According to the US Chamber of Commerce’s CEO and President, permitting reform is among the business community’s top legislative priorities for 2023. “Pass permitting reform and … make the approval process faster than the construction timeline,” Suzanne Clark said in a recent speech. Demands for permit reform often blame delays on the National Environmental Policy Act, or NEPA, and urge truncated environmental analyses, page limits, shortened deadlines, and reduced public participation as solutions. But these solutions don’t treat the root causes of delay.
I worked on a team that conducted an empirical study of over 41,000 Forest Service projects that required a NEPA analysis between 2004 and 2020. We observed that most decisions were made within a reasonable time for the complexity of the project; however, a small percentage (between 10 and 20 percent) encountered significant delays at every level of analysis. Some environmental impact statements (the most rigorous level of review) were completed quickly. Meanwhile, a similar percentage of categorical exclusions (truncated reviews) encountered significant delays. If analytical rigor and public participation were the sole causes of delay, we would not expect to see fast environmental impact statements or slow categorical exclusions. But we did.
We identified unexpected factors associated with delayed projects. Those were: a lack of agency capacity; time spent waiting for information from permit applicants; and satisfying the requirements of other laws. In another research project focused on the critical mineral mine permitting process, we found similar sources of delay. Those were: a lack of agency capacity; time spent correcting inaccurate or vague permit applications; and poor interagency coordination. All three ailments demand different treatments.
Instead of eliminating environmental review, Congress should increase agency capacity to facilitate faster decision making. Projects hit bottlenecks when there aren’t enough staff (or staff with the right expertise) to review a proposed application. The second source of delay—waiting for information from permit applicants—is out of the government’s hands and should not drive reforms. The third source of delay is caused by compliance with other laws. These legal requirements (such as obtaining a Clean Water Act permit) are external to NEPA, but the NEPA analysis is often used to justify a decision. Used properly, NEPA’s structure can streamline the information-gathering process and facilitate inter-agency coordination. One empirical study found that critical habitat designations that went through the NEPA process were completed on average three months faster than those that skipped the NEPA process. Permit reform should focus on ways to use the NEPA process as a tool—not a hurdle.
Finally, some delays are productive. Rigorous reviews prevent bad projects. As the Boeing 737 Max tragedies demonstrated, speed is not everything. A permitting system that devolves to rubber stamping does not keep people safe. Transparent deliberation and public participation help avoid hasty actions that cause long-term problems. The New York Times recently published an article illustrating the risks of foregoing transparency. Fearful of the delays caused by public participation, the National Park Service declined a public comment period when identifying names for the Korean War Wall of Remembrance. As a result, the wall contains thousands of errors. Fixing them may require rebuilding the wall, which was estimated to cost $22 million. This story should serve as a cautionary tale for permit reform proposals. Making the right decision is more important than making a fast decision.
The Bulletin elevates expert voices above the noise. But as an independent nonprofit organization, our operations depend on the support of readers like you. Help us continue to deliver quality journalism that holds leaders accountable. Your support of our work at any level is important. In return, we promise our coverage will be understandable, influential, vigilant, solution-oriented, and fair-minded. Together we can make a difference.