At Subcommittee Hearing, NEPA Expert Debunks Industry-Driven Rhetoric about Energy Project Delays and Permitting Reform Needs

Washington, D.C. – At today’s Oversight and Investigations Subcommittee hearing with Ranking Member Melanie Stansbury (D-N.M.), witness Jamie Pleune, Professor of Law at the University of Utah’s S.J. Quinney College of Law, provided testimony highlighting her extensive research on the National Environmental Policy Act (NEPA). NEPA is critical in protecting communities against pollution, particularly those that have been overburdened by irresponsible industry action for too long.

CLICK HERE to watch Ms. Pleune’s verbal testimony. A transcript is also provided below.

CLICK HERE to read her full written testimony.

The GOP and polluting industries have blamed NEPA for project and permitting delays for decades. This year, House Republicans passed H.R. 1, the Polluters Over People Act, which would systematically gut NEPA by eliminating requirements to consider climate change, shrinking public comment periods, and limiting judicial review, among other harmful provisions. Text of the Polluters Over People Act was also included in MAGA Republicans’ House-passed Default on America Act.

In her testimony, Ms. Pleune thoroughly debunked their claims and rhetoric with extensive research and clear data. She outlined three main sources of project and permitting delays, none of which are the NEPA statute itself: 1) lack of agency capacity, unstable budgets, and outdated technology, 2) waiting for information from the project operator, and 3) compliance with other laws and coordinating with other agencies.

Transcript of Jamie Pleune’s Verbal Testimony on NEPA

Thank you, Chairman Gosar, Ranking Member Stansbury, and members of the Committee for the opportunity to be here today. My name is Jamie Pleune and I'm an Associate Professor at the University of Utah Law School. We have done extensive empirical research on NEPA and its implementation times.

Little is known about the National Environmental Policy Act and its process. The data that is available focuses exclusively on environmental impact statements. To address this shortage of information, my colleagues John Ruple, Eric Heiny, and I undertook the most comprehensive analysis of NEPA decision-making that has been conducted. We analyzed 16 years of Forest Service data, which was 41,000 NEPA decisions.

The first question that we sought to answer was: How long does the NEPA process really take? We found that the median time to complete an EIS was 2.8 years. For an EA [Environmental Assessment], it was 1.2 years. And for a CE [Categorical Exclusion], it was only four months.

These evidence-based time frames are dramatically shorter than the anecdotal time frames that are often cited. We also reaffirmed the GAO estimate that EISs are an extremely small percentage of all NEPA decisions.

Specifically, within the Forest Service, who conducts the most EISs than any other agency, EISs constitute only 2% of all decisions. The other 98% face less rigorous review.

To put this in perspective, very roughly, when we looked at the evidence over 16 years, only 200 decisions took longer than four years, and 33,000 took less than one. The median time for projects that have identified, known, well understood and insignificant impacts is four months.

We also looked for reasons for delay. We developed a regression analysis that was able to look at NEPA-specific factors, and we found that those could only predict 25% of the variation. This meant that the primary causes of delay were external to the NEPA regulatory process.

Specifically, we found that the primary causes of the delay are a lack of agency capacity. Specifically, projects hit bottlenecks when there are insufficient staff members to review a permit or when there are not enough staff members with the expertise that's necessary to review a permit. Additionally, unstable budgets and outdated technology caused delays.

There were also delays in waiting for information from the operator.

And finally, compliance with other laws and coordinating with other agencies or coordinating within a team that's approving a permit also caused delay. This finding was consistent with an observation made by the Congressional Research Service that NEPA often functions as an umbrella statute.

That is, it serves as a framework for compliance with other laws and regulatory requirements. Delays caused by compliance with those other legal standards are reflected in the NEPA process. But NEPA itself is not the cause of delay.

This interplay is visible in a study conducted by Amanda Minor regarding Forest Service litigation. Her research recognized that NEPA litigation usually involves multiple legal claims, focusing on the cases in which the Forest Service lost, her research showed that 69% of the time the Forest Service would have lost, even if NEPA did not exist.

This is important because reforms that focus solely on speeding up NEPA completion times may compromise agencies’ ability to comply with the mandates of other laws, which would ultimately create more delay in implementing projects.

After completing the study of Forest Service decision-making, we looked at the mine permitting process. We found the same three primary causes of delay have consistently been identified in research investigations since 1999.

So, what does this tell us about permit reform? First, the biggest source of delay is a lack of staff and unstable budgets. The most important thing to improve permit processing time is to bolster agency capacity. They must have sufficient staff and staff with relevant expertise.

With expanded capacity, agencies can engage in pre-application meetings with project sponsors and encourage early engagement with stakeholders. This will address the second cause of delay: waiting for information from operators.

Finally, encouraging coordination between permitting authorities is a way to streamline the permitting process and make it more predictable. The procedures incorporated through Fast 41 have been effective in achieving predictability, transparency, and improved timelines.

Significantly, this is important because these are the most complex projects available. Thank you.

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Lindsay Gressard