Why Do We Need Permitting Reform? (And Are We Asking the Right Questions?)
Paulina Jaramillo, Ph.D.
Permitting reform has become the energy policy topic everyone’s talking about. Over the past year, it’s dominated discussions across the political spectrum, with multiple bills introduced in both the 118th and 119th Congress. While I’ll dive into the most recent House bill in an upcoming post, I first want to explore why this issue has captured so much attention and whether we’ve correctly diagnosed the problem.
Strange Bedfellows
Here’s something you don’t see every day in energy policy: both parties talking about the same solution, albeit for entirely different reasons. Republicans champion permitting reform to advance their “drill baby drill” agenda for fossil fuel projects. Centrist Democrats argue it’s essential to build the clean energy infrastructure we desperately need to combat climate change.
Despite fundamentally opposed energy visions, this convergence on the need for permitting reform suggests the current system is frustrating everyone. But I’ve been wrestling with whether this shared frustration means we’ve correctly diagnosed the underlying problem.
While I’m inclined to agree that we need faster permitting for clean energy infrastructure, I’m not convinced our current focus is hitting the mark.
The NEPA Focus: What the Numbers Tell Us
Most permitting reform discussions zero in on the National Environmental Policy Act (NEPA), and recent research provides some compelling data points. A comprehensive 2023 study examining 355 energy and transportation infrastructure projects that published Environmental Impact Statements between 2010 and 2018 revealed that 28% faced development-stage litigation, with the vast majority citing NEPA violations.¹
The litigation burden varies dramatically by project type. Solar projects in the database faced the highest rate at 65%, a staggering figure that helps explain why solar developers are frustrated. Pipelines follow at 50%, wind at 38%, and transmission lines at 31%.¹
The timeline picture is equally sobering:
Solar projects: 2.5 years navigating NEPA on average
Wind energy: 3.55 years
Transmission projects: 3.82 years
Mining projects: 4.5 to 7 years¹
A broader analysis of 1,269 federal actions with final environmental impact statements between 2010 and 2018 found that 342 Department of the Interior projects averaged 5.46 years for permitting, with durations ranging from less than a year to nearly 17 years.² That’s an enormous spread, suggesting the system works differently for different projects.
The litigation timeline data is particularly striking. Research on NEPA cases filed between 2001 and 2015 found a median duration of 23 months, though 75% were resolved within 39 months. However, when plaintiffs won their challenges, cases stretched beyond six years.³ A recent Council of Environmental Quality report found that between 2021 and 2024, the median completion time for an environmental impact statement was 2.5 years, but only 39% were completed within two years.⁴
Finally, a Breakthrough Institute analysis of 1,400 NEPA cases filed between 2013 and 2022 found that energy projects typically spent a median of three years from initial agency approval to final resolution, with some stretching for decades.⁵
The Counterargument: Is NEPA Really the Problem?
Not everyone buys the narrative that NEPA litigation is strangling infrastructure development. Recent research by Adelman and colleagues offers a different perspective. While the authors suggest that completing an Environmental Impact Statement takes an average of 4.5 years, only 1% of federal actions subject to NEPA require a full EIS. Most projects need only a much less stringent Environmental Assessment.⁶
Their research also suggests the litigation burden may be overstated, finding that only 3% of wind and 1% of solar projects built between 2010 and 2021 faced litigation under federal environmental laws.⁶
Some Questions We Should Be Asking
These competing data points lead me to some fundamental questions that I think we need to grapple with more seriously:
How long is too long for the permitting process? This seems like it should be straightforward, but there’s surprisingly little consensus on what constitutes a reasonable timeline.
Is NEPA really the primary driver of delays? NEPA is fundamentally a procedural law designed to inform decision-making by, for example, providing the evidence to determine whether projects trigger environmental protection actions under the Endangered Species Act or the Clean Water Act. I’d love to see an analysis of how often Environmental Impact Statements actually led to actions under those other statutes.
Are we solving for the right bottleneck? If most projects don’t require full Environmental Impact Statements and relatively few face litigation, perhaps the real barriers lie elsewhere in the permitting maze.
Where I’m Landing (For Now)
This isn’t to say we shouldn’t consider permitting reforms, as there are legitimate concerns worth addressing. The two-year window for judicial review after publication of a final Environmental Impact Statement does seem excessive and creates prolonged uncertainty for project developers.
However, I think we need more rigorous empirical analysis to understand the actual barriers to permitting energy infrastructure. The current debate feels like it’s happening in data silos, with different studies reaching different conclusions about the same underlying system.
In upcoming posts, I’ll dig deeper into specific reform proposals and further explore some of these questions. For now, I just want to raise the possibility that we might be having the wrong conversation…or at least an incomplete one.
References:
¹ NEPA Litigation Over Large Energy and Transport Infrastructure Projects
² Environmental Review and Infrastructure Development: Evidence from NEPA
³ Environmental Litigation and Administrative Permitting
⁵ A Comprehensive Analysis of NEPA Litigation
⁶ Environmental Litigation and Clean Energy: Quantifying Delays to Renewable Energy Projects