WASHINGTON (July 7, 2021)—As the Biden administration prioritizes a $2 trillion infrastructure plan and aggressive clean energy goals, a new policy paper highlights how it should focus on smart policy solutions to remove barriers that would unleash private investment in clean energy deployment and critical mineral investment.

R Street scholar Philip Rossetti reevaluates the National Environmental Policy Act’s (NEPA) role in infrastructure deployment as it is increasingly becoming an involuntary impediment to clean energy and conservation-related projects. For example, 42 percent of the Department of Energy’s (DOE) active NEPA projects are related to clean energy, transmission or conservation, while only 15 percent of the DOE’s projects are related to fossil fuels.

“With both sides of the aisle trying to find a way forward on infrastructure, we should not lose sight of the big picture on ensuring that taxpayer dollars spent get the most possible utility,” he said. “This research helps inform policymakers on the barriers to expeditious infrastructure permitting, and also offers some insight for opportunities to improve the NEPA approval process.”

Policy recommendations:

  1. Congress should set clearer standards for litigation, particularly with a focus on the statute of limitations, to encourage more active participation in the NEPA process from potential plaintiffs before a record of decision is issued. This could allow agencies to directly address concerns in their document preparation rather than attempting to anticipate all potential concerns that may or may not materialize.
  2. Congress should review the statutes that NEPA regulates for compliance and determine if there are opportunities to improve compliance or more clearly define what adequate compliance looks like. Vague direction means court cases will play a greater role in defining statutory compliance and create an incentive for litigation as a means of setting precedent for a desired compliance outcome, regardless of Congressional intent.
  3. The Executive Branch should avoid the temptation of reengineering NEPA requirements to suit the political objectives of any given administration. Adding requirements that are outside the scope of typical NEPA requirements adds cost and delays.

Background:

NEPA was originally signed into law by President Richard Nixon in 1970. Rather than creating new environmental protections, the law acts as an “umbrella law” that ensures compliance with other federal, state and local laws. Any proposed project, whether public or private, must comply with NEPA if it requires a “major federal action.” Once a project is determined to fall under NEPA jurisdiction, the relevant federal agency becomes responsible for shepherding the project through the NEPA process.

In recent years, however, NEPA evolved from being a means to simplifying environmental review to becoming a hindrance to environmental review of infrastructure review in the United States. It is time for Congress to change that.

Read the full paper here.