What Do We Think? BPC Goldilocks Report on Permitting Reform: 1. Public Engagement

Reminder: why we are interested in “permitting reform”? 1. BLM and FS authorize energy projects, 2. think tanks involved have really smart people and more political clout than traditional forest groups, but 3) my experience with Coastal think tanks is that may not be talking to NEPA practitioners. So they have fun and novel ideas that may actually get implemented, and maybe we can contribute by some ground-truthing.

As I’ve pointed out (yes, I know, tediously) before, there seems to be a thread of “if only agency practitioners did their jobs better” that I first noticed at CEQ.

CEQ: your documents are too long.  Agencies: but case law requires it.

CEQ: programmatics should be used more.  Agencies: they generally don’t do much in practice.. suck up a lot of time and go out of date readily.

(Note that recently the Biden Admin said it had to redo an LNG analysis as it was out of date after five years (not sure it was a NEPA analysis, but still); if it takes three years to do a programmatic.. you do the math)

CEQ: if you only did better public involvement, you wouldn’t have litigation.

What these views have in common is a kind of punching down on the lowest ranking people in the system, and not looking at the problem as real-world policy disagreements that need to be ultimately settled through political processes.

Anyway, let’s check out what BPC has to say.

The Bipartisan Policy Center recently published “Finding the Goldilocks Zone for Permitting Reform.”  and if TwitX is to believed, folks from there are currently making Hill visits.

How does BPC characterize the “permitting reform” quest?

A more efficient permitting system for energy infrastructure would reduce energy costs, increase energy reliability, increase quality of life, and reduce emissions.

One could argue that “a more efficient permitting system for fuel treatment projects and prescribed burns would reduce risks of catastrophic wildfire and associated safety, health, watershed, wildlife and infrastructure impacts.” So maybe these would be relevant to other kinds of FS and BLM work?

They used stakeholder roundtables to help develop and rate the recommendations across two dimension: Effectiveness and Controversy.  Let’s see what they came up with.  It’s kind of a neat approach.  So let’s see what we think of these.. I’ll post each set of recommendations in a separate post.  We can discuss and I’ll give feedback to the BPC.

It seems to me that the question facing energy infrastructure is “why do we have to have this here and impact my community and wildlife and so on?” It doesn’t seem to me that any of this really answers the question of “why here and not there?”

If we are talking about energy infrastructure (onshore and offshore wind turbines, solar installations, transmission lines), it looks like their most promising is:

Conduct and provide resources for extensive community information hearings that address public comments and concerns of the community .

Which to me is a bit like “do public involvement better”.. which is good, but hard to say it increases efficiency in any way.  Some people just don’t want projects no matter how they are educated.  I’ve had grumpy people turn around with more information, but at the end of the day that’s not what delays projects.

I also thought it was interesting that BPC thought that this.. which sounds a bit like the successful Blue Mountain Partners in our world:

Establish a monitoring committee for individual projects, comprised of local stakeholders, that ensures standards are met and provides an avenue for continued public engagement for the life of the project [Pg. 21]

Here are their 3’s..

Require or incentivize agencies to engage stakeholders before developing a public notice of intent to prepare an Environmental Impact Statement [Pg. 23]

This is interesting. Right now it seems a bit random.  Like the FS probably does before an EIS for a large vegetation project; and maybe that counts for the national OG EIS, but I don’t think it helps increase “efficiency”.

The underlying idea seems to be “if only agencies had better public involvement processes, there would be less resistance and projects that are unpopular in some quarters will move forward readily.” I think good public involvement processes are important, and I also know that the FS and BLM have pretty robust ones,  and there are still disagreements about the project at the end of the day.

The funniest one to me was this one, which they fortunately rated as “not worth discussing”.

Establish commissions to advise agencies on the design, implementation, and evaluation of public participation processes [Pg. 24]

Increase efficiency by .. establishing commissions!

These ideas seem to reflect the “if practitioners only did it right, there wouldn’t be a problem” school of thought.

Next: Linear Infrastructure

Hermits Peak Calf Canyon and Luna Post-Fire Recovery Project: Draft EA in One Year

Thanks to Tim at the Hotshot Wakeup for pointing out this project.

Here’s the link to the project documents. The EA is 60 pages, including five pages of response to comments.  The draft EA was released on August 14 2023, and the final DN and FONSI on October 30, 2023.  There were two fires involved, Hermits Peak Calf Canyon in 2022, and the Luna Fire in 2020.  Acreage and time for the project: 24,420 acres over the next 1-10 years or until completed.

Some interesting things about it:

* Speed- draft EA out in one year.

* Tiers to FEMA programmatic.

* Uses emergency authorities so no  objection process (helped with speed).

* As far as I have been able to ascertain, the woody material is being given to local not-for-profits or governments to distribute.  There are no sawmills in the area.

Here’s the clause in the DN about objections:

“The Hermits Peak Calf Canyon and Luna Post-Fire Recovery Project has been approved by Forest Service Chief Randy Moore for use of the Emergency Authority Determination under Section 40807 of the Infrastructure Investment and Jobs Act of 2021 (Public Law 117-58 Nov. 15, 2021 ). Under section D in this authority,

An authorized emergency action carried out under this section shall not be subject to objection under the predecisional administrative review processes established under section 105 of the Healthy Forests Restoration Act of 2003 (] 6 U.S. C 6515) and section 428 of the Department of lnterio,; Environmental, and Related Agencies Appropriations Act, 2012 (16 USC 6515 note; Public Law 112-74).”

