Do we have to choose between speedy development & environment?

On August 16, President Joe Biden
signed into law a tax reform and spending bill that is also the
country’s largest climate change investment. A surprise and historic
compromise between Sen. Joe Manchin of West Virginia and Senate Majority
Leader Chuck Schumer, the Inflation Reduction Act is projected to cut
domestic greenhouse gas emissions by at least 40 percent by 2030
compared to 2005 levels, mostly through hundreds of billions of dollars
in renewable energy tax credits.

In exchange for his vote, Manchin,
who has a stake in a family coal business, secured a legislative
concession: the promise of a side deal to speed the permitting process
for big energy projects.

What little is known about the deal comes from a leaked, single-page summary obtained by the Washington Post and what appears to be an incomplete legislative text
from Bloomberg News. Among the deal’s most enduring provisions could be
sweeping changes to the National Environmental Policy Act, the bedrock
environmental law which governs virtually every major infrastructure
project in the country. 

From pipelines and dams to power
plants and critical mineral mining, there are few industries or
environments that NEPA doesn’t touch. Likewise, the law’s critics cover
the American political spectrum. Development-friendly coalitions say its
requirements are expensive and time-consuming; some decarbonization
advocates say it could interfere with a clean energy buildout.
Equity-focused groups say it’s abused by wealthy areas to stop
much-needed public works. 

The side deal could bring those criticisms to the forefront. Its proposed changes to NEPA include:

  • Creating a two-year time limit for permitting reviews of major projects, and a one-year limit for lower-impact projects.
  • Boosting inter-agency coordination for environmental reviews.
  • Addressing
    “excessive litigation delays” by creating a statute of limitations for
    legal challenges, and requiring agencies to respond quickly when permits
    are knocked down in court.

Jamie Pleune is a professor of law at the University of Utah. She was part of a team that analyzed
over 41,000 NEPA decisions in a paper published earlier this year.
Pleune spoke with Circle of Blue to sort out myth from fact about NEPA.
She discussed whether NEPA is responsible for hindering infrastructure
projects in the United States, what’s in the side deal, and what she
hopes policymakers will keep in mind as they enter negotiations.

This conversation has been edited for length and clarity.

LG: Let’s start with the basics: what is NEPA? 

JP: NEPA is often called the Magna
Carta of environmental law. It requires the federal government to stop
and consider the possible effects of an action that may have a
significant impact on the environment, before they irretrievably commit
resources. 

NEPA is a procedural law; it doesn’t
mandate particular results. All it requires is the federal government to
consider what they think the impacts are, and consider alternatives, or
ways that they can mitigate the impact — and it requires them to make
all of that analysis public. 

There are three levels of review
under NEPA. The highest level of review is an Environmental Impact
Statement (EIS). That’s a very thorough analysis, and that’s reserved
for really big projects. There’s also an Environmental Assessment (EA),
which is a more limited analysis that the government can do when they’re
not sure if an action will have a significant impact or not. And the
third is a Categorical Exclusion, which requires a very truncated
review. These are for small actions that typically do not have a
significant effect on the environment: things like re-paving a parking
lot, maintaining an existing campground, stuff like that.

LG: It’s a fairly common belief — and a key premise of the
side deal — that NEPA, and particularly the EIS process, holds up big
infrastructure projects. This angers decarbonization advocates, who
worry it’s slowing a transition to clean energy, and also supporters of
fossil fuels, who want to build out oil and gas infrastructure. Last
year, you and your colleagues analyzed over 41,000 NEPA decisions by the
U.S. Forest Service. Can you discuss your key findings, and whether
they support this argument? 

JP: Sure. Almost all of the
discussions about NEPA focus on Environmental Impact Statements, the
highest level of review. But one of our interesting findings was that,
of those 41,000 decisions between 2004 and 2020, only 2 percent were
EISs. Seventeen percent of decisions were EAs, and 81 percent were
Categorical Exclusions. So our first observation is that streamlining
already happens: the vast majority of decisions are made at a level of
review that’s appropriate to the complexity of the project. 

Secondly, the vast majority of
decisions were also made within a pretty efficient and reasonable amount
of time for the level of review. The median time to complete an EIS was
2.8 years; the median time to complete an EA was 1.2 years; and the
median time to complete a categorical exclusion was four months. 

