Every year, federal agencies undertake thousands of environmental reviews under the National Environmental Policy Act (NEPA). These reviews add months or years of delay to every noncategorically excluded federal decision. They also add cost and risk for private companies seeking federal permission or funding to execute on projects that are often in the public interest.
It is doubtful that Congress intended for NEPA to have such wide-ranging effects. A plain reading of the relevant section of the NEPA statute suggests that its main intent is good government: an interagency check to ensure that environmental harms are considered in major federal projects and decisions. NEPA implementation has evolved far beyond this limited aim.
It is impossible to achieve many national goals, such as a timely transition to clean energy, under today’s NEPA-implementing framework. When every federal decision takes years, transforming the physical world with new, low-carbon infrastructure becomes a dubious proposition.1Examples of clean energy projects that have been delayed by NEPA process and lawsuits include Cape Wind, an offshore wind project that was ultimately abandoned; Vineyard Wind, a second offshore wind project in the same area near Cape Cod; the Thacker Pass lithium mine, which would be the largest lithium mine in the United States; TransWest Express, a transmission line that would connect wind farms in Wyoming with the Las Vegas and Los Angeles electricity markets; and the Dixie Meadows geothermal project in Nevada. The United States is in dire need of permitting reform for the sake of the environment itself. Many existing reform proposals are inadequate to the task at hand.
What follows are four reform suggestions that would leave intact NEPA’s original goals, while meaningfully reducing the burden of NEPA implementation. These proposals are intended to have a significant effect on the capacity of federal agencies to act decisively and will doubtlessly be dismissed by some as too ambitious. On the other hand, they are also intended to hew closely to the requirements of the NEPA statute and represent an effort to interpret the original text of the law in a common-sense manner.