Seven Frequently Asked Questions About NEPA

What’s the problem with NEPA?

Is the National Environmental Policy Act (NEPA) a problem, blocking clean energy and harming our ability to build infrastructure? Or is it a robust defense against environmental devastation? 

The debate can be murky, and good data is hard to find. Here, we’ve answered some of the most common questions about the NEPA process and its impacts. A concise FAQ is followed by more detailed answers. 

Are NEPA delays only caused by staff shortages?

Staffing shortages are one cause of delays, but they’re also a symptom of NEPA’s overly burdensome process. Agencies are understaffed largely because the standards for NEPA reviews have become increasingly unattainable. For environmental impact statements (EISs), page counts have increased from a handful of pages in 1970 to 1,703 pages in 2020. Former EPA General Counsel Donald Elliot estimated that 90% of the details in NEPA reviews are only included to ward off litigation.

The IRA has already set aside more than $1 billion in funding for federal permitting. But even with those additional resources, Secretary Granholm still cites permitting as the “biggest bottleneck” for clean energy deployment. Key permitting agencies like FERC have previously cited difficulty in finding experts who can navigate the permitting process.

Strengthening agency capacity to reduce delays has to come from both ends: Agencies need more staffing resources and expertise, but they also need increased discretion via legal deference to make decisions in the public interest. Efficiently processing permits requires both adequate staffing and a process that doesn’t impose impossible standards.

Is NEPA the problem, or are other permitting laws more onerous? 

NEPA is much more than an umbrella statute. While some argue that NEPA is unfairly blamed for problems caused by all permitting laws, NEPA itself requires significant review beyond the other permits included in final NEPA documents (e.g., permits for Section 7 of the Endangered Species Act). NEPA requires an analysis of all significant environmental impacts, as well as of all reasonable alternatives to the proposed action. NEPA is also the most frequently litigated statute. 

NEPA’s costs derive from the open-ended nature of environmental review requirements: How much review is enough? What counts as substantial environmental impacts? Without a substantive answer to these questions, NEPA creates an avenue for obstructionists to sue to block projects on procedural grounds. 

Does NEPA limit clean energy deployment? 

Yes, NEPA disproportionately harms clean energy and will increasingly be a drag on the clean energy transition. Historically, NEPA was a tool for slowing fossil projects. However, because of the enormous amount of infrastructure demanded by the clean energy transition, NEPA has become a much heavier burden on clean energy.

Perversely, NEPA reviews scrutinize clean projects more heavily than fossil fuel projects. Their large surface footprints force clean energy projects to complete more Environmental Impact Statements (EISs) — the most burdensome reviews under NEPA. Current federal data trackers show 62% of energy-related projects undergoing EIS review are for clean energy, while only 16% are for fossil fuels. This disparity has led to solar projects being sued even more often than pipelines, and both solar and wind are canceled at higher rates than fossil projects.

Litigation of NEPA reviews is a huge burden on clean energy projects. In recent years, obstructionists have sued and delayed dozens of major projects:

On the flip side, the fossil industry has achieved significant streamlining relative to clean energy. Fossil projects are now overwhelmingly approved under shorter environmental assessments (EAs) rather than lengthy EISs. The fossil industry has also been given legislative categorical exclusion carve-outs that rapidly approve certain classes of fossil projects. For example, as of March 2024, the BLM NEPA register of ongoing fossil permits shows five EISs compared to 381 EAs and 77 categorical exclusions.

Can’t NEPA delays be solved with more community engagement?

The reduced delays associated with increased community engagement are a product of the flaws in the existing permitting process, rather than a tool to reduce veto points in the NEPA process.

Calls for mandating early engagement misunderstand why engagement reduces litigation: The current permitting process is a gauntlet of veto points, and developers and agencies have to placate potential obstructionists to avoid delays. Early engagement can help in a limited number of cases, because it helps avoid opposition on the back end of the process, but ultimately vocal minorities can still use existing veto points to block development. In other words, early engagement is the best way of navigating a flawed system, but it is not a solution for fixing the system itself. 

Many important projects have been held up even after doing significant early community engagement: 

• Vineyard Wind was sued four separate times, even after the project voluntarily created a community benefit agreement and won a local environmental group’s endorsement. 
• The SunZia Transmission Line is being sued after 15 years of permitting and a voluntary community benefit agreement. 
• The Cardinal-Hickory Creek transmission line has been repeatedly delayed by environmental lawsuits, even after the project went through eight years of permitting review and took significant steps to increase wildlife preservation on net.
• Cape Wind was killed by NIMBY lawsuits despite having almost 80% public support in Massachusetts.

