Making progress on permitting

The National Environmental Policy Act of 1969 (NEPA) is the source for the requirement that federal agencies carry out environmental assessments (EAs) or environmental impact statements (EISs) for every environmentally-significant action they take, fund, authorize or permit. In theory, without the requirement to produce these analyses, the public would lack the ability to understand the tradeoffs for the environment that many federal actions require. However, in practice, even with these analyses, the public still lacks that understanding because NEPA documents often run 1,000s of pages, full of bland, verbose consultant-speak that makes both consequential and trivial issues seem equivalent. Almost no one reads these documents. Even when environmental groups take on an EIS (including some of the ones I have worked for), they often have to break up the task of reading the document across multiple staff and even organizations to be able to read the entire set of documents. I wrote about many of these same issues back in 2018.

It some point we have to stop pretending this is the best we can do. Presidents of both parties since the time of President Carter have been calling for shorter, simpler environmental reviews and faster timelines to produce them.

Senator Joe Manchin and other leaders in the Senate are negotiating a set of proposed permitting reforms that will become public soon, but so far only this summary list of provisions is available.

Two-year and one-year deadlines to finalize documents and page limits are blunt tools to force review processes to work better, but they are tools that agencies and consultants can understand and adapt to - we have supported both in the past and do so now. However, a better approach than page limits is to use what cognition experts have discovered about how people learn to set stronger requirements for the use of simpler text, expanded use of visuals in place of (not in addition to) narrative, and for agencies to more clearly state which are significant versus insignificant or speculative effects. For example, visuals are processed by the human brain 60,000 times faster than text - why not make use of that instead of burying information in pages of 10-12 point font. The 3-4 year average timelines to finalize environmental impact statements have received extensive coverage and are clearly a problem for important projects to provide key infrastructure, especially energy system transformation to renewables.

The bipartisan creation of the Federal Permitting Improvement Steering Council ('fip-see') has been a bipartisan success and one that Congress must still believe in since the new Inflation Reduction Act provides it with an unprecedented $350 million for work on permitting. Senator Manchin's outline talks about prioritizing another 25 major projects of strategic importance, presumably for more concentrated attention on permitting and interagency conflict resolution work - the details might change my view but based just on the summary, this is a good idea that can help complex projects get through the process of review under multiple laws faster - faster doesn't mean they are more or less likely to get approved, just that otherwise complex and sometimes conflicting analysis and decision-making doesn't bog down. What I wish I saw on that list of priority categories was the addition of nature-based projects that lower energy use - not just ones that expand energy supply and transmission.

The outcome also identifies improvements in the categorical exclusion approval process under NEPA. It's not clear what this means but one of the most obvious ideas is to allow multiple agencies to be able to make use of categorical exclusions approved for another.

One thing very much missing from the outline is any permitting improvements that improve processes for environmentally beneficial projects. Most of our permitting laws are built to treat projects as 'guilty until proven innocent.' That makes sense for statutes that were written in the 1970s and where the authors were mostly thinking of new development like mines, malls, and factories where there is almost always going to be some modest amount of environmental damage. However, to address and adapt to climate change, we need thousands of projects to happen across the country that are designed to provide environmental benefits. And we need thousands of projects to happen every year that help wildlife, including endangered species, survive. Unfortunately, our laws treat all of those resilience, nature-focused, green infrastructure and similar projects the same as they would treat a new concrete road. And this pushes people and funding away from this kind of work. For example, a beaver doesn't need a permit to show up and dam a stream by itself , but too often an agency trying to put beavers or beaver dams back where they existed for 1000s of years get stuck in a permitting morass.

I wish the Senate's permitting deal including efforts to prioritize nature-based projects as an approved sector for inclusion on FIPSC's lists of priority projects. And set direction for agencies to approve more categorical exclusions for major nature-based work. And directed funding toward expedited NEPA reviews for projects to use nature to defend coastlines from climate change, protect high flood risk communities, and use nature to store water in our drought-prone reasons. These kinds of projects deserve policies and regulations that treat them as innocent of causing significant environmental harm, as they are likely to be in 95 out of 100 situations.

In addition, while around 200 environmental impact statements are required per year, there are thousands of environmental assessments, and we need more policy actions to direct that reviews - for these projects that have no significant net environmental effects - are simpler and faster to carry out. The White House Council on Environmental Quality (CEQ) made some progress on this on paper when it published new policy on the allowable use of offsetting and other mitigation designed into a project to allow it to meet an EA versus EIS standard, but there needs to be direction to agencies to mandate that they make more use of this policy. In addition, agencies also need direction to simplify and shorten EAs, including direction to prohibit alternatives analysis being required in an EA (since you don't need alternatives to projects that don't cause significant environmental effects).

On balance, I am looking forward to seeing the permitting reform that Democratic leaders propose in the coming weeks... surely it will include some lemons ... and it will be just a small step in the major work we need to bring complex and multi-statute environmental review into the 21st century.