Ongoing permitting reform debates in Washington, DC, have mostly orbited around the National Environmental Policy Act (NEPA). A procedural environmental regulatory “umbrella law,” NEPA creates significant and complex requirements for all major infrastructure projects and federal activities affecting the environment.
Broadly, NEPA requires that federal agencies conduct environmental reviews of proposed activities and their potential effects. For complex projects, agencies can either prepare an environmental impact statement (EIS) or an environmental assessment (EA). Alternatively, simpler projects can be afforded a categorical exclusion (CE) which fast-tracks the review process. After permits are granted through these review mechanisms, they may be challenged in the judicial system. The courts then have the authority to reaffirm, bolster, or otherwise improve the project plan to prevent or limit environmental damage. Of course, lawsuits to challenge EISs, EAs, and CEs necessarily extend project timelines. Particularly in the wake of the Infrastructure Investment and Jobs Act (2021), the Inflation Reduction Act (2022), and the CHIPS and Science Act (2022), federal policymakers and policy advocates have drawn increased attention to the regulatory burden and delay imposed by this judicial review.
However, the NEPA litigation debate has suffered from a deficit of empirical evidence. Our analysis helps fill this knowledge gap, documenting and sorting hundreds of NEPA litigation cases to assess trends, patterns, and impacts on various types of major infrastructure projects.
Breakthrough Institute analysts, in collaboration with legal experts at Holland & Knight, compiled and analyzed 387 NEPA cases brought to the U.S. appellate court system over the 2013-2022 period and categorized them by project type, environmental review, length of judicial review, federal agency, and plaintiff. Our results indicate that NEPA litigation overwhelmingly functions as a form of delay, as most cases take years before courts ultimately rule in favor of the defending federal agency.
As Congress deliberates reforms to NEPA, it is essential that policymakers recognize the degree to which the legal status quo prioritizes procedure over outcomes. To enable more effective environmental review, reforms should minimize the potential for extended, unproductive legal battles while still promoting the fair assessment of environmental impacts.
