Welcome to America’s horrendous process for issuing building permits, made famous by former President Barack Obama’s lament as his administration struggled to spend stimulus dollars during the Great Recession: “There’s no such thing as shovel-ready projects.”
The most onerous step for a major endeavor comes in the form of the environmental impact statement, which a federal agency must prepare whenever it takes action on or approves a project that will significantly impact the environment, as mandated by the National Environmental Policy Act of 1969. These statements take years to complete and run hundreds or thousands of pages. Upon completion, they instantly become targets for lawsuits from parties that want to stall a project’s progress by claiming some issue went overlooked.
The resulting delays cost America trillions of dollars, according to Common Good, a nonpartisan research organization with a bipartisan advisory board. Old infrastructure doesn’t get updated, newer and cleaner energy sources don’t get developed and, as a consequence, environmental quality is harmed, not helped.
Consider this: After years of delay, the federal Bureau of Ocean Energy Management finally released its four-volume, 2,400-page review of the Vineyard Wind offshore wind farm last year — and was promptly sued by a solar developer alleging a wide range of shortcomings in the document. Residents of Nantucket, a small island near the proposed project, have sued, too. So has the fishing industry, expressing deep concern that the wind turbines would interfere with aerial surveillance of the North Atlantic Right Whale population, potentially leading to the death of an entangled whale.
As a condition of his support for the climate bill, Democratic Sen. Joe Manchin of West Virginia secured a “side deal” that his party would also take up significant permitting reform next month to, among other things, prioritize approval of certain energy-related projects (including one in West Virginia), set fixed timelines for the review process and shorten the time period for litigation.
Despite the enormous costs of stalled development, and the obstacles it poses to Democrats’ own stated priorities, party members have traditionally resisted any efforts at such reforms. On the contrary, the Biden administration has worked to undo reforms implemented by the Trump administration that limited the scope of review to a project’s direct and foreseeable effects. And with the climate vote having come first, Manchin no longer has the leverage to rally support on the issue now.
Why isn’t permitting reform a bipartisan priority? Democrats say they’re concerned with protecting the environment, but this is a strange way for them to go about it. Countries with solid environmental bona fides like Germany, Canada and Australia all have efficient, streamlined permitting processes that reach prompt final decisions and allow projects to proceed.
Note also that the National Environmental Policy Act, or NEPA, doesn’t do any actual protecting. Laws like the Clean Air Act, Clean Water Act and Endangered Species Act make illegal a range of activities that might harm the environment. But all NEPA does is create onerous procedures, incentives for bureaucrats to move as slowly as possible and endless opportunities for lawsuits over whether the procedures were followed thoroughly enough. Remember, a NEPA complaint is not about whether someone is harming the environment; it is about whether someone wrote a good enough report about the environment.
The passion for preserving NEPA comes from environmental activists and lawyers who count on it to stall projects they have no legal basis to halt. This becomes obvious when they begin to list the many scary and polluting projects that they fear would move forward without sufficient NEPA review. But of course, laws already exist to prohibit a project that poses unacceptable environmental risk; it can be stopped without NEPA review. And if the activists wanted to put more projects off limits, they could lobby to make those laws tougher. Instead, they count on NEPA to let them achieve through bureaucracy what they could never achieve through the democratic process.
Allied with these activists are the homeowners who want access to every tool possible for blocking development that might harm their property values. They are easily spotted at local hearings, professing sudden concern for some salamander species imperiled by an affordable-housing development slated for construction near their own neighborhood. Don’t get them wrong, they support affordable housing, just not at the expense of the salamander.
Laws like NEPA and its many state-level equivalents weaponize such pretextual pleadings into actionable threats of legal action. In one recent high-profile case, residents of Berkeley, California, suing under the state’s Environmental Quality Act, succeeded briefly in stopping the city’s public university from expanding enrollment when a judge concluded that additional students might “result in an adverse change or alteration of the physical environment.”
On one hand, this sort of issue scares politicians, who feel greater pressure from vocal diehards than from the vast majority of their constituents who might prefer to see more projects built faster but aren’t about to make a federal case out of it. On the other hand, such an issue offers the opportunity to take action that will have tremendous public support, if a leader can show people the connection between the boring details of the policy and the very real ways it is affecting their lives: crumbling roads, departing factories and housing shortages. Most voters support getting things done.
The key is to move beyond technical fixes that might make the process work just a little bit better, like “interagency coordination” and “presumptive time limits,” and recognize the problem instead as one of the main sicknesses afflicting America.
It’s time to eliminate NEPA altogether. People should have to follow laws that protect the environment, not ones requiring them to write book reports about it. Create a right to build that allows citizens to seek rapid relief in court when projects get tangled in red tape. Make activists pay when they lose their lawsuits — not only the full cost of the litigation, but also the cost of the project delay.
“There is nothing wrong with America that cannot be cured by what is right with America,” declared former President Bill Clinton in his first inaugural address. Nor, he might have added, is there anything wrong with America that yet another environmental impact statement will fix. But we have many problems that would be more easily solved if we wasted less time on the paperwork.