However, although the majority of
decisions were made in an efficient timeframe, there was this very
extended tail on the graph: in other words, even though most of the
decisions are made within two years, the slowest 5 percent of EISs
average eight years. That caused us to wonder: what causes these
projects to get bogged down?

We found that there are three main
sources of delay: a lack of agency capacity, delays that were
attributable to the operator or market conditions, and delays that were
caused by compliance with other laws. NEPA-specific factors could only
explain 25 percent of the variation in decision making times. This tells
us that most often, there are factors outside of NEPA that cause these
delays.

LG: Your colleague at the University of Utah, John Ruple, published a paper
earlier this year analyzing over 600 critical habitat rulings. He found
that decisions that underwent the NEPA process were completed three
months faster than those that did not, on average. What do you make of
that finding?

JP: Right. There was a natural
experiment set up, because there was a circuit court split on whether or
not a critical habitat designation required a NEPA analysis. What he
found was, perhaps contrary to expectations, the group of decisions that
went through a NEPA analysis were completed, on average, three months
faster than the group of decisions that did not go through the NEPA
process.

I think this shows that, when done
properly, NEPA actually does help projects go faster, because it
provides a backbone and a framework for coordinated information sharing
between agencies. Rather than a hindrance, NEPA has the potential to be a
tool. 

But in order to use it that way, we have to engage in practices that facilitate efficiency. Actually,
some of the reforms that are proposed in this one-page leaked document
that we have from Sen. Manchin are consistent with practices that have
already been implemented by the Federal Permitting Improvement Steering
Council and the FAST-41 program. Specifically, practices like
designating a lead agency to coordinate inter-agency review and
facilitating concurrent agency review processes are already a part of
the FAST-41 program. 

I’m hopeful that the suggestion to
provide additional funds to the Federal Permitting Improvement Steering
Council will encourage wider adoption of these best practices.

LG: I want to bring in here the equity critique of NEPA.
There’s good data on the cost of highway building, showing that NEPA’s
passage in 1969 was an inflection point for spending on highway
projects. Almost immediately, higher project costs became strongly
correlated with affluent areas. The inference is that NEPA is being
abused by politically powerful areas, and in some cases, interfering
with climate-friendly projects like public transportation or clean
energy. In the words
of Jerusalem Demsas, a reporter who has studied this issue: are we just
“paying for wealthy people to exert their preferences over everyone
else?” 

JP: I have to say that I disagree
with Demsas’ premise–that NEPA created an avenue for wealthy,
influential groups to exert their preferences. In my opinion, wealthy
individuals and powerful groups have always had the ability to exert
their preferences–usually in a backroom. That is the nature of politics
and the reality of wealth. NEPA can be used–and has been used–as a tool
by the wealthy and influential, but if NEPA did not exist, this sort of
influence would be exerted in another way. Anecdotes focused on
obstreperous wealthy groups abusing the process divert attention from
the democratic purpose of public participation. NEPA’s process of
transparency and public participation allow the possibility that
non-wealthy, non-powerful groups will also have an opportunity to
influence projects. 

It’s not perfect, and it certainly
needs to be implemented more efficiently. But NEPA’s goal–to level the
playing field and to promote better governance by forcing public
participation–is a very important one that I do not think we should turn
our backs on easily.

LG: Let’s turn now to the IRA side deal. Based on the draft
obtained by the Post, one key provision of this deal is a two-year
“maximum timeline” for NEPA reviews. All else being equal, how would
this rule play out?

JP: It’s hard to answer based on this
worksheet we have, because I don’t know how it’ll be set up. But I can
speak to what’s good about mandatory deadlines, and what’s bad about
mandatory deadlines.

First, deadlines can be good. It is
human nature to put off a project if we don’t have a deadline. So
creating deadlines, and making it public whether or not you’ve met that
deadline, that’s a good thing. However, the mandatory deadlines should
be project-specific and responsive to the data needs of that project. 

Secondly, there needs to be an
“escape hatch” for missing the deadline with justification. If an agency
is able to say a month before the deadline, I’m not going to meet it,
they need to explain why not. For example, perhaps the agency requested
additional information from the permit applicant and did not receive a
timely response. Alternatively, perhaps the decision required collecting
baseline water quality data and the samples received were unreliable.
These are justifiable reasons for a delayed decision. 

