Attacks on NEPA are neat, plausible, and wrong.
H.L. Mencken was sadly spot on when he famously opined that “there is always an easy solution to every human problem—neat, plausible, and wrong.” We are seeing this pattern emerge yet again in response to one of the most critical problems we face today on the climate front: how to rapidly build out the clean energy and transmission infrastructure we need in order to meet our carbon reduction commitments. A bedrock environmental law—the National Environmental Policy Act (NEPA)—has become the easy scapegoat for a complex set of problems bedeviling our clean energy buildout. And attacking and weakening NEPA and other federal environmental laws has become the “neat, plausible, and wrong” solution to those problems in the minds of too many.
What everyone can agree on is that we need to build enormously more wind, solar, and other renewable energy sources in order to meet climate goals; and that this is not happening at the pace we need it to. Certainly, there is ongoing progress. Renewable energy generation has become incredibly cost effective, with wind and solar now as cheap or cheaper than fossil fuels. These sources’ capacity is projected to double by 2030, helped along significantly by the climate measures in the Inflation Reduction Act. But if we are going to meet our net zero target, capacity has to not just double but quadruple by 2030. And right now many factors, including and especially our antiquated and too-small electric grid, are standing in the way of that needed buildout. Solar and wind project developers are stymied by a mind-bendingly large backup in the queue to get their projects connected to the electric grid. Currently, there are roughly 2,050 gigawatts of new projects—94.4% of this compromised of renewables and energy storage—waiting for authorization from grid regulators to connect. That number represents more than the combined capacity of all power plants currently operating in the US.
So yes, we have a problem. And yes, some of this has to do with the pace at which we’re approving and bringing into service renewable energy projects and the grid buildout needed to support them. But a lazy leap from that fact to a conclusion that NEPA and other environmentally protective statutes are the source of the delays is neither wise nor supported by the facts on the ground.
Careful analyses of data on the project approval process over the last two decades have concluded that federal environmental laws are very much not the problem. Most recently, law professor David Adelman at University of Texas did an exhaustive assessment that looked at all federal permitting for energy infrastructure between 2010 and 2021 to determine whether the data backs up the frequent assertion that NEPA is a source of yearslong delay and a weapon that lawsuit-happy NIMBY groups relentlessly wield against the green energy buildout.
Turns out it isn’t. A remarkably low percentage of projects that Adelman surveyed—3.9 percent of wind and 3.2 percent of solar—required a comprehensive environmental impact statement under NEPA or an individual authorization under other environmental laws, with essentially all of those in ecologically sensitive environments. Essentially, Adelman concluded, streamlined processes are already built into environmental statutes, and are deployed the vast majority of the time. And amidst thousands of projects over the course of 12 years, lawsuits were remarkably sparse. There were challenges to only 28 wind projects, 8 solar projects, and 14 transmission lines.
Adelman’s results are consistent with multiple past studies of NEPA implementation that have repeatedly concluded that NEPA is not a significant source of delay, with respect to energy projects or any other kind of projects. The non-partisan Government Accountability Office (GAO) has estimated that roughly 95 percent of all NEPA decisions do not involve any substantive environmental review at all because they qualify for categorical exclusions. The non-excluded projects mostly require only relatively brief environmental assessments (EAs)—which the Department of Energy (DOE) estimates at a median cost of $65,000 (in context of the tens to hundreds of millions of dollars that a renewable energy project can cost), and the GAO estimates generally take 12 to 18 months to complete. Recent deep dives into various specific types of permitting by the GAO (looking at hardrock mining), Columbia University (looking at US Forest Service decisions), and the Environmental Law Institute (looking at critical minerals) all concluded more or less the same thing: that approval delays often happen, but not generally because of NEPA.
What is more, both the GAO and the Congressional Research Service (CRS) have concluded that NEPA actually helps with the coordination among agencies needed to complete the permitting process, serving as an umbrella to coordinate application of other environmental laws. CRS observed that some agency representatives “feel that the NEPA process, when implemented as required by the CEQ regulations, actually facilitates a more efficiently executed project.” GAO’s analysis describes other affirmative benefits of NEPA review, including discovering early and addressing design problems that might make projects more costly in the long run, and channeling public input in a rational way.
