Will faster federal reviews speed up the clean energy shift? Two legal scholars explain what the National Environmental Policy Act does and doesn’t do
The National Environmental Policy Act, enacted in 1970, is widely viewed as a keystone U.S. environmental law. For any major federal action that affects the environment, such as building an interstate highway or licensing a nuclear power plant, NEPA requires relevant agencies to analyze environmental impacts, consider reasonable alternatives and accept public input. It also allows citizens to sue if they believe government has not complied.
Critics argue that NEPA reviews delay projects and drive up costs. In May 2023 negotiations over raising the federal debt ceiling, President Joe Biden agreed to certain changes to NEPA reviews, which both the White House and congressional Republicans said would streamline permitting for infrastructure projects. Legal scholars J.B. Ruhl and James Salzman explain these changes and what they mean for protecting the environment and expanding clean energy production.
What kinds of projects typically require NEPA reviews?
The statutory text of NEPA is quite sparse and open-ended. When people speak of what NEPA requires, they really are talking about how the White House Council on Environmental Quality, or CEQ, federal agencies and the courts have implemented the law over the past 50 years.
The simple requirement is for agencies to create a detailed statement on the impacts of any major federal action that significantly affects the environment. A whole body of law and policy creates filters that sort projects into different NEPA buckets.
First, only projects that will be carried out, funded or authorized by a federal agency are subject to NEPA. That’s a pretty big universe, but it also excludes a lot. For example, a wind farm built on private land by a private utility might not require any federal funding or approval. That means it wouldn’t be subject to NEPA.
If a project is subject to NEPA, the federal agency that has primary oversight assesses its impacts to decide how much analysis is needed. Many agencies use a classification known as categorical exclusions to winnow out minor actions that they know have no significant impacts, either individually or cumulatively. For example, the Interior Department categorically excludes planned burns to clear brush on areas smaller than 4,500 acres.
If the expected impacts are more extensive, but it’s not clear by how much, the agency can prepare an environmental assessment. If that assessment finds the impacts to the human environment will not be significant, that’s the end of the NEPA process.
If the impacts are significant, the agency will prepare a full-blown environmental impact statement, or EIS, which is a far more intensive process. CEQ guidelines establish an elaborate template of topics agencies must evaluate, and the public has opportunities to comment on a draft version.
A CEQ review of EISs prepared by all federal agencies from 2010 through 2018 found that, on average, it took about four and a half years to issue an EIS, not including added time if someone sued. The lengths of these reviews ranged widely but averaged 575 pages.
If an agency conducts lots of the same actions under a particular program, such as timber leasing on federal land, it might conduct a high-level programmatic EIS to cover the large-scale issues and then follow up with individual NEPA analyses for specific projects.
Decisions not to issue an EIS can be challenged in court. So can the EIS itself if critics believe that it’s inadequate.
What are NEPA critics’ central arguments?
Critiques of NEPA come from many different interests. The law mainly affects land development, industry and resource extraction activities such as logging, mining and drilling for oil and gas, particularly on federal public lands.
NEPA requires an impact assessment, but it doesn’t prescribe any particular outcome. Still, it unquestionably can add substantial time and cost to any significant project. If a project is controversial, interested parties can submit public comments that get their views on the record. If opponents aren’t happy with the final EIS, they can sue the agency responsible for the decision in federal court.
Between agency review and litigation, NEPA can add many years to a project’s development timeline before it is “shovel ready.” For example, it takes roughly four to seven years to complete environmental reviews for prescribed burns that the U.S. Forest Service carries out to reduce wildfire risks.
NEPA review. https://t.co/6Qnz16px8F
— Matt Darling 🌐🏗️ (@besttrousers) April 28, 2023
Supporters argue that NEPA reviews have avoided many bad decisions. In our view, the NEPA process is an important feature of the country’s stewardship of its natural resources. But we also share the growing concern that it can be used to delay building renewable energy infrastructure that the U.S. urgently needs to mitigate climate change.
Did the debt ceiling agreement significantly change the NEPA process?
Many of the changes are little more than tweaks. Others codify long-standing practices based on how the Council on Environmental Quality, agencies and courts implement the law.
One notable change is requiring a single lead agency and a single environmental impact statement for projects, even when those projects require multiple agency approvals. There also are some new time and page limits. For example, environmental impact statements will be required to be completed within two years and be no more that 150 pages long for most projects, and 300 pages for the most complex projects.
There also are some changes to definitions, such as what constitutes a “major federal action,” that narrow NEPA’s scope to some degree, although it will take time to sort out their meaning. Overall, we do not see these changes as a major overhaul of NEPA.
Will the changes speed up work on clean energy systems?
Maybe, but not nearly as much as needed. First, NEPA applies to projects that need federal funding or approval, such as under the Endangered Species Act. Getting that money or agency green light can also involve delays and litigation independent of the NEPA review.
Second, many state and local laws can affect large renewable energy projects, and those statutes can also be used to slow projects down. The bottom line is that to move the needle, politicians will have to do more to reform the project review process.
The debt ceiling agreement left several big questions unaddressed. They include where to build high-voltage electric transmission lines; which federal public lands and offshore waters can be used for power lines and renewable power production; and where to mine for essential minerals. Beyond those immediate priorities, if carbon sequestration technology can be developed and scaled up, the U.S. will need an enormous buildout of carbon capture and storage infrastructure to meet net-zero goals.
All of these involve incredibly complex permitting processes, and tweaking NEPA won’t change that. Other hot-button issues – including federal preemption of state and local laws, impacts on Native American cultural lands, and environmental justice – will make further permitting reforms politically difficult.
Even this first small measure was hotly contested, and happened now only because it was tied to the debt limit legislation. As the inclusion of federal approval for the Mountain Valley gas pipeline in the debt ceiling agreement shows, in politics you need a quid in exchange for a quo. We expect to see a lot more deal-making if Congress takes permitting reform seriously.
J.B. Ruhl, Professor of Law, Director, Program on Law and Innovation, and Co-director, Energy, Environment and Land Use Program, Vanderbilt University and James Salzman, Professor of Environmental Law, University of California, Los Angeles