Here’s the project description:

“The Proposed Action provides the opportunity to implement a suite of restoration activities on approximately 24,420 acres over the next 1-10 years or until completed, as part of the Hermits Peak Calf Canyon integrated response and recovery approach to the current disaster and to possible future events associated with FEMA-4652-DR-NM. The “Proposed Action” section of the EA lists four items that the decision incorporates. Per the Final EA “Purpose and Need” section, implementation of the project as analyzed includes:
• Aerial re-seeding
• Re-forestation
• Ground-based material removal
o Using ground-based equipment on steep slopes
o Removal using conventional ground-based equipment
o Personal fuelwood
o Temporary road use on 58.1 miles, with decommissioning of these routes after
project completion
o Treatment of slash, including pile burning
• Recreation site stabilization
• Other recovery efforts, after assessments have been completed within the Hermits Peak Calf Canyon Fire portion of the project area:
o Noxious weed abatement (treatments approved in the Final Environmental Impact Statement for the Invasive Plant Control Project. Carson National Forest and Santa Fe National Forest (USDA 2005),
o Restoration and reforestation of fire-adapted vegetation types,
o Restoration of riparian areas,
o Post-wildfire hillslope stabilization treatments, including aerial seeding,
o Post-wildfire channel treatments,
o Post-wildfire road, culvert, and trail flow diversion treatments,
o Post-wildfire ash, sediment, and debris removal and infrastructure repairs,
o Structure demolition, relocation, or alteration, and
o Hydraulic capacity improvements and protection of water infrastructure.
Based on the resource specialists’ analysis/reports, as summarized within the EA, and tiering to FEMA Programmatic Environmental Assessment for the State of New Mexico Watershed Resiliency and Post-Wildfire Treatment Projects, the implementation of the Proposed Action and associated activities (including design features) can be implemented such that the proposed project will not result in a significant impact. This determination is based on the following:
• How well the selected alternative achieves the need.
• How well the selected alternative protects the environment and addresses issues and concerns.
• How well the selected alternative complies with relevant policies, laws, and regulations.

My decision to implement the Proposed Action is based on how well the alternative responded to the purpose and need and public comments received during the public involvement process. My decision facilitates the need to address recovery actions, particularly for the Hermits Peak Calf Canyon Fire as part of the integrated response for this emergency while also addressing vegetation recovery needed within these burned areas. My decision best meets the purpose and need to aid in recovery efforts, while complying with applicable laws and regulations and addressing the public’s concerns. In making this decision, we thoroughly considered issues and comments identified during scoping and from the public during the 30-day Draft EA comment period. Our decision balances public concerns and the need to restore and participate in integrated recovery efforts.”

 

 

High Litigation Rates for Energy Projects: Bennon and Wilson (2023)

Michael Bennon at Stanford with Devon Wilson authored this interesting NEPA study.

Here are a few of their conclusions:

We observe predevelopment litigation on 28% of the projects requiring an environmental impact statement, 89% of which involve a claim of a NEPA violation. The highest litigation rate is in solar energy projects, nearly two-thirds of which are litigated. Other high-litigation sectors include pipelines (50%), transmission lines (31%), and wind energy projects (38%)

If anything, and at the highest possible level, we conclude that current debates regarding the question of permitting reform are overly focused on NEPA’s administrative process and comparatively neglect NEPA’s judicial process. Judicial review of NEPA appears to significantly impact infrastructure project development in the United States, and it impacts both the projects that are litigated
and those that are not.

Although the suthors are “happy to qualify that conclusion as limited to large infrastructure projects”, I think it is also relevant to forest management projects.

As discussed herein, many prior studies of NEPA practices and environmental litigation have focused on land management agencies such as the U.S. Forest Service or the Bureau of Land Management (BLM). We aimed tofocus specifically on infrastructure projects because they differ from area management or forestry projects in terms of both the impacts of the federal actions on the environment, and the practical impacts of environmental litigation on the projects.

One thing that’s obviously very different, and not in this quote, is the role of proponents. Let’s think about a fuel treatment project.. it is mostly between people who want it (including timber folks if there is a mill around) and people who don’t want it. For the most part, loggers and mills are not making investment decisions based on a specific project making it through the litigation mill. To the contrary, geothermal, solar and wind companies are subject to the whims of interest rates, the time value of money, supply chain difficulties and so on. Their operational environment is substantially more complex, and it appears that their connections to political actors may be stronger than, for example, Tina and her family who run Tina’s Sawmill. In the Forest Service, these projects may be more like Wolf Creek or ongoing litigated projects with specific proponents.

It is possible that NEPA’s architects, even Senator Jackson, failed to foresee28 the volume of litigation that would stem from the law because the environmental law sector was nascent, almost nonexistent, at the time of NEPA’s passing.

In fact, it is remarkable that NEPA’s evolution has been so primarily driven by case law rather than executive orders or major guidance by CEQ. After the 1978 CEQ guidance changes, NEPA did not undergo another major guidance change until CEQ published another revision in 2020, which was followed by additional rulemakings in 2021 and 2022.

