This piece was co-authored by the Niskanen Center’s Johan Cavert, Center for Progressive Reform’s Federico Holm, and Clean Air Task Force’s Nicole Pavia.
Building clean energy infrastructure quickly will be critical to avoiding the worst impacts of climate change while bolstering grid resilience and flexibility. Much of the discourse portrays infrastructure deployment as plagued by bureaucratic and legal holdups that should be eliminated or drastically curtailed in service of faster development – with the National Environmental Policy Act (NEPA) often taking sole blame for these delays.
But is that really where the problem is?
Our analyses suggest that solely blaming NEPA for permitting delays overlooks other contributing factors.
According to our analyses, arguments that blame NEPA for permitting delays mischaracterize the empirical reality. Permitting reforms, proposed or enacted, should be evidence-based and align with collective environmental and social goals. Proposals to reform NEPA based on misconceptions could needlessly dismantle one of the most existing effective laws to “look before we leap” by carefully considering potential environmental impacts before proceeding with major infrastructure projects.
Two independent research efforts explore NEPA’s impact on project timelines
In a joint research effort, Clean Air Task Force (CATF) and the Niskanen Center synthesized and analyzed evidence and data relating to barriers in the federal transmission permitting process. The research team compiled case studies of 37 transmission projects under NEPA review from 2010 to 2020 and hosted conversations with transmission developers, federal agency officials, and Tribal energy experts. The two organizations also aggregated and analyzed data from these same 37 projects and investigated the impact of litigation and opposition on the development of each line.
In parallel, the Center for Progressive Reform evaluated over 40 published scientific, technical, and legal papers, providing evidence of a more nuanced picture than the prevailing NEPA narrative posits, while uncovering factors for delays beyond NEPA reviews. The Center’s extensive review offers a comprehensive assessment of the state of quantitative and qualitative studies that grappled with the NEPA process as a potential source of delay.
A shared set of conclusions
Our separate efforts identified similar key findings on NEPA and permitting generally, including:
Lack of coordination, collaboration, and resources allocated to the NEPA process drives delays. This assessment applies across projects and agencies. Lengthy review timelines can be attributed to a variety of factors: constraints and insufficient funding for agency activities, delayed or insufficient communication, and inadequate coordination between federal agencies and between different levels of government. For long-distance, linear infrastructure like electricity transmission, these coordination issues easily compound. Neighboring jurisdictions that projects pass through can have different regulatory requirements and review processes and can be duplicative of the federal environmental review processes.
NEPA litigation can be impactful when it happens, but it is rare and not a top obstacle to infrastructure deployment. Government-wide, only 0.22% of NEPA decisions get litigated – that is roughly one out of every 500 NEPA decisions. When litigation does happen, it can have meaningful impacts on implementation, with plaintiffs winning about a quarter of lawsuits. Litigation tends to center around insufficient or incomplete review processes, and particularly impacts Bureau of Land Management and U.S. Forest Service projects, the two agencies most likely to be litigated against.
Developers, agencies, and analysts alike need more data transparency. Inefficiencies in the permitting process should be identified through rigorous research and policy changes should be supported by evidence-based analysis. However, our research efforts confirm that data on environmental review timelines can be difficult to pin down. For transmission specifically, information from the “pre-filing” period – the time leading up to the formal environmental review process – is not readily accessible, obfuscating the full duration of reviews.
Potential policy solutions
No single solution can efficiently address the multifaceted challenges of infrastructure deployment. Instead, an array of policy solutions is needed to comprehensively improve processes at all levels of government. Our organizations see several opportunities to continue the momentum on permitting for transmission and key clean energy technologies critical to the energy transition. Many meaningful improvements to the permitting and environmental review processes can be achieved without legislation.
First, federal agencies, with or without Congressional action, can improve the transmission permitting process. Policies that have recently advanced opportunities for efficient and strategic deployment of transmission include the Department of Energy’s (DOE) Coordinated Interagency Transmission Authorizations and Permits rule and the Federal Energy Regulatory Commission’s (FERC) Order 1920. To maximize the impact of these actions, Congress should ensure more steady funding for DOE, FERC, the Department of the Interior, and other agencies frequently engaged in transmission permitting.
Second, states can take steps to harmonize permitting processes for transmission, both with neighboring states and with federal processes. These permitting processes are often disjointed or duplicative and their discontinuity can exacerbate long permitting timelines, particularly for interregional lines that cross multiple states.
Third, in addition to ongoing efforts by DOE, agencies should implement community benefits agreements and methods of community engagement beyond the status quo to facilitate and incorporate meaningful community input in decision-making. Community opposition can exacerbate existing challenges in the NEPA process and clean energy deployment in general.
Fourth, there are opportunities for deeper research on NEPA’s impact on other clean energy technologies. Transmission permitting is a complex process, and although it shares some similarities with the development of clean energy infrastructure more broadly, it faces a distinct set of challenges and barriers. Applying broad generalizations about the impact of NEPA across multiple project types can lead to a lack of nuance in proposing effective solutions. Finally, agencies will only achieve results if they have the capacity to do so. Improving efficiency and effectiveness in the NEPA process requires allowing agencies to hire more staff dedicated to compliance with the statute, ensuring low turnover and high retention of experts, and securing better facilities and equipment, among other actions.
The road ahead to improve transmission permitting
Policymakers have an important role in expanding and accelerating clean energy implementation. To deploy more energy while protecting communities and the environment, they should pursue informed and precise policy improvements backed by existing research and data. Hollowing out NEPA is often portrayed as the solution to get clean energy resources built faster, but our independent research efforts show NEPA is not a primary driver of delay. Instead, our analysis and recommendations highlight a wide array of alternatives, more achievable than legislative reform, that could improve permitting and catalyze our transition to a carbon-free economy.