Earlier this year, negotiations over the Inflation Reduction Act catapulted the National Environmental Protection Act (NEPA) into the policy limelight. The impetus was Senator Joe Manchin’s declaration that his yes vote would be conditioned on party support for a sidecar deal that would have “streamlined” the process by which new energy projects (including both renewables and fossil fuels) are sited, permitted, and approved.
Though Manchin’s proposal ultimately failed (due in large part to forceful opposition from the climate justice movement), coverage of the negotiations created an opening for organized critics of NEPA to amplify the points they’ve been making for years: “environmental review is harming the environment.”
The conflict about the Manchin proposal is just the latest chapter in a long-simmering debate among scholars of administrative and environmental law about the role of process and democracy in environmental governance. But as the goals of the climate movement shift from fighting the bad to building the good, harder questions arise. As law professors J.B. Ruhl and Jim Salzman put it, what role do the procedural tools of “old green” environmentalism play in the Green New Deal?
Answering this question demands both technical knowledge (how does NEPA actually work?) and theoretical clarity (what is democratic governance?). It requires we address fundamental questions of law and political economy.
To get the ball rolling, we invited seven friends of the Blog to share their reactions to the ongoing discourse about permitting reform. We asked them what is missing from the emergent critique of environmental review and asked what they see as the most promising horizons for regulatory reform.
Paul Sabin
The current debate over permitting reform challenges us to think about how best to balance two different kinds of unaccounted-for costs that drew increasing attention in the 1970s: environmental costs and administrative costs.
Environmental review responded to one valid critique of big government liberalism—the failure to consider the destructive environmental impact of things like highway construction, big dams, energy and mining projects, and pesticide spray programs. Reformers sought to correct these failures with new legal mandates, such as the National Environmental Policy Act (signed in 1970), that forced environmental considerations into the decision-making process. (These new mandates, of course, also led to protracted administrative processes that could block even sensible government actions and also raised the costs of undertaking any kind of project.)
At the same time, there was another growing critique in the 1970s—that the processes of government themselves were inefficient and ineffective, imposing excessive burdens, and that they therefore undermined the legitimacy of the state and its ability to accomplish public goals. The solution—a greater emphasis on government “efficiency” through paperwork reduction, benefit-cost analysis, and more flexible regulatory approaches. (This critique, of course, also was weaponized by the conservative right and business interests to attack the administrative state, including environmental regulation.)
The Carter Administration struggled to reconcile these two competing insights. The current debate over permitting reform engages that same essential balancing challenge. The U.S. still needs administrative processes that force government to account for social and environmental costs. And the U.S. also needs administrative processes that are efficient and effective, so that it can create needed public goods. Desirable permitting reform will figure out how to value these two competing goals, rather than simply choose one over the other.
Abbie Dillen
The idea that “we can’t build anything” is gaining currency in the U.S., along with the narrative that environmental laws and public process are the problem. Senator Manchin’s permitting bill has fueled debate while exposing “permitting reform” as a stalking horse for legislating sweeping environmental rollbacks. For a preview of the “reform” agenda that the Republican-controlled House will advance in the next Congress, see Senator Capito’s bill seeking to codify a suite of Trump administration rollbacks.
Gutting environmental protections will only strengthen the incumbent advantage that dirty industries currently enjoy, whereas clean alternatives will prevail in a well-resourced regulatory system that fairly accounts for environmental costs and benefits. For example, stronger pollution standards have been a primary driver in the decline of coal-fired power.
Given the accelerating trajectory of climate change and biodiversity loss, all-of-the-above energy policy will not work fast enough. We need law and policy that directly supports and even compels clean solutions, and the permitting process must build the requisite trust to advance those clean solutions rapidly, drawing on the wisdom of people who have a real stake in the costs and benefits of big new projects.
While it is correct that we need to permit and build faster than ever before, we will not be able to build clean infrastructure fast, affordably, and fairly in a haphazard way. We need a real plan, and we need a legal framework for that planning. Instead of inventing a new one, let’s use and improve on the one we have, making the most of new federal funding to implement NEPA’s under-utilized programmatic planning and tiering provisions. Historically, agencies have failed to invest in good master planning. With typically piecemeal permitting practices, they are badly positioned to do the holistic analysis that is needed at the individual project stage, and delays and successful litigation often ensue accordingly.
As a recent MIT study confirmed, the best way to guarantee successful construction of clean energy and transmission projects is to invest in meaningful public engagement and analysis at the outset. So let’s strengthen the legal framework for public engagement with the Environmental Justice for All Act, and when it comes to scaling clean energy infrastructure, let’s stop scapegoating our environmental laws and focus on reforms to energy law and regulation. Here are principles that should guide a genuine conversation about energy permitting.