In the case of NEPA, that limiting principle on the scope of environmental study is not found in law. NEPA’s “opaque, constitution-like language seems to give courts enough latitude to subject NEPA documents to either the hardest of looks or the softest of glances.”43 Judicial flexibility translates to agency uncertainty, to the point that permitting time and effort may be driven less by the anticipation of environmental impacts and more by the presence of conflict, or stakeholders with the resources and motivation to litigate against the project.44
The procedural nature of NEPA litigation is a key driver of “litigation proofing” and why contentious environmental studies under NEPA tend to grow into the many thousands of pages, despite the fact that strict page limits for EISs have been recommended by CEQ guidance since 1978. When asked to review NEPA studies, courts are deferential to federal agencies on their substantive determinations.46

On the question of limitations for its judicial reviews of agency NEPA decisions, the court in the Calvert Cliffs’ decision stated: “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgement for that of the agency.”

I keep reading that, but that’s not my lived experience. For example, I remember courts ruling that the BLM’s air quality model should not have been used; often courts weigh in on scientific controversies against the agency position. It’s entirely possible I’m missing something important and legal here, so maybe legal folks can enlighten me as to some kind of overall pattern in agency deference. Anyway…

They are far less deferential when considering topics, impacts, or alternatives that were not included in the environmental study. This dynamic can create a game of “cat and mouse” for project opponents and federal agencies, in which potential litigants try to identify and comment on alternatives or impacts that were not studied, and federal agencies are left to study everything as a means of litigation-proofing their environmental study.

Yes, cat and mouse, and sometimes it feels like judges “bring me a rock, no not that rock” to the agencies.

What the authors have to say about the “denominator” issue

Additionally, many prior studies have taken a very broad approach to estimating the prevalence of NEPA litigation. They do so by dividing the number of cases filed under NEPA (on average just over 100 annually) by the total number of agency actions that could be subject to NEPA litigation, which includes CEs and EAs (on the order of tens of thousands of actions). Most of those estimates rationally find that the litigation rates associated with NEPA are “exceedingly low.”130
Yet, we find such a calculation underwhelming, and especially so for our purpose, which is to study the impacts of the NEPA process on infrastructure development. The rate of NEPA litigation against all NEPA actions is less useful in part because the distribution of actions is extremely skewed. CEs constitute the vast majority of federal actions (upwards of 99%), and most of these permits are relatively short in duration for relatively minor actions.

This is an interesting observation.

We can generalize a bit and classify what we observe as two distinct but overlapping strategies for navigating federal environmental permitting: one that accepts a higher degree of litigation risk and thus has shorter permitting timelines but also higher rates of litigation, and another that has very long permitting timelines, perhaps due to litigation-proofing, and thus relatively lower rates of litigation. The question of which of these “strategies” is optimal would likely be determined by a wide range of unique circumstances of the environmental impacts, politics, and economics of a specific project.
However, we do note that in the sectors with higher rates of private investment in predevelopment, project sponsors appear to accept more permitting risk and to complete permits faster.

And something I’ve argued for:

The litigation databases that we used for this study are naturally oriented toward their users, or attorneys, and thus focused on published cases and legal precedent. Empirical research is much more challenging to conduct, especially in the many cases that do not result in a published opinion, or which are resolved via settlement. The result is a lack of transparency in many of the most important decisions regarding our public works and their mitigations, because many of those decisions are made during litigation settlement negotiations or during negotiations with stakeholders in the shadow of their threats of litigation.
It is in the public interest for transparency to be significantly increased in NEPA litigation and for other costs and litigation associated with the permitting of infrastructure projects. Recent legislative proposals have included transparency requirements addressing only minor, direct costs, such as the agency expenses to prepare an environmental study. A better alternative would be a requirement for federal agencies to publish online all documentation associated with project litigation during predevelopment, alongside the (already) publicly posted environmental study for the project. Given the public interest in project litigation, agencies should also be required to publicly disclose litigation documents instead of leaving journalists and the public to contend with and pay for federal court records.

Finally, here is their chart of kinds of projects they studied, litigation rate, average permit duration and counts.

Bipartisan Policy Center Ideas for Reforming Judicial Review: What Do You Think?

I first ran across The Bipartisan Policy Center when I read their comments on the USDA Climate Smart Forestry and Ag comment request. I was impressed by their work, especially since we don’t usually see them in the forest space. Students: there appear to be many spring internships with them.

Anyway, this fall they published  “Reforming Judicial Review for Clean Infrastructure:  A Bipartisan Approach.”

BPC has had three roundtables thus far with experts from across the political spectrum.

This roundtable was the third in a series on permitting. The first roundtable focused on public engagement, and the second focused on permitting linear infrastructure (i.e., transmission and pipelines). The goal of this roundtable was to foster robust discussions on reforming the judicial review process related to permitting, with participants weighing the pros and cons of a variety of policy proposals from across the political spectrum.

According to a forthcoming study of 355 of the largest energy and transportation projects between 2010 and 2018, solar energy projects experienced the highest litigation rate, with nearly two-thirds facing a claimed National Environmental Policy Act (NEPA) violation. Transmission and wind energy projects similarly face higher-than-average rates of litigation, as well as light-rail transit projects. Maintaining opportunities for people to file meritorious lawsuits against projects that have the potential to unduly harm the environment or communities is vital. Nevertheless, the status quo prevents the accelerated build-out of desperately needed infrastructure, all while increasing costs and discouraging investment.

