS, but are allowed to proceed with a smaller reporting requirement. Gordon also argues that “today’s environmentally friendly project may be tomorrow’s environmental disaster”, citing a case where a solar plant killed a bunch of birds.
And like Phillip Rossetti above, Gordon notes that most of the actual reasons projects are cancelled are due to other environmental laws, not NEPA. And he argues that if NEPA is weakened, the people who oppose construction projects will simply find some other way to protest. Thus, he recommends staffing up bureaucracies in order to let them
“Q&A: Do We Have to Choose Between Speedy Development and Environment?”, by Laura Gersony and Jamie Pleune
This is an interview, in which Laura Gersony interviews University of Utah law professor Jamie Pleune about expedited permitting. Pleune, who has written a paper with John Ruple and Erik Heiny about NEPA, ends up defending the law pretty strongly. For example:
[T]he vast majority of decisions were also made within a pretty efficient and reasonable amount of time for the level of review. The median time to complete an EIS was 2.8 years; the median time to complete an EA was 1.2 years; and the median time to complete a categorical exclusion was four months.
This made me groan. With climate change getting more severe by the year, even a 1.2 year delay in decarbonization projects seems very far from “pretty efficient and reasonable”. But anyway, here are more of Pleune’s thoughts:
We found that there are three main sources of delay: a lack of agency capacity, delays that were attributable to the operator or market conditions, and delays that were caused by compliance with other laws. NEPA-specific factors could only explain 25 percent of the variation in decision making times. This tells us that most often, there are factors outside of NEPA that cause these delays.
These are pretty much the same defenses made by Aaron Gordon above: 1) most projects are delayed by laws other than NEPA, and 2) delays are caused by lack of bureaucratic capacity rather than by lawsuits and the threat of lawsuits from local NIMBYs. (These defenses don’t seem to apply to the more egregious and well-known examples, but perhaps those anecdotes are just outliers.)
But here Pleune makes an argument I hadn’t seen before:
There was a natural experiment set up, because there was a circuit court split on whether or not a critical habitat designation required a NEPA analysis. What [my coauthor John Ruple] found was, perhaps contrary to expectations, the group of decisions that went through a NEPA analysis were completed, on average, three months faster than the group of decisions that did not go through the NEPA process.
I think this shows that, when done properly, NEPA actually does help projects go faster, because it provides a backbone and a framework for coordinated information sharing between agencies. Rather than a hindrance, NEPA has the potential to be a tool.
That’s an interesting thought. Perhaps our bureaucracy is so fragmented that NEPA provides a needed benefit by coordinating information sharing! But then again, it seems like that information sharing would likely occur even under expedited review processes.
Pleune also disagrees with Jerusalem Demsas’ assessment that NEPA is a tool of local rich NIMBYs, arguing that without NEPA, local rich NIMBYs would still find some way to exert power, while community groups would be voiceless. To me, this seems like an assertion that cries out for some evidence.
Pleune also seems to contradict herself a little at times. In one answer, she declares that “The purpose of NEPA is to make better decisions. It’s not to make fast decisions.” She also says that “there are bigger costs and delays caused by going too quickly and getting a decision wrong.” But then later she argues that NEPA’s benefit is that it enables faster decisions via information sharing. If NEPA really did speed things up, as Pleune claims, then why would we have to worry about the tradeoff between “fast decisions” and “better decisions”? And as for the risk of “going too quickly and getting a decision wrong”, I think it’s useful to interrogate what “wrong” should mean in a world where climate change is bearing down on us. But now I am editorializing.
Law papers on NEPA reform
“Legal Pathways for a Massive Increase in Utility-Scale Renewable Generation Capacity”, by Michael Gerrard
Interestingly, this 2017 paper is written by the same lawyer who Aaron Gordon extolled for using NEPA to defend a small New York town from the ravages of Donald Trump’s golf course. Although he clearly sees the benefits of NEPA in some cases, Gerrard also identifies it as one of the main obstacles to rapid deep decarbonization of the U.S. economy:
This Article will discuss the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Policy Act (NEPA); state and local approvals; and species protection laws…
These problems are not unique to the United States. A 2016 study from the International Energy Agency found that large renewable projects in France, Norway, and the United Kingdom have also been plagued in varying degrees by delays from political/regulatory issues, site access, environmental approvals, and grid connection.
This second paragraph seems to contradict Aaron Gordon’s assertion that other countries have figured out how to build renewables expeditiously even with NEPA-type laws.
