Dispelling the Myths of Permitting Reform and Identifying Effective Pathways Forward

Copyright © 2025 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org DISPELLING THE MYTHS OF PERMITTING REFORM AND IDENTIFYING EFFECTIVE PATHWAYS FORWARD by David E. Adelman, Sommer Engels, Andrew Mergen, and Jamie Pleune David E. Adelman is the Harry M. Reasoner Regents Chair in Law at the University of Texas at Austin. Sommer Engels is a Clinical Instructor at the Emmett Environmental Law and Policy Clinic, Harvard Law School. Andrew Mergen is a Visiting Assistant Clinical Professor of Law and Faculty Director at the Emmett Clinic. Jamie Pleune is Associate Professor of Law (Research) at the S.J. Quinney College of Law, University of Utah, and Fellow at the Wallace Stegner Center for Land, Resources, and the Environment. SUMMAR Y Four myths are distorting the national debate over permit reform. First, it is misconceived as a singular issue, with the National Environmental Policy Act (NEPA) at its center. Second, reformers assume that federal reviews and permitting cause most project delays and failures. Third, there is a widespread belief that environmental laws are routinely weaponized against new infrastructure through obstructive litigation. Fourth, critics assert that environmental procedures and standards must be sacrif‌iced to enable timely climate action. This Article debunks these myths and asserts that permitting eff‌iciency is not incompatible with strong environmental standards, rigorous analysis, transparency, or public engagement. An empirically grounded approach would address the true causes of delay and reject the prevailing perspective that assumes deregulation is the only option. Increasing agency capacity through adequate funding, staff‌ing, and training improves the permitting process for everyone. Interagency coordination reduces delays caused by inconsistent or redundant standards. Early, meaningful public engagement avoids delays by proactively addressing community concerns and mitigating harms. Agencies have already adopted these types of programs, improving eff‌iciency without compromising regulatory standards. The Article proposes several principles that should guide permitting reform, describes established programs that should serve as models, and identif‌ies future work that would promote an informed and constructive national debate. Today’s polarized politics rarely leave room for agreement, but the promise of “permit reform” could be an exception. On the right, proposals to shrink the federal government and eliminate regulations are nothing new. In 1981, during his inaugural address, President Ronald Reagan stated, “government is not the solution to our problem; government is the problem.” 1 In 2024, shortly after his reelection, president-elect Donald Trump took up this common refrain by announcing a “Department of Government Eiciency” with a mandate to “dismantle Government Bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies.” 2 On the left, recent support for permit reform is founded on a fear that federal environmental laws are stiling eforts to address climate change. 3 In short, they believe that envi- Authors’ Note: While at the U.S. Department of Justice, Andrew Mergen and Sommer Engels worked on several of the cases cited in this Article. The Article relies solely on public information. They have since left federal employment, and contributed to this Article in their personal capacities. The Wallace Stegner Center is funded in part by the Wilburforce Foundation and the ESSR Wallace Stegner Endowment; neither funder exercised editorial or substantive control over the content or development of this Article. 1. Ronald Reagan’s Inaugural Address (Jan. 20, 1981), https://www.reagan-foundation.org/ronald-reagan/reagan-quotes-speeches/inaugural-address-2/ (last visited Dec. 5, 2024). 2. Robin Bravender, Wanted: “Small-Government Revolutionaries” for DOGE Team , E&E News (Nov. 14, 2024), https://www.eenews.net/articles/ wanted-small-government-revolutionaries-for-doge-team/. 3. See, e.g. , Press Release, Sen. Joe Manchin, Manchin Supports Inlation Reduction Act of 2022 (July 27, 2022), https://www.manchin.senate. ov/newsroom/press-releases/manchin-supports-inlation-reduction-act-of- 55 ELR 10038 ENVIRONMENTAL LAW REPORTER JAN/FEB 2025 Copyright © 2025 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org ronmental regulations are preventing rapid deployment of renewable energy projects, electrical transmission lines, and other critical infrastructure. 4 As legal scholar Michael Gerrard put it, “[s]ociety has run out of time to save everything we want to save, and to mull things over for years.” 5 he narrative that regulations cause delay resonates, because everyone has experienced permit-related frustration. Whether it is waiting for a building permit that took months to issue, wandering through bureaucratic hallways to obtain a business license, or watching a local infrastructure project mired in obscure government processes, we have all been there. he mere mention of permitting evokes images of sticky red tape and unhurried, out-of-touch bureaucrats. 