Photograph by Bryan Graf / Trunk Archive
WORDS BY YESSENIA FUNES
Since 1970, environmental advocates in the United States have had access to an invaluable tool: the National Environmental Policy Act. NEPA forces federal agencies to consider and report out the potential climate impacts of major actions. A judge in August cited the law to temporarily close Florida’s Alligator Alcatraz detention center; in the past, NEPA helped to delay controversial fossil fuel projects in the Arctic and the Dakota Access oil pipeline, which cuts through Indigenous lands in North Dakota. NEPA hasn’t always stopped such infrastructure altogether, but the law does reveal the environmental risks government and industry are willing to take to build, baby, build.
NEPA has long been a thorn in the side of dirty development, but the law can also cause delays and roadblocks to green infrastructure at a time we need it most. That’s exactly what’s happened to offshore wind proposals in the wealthy corners of New England. Today, a growing chorus of “abundance”-minded policy experts aims to reduce regulatory hurdles so we can construct the utopia we dream of: solar farms, high-speed rail, and offshore wind. Their vision involves watering down NEPA. Could reforming the 55-year-old law make these hopes reality?
Well, Congress is trying: The SPEED Act, which would exclude more projects from environmental review and set clear deadlines for agencies’ reviews, is currently making its way through the House of Representatives. Environmentalists in favor hope permitting reform will accelerate the construction of green infrastructure. But some experts who disagree with the abundance rhetoric are alarmed. Accelerating the green transition could come with a hefty cost if advocates aren’t careful.
Republican President Richard Nixon signed NEPA into law in 1970. Before then, taxpayer dollars often went toward devastating infrastructure projects, such as highways that displaced Black communities across the U.S. The law ushered in a new era of government transparency around projects that take taxpayer dollars or resources. It requires federal agencies to assess a project’s impacts and then disclose them to the public. Families, community groups, local governments, and tribes can then provide feedback. NEPA also opens the door to legal challenges. If someone disagrees with a review, they can sue.
“It’s a look-before-you-leap law,” explained Stephen Schima, senior legislative counsel at environmental law firm Earthjustice. “It’s not just the environmental impacts. It’s the economic impacts. It’s the impacts on human health.”
The American Bar Association described NEPA as “one of America’s most successful exports.” Nearly every other country has adopted its own form of environmental impact law in the decades since NEPA’s passing. Even the International Court of Justice has recognized the need for governments to deeply examine their development proposals.
The review the law demands, however, can sometimes be lengthy and arduous. It can take anywhere from weeks to years. Most of the 100,000 federal actions per year that trigger NEPA require no review. But for those that do, the first step is an environmental assessment, which determines whether a project’s environmental impact could be significant. If it is, agencies must produce an environmental impact statement that names alternative project designs, as well as all the waterways, ecosystems, and endangered species that would be affected. Fewer than 1% of federal projects require an EIS, but they’re what gets everyone riled up.
“Over the last decade or so, there’s been a lot of attention focused on the exceptions to the rule,” Schima said.
“Under NEPA, lawsuits don’t really determine whether a project is good or not. They determine whether the review is good or not.”
All that attention has pushed legislators to change NEPA over the years. Former President Joe Biden’s landmark climate law, the Inflation Reduction Act, didn’t commit funding to the law, but it did send resources to agency staff and technology upgrades that would help improve the country’s permitting systems. President Donald Trump, however, blocked those funds with his tax and spending bill this summer and has since fired thousands of federal workers. He also waged an all-out war on the clean energy and just transition efforts that abundance advocates desire.
Many industry players point to permitting reform as a path forward. Transformational projects—like nationwide high-speed rail or solar farms that can send energy hundreds of miles away—require heavy scrutiny under NEPA as it stands, first, by federal agencies and then by the public. How will we build anything when everyone gets a say?
Aidan Mackenzie, an infrastructure fellow at the Institute for Progress who has called for NEPA reform to boost clean energy, worries that NEPA in its current iteration could mire potentially beneficial projects in lawsuits.
“Under NEPA, lawsuits don’t really determine whether a project is good or not. They determine whether the review is good or not,” he said. “The bar for using a procedural review to block a project should be very high. It shouldn’t come down to, Did you find a judge who doesn’t like the project?”
The courts treat every project the same—whether it’s been reviewed over hundreds of pages or, as was the case with Alligator Alcatraz, left without a review entirely. Mackenzie would like to see a standard that differentiates between the two. “It is such a foundational law,” he said. “There needs to be some remedy for cases like the detention facility [in Florida] where they didn’t do the review at all.”
