Is energy infrastructure permitting really broken?

Oct 7, 2022

By Kate Groetzinger

An evidence-based look at environmental reviews shows most permit approvals are speedy — and most delays are not caused by red tape

This blog is based on an episode of the Center for Western Priorities podcast, The Landscape. You can listen to it here.

What do we mean when we say permitting?

Right now, lawmakers on both sides of the aisle are calling for faster permitting of energy projects. Senator Brian Schatz, a Democrat from Hawaii, has said permitting reform “is essential for our climate goals.” He worked with Senator Joe Manchin on permitting reform legislation that Manchin tried and failed to tack onto must-pass government funding legislation last month.

But what does it mean to call for permitting reform? The Manchin-Schatz deal would have tweaked the way current laws like the National Environmental Policy Act are applied. NEPA serves as an umbrella, or organizing structure, for compliance with other laws, like the Clean Water Act and Clean Air Act, and helps agencies coordinate their permitting processes for projects on federal land.

The permitting reform that Manchin and Schatz called for would have shortened the timelines agencies have to review projects for compliance. That poses some potential issues, according to University of Utah research fellow Jamie Pleune, who joined the Center for Western Priorities’ podcast recently to talk about her research on NEPA permitting.

This spring, Pleune and her colleagues published an analysis of over 41,000 U.S. Forest Service NEPA decisions, which found that most permitting processes are quite efficient, with only a handful of projects facing major delays. It found that in cases in which there are delays, most are due to either agency staffing and expertise issues or bad project design — not red tape.

How long do NEPA reviews take?

To understand permitting reform, it’s important to understand how NEPA works. There are three levels of NEPA review, depending on the scale and complexity of the project under consideration. The first, or top, level is an Environmental Impact Statement; the second level is an Environmental Assessment; and the third, or lowest, level is a Categorical Exclusion. Only about one percent of all environmental analyses are subject to the top level (an Environmental Impact Statement), while 95 percent are analyzed using the Categorical Exclusion process, according to the Government Accountability Office.

Pleune’s analysis of over 41,000 NEPA decisions found that the average time for the top 25 percent of Environmental Impact Statements was only 1.6 years; for Environmental Assessments, it was eight months; and for Categorical Exclusions, it was two months. (For reference, Manchin’s permitting reform language sought to limit all NEPA analyses to two years.) Of course, there are outliers that take much longer and those tend to get attention in the media, driving the narrative that NEPA is broken.

“These are quite different time frames then what are put out in the public debate, and it tells us something very important, which is that efficiency happens,” Pluene said. “It is happening and it can happen under the existing regulatory structure.”

“These are quite different time frames then what are put out in the public debate, and it tells us something very important, which is that efficiency happens,” Pluene said. “It is happening and it can happen under the existing regulatory structure.”

Pleune and her colleagues also found that the level of NEPA analysis does not strictly dictate the time it takes to make decisions. For example, a Categorical Exclusion analysis can take longer to complete than an Environmental Impact Statement. This makes clear that a less rigorous level of analysis does not always result in a faster permitting process and that analytical rigor can be achieved efficiently.

Conversely, the level of NEPA review a project undergoes can have a substantial effect on its quality. In a 2017 study, two of Pleune’s colleagues at the University of Utah analyzed the amount of ground disturbance associated with oil and gas drill permits depending on whether it went through a Categorical Exclusion, Environmental Assessment, or Environmental Impact Statement review. They found ground disturbance resulting from projects subjected to the Categorical Exclusion process was almost four times higher than that resulting from similar projects that underwent Environmental Impact Statement review. The most likely reason for the difference, according to Pleune, is that Environmental Impact Statement review results in better organization and strategic planning, more deliberate use of roads, and more strategic placement of well pads.

What causes delays?

In their analysis of over 41,000 NEPA reviews, Pleune and her colleagues identified three main types of delays. The first are delays caused by issues within the permitting agency, such as insufficient staff availability and expertise. The second are delays caused by project applicants withholding or failing to deliver information to the permitting agency. And the third are delays caused by project compliance with other laws.

“This indicates that the delays are not caused by the regulatory or statutory requirements of NEPA. But they are caused by things that are happening during the NEPA process,” Pleune said. “Distinguishing between those two things is very important, because if it’s not the language of the statute or the regulations that’s causing the problem, then changing that isn’t going to solve the problem.”

Some delays are what Pleune calls “productive” delays that result from poor project design or projects with unacceptable environmental impacts.

“There are delays that result in a better project in the long run and also a more democratic process. A permitting system that seeks efficiency by getting rid of those delays hurts all of us,” Pleune said

Productive delays mean the environmental review process is working as intended. For example, the National Aeronautics and Space Administration (NASA) recently chose to delay the launch of a shuttle because it determined it was not safe. That is a sign that the agency review process is working. The same applies to federal agencies when it comes to NEPA. A permitting delay caused by actions that ensure the safety of American people and our environment is a good thing, not an issue.

Then there are what Pleune calls “unproductive” delays, which are delays that are caused by things like a lack of agency capacity, poor coordination between agencies, agency foot-dragging, or not sharing data efficiently between different jurisdictions.

Delays can also be caused by unforeseen circumstances, making hard NEPA deadlines like the one sought by Manchin and Schatz a bad idea, according to Pleune. However, she said deadlines can help increase efficiency, so long as they are flexible. Pleune said the most important factor in setting deadlines is that there are “escape hatches” that allow the agency to move deadlines based on new information or other unforeseen circumstances.

Could permitting reform backfire?

Not only could imposing hard deadlines on NEPA reviews result in bad decisions, Pleune said, those bad decisions could also result in litigation, which could have the unintended consequence of delaying energy infrastructure projects.

“There’s very good evidence from the [University of Utah’s Wallace] Stegner Center that when a decision is rushed out the door and is later required to be supplemented, it does cause significant delays that take much longer than it would have taken just to make the right decision in the first place,” Pleune said.

What reform is actually needed?

There are ways to make permitting more efficient, and work to do so is already underway. Pleune pointed to the Federal Permitting Improvement Steering Council, which was created by the Fixing America’s Surface Transportation (FAST) Act in 2015. Its recommendations include having the flexible deadlines Pleune mentioned earlier and inviting stakeholders in at the beginning of the process. Congress also needs to increase funding to the agencies that conduct NEPA reviews so that they can hire adequate staff with the correct expertise to conduct reviews efficiently, Pleune said.

Finally, it’s important to remember that we don’t have to sacrifice our environment for clean energy infrastructure. In fact, conducting thorough environmental reviews can mitigate consequences down the road.

“Every single day we are dealing with the problems of climate change… and I think that should serve as a daily reminder for us that downplaying environmental consequences does not make them go away. It just makes them harder to deal with,” Pleune said. “So we should think of the permitting process in the same way. It’s an opportunity for us, before a project gets going, to say ‘Hang on, can we do this better?’”

Instead of focusing on cutting red tape, lawmakers should focus on targeted solutions to reduce unproductive delays, while still allowing the environmental review process to work as intended.

(Photo: Varistor60/Wikipedia)