Since many of us have experience with lawsuits (on the USG and plaintiff sides) I’m curious as to what you think about these.  I put my opinions below each one, more to prime discussion than anything else.

(1) Option: Reduce the Statute of Limitations

Under current law, initial lawsuits can be filed for up to six years after final permitting decisions. Participants generally agreed on the value of reducing that time frame.

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Current proposals in Congress vary for placing time restrictions on legal challenges, ranging from 60 days up to three years. Some participants advocated shorter time limits, while others wanted to ensure that affected communities would have a longer period to file lawsuits. Although no consensus on a specific time frame was reached, the majority felt that a deadline of two years or less to file suit was acceptable, and most were comfortable with a statute of limitations under one year.

I like two years, seems like most file by then anyway in our world.

(2) Option: Reduce Standing 

One proposal raised by participants, similar to a provision in H.R. 1 passed by the House of Representatives earlier this year, is to limit eligibility to those who raised concerns during the public comment period in the administrative process: If a person or group did not express their concern during the process designed to receive such comment, then they would not be able to petition the courts after the administrative process ended. Some participants expressed concern that such limitations could shut persons out directly affected by a project but were not aware or able to participate in the administrative process. Participants also noted that if this change were adopted, agencies would need to do a better job advertising and make the public comment process accessible.

This has always seemed like a no-brainer to me, since people who can afford lawyers tend to also track projects pretty well.  However, I suspect different agencies do better and worse at public engagement.

(3) Option: Elevate Litigation Filed after Final Agency Actions Directly to U.S. Courts of Appeals

One proposal that received near unanimous support at the roundtable was to elevate litigation directly to an appeals court following the administrative process. This option would speed up the entire litigation process by bypassing district courts and eliminating a step in the judicial process. Because litigation under NEPA is essentially an appeal of a government agency decision, participants agreed that moving directly to a court of appeals would streamline the process without undermining the rigor or thoroughness of judicial review.

I don’t see a downside to this..

(4) Option: Establish a Technical Court with Jurisdiction Over Federal Permitting Decisions

Another proposal that received general backing is the establishment of a single technical federal court with jurisdiction over American Procedure Act reviews and NEPA decisions. This court would have the expertise to address these cases in an effective and timely manner. Participants noted that the U.S. Court of Appeals for the D.C. Circuit already has environmental review expertise and could play this role well. Participants also noted that sending appeals directly to a single technical court would solve the issue of court shopping. Overall, participants agreed that this would be an effective solution that would provide certainty to project developers and appropriate judicial review.

I like this one, as I’ve said before, it would be easier for practitioners to track case law and perhaps make for more consistent case law.

(5) Option: Establish a Permitting Review Board for Energy Projects

Similar to the Environmental Protection Agency’s Environmental Appeals Board, an independent technical appeals board consisting of judges would act as a forum for parties to appeal permitting decisions for energy projects. After a final permitting decision is issued, rather than filing an appeal with district courts, litigants could appeal to a review board that attempts to resolve disputes between the parties. If the board is unable to resolve a dispute, the appealing party can raise their concerns to U.S. Circuit Courts of Appeals. The review board could help concentrate permitting expertise in a single independent body and expeditiously resolve disputes. However, some roundtable participants added that appointments to this board would need to be handled with care to avoid it becoming politicized.

If this is important for climate mitigation (renewable energy) why not climate adaptation.. say fuels and prescribed burning projects?  I like the “resolving disputes” aspect rather than “remandng for more paperwork.”

(6) Option: Setting Court Deadlines

A proposal that participants found appealing was to set deadlines for court actions, such as requiring court decisions on federal permitting challenges within a time frame designated in statute. However, there was skepticism as to whether the legislative branch’s decision to place time restrictions on the judiciary would withstand constitutional scrutiny, or whether the deadline would be enforceable.

Constitutional dogs usually won’t hunt.

(7) Option: Setting Deadlines on Agency Remand

Some participants proposed requiring courts to set deadlines for agency action when the judges remanded a decision. (A remand is when the courts send the decision back to the agency for further consideration, or when a judge vacates a permit, which means the courts invalidated or canceled the permit.) In these cases, deadlines for agency action would provide needed certainty on the timeline for next steps for developers. However, as with the previous option, participants questioned whether requiring courts to set agency deadlines would withstand constitutional scrutiny. Congress could, however, set agency deadlines for agency action following remand, though a deadline set in statute would have less flexibility than one set by a court for a specific action under review.

Most agencies don’t kick back and take a break with a remand anyway, so I don’t know what deadlines would help with.

(8) Option: Narrowing the Scope of Decisions

Participants broadly supported narrowing judicial outcomes by directing the courts to specify aspects of review requiring additional analysis, revision, or remand. By specifying the particular aspects requiring attention, agencies  can focus their efforts on rectifying specific deficiencies without the need to entirely vacate permits. This would streamline the process and promote more efficient decision-making. The familiarity of this procedure to the D.C. Circuit also garnered support, as it builds upon existing practices that have proven to be effective in addressing complex regulatory challenges.

I think they already do this to some extent in our world. Not sure I understand when and when not. Maybe our legal friends can help us out here?

(9) Option: Direct CEQ or the Permitting Council to Develop a Public Database of NEPA Lawsuits

Roundtable support was strong for the Council on Environmental Quality (CEQ) or the Permitting Council to establish a public database of NEPA lawsuits that would include information about timelines for both filing of initial claims and total length of the judicial review process. CEQ previously tracked such data, but it stopped doing so in 2013. One participant stressed that transparency is critical for accountability.