Forrest Fleischman
Critics of NEPA rely on anecdotal evidence about costly delays. But lengthy delays resulting from NEPA are rare. We studied the US Forest Service (USFS), and found that most NEPA reviews are completed quickly (the median time was about 4.3 months) and that litigation affects less than 1% of all NEPA analyses. A main reason for the speed is that 82.3% of the USFS’ NEPA projects fit existing categorical exclusions (CEs). CEs are created by Congress or the Agency to exempt certain kinds of projects from more lengthy analyses. CEs apply to most routine USFS projects, for example renewing many recreational leases and small-scale fuel treatments. We found dramatic variation in the length of time different USFS offices take to process similar projects. Some national forests take almost as long to complete the average CE as other forests take to complete a much more involved Environmental Impact Statement (EIS).
These facts point to a different focus for reformers concerned about the costs of environmental review. Reformers should focus on the institutional factors that contribute to rare – but costly – delays. My informal conversations with USFS staff points to several key variables, including staffing, frequent transfers of key officials, complexities in contracting and interorganizational coordination, limited implementation funding, and disagreement about agency priorities. Better funding for federal agencies, and more focus on hiring staff with conflict mediation and NEPA planning skillsets might result in long-term savings and address permitting delays without losing the benefits of rigorous, participatory review. For specific projects in which Congress deems that the public benefits outweigh environmental costs, such as the development of renewable energy, Congress can create new CEs. If the benefits are clear, focused CEs are more likely to attract public support than sweeping reforms that decrease opportunities for scientific and public input.
Given the considerable advantages of NEPA processes in gathering and analyzing relevant information and encouraging public participation in decision-making, it would be a mistake to abandon the process due to anecdotal evidence from a small minority of slow projects.
Amy Laura Cahn
The fossil fuel industry and its representatives in Congress designed the Building American Security Act of 2022 to undermine the legal tools that communities rely on to protect land, water, health, homes, and sacred sites: public participation, environmental review, and judicial oversight. Fending off this bill is one of the most significant federal environmental and climate justice victories to date.
Defeating the bill has required collective power and a refusal to compromise the people who are harmed first and most by fossil fuel infrastructure. Frontline communities have sought this solidarity from the environmental and climate movements for more than thirty years.
We as a nation need to learn what is possible when public decision-making centers —in a sustained way–the lives, lived experiences, and voices of the Black, Indigenous, and People of Color communities most impacted by environmental racism and the climate crisis.
Whichever one treats as the impetus behind this effort at permitting reform—extending fossil fuel dependence, paving the way for a clean energy build-out, or overriding court decisions to build the Mountain Valley Pipeline—policymakers need new animating questions:
- Can we fund regulatory agencies to undertake timely and robust environmental reviews informed by early and meaningful public participation?
- Can we remove industry-driven barriers that prevent communities from building, owning, and benefiting from decentralized and justly sourced renewable energy?
- Can we consolidate funding streams to facilitate the creation of permanently affordable housing that is lead-free, energy efficient, and protective from extreme weather?
- Can we prioritize public transit while reconnecting and rebuilding communities of color bifurcated by highway projects?
- Can we treat waterways as the sacred and life-sustaining resources we know them to be?
The climate justice movement has already framed principles to shape how we structure a just transition from an extractive economy to one that shifts power, repairs and regenerates our society, and protects human health, biodiversity, and our earth. Frontline communities offer clear answers.
In my home state of Massachusetts, Black and Brown communities are fighting against the build-out of energy infrastructure where it is duplicative, lacks local benefits, and imposes harmful emissions and infrastructure on already overburdened communities. At the same time, these same communities have said yes to transitioning a coal-fired power plant to the Commonwealth’s largest solar array, installing community- and municipally-owned microgrids, and piloting free public transit. Across the state, climate justice advocates have pushed for years to get our least-cost energy resource–energy efficiency–to the homeowners, renters, and small businesses who have the least access and need energy savings and weatherization the most.
And while offshore wind is cited as proof that environmental reviews take too long, the permitting agency still needs to catch up from delays imposed by the Trump Administration. In anticipation and bringing communities together across regions, Taproot Earth, UPROSE, Rogue Climate, and the Climate Justice Alliance recently published principles for a just transition to offshore wind energy.
There are legal, logistical, cost, and cultural barriers to transitioning from an extractive to a regenerative economy. We can and must dismantle them. The self-determination of frontline communities should lead our way.
Jeff Gordon
We need to be more creative about how public participation can help guide the siting of renewable energy infrastructure. I’ve been discouraged by the contours of the debate so far: either environmental review is just NIMBYism in disguise, or more citizen input upfront is the only way to ensure that projects don’t get delayed or abandoned at a later date. Democracy is epistemically and morally superior to more technocratic forms of decision making but that doesn’t make “more democracy” a useful or even coherent call to arms. Any proposal for public participation needs to specify at what unit of analysis, or more fundamentally, who counts as part of the public?
When it comes to siting and permitting, I’d like to suggest that we stop thinking about democracy as something that inheres exclusively on a project-by-project basis. A proposed transmission line may pit a specific utility company against specific landowners and specific habitats, but it also represents one tiny piece of a national decarbonization campaign. The question we should be asking is: how do we lift up local knowledge and safeguard local vulnerability subject to the constraints of an equally democratically legitimate national imperative? It seems to me the answer must involve comparing alternative infrastructure options, using public participation to identify which are least bad, and agreeing from the start that “none” is not an acceptable option.
