This piece originally appeared in RealClearPolicy.
This summer, Senators Joe Manchin and John Barrasso’s Energy Permitting Reform Act passed out of the Senate Energy and Natural Resource Committee by a 15-4 vote and the House of Representatives is now working on passing its own permitting reform. Both bills reflects a growing bipartisan consensus that after years of bottlenecks and delays to the deployment of new and better infrastructure, it is now time to build. Vice President Harris and President Trump have both made boosting blue collar jobs a centerpiece of their economic strategy.
The challenge is that while the United States has the resources, incentives, and markets lined up for an American energy renaissance, it will be stillborn without strong permitting reform to ensure that all these new projects receive timely permission to build. The Energy Permitting Reform Act and bills like it in the U.S. House of Representatives are small steps in the right direction, but if Congress is serious about infrastructure, they will need to be substantially strengthened.
The United States has unparalleled energy resources. We are the world's leading producer of oil and gas and, in just the past few years, have become the world's leading exporter of liquefied natural gas – a crucial role that ensures that our allies don't have to rely on dirtier sources of electricity and hostile dictators for their energy. At the same time, the U.S. is providing record funding for new electricity production from solar and wind energy, as well as emerging technologies such as advanced geothermal, nuclear power, and green hydrogen.
These energy sources all have something in common: they are often held up by an inefficient federal permitting process, the federal courts, and state vetoes. This is a particularly difficult challenge for projects that cross multiple states, such as interstate electricity transmission. Without new power-lines, new sources of power won’t reach end customers, the grid will become increasingly strained, and all the new federal funding for renewable energy will fall far short of its potential. After all, solar and wind power from the plains can only reach the urban centers that need electricity with long-distance transmission.
The Energy Permitting Reform Act seeks to address these challenges by providing a simpler federal approval process for interstate power-lines that are blocked by the states. This would be great news for power lines (and clean power) if the federal permitting process were known for its speed and predictability. Unfortunately, it is not. Natural gas pipelines, for example, already benefit from a straightforward federal approval process but nevertheless are frequently blocked by the states and the courts.
This suggests that, even with a simpler federal process, new power lines will continue to be blocked and delayed through the usual tactics, from states denying a project’s water quality certifications under the Clean Water Act, to legal challenges under the National Environmental Policy Act (NEPA) or Endangered Species Act.
The Energy Permitting Reform Act and its sister in the House do very little to solve these problems. Both bills focus exclusively on NEPA, without simplifying other parts of the permitting process under the Clean Water Act and Endangered Species Act. Worse still, the bill's NEPA provisions fail to address NEPA's most significant problems.
For example, the bill attempts to accelerate the review of litigation against mining and energy projects by setting a 150-day statute of limitations for claims under NEPA, directing courts to hear claims quickly, and requiring agencies to act within six months if a court remands a permit. That may sound good, but the 150-day statute of limitations is easily met by those aiming to obstruct projects—savvy infrastructure opponents already know that the best way to stop projects is by suing right away. What’s more, both courts and agencies have routinely brushed aside congressional direction to act more quickly – courts say they are trying to decide every case expeditiously and agencies have historically prioritized being litigation-proof over meeting Congress’s timelines.
Worst of all, the bill fails to address what some have called the "litigation doom-loop." When a court remands a NEPA review back to an agency, the statute of limitations resets, allowing for continuous legal challenges that can indefinitely delay projects.
Congress must seize the current opportunity for reform with real change to speed energy permitting. That starts by adding a time limit on injunctions. A two-to-four year “shot clock” when a project’s NEPA review begins, after which courts can no longer issue injunctions, would set a clear endpoint for litigation delays, discourage frivolous lawsuits, and motivate agencies to complete reviews more efficiently while maintaining the integrity of the NEPA process.
Second, Congress should extend this time limit to the Endangered Species Act (ESA). Similar to NEPA, the ESA has been used to delay energy projects through repeated challenges to Biological Opinions. Without similar injunctive relief for Endangered Species Act cases, standalone NEPA reform will simply shift strategic litigation from NEPA to the ESA without materially reducing review times. Laws like the ESA uphold important environmental values, and there is room for debate on how many years ESA reviews should properly take, but there is no justification for permitting procedures to delay projects more than four years.
Finally, when states veto federally-permitting projects under Clean Water Act Section 401 process, federal agencies should be able to bypass those vetoes when necessary. State vetoes should not be allowed to stand when the state’s concerns were considered and rejected by the federal agency, are unrelated to the local impact of the project, or simply do not outweigh the national interest in completing the project.
The current bipartisan momentum for permitting reform presents a rare opportunity to address longstanding infrastructure challenges. The Energy Permitting Reform Act will not be enough on its own. By addressing litigation loopholes, streamlining environmental reviews, and balancing state and federal powers, we can build a more robust and efficient energy infrastructure for the future. Let’s not let this opportunity go to waste.
