As Congress splits over Sen. Manchin’s permitting reform bill, Utah scholars ask lawmakers to look at the data

Research from the University of Utah indicates that funding federal agencies would help expedite green energy projects.

(Trent Nelson | The Salt Lake Tribune) Wind turbines and hog farms north of Milford on Tuesday, Oct. 5, 2021.

After President Richard Nixon signed the National Environmental Policy Act in 1970, it was hailed as the “Magna Carta” of United States environmental law.

The statute, commonly referred to by the acronym NEPA, has been credited with helping mitigate environmental, health and safety impacts of major federal actions by requiring agencies to “look before they leap,” according to Jamie Pleune, a professor of law at the University of Utah and a NEPA expert.

The process can take months or years, and it has been attacked for causing delays to development.

“The NEPA environmental review process has unfortunately become a weapon used by special interest groups to throttle much needed infrastructure investments across the country,” Sen. Mike Lee, R-Utah, said in a statement last year when he reintroduced a bill to Congress that would overhaul the law.

Liberal commentators have made similar criticisms, arguing that NEPA acts as an impediment to renewable projects like solar farms, wind farms and transmission lines as well as to increased mineral mining needed for batteries and renewable power infrastructure.

Ezra Klein, a liberal opinion columnist, suggested in The New York Times in May that it may be necessary “to reform or waive large sections of the National Environmental Policy Act to speed the construction of clean energy infrastructure.”

Jonathan Chait, writing in New York Magazine this month, said environmental justice advocates were out of their minds for opposing changes to NEPA and permitting rules. “Without permitting reform,” he said, “the green-energy transition stands no chance of happening.”

‘A false dichotomy’

But researchers at Utah universities, including Pleune, have found that assumptions held by NEPA critics do not always align with the data.

“This sort of idea that it’s permitting reform or clean energy projects — I think it’s a false dichotomy,” she said. “Our research showed we can complete decisions quickly, and we don’t have to let go of analytical rigor.”

In April, Pleune and John Ruple, her colleague at the University of Utah’s S.J. Quinney College of Law, published a paper in the Columbia Journal of Environmental Law with Erik Heiny, a professor of mathematics at statistics at Utah Valley University.

The team analyzed over 41,000 NEPA decisions completed between 2004 and 2020 by the U.S. Forest Service, which does more environmental impact statements than any other federal agency.

Most previous scholarship focused solely on environmental impact statements, the most robust level of review under NEPA that applies to projects that are likely to result in significant changes to the environment. But environmental impact statements account for only a fraction of decisions under NEPA.

“The Government Accountability Office previously had estimated that governmentwide, only 1% of all decisions are environmental impact statements,” Pleune said. The other decisions are made under the less thorough categorical exclusion and environmental assessment processes.

The paper analyzed all three categories of review under NEPA, and it found that the median time for completing an environmental impact statement was 2.8 years. Environmental assessments were completed with a median time of 1.2 years. Categorical exclusions, projects with minimal impacts like repaving a parking lot, which accounts for the majority of NEPA analyses, had a median completion time of under four months.

Projects in all three categories had some outliers, however, including those with a quick turnaround and NEPA assessments that lagged for years without being completed.

“We observed that most of the projects were completed efficiently,” Pleune said. Other projects were bogged down, which are examples that are often cited as evidence that the system is broken.

But Pleune and her colleagues found that long-delayed projects were usually subject to other factors that would not necessarily be avoided if NEPA were reformed.

“We came to really find three main categories of delay,” she said. The first was delays related to a lack of staff, budgets or expertise in underfunded federal agencies.

The second category, Pleune said, was delays attributable to an operator or the market. For nine out of 10 years over the last decade, for example, the Bureau of Land Management spent more time waiting for oil and gas operators to submit information than it spent reviewing drilling permit applications. Market conditions may have led operators not to prioritize certain applications — a delay not caused by the NEPA process itself.

The third major cause of delays was compliance with other laws besides NEPA.

In that regard, the NEPA process can actually expedite projects, according to the findings of a separate paper published by Ruple and other University of Utah professors. After analyzing over 600 critical habitat rulings, Ruple’s team found that decisions made through the NEPA process were completed, on average, three months faster.

That’s because NEPA can help bring together disparate agencies and multiple permitting requirements for a single project. “Using the NEPA process to streamline the permitting process,” Pleune said, “really can make it go more quickly.”

The Manchin side-deal

The Utah professors’ research is relevant to a debate currently unfolding in Washington, D.C.

Congressional leaders are considering attaching a permitting reform bill backed by Sen. Joe Manchin, D-West Virginia, to budgetary legislation that would keep the government open when the fiscal year ends on Sept. 30. The bill was part of a deal Manchin made with Democratic leaders when he agreed to vote for the Inflation Reduction Act in August.

Although the text of the bill has not been made public, a one-page memo on Manchin’s website indicates it could include significant reforms to NEPA.

Over 650 environmental groups from across the country are opposing the bill, which they fear will amount to a giveaway to the fossil fuel industry. In a letter to Congressional leaders, the groups wrote that the “legislative language that was clearly drafted in consultation with the American Petroleum Institute (API),” a reference to a watermark on a leaked memo with the letters API.

The prospect of altering bedrock environmental law and permitting processes has divided the Democratic caucus. Sen. Bernie Sanders, I-Vermont, announced his opposition to attaching the bill to must-pass spending legislation, and over 70 members of the House of Representatives have signed a similar letter.

In a new policy paper published this week, Pleune referenced the Manchin deal and argued that weakening environmental protections in the name of expediency would be a mistake.

“Accepting unfettered environmental degradation in exchange for clean energy would achieve short-term gains in exchange for long-term pain,” she wrote. “The unrelenting challenges caused by climate change provide an almost daily reminder that downplaying environmental risks does not make them go away.”

Pleune’s paper made several recommendations for improving the efficiency of the permitting process without weakening environmental protections.

At the top of the list: ensuring federal agencies have sufficient staff with the necessary expertise to complete NEPA reviews in a timely manner.