Mackenzie would like to see fewer opportunities for legal action. One analysis of all NEPA actions from 2001 and 2013 (including many projects that required no environmental assessment at all) found that only 0.22% led to litigation. Another study from Stanford University focused only on the instances where agencies conducted an EIS: 28% saw lawsuits, mostly against solar energy. The government won a majority of those cases, Mackenzie emphasized. But the delay these lawsuits cause can cost private investors and stakeholders enough money to walk away entirely. Sometimes, that’s the point.
A 16-year legal battle against Cape Wind in the waters off Cape Cod led developers to abandon the proposal altogether. Nearby, off the coast of Martha’s Vineyard, several lawsuits have been filed against another offshore wind farm. Anything is possible when conservatives, NIMBYs, the fossil fuel sector, and a tribe come together. Even endless lawsuits.
“Contractors are frustrated that they can’t schedule their construction crews at a specific time because they don’t know if a lawsuit will delay the construction time,” Mackenzie said. “I have not talked to an industry group that defends NEPA.”
“Whatever the outcome, government should be transparent and should be responsive to voices from the affected communities. NEPA embraces that.”
While the Institute for Progress, where Mackenzie works, is still reviewing the SPEED Act and has yet to endorse it, the American Council on Renewable Energy put out a statement this summer in support. ACORE President and CEO Ray Long said: “The federal permitting process is cumbersome and outdated, creating costly delays for all energy projects—clean and conventional alike. Without permitting reform, the U.S. risks losing ground in the global race for technological and economic leadership—especially as energy demands surge in the AI era.”
Meanwhile, the American Petroleum Institute in early September launched a seven-figure ad campaign pushing Congress to pass the SPEED Act. And therein lies the red flag. This year’s Abundance conference was sponsored in part by Stand Together Trust, an institution within the climate-denying Koch network that also funds conservative organizations like the anti-LGBTQIA+ Alliance Defending Freedom. Just this Monday, Secretary of Energy Chris Wright described permitting reform as “the biggest remaining thing” in Trump’s oil-rich energy agenda.
The fossil fuel sector is a villain to countless communities of color that have fought tirelessly to stop its pollution and destruction in their neighborhoods. NEPA has been instrumental in their advocacy. After all, a foundation of the environmental justice movement is meaningful engagement: “Nothing about us without us” is a slogan I often hear.
“Whatever the outcome, government should be transparent and should be responsive to voices from the affected communities,” explained Marianne Engelman-Lado, director of New York University’s Environmental and Climate Justice Lab and former deputy general counsel for environmental initiatives at former President Joe Biden’s Environmental Protection Agency. “NEPA embraces that.”
Engelman-Lado recognizes that time is of the essence when it comes to addressing the climate crisis but said leaders can address the urgency of the issue without sacrificing environmental protections. She doesn’t believe that the abundance narrative adequately considers other causes for the challenges projects face.
“What happens is an idea or rhetoric starts to gather steam, and everybody jumps up on the bandwagon, but let’s actually examine what is the problem leading to the pace of development,” she said. “My concern is throwing out the baby with the bathwater. That on the wings of what might be admirable policy—clean energy, affordable housing—we get this overbroad interpretation of, If we amend NEPA, we will achieve this outcome. But I think what it’s really doing is cutting out the ability of communities to have a say. And that’s not going to lead to better outcomes for communities.”
What if instead of rewriting NEPA, researchers examined and applied learnings from projects where reviews were quick and efficient? What if they tried to understand what bogged down the slow ones? That’s the idea of Jamie Pleune, an associate law research professor at the University of Utah who has written in opposition to reforms.
“I don’t believe that there are any quick fixes,” she said. What the situation demands is a thorough analysis to understand why delays and successes happen. Blaming the courts ignores the underlying problems that fuel lawsuits. “Litigation is a symptom; it’s not a cause,” she said. “If people don’t oppose a project, you’re not going to have litigation.” Opposition rises, she argues, when the public lacks information, clarity, and trust in decision-makers and their review processes.
“There’s lots of history demonstrating that when people trust a process, they are willing to accept it, even if they don’t like the outcome,” she said.
Rebuilding trust may take years. Abundance advocates are in a rush—after all, the climate crisis is here—but maybe time is exactly what they need. Trump’s got three years left. He’s unlikely to end his assault on renewable energy, and the SPEED Act is not yet final. The work to start anew begins now—only with trust, research, resources, and a deep commitment to community engagement.
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Could Weakening Environmental Law Actually Strengthen Climate Action?