Duh. Transparency is also critical for coherent public policy, as well as useful policy discussions and writing of papers.

Institute for Progress Post on Permitting Reform and NEPA

 

As we shall see in the next series of posts, our forest and federal lands world of NEPA has become a piece of a much larger discussion of “permitting reform” that is being pursued by significantly more powerful political actors, and hosts of very smart policy wonks in Coastal think tanks.  Permitting reform, as framed, is much broader than NEPA; it includes all FERC, NRC and any other permitting efforts you can think of.  And yet perhaps our experience may be able to add to the discussion.

I’d like to start with a post by Aidan Mackenzie and Santi Ruiz of the Institute for Progress.

Imbedded in the document is a CEQ report..  “NEPA Litigation Surveys: 2001-2013.”  The FS seems to win the prize for most NEPA cases filed for the years I checked.  I don’t know why CEQ appears to have stopped in 2013.

Is looking at FS data when discussing an example of the ever-popular science “streetlight effect?”

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U.S. Forest Service data is not representative for clean energy

Defenders of NEPA argue that critics exaggerate review delays by relying on unrepresentative anecdotes, claiming that statistics show NEPA reviews to be far less burdensome. For example, in the Roosevelt Institute policy brief, Jamie Pleune claims to debunk the idea that “NEPA-mandated analysis is the primary source of permitting delays.”[4] She points out that the median time for the U.S. Forest Service to prepare an Environmental Impact Statement (EIS) — the most rigorous type of NEPA review — is only 2.8 years.[5] Pleune says she chose to look at the Forest Service because it is “the only agency that collects comprehensive, reliable data regarding NEPA decision-making at all levels of review.” While that may be true, it doesn’t mean the Forest Service is representative of other agencies. The White House Council on Environmental Quality surveyed review times across federal agencies in 2020, and found they take an average of 4.5 years.[6] And the Forest Service is not even the primary agency tasked with reviewing clean energy projects. In fact, out of the 90 clean energy projects that required an EIS over the last thirteen years, only two were completed by the Forest Service.[7] When we look at the agencies responsible for reviewing most energy and infrastructure projects, we see a very different picture.[8]

The U.S. Forest Service is housed within USDA, which has a below-average EIS completion time of 3.31 years. Of the federal agencies most frequently tasked with reviewing clean energy infrastructure projects,[9] only the Federal Energy Regulatory Commission has a lower average completion time than the Forest Service. The Department of Energy, along with the Bureau of Land Management at the Department of the Interior, conducts NEPA reviews for clean energy projects and takes far longer on average. Other departments tasked with reviewing important initiatives, such as congestion pricing (DOT) and nuclear energy (NRC), have some of the highest average review times.[10]

But even in the case of the Forest Service, no one should be proud of taking three years to review projects. These years-long reviews have often led to disastrous results. For example, in 1999, delays in the NEPA process for the prescribed burning of the Six Rivers National Forest resulted in the wildfire that the prescribed burning was meant to prevent from occurring. That even routine reviews take multiple years is an indictment of NEPA, not a defense.

Who decided that the denominator is even relevant to the question of whether and what the problem is? If we go back to my example of “gender discrimination only occurs at a small percentage of universities, so it’s not a problem”, we could add two- year colleges to the denominator, and gender discrimination would be an even tinier percentage .. but certainly a problem to those who experience it. Who gets to decide what is a problem worth dealing with is a function of power, not math.

2. Categorical exclusions under NEPA can be misleading

Perversely, because the NEPA procedure has expanded over the last half-century to touch nearly every federal action, defenders of the status quo can claim that major reviews (EISs) make up only a tiny fraction of all NEPA reviewsFor example, the Roosevelt Institute suggests that NEPA’s impact is exaggerated because 95% of projects receive “categorical exclusions,” or CEs, expedited reviews for projects that don’t have a significant impact on the environment. This argument has also been made by U.S. Rep. Raúl Grijalva, ranking member on the House Committee on Natural Resources. Unfortunately, this statistic misrepresents reality. In response to the administrative burden imposed by NEPA (and case law interpreting it), the number of categorical exclusions for minor actions has exploded, inflating the denominator for what counts as a “project.”

It is true that the vast majority of reviews under NEPA receive categorical exclusions and don’t go through a substantive review process. However, this is largely due to the fact that a surprisingly large set of federal actions must undergo a NEPA review, including those that have no plausible environmental impact. Although the law was originally created to force agencies to assess the environmental impact of “major federal actions,” “major” action was left undefined in the statute. In 1974, a court decision read the term “major” out of the law, effectively requiring the government to review virtually every federal action, including U.S. Treasury paying staff members, USDA conducting educational programs, or the DOE preparing internal administrative documents.[11] Categorical exclusions have proliferated in response to this reality, vastly inflating the denominator for projects.

The vast majority of CEs are for minor actions and cannot be used for major projects except in rare cases where Congress has created legislative CEs. And CEs often require agencies to file paperwork justifying why small actions should avoid years-long reviews. Although completion times for CEs are shorter than the more rigorous Environmental Assessments (EAs) or EISs, they can still create delays of up to a year.[12] While roughly 12,000 substantial environmental reviews occur each year,[13] the roughly 230,000 categorical exclusions each year[14] inflate the denominator.