Isn’t transmission permitting reform sufficient to reach U.S. decarbonization goals? 

Transmission reform and permitting reform are both vital for a clean energy buildout. The two are necessary companions, clean energy will need NEPA streamlining alongside transmission reform. In fact, many transmission lines are held up by the NEPA process and ensuing litigation. Major transmission lines experience some of the longest NEPA delays, and can even be forced to complete multiple NEPA reviews. If reforms succeed and create federal backstop authority for large interregional transmission lines, virtually all large transmission projects will trigger NEPA. Furthermore, if technologies like long-duration energy storage alleviate some of the demand on interregional transmission, permitting requirements like NEPA will still be triggered as many next-generation technologies rely on direct federal funding. 

How big of a problem is NEPA, really?

NEPA has significant costs, both for developers and agencies. The federal government conducts substantive reviews (EAs or EISs) for virtually all actions affecting the built environment — roughly 12,000 substantive NEPA reviews per year. NEPA reviews create enormous uncertainty: Developers don’t know how long review preparation will take, whether political interference will hold up their review, or if litigation will repeatedly halt construction. NEPA also harms federal agencies by tying up staff time and forcing agencies to become risk-averse in order to avoid litigation.

Some have argued that NEPA isn’t a problem because 95% of NEPA reviews are categorical exclusions. But this argument is extremely misleading: 95% of NEPA reviews are categorical exclusions, because even though NEPA was meant to apply only to major projects, regulatory accretion has expanded NEPA to technically apply to every action the government takes. This massively inflates the total number of actions that get NEPA “reviews.” Categorically excluded actions include thousands of irrelevant or trivial actions like paying staff, collecting data, making arrests, hosting picnics, and executing financial transfers. These trivial actions are nonetheless counted for purposes of estimating how many actions are categorically excluded. The 95% statistic is misleadingly used to suggest that very few reviews are burdensome. In reality, virtually every federal project in the built environment requires a substantive NEPA review (i.e., an EA or EIS).

Can permitting reform accelerate projects without harming community input?

Yes, smart reforms are possible: Policymakers can reform NEPA to remove obstruction while simultaneously strengthening community input and environmental justice outcomes.

Despite being heralded as a tool for communities, NEPA litigation is most often conducted by public interest and business groups. A study from the Council on Environmental Quality shows that just 2.4% of NEPA lawsuits came from tribes, while nearly 50% came from public interest and business groups. Moreover, NEPA litigation requires plaintiffs to put up significant legal fees, tilting the process in favor of powerful stakeholders. For example, clean energy projects like Cape Wind have been blocked by wealthy landowners, despite broad local and regional support. 

Environmental justice also requires spurring investments for marginalized communities. Streamlining NEPA reviews to remove legal obstruction can help accelerate the benefits of projects. Where fossil projects created costs for local communities, the clean energy buildout is an opportunity for win-win investment. Compared to polluting fossil fuels, solar and wind have comparably few harms and can even help reduce pollution that disproportionately harms marginalized communities. 

What is needed for environmental justice are policies like the energy communities tax credit bonus and the Justice40 Initiative, which incentivize better planning and steer projects towards just outcomes. Policymakers should build on these targeted policies and support opportunities for community benefit agreements that create win-win deals for communities and developers. 

Policymakers can do two things simultaneously: Protect what NEPA does well by expanding opportunities for public engagement and incentives for community benefit agreements, while also removing legal obstruction and accelerating the delivery of important infrastructure. 

Reform possibilities for NEPA

NEPA is ripe for reform. Instead of treating NEPA litigation as an indiscriminate veto point, policymakers should reconceptualize litigation as a check against lax reviews. Placing a time limit on injunctive relief would set a deadline for the judicial process but still offer plaintiffs an opportunity to be heard in court. Alternatively, increasing legal deference to agency decisions would maintain open challenges but ensure that only erroneous NEPA reviews get remanded.

Judicial reforms could be paired with reforms to strengthen community input. For example, policymakers could improve the public comment process by increasing opportunities for engagement during the planning and draft phases of the NEPA process. Policymakers could also consider reforms to encourage the use of community benefit agreements, to ensure affected communities benefit from socially valuable projects. 

The National Environmental Policy Act has laudable goals of environmental consideration in planning and community input. But over time, the need for agencies to prioritize avoiding litigation rather than actual environmental tradeoffs means the law’s costs are hurting the clean energy transition. If policymakers want to strike a deal that balances community input with a more timely process, taking clear account of these costs is vital.