Low-Energy Fridays: Why is Judicial Review Important for Permitting Reform?
Another permitting reform bill has entered the ring, this time from Rep. Bruce Westerman (R-Ark.), the Chairman of the House Committee on Natural Resources. While Sens. Joe Manchin (I-W.Va.) and John Barrasso’s (R-Wyo.) recent bill focuses on some discrete reforms to address common permitting snarls, Westerman’s bill tries to directly address one of the underlying causes of lengthy permitting times: litigation risk.
In lay terms, permitting is getting more difficult not because of higher risks of new construction or better-quality environmental outcomes, but because project permits are more likely to get sued.
To be more specific, something is quite wrong with how long it takes to prepare permitting documents under the National Environmental Policy Act (NEPA), and how long those documents have become. I addressed this issue in a 2021 white paper, and the consistent finding then and now is the likely culprit for increased permitting complexity is litigation risk. A 2019 analysis of 1,499 NEPA-related court cases shed some light on the issue, finding a correlation between document preparation timelines and success in court. This backs up a theory held by many that permitting documents are needlessly long and complex because they try to address potential litigation risks rather than sticking to direct project impacts.
Importantly, individuals that are negatively affected by projects are not the ones suing. That is done by public interest groups that oppose new development. My 2021 analysis of data from 2001-2013 found that 59 percent of NEPA litigations were from public interest groups (only 3 percent were from property owners or residents). And a more recent report from the Breakthrough Institute concluded even more directly that public interest groups are responsible for most NEPA litigation, finding that non-governmental organizations instigate 72 percent of total challenges. Even worse, these are largely filed by a small number of organizations—just 10 groups account for 35 percent of litigations. And the Breakthrough Institute found that they mostly lose, with a success rate of only 26 percent.
Why do public interest groups sue under NEPA? Well, it’s not my place to speculate, but some organizations are very open about their strategy to utilize litigation as a means of preventing or delaying construction. NEPA litigation is affecting renewable energy, public transit, and even affordable housing. With policymakers’ priorities being adversely affected by NEPA vagary, there have been growing calls to raise the bar for NEPA-related lawsuits. Clearly, not all lawsuits are worthwhile. A famous example of specious litigation is the D.C.-area proposed Purple Line that was halted because it might have disrupted the potential habitat of an endangered amphipod that didn’t even live in the construction area. This is a reminder that it makes sense to at least try to ensure major delays of infrastructure construction are well informed.
Despite the challenges of addressing litigation risk, the issue has already been tackled in a bipartisan way. The core problem is not that NEPA permits are required to address these environmental issues, but that permitting agencies don’t know exactly what they ought to address in their documents and err on the side of doing more rather than less. In the 2015 Fixing America’s Surface Transportation (FAST) Act, a provision stated that for large qualifying projects, plaintiffs suing permitting decisions must have had relevant comments submitted during the public comment period. In other words, plaintiffs were required to have told agencies what issue they needed to address before the decision was made so that it could be adequately covered. The goal was to prevent projects from getting sued and halted for failing to address environmental concerns that were impossible to foresee, just like the D.C. Purple Line.
It’s hard to know how effective the FAST Act reform to judicial review was because we’re short on data; the last time the government published a report on permit document preparation timelines under NEPA was 2020, and the last time they published a litigation survey was 2013. But the data we do have show that it likely was successful, as document preparation times did shorten, and projects that are eligible for this treatment seem to advance faster than average.
Getting back to the Westerman bill, one of its key provisions would emulate the same requirements that already exist for these select projects under the FAST Act and establish them as the norm. This makes perfect sense through a policymaking lens: There is evidence of a successful, bipartisan reform to judicial review reform that was applied at a small scale, and its expansion is a natural starting point for permitting reform’s changes to judicial review.
Whether these reforms make it into law are another question, and every recent permitting reform bill has its critics. But there is so much activity on permitting reform partially because the problem is so severe that it can no longer be ignored. The Westerman bill offers a serious solution to the most frequently cited permitting challenge of litigation risk, and if it is rejected policymakers will be hard pressed to find a good alternative. Ultimately, though, Congress will decide how to address these issues.