Blog By: Dylan Keefe
In August 2022, Congress passed the most significant climate legislation in American history: the Inflation Reduction Act (IRA).[i] Through the IRA, Congress appropriated billions of dollars to incentivize a “transition to a clean energy economy.”[ii] The bill focuses primarily on bolstering the domestic production of solar and wind energy.[iii] Additionally, President Biden invoked the Defense Production Act to contribute $500 million to energy production, as he declared that solar panels and heat pumps are essential to national defense.[iv] The President also issued an executive order aimed at expanding wind energy production on American shores.[v] Clearly, solar and wind energy production is a top priority of Congress and the Biden administration. With historic funding secured, the country should be well on its way toward a clean energy economy, right? Well, not quite. Another obstacle remains: the Environmental Protection Agency, which has become its own worst enemy.
Under the National Environmental Policy Act (NEPA), there are extensive requirements that must be satisfied to secure federal funding and permits.[vi] NEPA usually mandates that federal agencies conduct environmental impact statements (EIS).[vii] An average EIS consists of more than 650 pages and takes 4.5 years to complete.[viii] The average cost of an EIS is about $6 million while complex EISs may cost up to tens of millions of dollars.[ix] Often local and state entities act as cooperating agencies, which requires coordination between multiple levels of government.[x]
Although NEPA’s process is burdensome, its goal is noble. NEPA requires the Government to assess environmental and public health impacts of any proposed action before it commences.[xi] NEPA creates transparency and allows for public comment from the local communities that may be impacted by the project.[xii] The health and safety of local communities should never yield to the efficiency of government projects. However, there is tension between NEPA requirements and meaningful progress towards clean energy that must be addressed, and improvements to NEPA must be made.
Numerous solar and wind energy projects have been stalled or scrapped altogether because of expensive NEPA-related delays.[xiii] Notably, a $357 million New York wind project at the Port of Albany is in jeopardy.[xiv] The wind project was set to produce much needed megawatts of electricity.[xv] The Department of Energy reports that the United States currently has offshore wind projects capable of generating 42 megawatts of electricity, but “another 18,581 megawatts of potential offshore wind power are tied up in permitting battles.”[xvi]
The Port of Albany project was delayed when the municipality cut down about 80 acres of trees without a federal permit, which resulted in the Department of Transportation’s Maritime Administration halting construction on the project for four months.[xvii] In hopes of completing the project within the planned timeframe, the Port of Albany decided to forgo nearly $30 million in federal funding.[xviii] The Port of Albany is optimistic that the project will move forward, but local officials are uncertain how they will obtain the rest of the funding.[xix]
NEPA reforms that aim to reduce the burden of extensive regulations while maintaining safeguards for local communities have received bipartisan support.[xx] Sen. Joe Manchin proposed an amendment to the Inflation Reduction Act, though ultimately rejected, that would reform NEPA.[xxi] Sen. Manchin’s proposal included a two-year review limit on NEPA reviews for major energy projects.[xxii] He also urged that the President should designate and prioritize projects of strategic national importance and suggested that a statute of limitations for challenging the validity of EISs be set.[xxiii] On the other side of the political aisle, Sen. Mike Lee also proposed a NEPA reform titled UNSHACKLE.[xxiv] Sen. Lee’s plan would similarly establish deadlines for federal agencies to complete reviews of proposed energy projects and establish penalties for failing to meet those deadlines.[xxv] His proposal would also limit the page count of EISs and require agencies to “only consider alternatives to proposed actions that are technically and economically feasible.”[xxvi]
Opponents of such reforms contend the reforms would do little besides harm the environment and local communities.[xxvii] Imposing deadlines would, they argue, reduce the quality of analysis and shorten the time allowed for public comment.[xxviii] Opponents further contend that the net effect of imposing a statute of limitations for challenging NEPA reviews would be less government accountability.[xxix] While these are valid concerns, the need to transition toward a clean energy economy must be weighed against the shortcomings of proposed reforms to NEPA. Without reform, Congress and the Biden administration’s commitment to bolstering solar and energy production is hollow. Until NEPA’s burdensome requirements are lessened, the United States will make no meaningful progress toward clean energy, and the Environmental Protection Agency will continue to be its own worst enemy.
[i] The Inflation Reduction Act, U.S. Env’t Prot. Agency, https://www.epa.gov/green-power-markets/inflation-reduction-act [https://perma.cc/DL2H-W9VF] (last visited Feb. 10, 2023).
[ii] Id.; Bella Isaacs-Thomas, What the Inflation Reduction Act does for green energy, PBS News Hour (Aug. 17, 2022, 10:57 AM), https://www.pbs.org/newshour/science/what-the-inflation-reduction-act-does-for-green-energy [https://perma.cc/2MBC-Z4X2].
[iii] Isaacs-Thomas, supra note ii.
[iv] Daniel Cohan, Analysis: Why Biden declared solar panel, heat pumps integral to national defense, PBS News Hour (June 10, 2022, 1:33 PM), https://www.pbs.org/newshour/science/analysis-why-biden-declared-solar-panels-heat-pumps-integral-to-national-defense [https://perma.cc/267Z-RBJB].
