December 21, 2022
Yale’s Law and Political Economy (LPE) Project brings together a network of scholars, practitioners, and students to develop innovative intellectual, pedagogical, and political interventions to advance the study of political economy and law. The manifesto of their blog observes that “rigorous criticism is the precondition of viable hope.” Toward that end, the LPE Blog often brings together multiple perspectives in a “rapid roundtable” post on timely issues.
This week, they turned their sites on the permitting debate. I was thrilled to be invited to join the conversation--and get the last word. Seven Reactions to the “Permitting Reform” Debate - LPE Project.
Other scholars and advocates included Paul Sabin, Abbie Dillen, Forrest Fleishman, Amy Laura Cahn, Jeff Gordon, and Shay O’Reilly to talk about what is missing from the emergent critique of environmental review and promising horizons for regulatory reform.
Fleishman emphasized that anecdotal evidence should not drive reform. Common critiques—such as the length of time to complete an EIS or delays caused by litigation—focus more on anecdotes than facts. In reality, litigation affects less than 1% of all NEPA analyses, and most NEPA reviews are completed quickly. According to Fleishman, when aggregating all NEPA decisions completed by the Forest Service, the median time to completion was 4.3 months. This is because most decisions (82%) fall within an existing categorical exclusion (CE), which requires only a truncated analysis. Despite the ability to tailor the level of review, Fleishman found dramatic variation in the length of time different offices take to process similar projects. He found institutional factors the cause of these rare—but costly—delays. Informal conversations with USFS staff identified staffing, frequent transfers of key officials, complexities in contracting and interorganizational coordination, limited implementation funding, and disagreement over agency priorities as major roadblocks to efficiency.
My research (with John Ruple and Erik Heiny) squares with Fleishman’s observations. Between 2004 and 2020, the fastest ten percent of EISs produced by the Forest Service were completed almost 3 months faster than the slowest 10% of CEs (395 days v. 481 days). If analytical rigor and public participation were the sole causes of delay within NEPA, we would not see fast EISs or slow CEs.
Permit reform should fix the root of the problem—agency capacity. Projects hit bottlenecks when there are not enough staff with the right expertise. The Government Accountability Office found the same problem in hardrock mine permitting. The Department of Energy has made the same observation of its own operations. Factors that inhibited timely completion of NEPA documents included “lack of staff availability.” Instead of reducing the rigor of environmental analyses, we should try increasing agency resources.
And while we’re at it, let’s not forget that rigorous review protects us from bad projects. As the Boeing 737 Max tragedies demonstrated, a permitting system that devolves to rubber stamping does not keep people safe.
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