6 he solution, in this light, is obvious—cut procedures and relax protections. While this sense of urgency is understandable, the focus on deregulation is grounded on four myths that are distorting public perceptions and policymaking. he four myths embody a zero-sum mentality that pits essential environmental procedures and protections against the exigency of addressing climate change. he four myths are that: (1) federal environmental permitting is a rigid monolith with the National Environmental Policy Act (NEPA) 7 at its center; (2) federal environmental reviews and permitting are the primary reason that infrastructure projects are delayed or cancelled; (3) environmental laws are systematically weaponized against the construction of new infrastructure via obstructive litigation in federal courts; and (4) federal environmental procedures and standards must be sacriiced for the green energy transition to proceed at the scale and speed required to address climate change. Each of these myths is premised on misperceptions of the law, the facts, or both. he available empirical record shows that environmental reviews and permitting rarely delay or block utility-scale renewable energy projects, that environmental litigation (outside speciic locations and 2022; Ezra Klein, What America Needs Is a Liberalism hat Builds , N.Y. Times (May 29, 2022), https://www.nytimes.com/2022/05/29/opinion/ biden-liberalism-infrastructure-building.html (urging policymakers “to reform or waive large sections of the National Environmental Policy Act to speed the construction of clean energy infrastructure”); see also Jerusalem Demsas, Not Everyone Should Have a Say , Atlantic (Oct. 19, 2022), https://www.theatlantic.com/ideas/archive/2022/10/environmentalistsnimby-permitting-reform-nepa/671775/ (characterizing the National Environmental Policy Act (NEPA) as the “weapon of choice” for “grouchy people with time on their hands” and a desire to block “ everything ”). 4. J.B. Ruhl & James Salzman, he Greens’ Dilemma , 73 Emory L.J. 1, 9 (2023) (warning that the “use of environmental laws now presents a core challenge to the rapid [deployment of infrastructure] needed to achieve our national climate . . . goals”). 5. Michael Gerrard, A Time for Triage , 39 Env’t F. 38, 40 (2022). 6. See Eric Biber & J.B. Ruhl, he Permit Power Revisited: he heory and Practice of Regulatory Permits in the Administrative State , 64 Duke L.J. 133 (2014), describing Prof. Richard Epstein’s concern that bureaucrats: entrench and abuse the permit power by promulgating elaborate sets of administrative procedures, imposing onerous conditions for the granting of a permit, manufacturing excuses for delay, retaining the power to revise or terminate permits virtually at will, adopting amorphous substantive standards that justify any outcome the agency prefers, and piling up the need to obtain multiple permits for the most mundane of activities as a “caricature.” 7. 42 U.S.C. §§4321 et seq. types of projects) is seldom a factor, and that permitting reform does not have to occur at the expense of environmental procedures and standards. While environmental laws certainly play a role in shaping the pace and scale of infrastructure development, in practice, they are one among many factors, and rarely the rate-limiting one. 8 Indeed, the ixation on environmental laws often obscures other more important challenges, such as the growing patchwork of state and local regulations that make development diicult to navigate, unpredictable, or impossible. Local opposition is fueling this gridlock and exposing tensions in our federal-state system, which recent U.S. Supreme Court decisions limiting agency authority will exacerbate. he problems that have been documented with environmental programs typically have little to do with how they are structured, but instead derive from prosaic administrative problems. For example, limited agency budgets lead to insuicient staf, or an inadequate number of staf with the necessary expertise. Inconsistent policies across regions, oices, and personnel reduce the predictability and speed of the permitting process. Similarly, antiquated technology and data management can exacerbate ineiciency. By skirting these issues, the public debate misses the most pressing sources of administrative delays. Efective permit reform must prioritize understanding and addressing these administrative and resource deiciencies. his Article’s goal is to shift the debate over permitting reform away from the presumption that deregulation is desirable, and toward policies that substantively and practically improve permitting processes for project proponents, communities, and the environment. We begin by debunking the four myths that are driving the calls...