Permitting Reform's False Choice

Abstract

Combatting climate change will involve a monumental effort to build new low- and zero-carbon infrastructure. Over the past few years, concern has reached a boiling point that environmental laws, such as the National Environmental Policy Act, are impeding climate action. Ezra Klein of the New York Times has argued, for example, that environmental laws are “too often, powerful allies of an intolerable status quo . . . making it almost impossible to build green infrastructure at the speed we need.” The resulting calls for “permitting reform” are premised on sacrificing the protections and procedures of traditional environmental laws to facilitate decarbonization of the energy and other sectors.

This Article presents the first national study of federal permits and environmental reviews for energy infrastructure constructed between 2010 and 2021. The analysis reveals that most projects were subject to streamlined administrative procedures or avoided federal regulation altogether. Less than 5 percent of wind and solar projects required a comprehensive environmental review or project-specific permit. Further, the number of federal environmental cases challenging new projects was remarkably low—a total of 28 cases involved wind projects, 8 solar, and 14 transmission lines over this 12-year period.

One might still worry that federal agencies will become overwhelmed as decarbonization efforts accelerate. This is unlikely, however, because the relevant agencies already use streamlined procedures and process thousands of environmental reviews and permits each year. Even accounting for the projected growth in the deployment of renewables, the total volume of applications is unlikely to become unworkable. The Article concludes that neither placing broad limits on citizen suits nor weakening the procedures and protections of traditional environmental laws is necessary to meet the exigencies of the climate crisis; instead, reforms should center on specific problem areas highlighted by this study.

Keywords: Climate Change, Energy Transition, Permitting Reform, Environmental Law

JEL Classification: K23, K32