This post provides highlights of a forthcoming feature article in The Environmental Forum, a publication of the Environmental Law Institute. The article is copyrighted by the Environmental Law Institute and is shared on our website with permission.
Since the passage of landmark legislation like the Inflation Reduction Act and the Bipartisan Infrastructure Law during the Biden administration, we’ve repeatedly heard that we’re at a critical junction: There is a need to expand and accelerate environmental, climate, and clean energy policy implementation and opportunities to do so, but the pathway toward this goal will be plagued by significant delays.
The National Environmental Policy Act (NEPA) has become a common scapegoat in this fight, with critics charging that the sometimes lengthy and complicated environmental review process NEPA requires is the main thing holding up decarbonization and the clean energy transition. This has led to calls from across the political spectrum for “reforming” the statute.
This assumption, however, misrepresents what happens on the ground. In an upcoming article in the Environmental Law Institute’s Environmental Forum, I present the results of a literature review in which I assessed over 40 documents (peer-reviewed scientific papers, law review articles, government reports, and white papers), to advance the discussion toward NEPA reforms rooted in empirical evidence, leaving speculation and cherry-picking behind. This article provides a comprehensive look at the influence of NEPA’s environmental review on implementation timelines.
When we look at the empirical evidence, what do we find? Unsurprisingly, a much more complex picture that uncovers delay factors beyond NEPA. Contrary to some of the arguments espoused by its detractors, extensive research found that the majority of NEPA decisions are made within a reasonable time given the complexity of the projects involved and their expected environmental impacts. Considering that NEPA is a “look before you leap” statute, it is sensible that the statute will introduce pauses that allow for impact evaluation.
Moreover, most delays in the NEPA process are not intrinsic to the environmental reviews themselves. Rather, delays tend to stem from exogenous factors, such as budgetary constraints, lack of or delayed communication, and insufficient coordination between authorities and levels of government.
Within the universe of NEPA reviews, there is enormous variability. The length of a review process can range from a few months to more than 10 years. However, the vast majority of decisions (up to 98 percent of decisions, according to some estimates) avoid the lengthiest environmental review processes (called “Environmental Impact Statement” or EIS), which contradicts much of the discourse around so-called “reform.” Research has consistently found that the median time to complete an EIS is between two and four years.
My review confirms what earlier studies have shown: In the overall lifecycle of a project or policy decision, from proposal to implementation, environmental reviews are rarely the primary cause of delay. In 2011, a Congressional Research Service (CRS) report found that “there is little data available to demonstrate that NEPA currently plays a significant role in delaying federal actions” and that depending on the agency, “factors ‘outside the NEPA process’ were identified as the cause of delay between 68% and 84% of the time.” And as Struthers et al. noted in an authoritative Nature Sustainability study of over ten years of Forest Service data in 2023, “EA and EIS processing accounts for approximately one-fifth of total planned implementation time.”
Without a doubt, other factors are much more consequential to implementation delays. To say that “the NEPA process” takes too long is far too simplistic and arguably incorrect.
This does not mean that the process cannot or should not be improved. Policymakers should strive for evidence-based changes that are conducive to a faster — yet thorough and more democratic — NEPA process. These changes should target the true sources of delays: insufficient agency funding and resources, lack of coordination and collaboration between agencies and with external actors, project-specific features, and compliance requirements with other laws (like the Endangered Species Act). These are the pathways that can lead to meaningful change.
Ample empirical evidence calls into question the main arguments NEPA detractors use when campaigning for weakening the review process. Policies aimed to address the extent to which NEPA reviews affect policy need to recognize that there is a very small subset of actions that receive the longest reviews, that there is huge variation between and within agencies driven by myriad factors (suggesting that a “silver bullet” is unlikely to exist), and that the overwhelming majority of them are not challenged in court.
The complex reality of environmental reviews requires that we understand the role that NEPA plays in the overall planning and implementation process and that we diagnose the sources of delays correctly. Failing to do so can lead to a weaker regulatory system that fails to meet its goals while retaining the true sources of project and policy delays.