One way to do this might be to establish “infrastructure budgets” at the state level. In the context of urban zoning, Rick Hills and David Schleicher make the case for bundling zoning amendments into an inseparable package, and directing the zoning commission to approve the budget only if the ratio of up-zonings to down-zonings matches the city’s aggregate target. A welcome consequence is that opponents of a given up-zoning would then have a reason to proactively contribute to the identification of replacement up-zonings elsewhere in the city.
The infrastructure budget could work similarly. State commissions would set a “budget” for generation, storage, and transmission capacity build-out per year. The purpose of project-specific environmental review would shift from enjoining projects to establishing a record for comparing projects against one another. This means that Congress would need to amend statutes like NEPA to preclude judicial review under the APA, such that litigants couldn’t challenge project approvals on project-specific facts alone. Litigants should be able to seek judicial review of the state-level comparative exercise. The standard for comparison will never be scientific, but it should include factors spanning environmental harm, property damage, and concentration of risk on marginalized communities. The best projects would be approved up until the budget has been met.
Public participation should retain its powerful information-forcing function. But we should demand more agency and creativity from our local micro-publics: that they not just name the problems with inevitably imperfect infrastructure proposals, but help identify better alternatives to meet our macro-public decarbonization commitment.
Shay O’Reilly
It has not escaped my notice that the pundits making the climate case for permitting reform tend to be affiliated with YIMBY pro-housing politics. In some ways, it makes sense: It’s easy to see a similar, frustrating perversity between San Francisco liberals opposing new apartment buildings and the Kennedys opposing Cape Cod offshore wind. But the simple porting of housing politics into debates over climate and energy policy mystifies the differences between the two.
Most fundamentally, housing policy and climate policy have different goals. Facing an absolute shortage, housing policy seeks to build enough homes to house people (with important subsidiary sustainability and equity goals). But climate policy seeks to shut down fossil fuels as quickly as possible, with the construction of renewable energy a necessary precursor.
To understand the difference, look to Texas: due to a combination of regulatory ease and a renewable portfolio standard, Texas has had a very successful buildout of wind power. But it also has a grid that is still more than 60% fossil fuels, with 20% of the state’s power provided by coal. Those lax permitting policies govern massive fossil fuel extraction from the Permian Basin and a hideous record of environmental racism in cities like Houston and Brownsville. This is not a model for climate-friendly permitting reform.
Instead, an ideal permitting regime at this late hour is one that makes it onerous to build new fossil fuel infrastructure like pipelines and LNG ports, but simple to build renewable energy and the transmission lines needed.
The federal government can leverage its jurisdiction by implementing the transmission siting reform embedded in the IIJA/Bipartisan Infrastructure Bill and increasing staffing at federal agencies to reduce regulatory timelines. There are also industry-specific steps to take on offshore wind and geothermal generation. Congressional action could be helpful on transmission cost-sharing (a minor detail to add to must-pass legislation). But all of this must be done with nuance and context as we work to solve the most critical issue of our time.
Jamie Pleune
Arguments that we need to gut NEPA in order to accomplish green transmission goals present a false conundrum by suggesting that NEPA’s regulatory structure is the only cause of delay. When conducting an empirical analysis of over 41,000 Forest Service NEPA decisions between 2004 and 2020, my team found that the reality is more nuanced. While the majority of decisions were made within a reasonable timeframe for the complexity of the project; a small percentage (around ten to twenty percent) got bogged down at every level of review. In other words, we observed very efficient EISs, and we also found very slow categorical exclusions. If analytical rigor and public participation were the sole causes of delay, we would not expect to see fast EISs or slow CEs. Our research revealed other sources of delay that permitting reform should address.
First, is agency capacity. Projects hit bottlenecks when there weren’t enough staff (or enough staff with the right expertise). The Forest Service isn’t the only agency with this problem–the Government Accountability Office found the same problem in hardrock mine permitting. Instead of reducing the rigor of environmental analysis, we should try increasing agency resources.
Compliance with other laws can also create delay. External legal requirements (such as obtaining a Clean Water Act permit) are not imposed by NEPA, even though the NEPA analysis often informs decisions. Used properly, NEPA’s analytical structure can actually reduce these types of delays by streamlining the information-gathering process and facilitating inter-agency coordination upfront. For example, one empirical study found that critical habitat designations that went through the NEPA process were completed on average 3 months faster than those that skipped the NEPA process. Permit reform should focus on ways to use the NEPA process as a tool—not a hurdle. If we really want to improve efficiency in permitting, we should start talking about increasing agency capacity and improving strategies for interagency coordination. And while we’re at it, let’s not forget that rigorous review protects us from bad projects. As the Boeing 737 Max tragedies demonstrated, a permitting system that devolves to rubber stamping does not keep people safe.
