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Permitting Reform and the Incidence of NEPA as a Source of “Delays”

Public Protections Responsive Government Climate Defending Safeguards Energy Public Participation

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.

Public Protections Responsive Government Climate Defending Safeguards Energy Public Participation

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