You can read the full review article on NEPA timelines and proposed solutions here, and the full list of articles reviewed can be accessed using this link.
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Federico Holm | May 1, 2024
Since the passage of landmark legislation like the Inflation Reduction Act and the Bipartisan Infrastructure Law during the Biden administration, we’ve repeatedly heard that we’re at a critical junction: There is a need to expand and accelerate environmental, climate, and clean energy policy implementation and opportunities to do so, but the pathway toward this goal will be plagued by significant delays. The National Environmental Policy Act (NEPA) has become a common scapegoat in this fight, with critics charging that the sometimes lengthy and complicated environmental review process NEPA requires is the main thing holding up decarbonization and the clean energy transition. This has led to calls from across the political spectrum for “reforming” the statute. This assumption, however, misrepresents what happens on the ground.
Daniel Farber | April 29, 2024
The bad news is that we’re not yet on track to avoid dangerous climate change. But there’s also good news: We’ve taken important steps that will ease further progress. We should resist the allure of easy optimism, given the scale of the challenges. Neither should we wallow in despair. There’s a good basis for hope.
Daniel Farber | April 25, 2024
The U.S. Environmental Protection Agency (EPA) has issued a cluster of new rules designed to limit carbon emissions from power generators. Once upon a time, the presumption would have been that the rules would quietly go into effect, until someday a court rules on their validity. These days, we can expect a lot of action to begin almost right away.
Daniel Farber | March 28, 2024
In West Virginia v. EPA, the U.S. Supreme Court struck down the Obama-era Clean Power Plan. The heart of the ruling was that the U.S. Environmental Protection Agency (EPA) had engaged in a power grab, basing an unprecedented expansion of its regulatory authority on an obscure provision of the statute. Conservative groups have claimed since then that virtually every government regulation raises a major question. But the doctrine cannot be read that broadly. In particular, the doctrine does not apply to the emission standards for cars that EPA issued last week. As EPA explains in its prologue to the rule, the car standard is very different from the Clean Power Plan.
Sophie Loeb | March 27, 2024
Today, the Center for Progressive Reform is publishing a new policy brief. Missing the Mark: How North Carolina’s Decarbonization Efforts Fall Short and How to Fix Them examines the pitfalls of North Carolina’s decarbonization plan (known as the Carbon Plan and developed by Duke Energy) and alternative models to address those shortcomings.
Daniel Farber | March 26, 2024
The Chevron doctrine requires judges to defer to an agency’s interpretation of a statute if that interpretation is reasonable. The State Farm case, which is much less widely known, requires courts to defer to an agency’s expert judgment unless its reasoning has ignored contrary evidence or has a logical hole. As you probably already know, two cases now before the Court will probably result in abandoning or revamping Chevron. But the “abortion pill” case that will be argued today will test the Court’s adherence to State Farm. Will the conservative Justices stand by State Farm even when doing so expands access to abortion?
Federico Holm | March 25, 2024
My colleagues at the Center for Progressive Reform and I recently published a report and interactive map examining how local ordinances that restrict clean energy development can impose major obstacles in our efforts toward a just clean energy transition. Among the many important findings in our report, we highlighted the high degree of variability that exists between states in the way large-scale clean energy generation is regulated. In some cases, like Illinois and Michigan, governments have empowered state authorities to override local siting measures; other states have given local governments more decision-making powers to decide if and how renewable infrastructure can be built. Among the latter is Ohio.
Victor Flatt | March 14, 2024
Last week, the U.S. Securities and Exchange Commission (SEC) released its long-awaited final rule requiring publicly traded companies to report certain climate risks and greenhouse gas emissions as part of their financial risk disclosures.
James Goodwin | March 5, 2024
As discussed in yesterday’s post, the contemporary conservative movement is prepared to use legal battles over esoteric administrative law doctrines, such as Chevron deference, as a tool of ideological warfare. Importantly, though, these battles present progressives with a great opportunity to engage at the ideological level as well. After all, progressives have been busy developing their own competing vision of what our constitutional democracy should look like. They should seize the opportunity presented by the fight over Chevron deference’s future to articulate and advance that vision.