And of course, litigation and litigation-prep…and what I would add to the below discussion is that it’s not just NEPA claims, it will be FLPMA/NFMA claims, ESA claims, MBTA claims and any other ones that people with lawyers who don’t want projects can use. I’d also add that the below discussion does not go into the timeframes associated with litigation, sending projects back to the agency, redoing and relitigating.. possibly because the info is not collected.  And when folks point out specific cases, it’s “anecdotal.”  It seems to me as if it will always be anecdotal if people don’t collect information on it.

Litigation risk slows down all infrastructure projects

NEPA reviews are ripe targets for litigation seeking a judicial injunction against a project. This procedural vulnerability makes suing agencies under NEPA an effective means of blocking all kinds of energy infrastructure.

Defenders of NEPA argue that litigation of NEPA decisions is relatively rare — for instance, the Roosevelt Institute points out that “only an estimated 0.22 percent of NEPA decisions are litigated.”[15] But this statistic doesn’t capture how the expectation of potential litigation shapes decision-making by federal agencies and project sponsors. And the denominator is (again) inflated by trivial categorical exclusions that are almost never challenged in court.

It makes sense that the vast majority of NEPA decisions aren’t litigated, since they’re overwhelmingly administrative CEs for things like hiring staff. If we look instead at how many lawsuits there are for every important infrastructure project,[16] the calculation changes dramatically: between a quarter and a third of Final EISs get challenged every year.[17]

The ability to sue projects derives from the Administrative Procedures Act, which allows anyone to sue an agency on the basis that it did not take a sufficiently “hard look” at a project under NEPA review. However, what counts as a “hard look” at environmental impact is entirely a matter of case law and judicial interpretation. NEPA’s mandate to “review environmental impacts” is unconstrained and undefined in statute. As a result, NEPA has been wielded as a cudgel: by NIMBYs protecting their property values, companies blocking potential competitors, and short-sighted conservationists blocking clean energy.

Successful litigation against a NEPA review puts pressure on agencies to perform longer reviews in the future. When lawsuits successfully kill a project, the rulings explicitly state that a NEPA document failed to account for some environmental impact, forcing future agency reviews to include that impact.

But just the threat of potential litigation is enough to incentivize agencies to expand their reviews.[18] To avoid potential lawsuits, agencies try to produce litigation-proof reviews that go above and beyond existing case-law standards. A 2014 GAO survey found that these documents are often a waste of agency time:

“Although the number of NEPA lawsuits is relatively small when compared with the total number of NEPA analyses, one lawsuit can affect numerous federal decisions or actions in several states, having a far-reaching impact. In addition to CEQ regulations and an agency’s own regulations, according to a 2011 CRS report, preparers of NEPA analyses and documentation may be mindful of previous judicial interpretation in an attempt to prepare a “litigation-proof” EIS. CEQ has observed that such an effort may lead to an increase in the cost and time needed to complete NEPA analyses but not necessarily to an improvement in the quality of the documents ultimately produced.”[19]

Litigation’s effect on document preparation helps explain the massive expansion of NEPA documents from a handful of pages in the early 1970s to the current average of 1,626 pages.[20]

Opponents of reform argue that NEPA is not the problem per se: instead, agencies are chronically underfunded and understaffed to perform NEPA reviews. But agencies are stretched too thin largely because the procedural requirements have ballooned. Increasing procedural requirements while holding staffing constant drives up wait times. To strengthen agency capacity, reformers need to ensure staff can use their time effectively, not spend years trying to avoid frivolouslitigation.

In the next post, we’ll discuss some of IFP’s ideas for reform.

Secretary Vilsack Has New Idea for Permitting Reform: Create Specialized Court System for Project Reviews

Shout out to E&E news reporter Yachnin  for attending and finding interesting stuff at the WGA Meeting! Governors of different parties agreeing on stuff and trying to solve problems together is well worth some reporting IMHO.

I like the Vilsack idea because it’s not just about NEPA, but would seemingly help make consistent case law around ESA, climate analysis, scientific controversies and so on that seem to be decided more or less randomly by different courts in different cases. And we don’t know if it was Vilsack’s idea or one of his staff, or someone at OGC or at the FS, but still how often do we hear new outside-the-box ideas in this space? Also if the issue is litigation, the tweaks in the so-called Fiscal Responsibility Act and the proposed CEQ NEPA Regs are either not helpful, or in the wrong direction.  I’ll post a few more posts on various efforts and studies in the next few weeks, but props to Vilsack for saying the “L” word out loud.

From this E&E News story:

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When it comes to speeding up often lethargic legal challenges to environmental reviews, Agricultural Secretary Tom Vilsack is floating a novel idea: Create a specialized court system.

Vilsack raised the concept Tuesday in remarks to the Western Governors’ Association at its annual meeting in Jackson Hole, Wyo., where conversations among state officials often turned to possible reforms of the National Environmental Policy Act.
The Biden administration is weighing how to reshape the nation’s bedrock environmental law to streamline environmental permitting and speed the process of reviews.
“The challenge is no matter what you do, somebody always disagrees with it and you have litigation,” Vilsack said.