Unlike Jamie Pleune above, Gerrard seems to agree with the common assessment of how NEPA and its state-level analogues slow things down:
Approval delays are costly in several ways. Construction costs may escalate. New technologies or requirements may compel a revision in designs, leading to further delays. Applicants may become so discouraged by the delays that they give up, or their financing may vanish, or local opposition to siting may grow. Lenders who require speedy returns may be deterred from engaging at all. During the years that a renewable facility is not yet operating, the energy needs it will fill may be provided by fossil fuel facilities that add to the cumulative load of greenhouse gases…
The NEPA process can go on for several years and cost millions of dollars, and it often leads to litigation that can take still more years…[R]ecent legal and administrative reforms have shown promise in shortening NEPA time lines and reducing litigation for renewable energy projects, but the field remains challenging.
Gerrard discusses some attempts to reform NEPA, with the most important being the FAST Act of 2015, which encouraged interagency coordination and information gathering to expedite approval for renewable energy projects. But this was only a first step toward reform. Gerrard suggests further steps, including:
Increasing agency staffing
The use of “programmatic Environmental Impact Statements” that give approval to whole programs instead of just to specific sites
Allow more renewable projects to use the quicker, less onerous types of environmental review — Environment Assessments and Categorical Exclusions
Imposing time limits on some NEPA reviews
Requiring agencies to consider the positive environmental effects of a construction project in addition to the negative effects.
Gerrard also discusses some legal options for forcing states to expedite their own environmental review processes, modeled after the Telecommunications Act of 1996, which imposed various time and policy constraints on local approval processes, and the Energy Policy Act of 2005, which preempted certain state laws.
All in all, Gerrard displays an urgency similar to that of the NEPA critics in the think tanks and op-eds above, and his proposed solutions are not too different from what those others say.
“Pipelines & Power-Lines: Building the Energy Transport Future”, by James W. Coleman
This is a fairly long and comprehensive paper that goes through much of the history of U.S. energy infrastructure and policy. The final section deals with general principles that Coleman thinks will facilitate streamlined environmental reviews for energy transport infrastructure (which includes electrical transmission lines). Some excerpts:
[C]hanges to the rules of environmental review and the standards for approval should be implemented only prospectively, so that the goalposts are not moved half-way through the review process. This would allow continued improvement in environmental assessment while providing a measure of certainty to investors in interstate energy transport…Judicial review of environmental reviews have a natural tendency to change the rules midstream…Thus, aggressive judicial expansion of environmental reviews is a unique danger to energy transport investment…
He recommends various actions that courts themselves should take to mitigate this problem, but it’s mostly voluntary stuff. Later, though, he does get around to the idea of having Congress intervene:
Congress should step in to restore a balance between making reviews more predictable and timelier while maintaining their rigor. An amendment to NEPA would be an imprecise tool for accomplishing this balance, but if necessary, Congress could raise the bar for winning a preliminary injunction under NEPA or codify further deference to agency decisions. As explained below, a more radical step would simply immunize from review any project that had languished in the approval process for more than six years.
Coleman also argues that lengthy NEPA reviews are unnecessary, drawing on the example of Canada:
The average federal environmental impact statement currently takes five years to prepare…And they are not necessary to protect the environment; Canada, a nation that is arguably on the cutting edge of environmental assessment practice, has recently proposed expanding the scope of its environmental reviews and completing them in a maximum of 300 days — less than a year. There is simply no reason that a careful environmental review should take half a decade to complete.
Coleman would presumably not, therefore, agree with Jamie Pleune’s assessment that 2.8 years is a “pretty efficient and reasonable” time for an environmental review.
He also disagrees with the argument, seen above in Philip Rossetti’s piece for R Street, that forcing NEPA reviews to go more quickly would leave them open to more legal challenges later. Coleman asserts that if reviews were mandated to take two years instead of five, judges would simply change their expectations about how lengthy these reviews should be, instead of simply challenging all the reviews after they came out.
Coleman also has some ideas for reducing the years of lawsuits that projects often have to endure after completing their NEPA reviews:
To streamline these reviews, Congress should take two steps. First…All energy projects, including solar farms on federal land, and power-lines to support those projects, should receive expedited review in the D.C. Circuit…Second, when a company is forced to wait an unreasonable length of time for a permit, that permit should eventually be immunized from invalidation under NEPA.
These steps are pretty much in line with what others have recommended, with some interesting added details.
Anyway, that’s the whole roundup so far. Let me know if there are other interesting articles or papers I should add here! A picture of the basic arguments and issues is gradually emerging from the chaos, and I should have more solidly formed opinions about this issue soon.