And thirdly, there should be an
escape hatch for unforeseen circumstances. For example, perhaps an
element of the project was redesigned in response to stakeholder
concerns. Perhaps the scope of the project changed. Perhaps an
unexpected environmental condition, such as contaminated soil in a
building project was discovered. These unexpected circumstances may
require additional time. So as long as the deadlines are project
specific and include escape hatches for justified delays and unforeseen
circumstances, I think that’s sufficient flexibility. 

Mandatory deadlines are bad if they
are paired with a presumptive approval: that is, if an agency misses the
deadline, the applicant gets an approval. You’re really depriving the
public of a meaningful review that way. Secondly, they’re bad if they
don’t acknowledge delays that are caused by waiting for information from
an operator or permit applicant — which, we found in our research, is
often a significant cause of delay.

The purpose of NEPA is to make better
decisions. It’s not to make fast decisions. And so if you impose a
mandatory deadline, and it causes the agency to not fulfill its duty
under NEPA, correcting that decision is going to take a lot longer than
it takes to make a good decision in the first place. One 2008 study
by Piet and Carole deWitt found that, for agencies that were required
to supplement an EIS after completing it, on average, it resulted in a
2.3 year delay. Similarly, my colleague John Ruple found that
supplementing the analysis associated with a Resource Management Plan to
cure a defect resulted in an average delay of 363.4 days. 

So if mandatory deadlines get in the
way of agency decision-making, it might actually sacrifice efficiency,
for the sake of speed.

LG: On that note, the IRA includes about $750M
for the implementation of NEPA. Is this the kind of measure that could
solve the capacity issues your work has outlined? How far will those
dollars go?

JP: The real answer is: it depends on how it’s spent.

Under the Trump administration,
several agencies lost a huge number of employees. Between 2016 and 2020,
the EPA lost 750 senior scientists, which is one in four of their
environmental protection specialists. The Fish and Wildlife Service lost
231 staff scientists. The Bureau of Land Management lost 300 senior
Washington staff. So we’re talking about 1,281 missing employees alone,
just to get back to the capacity that we were at in 2016. And it’s not
to say that agencies were robust before 2016; there are reports showing
that a lack of agency capacity has been the number one source of delay
in hardrock mining permitting, going back 20 years. 

I don’t know if this funding is going to help fill that gap, but it’s a great start.

LG: Among environmentalists, NEPA reform is often discussed
as a trade off: that we have to choose between NEPA and quick clean
energy development. It forces us to litigate a deeper moral question:
what casualties are we willing to permit for a rapid buildout of clean
energy? But your research suggests that maybe this isn’t as much of a
dichotomy as we might think. Do we have to choose between safety on the
environmental front lines and speedy development?

JP: I think it’s a false dichotomy.
As you noted, there is research demonstrating that, especially for
complex projects, using the NEPA process properly can increase the speed
and the time and the quality of the project at the end. 

There are some really great examples
of how using the process efficiently can facilitate permitting down the
road, especially when you’re talking about projects that are crossing
jurisdictions and requiring coordination of local and state and federal
agencies. When agencies use that process in a way that the stakeholder
meetings are meaningful, and they’re engaged, it really does facilitate
faster decision-making, and a better project.

LG: Is there anything else you think is important to keep in mind over the next few weeks, as we learn more about this deal?

JP: Maybe just that it’s important to step back and remember: what is the purpose of NEPA? You have instances like the Love Canal, where permits were granted or maybe not even required, and decisions were made without consideration of the long-term effect. 

It is easy to complain about costs
and delays associated with NEPA’s public process. But it is also
important to recognize that there are bigger costs and delays caused by
going too quickly and getting a decision wrong. Pilots do not take off
in an aircraft without checking the weather and doing a thorough
pre-flight inspection. We should demand the same of government
decisions. Before making an irretrievable commitment of resources, the
government should disclose the impacts of the decision and consider
alternatives. Tragedies like the Love Canal or the Deepwater Horizon
accident help remind us that big decisions with big consequences should
be made deliberately, even if it takes just a little bit of extra time.

Leave a Reply

Your email address will not be published.