Low Energy Fridays: Permitting Reform Remains Close, But So Far
Now that the August Congressional recess has ended, the minds of policymakers on the Hill turn naturally to thoughts of permitting reform. While the need for some kind of permitting reform is universally acknowledged (or as close as you can get in politics these days), actually getting substantial reform through Congress is a perennial problem.
Federal permitting requirements were originally designed to ensure that infrastructure projects did not result in unintended environmental or other harms. However, the amount of time and money required to get through the permitting process has grown over time, stalling the development of needed projects and deterring lawmakers from even contemplating others.
Consider the National Environmental Policy Act (NEPA), which requires certain projects to produce an environmental impact statement (EIS) detailing possible environmental issues. NEPA’s requirements are purely procedural. A project can be approved regardless of what an EIS finds. However, if an EIS neglects to mention a potential environmental harm, this can provide the basis for lawsuits that delay the project. As a result, agencies have made their statements more and more elaborate in order to minimize litigation risk. In one recent case, the U.S. Surface Transportation Board prepared a 3,600 page EIS for an 88-mile railroad. This has naturally made the permitting process take longer. The average time needed to permit a project for which an EIS is required grew from 3.4 years in 2010 to 4.7 years in 2019.
Traditionally, permitting reform was seen as more of a Republican priority; however, Democrats have increasingly come on board as projects they view as vital—including clean energy projects—are also stymied. R Street research has shown that 42 percent of the Department of Energy projects requiring an EIS or other environmental assessment under NEPA were related to clean energy, transmission, or environmental conservation, while only 15 percent were related to fossil fuels.
Growing awareness of these problems has led to a variety of proposed legislative reforms, many with cool-sounding acronyms. Authored by Sen. Tom Cotton (R-Ark.), the Curtailing Litigation Excess and Abuse Reform (CLEAR) Act aims to restrict redundant or abusive litigation in the permitting context. The Create Expedited Reviews to Transform American Infrastructure Now (CERTAIN) Act by Rep. Scott Peters (D-Calif.) and Rep. Gabe Evans (R-Colo.) seeks to reduce permit approval timelines and limit the executive branch’s authority to revoke approved energy permits. And the Standardizing Permitting and Expediting Economic Development (SPEED) Act filed by Rep. Bruce Westerman (R-Ark.) and Rep. Jared Golden (D-Maine) would restrict redundant or abusive litigation, reduce permit approval timelines, and limit the executive branch’s authority to revoke approved energy projects.
Yet while permitting reform commands wide bipartisan support, proponents have struggled to get legislation over the finish line. Only the SPEED Act has passed (in the House), and its future remains uncertain with no corresponding bill in the Senate. It seems that passing NEPA permitting reform is as long and involved a process as permitting itself. This is due in part to the generalized gridlock that has plagued Congress for decades. While there are exceptions, passing legislation of note on nearly any topic is a rarity, and the broad agreement on permitting reform can break down when it comes to the specifics. A Republican might endorse permitting reform for natural gas pipelines while arguing against new wind projects, and a Democrat might feel the reverse. This has led to multiple breakdowns in negotiations over the details of permitting reform as workhorses in both parties continue to push for productive action.
For permitting reform to succeed, Democrats and Republicans alike must accept that achieving reform for projects they like might also lead to faster and cheaper permitting for projects of which they are more skeptical.