“Sometimes it’s litigation because people think you should be doing more, and sometimes people think you should be doing a heck of a lot less.”
Preempting his own idea by asserting it is “probably not feasible,” Vilsack then went on to propose a NEPA court system — akin to admiralty courts, which apply maritime laws — that “would essentially be responsible for adjudicating those decisions.”
“I think you’d get greater consistency with people who do this every day,” Vilsack said “You’d have precedent, people would understand what the rules are. You wouldn’t have the forum shopping that takes place in this circumstance.”

Plus you might have some kind of consistent case law for NEPA practitioners to aim for..

Such a court system could potentially serve to balance environmental protections with a need to speed up the often lethargic process, Vilsack said.
“It seems to me that until you deal with the issue of litigation and trying to figure out ways to streamline it in a way that doesn’t interfere with the quality of the analysis and assessment, you’re going to continue to be stuck with taking forever for things to get done,” he said.
The idea appeared to spark the interest of several officials at the meeting, including Utah Gov. Spencer Cox (R), whose response to Vilsack prompted audience laughter. “That makes far too much sense, and there’s no way it could ever happen,” Cox said.
Wyoming Gov. Mark Gordon (R) revisited the idea during a Wednesday panel on infrastructure permitting, describing a separate legal system as “provocative.”
“There is a tendency to try to find the best court to bring a particular action in NEPA,” Gordon said.
New Mexico Gov. Michelle Lujan Grisham (D) responded to Gordon, noting that the idea would require both dedicated funding and training, and pointing to failures in the immigration court system.
“If we’re not willing to take on controversial ideas that are provocative, then we aren’t going to solve problems,” Lujan Grisham said. “I think there’s a there, there. I don’t know exactly what it is.”
She later added, “If we have a stalling aspect, we should figure out a way so that it is a fair objective review, so that we get guidance about where to go and not a situation that continues to stall us out all across the country.”

I’m not sure that it would take any more funding or training, we’re already doing all the work but in a less coherent fashion.

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I did get a chuckle out of the link in the above article to another E&E news article about the proposed CEQ NEPA regs that I wrote about earlier this week.

NEPA experts are still poring over the 236-page draft document. But several said the changes are an encouraging step toward broader permitting reform, balancing efficiency and environmental risk — while staying consistent with the underlying law and court precedent.

“I don’t see a lot of legal risk” to CEQ, said Max Sarinsky, a senior attorney at New York University’s Institute for Policy Integrity.

He described the draft as “meaningful” but “also fairly modest and incremental.”

Well, I’m glad NYU has an Institute for Policy Integrity as opposed to .. I don’t know.. whatever the opposite of integrity is? But it’s OK because foundations are funding them, many of the usual suspects..and even our own tax dollars via EPA.  Now everyone knows I like lawyers and economists (especially forest economists and lawyers), but if we want to provide things like energy to people who need them, I think we’ll need more expertise at the table, or in the university, or at the think tank, or in the White House than those who generate analyses and lawsuits.   Because generally lawsuits are good at slowing down things that are bad (to some). I’m not sure that they’ve ever speeded up things that are good (to some).

The Proposed CEQ NEPA Regs Phase 2: Making Renewable Build-out More Difficult

In yesterday’s post, I suggested that climate and energy policy could use Agreement, Alignment, and Accountability.

In the absence of some kind of  USG agreement, we might hope that at least the Biden Administration would have some degree of alignment.  My observation is that different agencies seem to be influenced by different interest groups, with different views which leads to massive non-alignment.

Sometimes the Admin says that they are big fans of a massive renewable buildout across federal lands.  According to this press release:

The Biden-Harris administration is committed to expanding clean energy development to address climate change, enhance America’s energy security and create good-paying union jobs. The projects we are advancing today will add enough clean energy to the grid to power millions of homes,” said Secretary Deb Haaland. “Through historic investments from President Biden’s Investing in America agenda, the Interior Department is helping build modern, resilient climate infrastructure that protects our communities from the worsening impacts of climate change.”

“The BLM’s work to responsibly and quickly develop renewable energy projects is crucial to achieving the Biden-Harris administration’s goal of a carbon pollution-free power sector by 2035,” said BLM Director Tracy Stone-Manning. “Investing in clean and reliable renewable energy represents the BLM’s commitment to addressing climate change and supports direction from the President and Congress to permit 25 gigawatts of solar, wind and geothermal production on public lands no later than 2025.”

As we’ve discussed before, the solar industry had concerns about the BLM proposed conservation rule.. but on the other hand BLM reduced the fees by 50% on federal land, so that solar and wind would generate more profit (or cost less to attract investors).  So that’s not as clear an alignment as might be possible, but even less aligned appears to be the recent Proposed CEQ NEPA regulations.

Ted Boling, formerly of CEQ, called the NEPA changes in the Fiscal Responsibility Act “a full employment program for environmental litigators.”  Since based on Ted’s observation,  they have already reached full employment via the changes in the Fiscal Responsibility Act, it’s hard to imagine what would happen if all the changes in the Proposed NEPA regs make it into the final rule.   Perhaps law schools could get funding from the Feds to expand their programs..