[v] FACT Sheet: Biden Administration Jumpstarts Offshore Wind Energy Projects to Create Jobs, The White House (Mar. 29, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/03/29/fact-sheet-biden-administration-jumpstarts-offshore-wind-energy-projects-to-create-jobs/ [https://perma.cc/2L62-LLEE].
[vi] 42 U.S.C. §§ 4321 et seq. See also Benoit Morenne, Energy Projects Sought Across the U.S. Face Local Hurdles, The Wall Street Journal (Aug. 20, 2022, 10:20 AM), https://www.wsj.com/amp/articles/energy-projects-needed-across-the-u-s-face-local-hurdles-11660968040 [https://perma.cc/5RSS-DETV].
[vii] See 42 U.S.C. § 4332(2)(C). See also NEPA Guidance on GHGs and Climate Change, NEPA.Gov, https://ceq.doe.gov/ [https://perma.cc/G6DK-6Z7Y] (last visited Feb. 10, 2023).
[viii] Morenne, supra note vi; Eric Boehm, New York Wind Project Drops Federal Funding to Avoid Federal Permitting Headaches, Reason (Oct. 5, 2022, 1:45 PM), https://reason.com/2022/10/05/new-york-wind-project-drops-federal-funding-to-avoid-federal-permitting-headaches// [https://perma.cc/72R4-UX6A].
[ix] Brian Potter, Arnab Datta & Alec Stapp, How to Stop Environmental Review from Harming the Environment, Inst. for Progress (Sept. 13, 2022), https://progress.institute/environmental-review/ [https://perma.cc/LF9Q-8SRA].
[x] What is the National Environmental Policy Act?, U.S. Env’t Prot. Agency, https://www.epa.gov/nepa/what-national-environmental-policy-act [https://perma.cc/X6DS-7CJ8] (last visited Feb. 10, 2023).
[xi] What is NEPA?, Protect NEPA, https://protectnepa.org/what-is-nepa/ [https://perma.cc/EBV9-G8V3] (last visited Feb. 10, 2023).
[xii] Id.
[xiii] Boehm, supra note viii; Suraj Patel, Joe Manchin’s Red Tape Reform Could Supercharge Renewable Energy in the U.S., TIME (Sept. 22, 2022, 10:30 AM),
https://time.com/6215549/joe-manchins-red-tape-reform-could-supercharge-renewable-energy/ [https://perma.cc/849R-9ERW].
[xiv] Kate Lisa, Tree clearing at Port of Albany puts $29.5M grant for wind facility at risk, Spectrum Local News (June 17, 2022, 8:32 PM), https://spectrumlocalnews.com/nys/central-ny/politics/2022/06/18/port-of-albany--29-5m-grant-in-jeopardy-after-bypassing-federal-review [https://perma.cc/6AAW-B4LN].
[xv] Id.
[xvi] Boehm, supra note viii.
[xvii] Lisa, supra note xiv.
[xviii] Boehm, supra note viii.
[xix] Lisa, supra note xiv.
[xx] Sens. Cruz, Lee, and Cramer Introduce UNSHACKLE Act to Reform NEPA, Sen. Ted Cruz Press Releases (Oct. 27, 2020), https://www.cruz.senate.gov/newsroom/press-releases/sens-cruz-lee-and-cramer-introduce-unshackle-act-to-reform-nepa [https://perma.cc/ZQ8P-H5KZ]; Manchin Votes to Overturn Burdensome Permitting Guidance, Sen. Joe Manchin Press Releases (Aug. 4, 2022), https://www.manchin.senate.gov/newsroom/press-releases/manchin-votes-to-overturn-burdensome-permitting-guidance [https://perma.cc/M4XM-HL7L].
[xxi] Manchin Releases Comprehensive Permitting Reform Text to be Included in Continuing Resolution, Senate Comm. on Energy and Nat. Resources (Sept. 21, 2022), https://www.energy.senate.gov/2022/9/manchin-releases-comprehensive-permitting-reform-text-to-be-included-in-continuing-resolution [https://perma.cc/P8CU-DF9N].
[xxii] See Energy Independence and Security Act of 2022, Senate Energy & Nat. Resources Comm. & Senate Env’t. & Public Works Comm. (2022), https://www.energy.senate.gov/services/files/92E7EAA5-E7BC-48E1-8E7F-FE688AE43252?utm_source=DCS+Congressional+E-mail&utm_medium=Email&utm_term=https%3a%2f%2fwww.energy.senate.gov%2fservices%2ffiles%2f92E7EAA5-E7BC-48E1-8E7F-FE688AE43252&utm_campaign=MANCHIN+RELEASES+COMPREHENSIVE+PERMITTING+REFORM+TEXT+TO+BE+INCLUDED+IN+CONTINUING+RESOLUTION [https://perma.cc/8DTM-A8W8].
[xxiii] Id.
[xxiv] S. 717, 117th Cong. (2021).
[xxv] Id.
[xxvi] Id.
[xxvii] NEPA Under Attack, Protect NEPA, https://protectnepa.org/what-is-the-threat-to-nepa/ [https://perma.cc/TL8S-GW8V] (last visited Mar. 6, 2023).
[xxviii] Id.
[xxix] Id.