The Misconceptions Around NEPA’s Impact on Clean Energy Deployment
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 blamed for these delays.
However, a closer examination reveals that the problem is not as straightforward as it may seem. According to independent research efforts by the Clean Air Task Force (CATF), the Niskanen Center, and the Center for Progressive Reform, arguments that solely blame NEPA for permitting delays mischaracterize the empirical reality.
Through comprehensive data analysis and in-depth case studies, these organizations have uncovered a more nuanced understanding of the factors contributing to the slow pace of infrastructure development. Permitting reforms, proposed or enacted, should be evidence-based and aligned with collective environmental and social goals. Proposals to reform NEPA based on misconceptions could needlessly dismantle one of the most effective laws on the books for carefully considering potential environmental impacts before proceeding with major infrastructure projects.
Identifying the Real Drivers of Delay
The joint research efforts by CATF, the Niskanen Center, and the Center for Progressive Reform examined the federal transmission permitting process in depth. They compiled case studies of 37 transmission projects under NEPA review from 2010 to 2020, conducted conversations with transmission developers, federal agency officials, and Tribal energy experts, and analyzed data on the impact of litigation and opposition on the development of each line.
Their findings reveal several key insights:
1. Lack of Coordination and Resources Drives Delays
Lengthy review timelines can be attributed to a variety of factors, including:
* Constraints and insufficient funding for agency activities
* Delayed or insufficient communication
* Inadequate coordination between federal agencies and between different levels of government
For long-distance, linear infrastructure like electricity transmission, these coordination issues easily compound, as neighboring jurisdictions that projects pass through can have different regulatory requirements and review processes that are often duplicative of the federal environmental review processes.
2. NEPA Litigation is Rare and Not a Top Obstacle
Contrary to the common perception, NEPA litigation is not a significant driver of infrastructure deployment delays. Across the government, only 0.22% of NEPA decisions get litigated – 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. However, this litigation tends to center around insufficient or incomplete review processes and primarily impacts Bureau of Land Management and U.S. Forest Service projects.
3. Lack of Data Transparency
Developers, agencies, and analysts alike need more data transparency to identify inefficiencies in the permitting process and support evidence-based policy changes. The research efforts confirmed that data on environmental review timelines can be difficult to pin down, especially for the “pre-filing” period – the time leading up to the formal environmental review process – which is not readily accessible, obfuscating the full duration of reviews.
Pursuing Targeted, Evidence-Based 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. The organizations identified several opportunities to continue the momentum on permitting for transmission and key clean energy technologies critical to the energy transition:
1. Federal Agency Improvements
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.
2. State-Level Harmonization
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.
3. Improved Community Engagement
In addition to ongoing efforts by DOE, agencies should implement community benefit 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.
4. Targeted Research on NEPA’s Impact
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.
5. Capacity Building for Agencies
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.
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 the independent research efforts highlighted in this article show NEPA is not a primary driver of delay. Instead, the analysis and recommendations point to a wide array of alternatives, more achievable than legislative reform, that could improve permitting and catalyze the transition to a carbon-free economy.
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