This large and growing stack of as-yet uncontradicted data has not, however, deterred NEPA’s critics, who persevere in insisting that it’s why we can’t have nice things. These critics include not only the usual anti-environmental suspects but also many pundits and publications more generally supportive of environmental protection, such as New York Times columnist Ezra Klein, The Atlantic, and Vox. In unfortunate keeping with our modern political culture, the critiques tend to focus not on the unexciting data but rather on the captivating anecdata—individual stories of this or that project collapsing under the weight of public opposition that had called federal environmental review laws to its aid. However, as explained in a recent report by the Center for American Progress (CAP), it is virtually impossible to avoid public opposition to large projects, and the presence and occasional success of such opposition is not a valid criterion for assessing NEPA’s value. The standard should not be whether NEPA aided in sinking isolated projects that the public overwhelmingly disliked, but whether on the whole NEPA is facilitating public discourse and productively channeling public opinion, whether positive or negative. CAP’s analysis, and the multiple other studies of NEPA’s track record, strongly suggest that it is.
If NEPA pushback were coming only from pundits, their fact-challenged assertions would not be worth further mental energy. However, their pile-on has aided a series of recent legislative attacks on NEPA and other environmental laws in the name of “permitting reform” by some who are hostile to NEPA altogether. Senator Joe Manchin and others last year introduced highly problematic legislation that would extensively curb these laws’ reach. While those efforts have not entirely succeeded, Manchin’s agitation set the stage for a set of misguided changes to NEPA tied into last year’s debt ceiling deal.
The concern now is that even federal agencies who are honestly trying to make the system work better may be buying into the unwarranted assumption that scaling back NEPA is the way to fix the approval delay problem. Recently, the DOE proposed to significantly broaden the scope of NEPA categorical exclusions that apply to renewable energy projects, without actually explaining how this move would hasten approvals. NRDC and others stated in comments on the rule that while we are open any genuinely effective approach to speeding up clean energy projects, and to whatever research and data DOE might have indicating that excluding more projects from environmental review constituted such an approach, DOE had failed to make that case.
So if the solution to the slow pace of clean energy permitting is not attacking NEPA and other environmental laws, then what is it? All of the NEPA studies, as well as NRDC and other clean energy advocates, have identified actual problems with the infrastructure approval system and made recommendations for reform. These are many and varied, but mostly boil down to a few basic principles:
- Effectively address local community concerns. As reported by Adelman and multiple other scholarly publications, most opposition to renewable energy projects comes from the local level, using local levers of power; and tends to be fueled by failure of developers and regulators to communicate early and effectively with the people who will be impacted. The obvious solution involves enhancing communication and providing meaningful substantive benefits to communities asked to host these facilities.
- Beef up agency resources. As identified by most of the NEPA studies, the real source of agency delays in responding to permit applications is resource limitations. Authorities tasked with approvals are chronically understaffed, and simply lack the bandwidth to respond quickly to every application. This is particularly a problem when, in the case of applications to connect to the grid, the submissions are often half-baked due to the perceived urgency on the part of developers to get a spot in the overlong queue.
- Employ “smart from the start” planning. Any large energy infrastructure project—particularly high-powered transmission lines, which usually cross over multiple states—is going to have impacts on natural resources and communities. Too often, developers try to address these impacts late in the game, after plans are solidified and applications filed, resulting in project delays. “Smart from the Start” is the approach of ensuring that impacts are considered and addressed as early as possible in planning in order to avoid surprises.
- Use federal authority to balance interests. A fundamental obstacle to building the large, multi-state transmission lines we need is that the benefits of the lines flow mostly to its end points, and not to the middle. If a developer wanted to build a line from, say, Illinois to Arkansas, the Illinoisans might be enthusiastic about a new market for their wind power, and the Arkansans might be enthusiastic about a new source of energy, but the Missourians will ask, what’s in it for us?—and may reject the project as having no perceived benefit for them. Certainly, we need to do our best to make sure something is, in fact, in it for the people and states along the route, and to pay heed to their local autonomy and legitimate interest in minimizing impacts, as discussed in the NRDC report. However, we also need to balance that autonomy against the national need for a significant grid buildout, meaning that in some cases the national need must take precedence.
The upshot is, we don’t have time in our headlong careen toward climate crisis to chase after “neat, plausible, and wrong” solutions. We know what the real problems and real solutions are and have the ability to get it right the first time. So let’s do that, and stop pointlessly beating up on NEPA.
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