Accumulation of NEPA cases shows need for reform

The number of lawsuits concerning the Environmental Protection Policy Act has increased significantly in recent years, according to a new study, pointing to the need to reform permits for energy and other infrastructure projects.

What’s going on: In a report released last week, “Understanding NEPA Litigation,” the environmental research institute Breakthrough Institute said that “NEPA imposes significant and complex requirements on all major infrastructure projects and Federal activities that affect the environment.”

Key takeaways: The federal regulatory onslaught in recent years has been reflected in an increase in the number of NEPA appeals cases, with federal agencies winning the vast majority of cases. The analysis found that:

• From 2013 to 2022, district courts heard approximately 39 NEPA appellate cases per year, a 56 percent increase from the rate from 2001 to 2015.
• Between 2013 and 2022, agencies won about 80% of these cases, up 11% from 2001 to 2004.
• NGOs initiated 72% of all NEPA-related activities.
• Energy projects were the second most common subject of litigation (29%), after public land management projects (37%).
• The average time between publication of an environmental impact report or environmental impact assessment and the conclusion of the appeal proceedings is 4.2 years.

NAM in action: In late April, the Biden administration finalized regulations aimed at streamlining the lengthy, complex environmental assessment processes that federal agencies undertake under NEPA — but they fell short of “providing the streamlined permitting process that manufacturers need to make the U.S. more competitive,” the NAM said at the time.

• NAM, which supported modest NEPA reforms included in last year’s debt-ceiling agreement, is leading the effort to secure reforms that will strengthen energy and infrastructure investments.
• NAM President and CEO Jay Timmons, testifying before Congress last year, said the authorization “is intended to…ensure that this country — a democracy rooted in free enterprise — is not overtaken, dwarfed or overtaken by nations that do not share our values, do not respect the environment or do not recognize the dignity of human rights.”