Now to be fair, perhaps at least the Congressfolks intended to streamline processes.  It does seem to me, though, that there is a gap between Congressional staffers and environmental lawyers on the one hand, and NEPA practitioners in agencies, on the other hand, about what are useful interventions that might help make NEPA procedures better.  It seems like some of the ideas may sound great to the people writing them, but they have no idea about how things work in the real world of agency NEPA.   My impression of these proposed regs was that of CEQ tying knots around agency efforts of all kinds, and making sure that the regs bristle with new legal hooks. Yes, it’s a climate emergency and we need  to build things  (by 2030).. but maybe not at the risk of reducing the decision-making power of those who currently have their feet on the brakes.   So we have lots of funding via new bills, but no one has taken their feet off the brake, in fact they are expanding the braking power.  I don’t know what the auto analogy is at this point, but we could waste a great deal of  (borrowed) money and get nowhere.

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From the NAFSR comments (National Association of Forest Service Retirees):

The CEQ regulations need to provide consistency, reliability, and simplicity so the Federal agencies, public, and courts understand requirements related to the statute, as well as the flexibility allowed for a wide variety of applications and efficiencies today and into the future. There were some unnecessary NEPA burdens imposed by the previous administration and also by Congress in the Fiscal Responsibility Act.  Including the changes in this proposed regulation, the cumulative impacts of all these new requirements may make it impossible for agencies to efficiently and effectively meet requirements to integrate environmental considerations in their planning and decision making. Additionally, political whip-saw changes to the CEQ regulations upset an orderly process for agencies to plan, decide on, and implement programs. The instability of the law and CEQ regulations means agency NEPA procedures, guidance, and training are constantly out of date.

In our view, CEQ should avoid requiring agencies, NEPA contractors, and legal professionals working for project proponents and opponents, as well as judges in the federal courts, to strike out into unexplored legal territory.  This is unlikely to either help agencies increase the efficiency of project planning and implementation, or respond quickly and flexibly to climate emergencies as they arise.

The stability of the pre-2023 statute and the pre-2020 CEQ regulations provided a reliable and steady baseline for agencies to operate within.  While case law and agency practices raised questions, burdens, and remedies, CEQ guidance and agency innovation have helped agencies navigate these challenges in the past.

(my bold)

And

Stability also involves not making changes that are likely to be litigated. Litigation extends the time until agencies understand and can act on requirements.  Two potential outliers compared to what we might call “Classic NEPA based on the 1978 Regulations” are both related to the idea of NEPA as an action-forcing statute, and are likely to be litigated.  The first is an effort to walk away from acknowledging NEPA’s history as a procedural statute; the second is requiring mitigation.  It’s not clear what problems these changes would be responding to; they are likely to be litigated or clarified by Congress; and they do not add modernization or efficiency.   If there are not enough substantive environmental statutes on the books, we think the answer is to encourage Congress to pass more, not to add more requirements to the NEPA process.

One of the least helpful additions is not from CEQ, at all but a new Congressional requirement to review programmatics every five years (for us, think RMPs and forest plan EISs).  This seems puzzlingly unnecessary. I’ve never heard anyone complain that agencies don’t review programmatics enough; I’ve only heard from previous CEQ folks that agencies should use them more.

I know many of you have written very thoughtful comment letters on the CEQ Proposed NEPA Regs.  Please put your thoughts and links to your comments below.

Honeybees on public lands?

Western bumblebee (Xerces Society / Rich Hatfield)

The rusty-patched bumblebee and Franklin’s bumblebee have been listed under ESA and other species are being considered.  The Xerces Society considers 11 species of bumblebee to be at-risk.  The Forest Service and BLM allow special use permits for non-native honeybee apiaries on their lands based on categorical exclusions.  Here is the one applicable to the Forest Service (36 CFR 220.6(d)(8)):

(8) Approval, modification, or continuation of minor, short-term (1 year or less) special uses of National Forest System lands. Examples include but are not limited to: (i) Approving, on an annual basis, the intermittent use and occupancy by a State licensed outfitter or guide; (ii) Approving the use of National Forest System land for apiaries; and (iii) Approving the gathering of forest products for personal use.

The science?  According to this article:

Most scientists agree that honeybees are not native to the Americas. They were imported to the continent in the 1600s on cargo ships from Europe and arrived in Utah in the mid-1800s.

Honeybees tend to outcompete native bees for pollen. Tepedino said, “if you put enormous numbers of honeybees on public lands … the native bee population must, by necessity, be deprived.”

A study by Tepedino concludes that the honeybees in a single apiary can, in just four months, remove enough pollen to raise five to 13 million native bees.

O’Brien said that competition is also worsened by climate change. Because climate change leads to more drought and as a result fewer flowers, it is becoming more difficult for native bees to compete with honeybees, she said.

Mary O’Brien (a botanist) also said the CE was instituted in the 1980s, before scientists knew very much about native bees. She points to the western bumblebee, a species she said is “critically imperiled” in Utah. It is particularly threatened by diseases, including ones that are transmitted by honeybees.

Project Eleven Hundred was born about five years ago in response to a request for a permit to place 100 hives each at 49 sites in the Manti-La Sal National Forest.  That permit was denied, but there is currently a permit on the Uinta-Wasatch-Cache National Forest that is up for renewal at the end of this year, which is being contested and may be litigated.  Project 1100 has also petitioned to remove the CE.

In forest planning under the 2012 Planning Rule, species of conservation concern are to be designated SCC if there is a risk to their persistence in the plan area.  Both listed species and SCC must be addressed in forest planning to ensure that the plan decisions (components) adequately protect these species from threats.  Since commercial non-native apiaries are a threat to these species, a forest plan should consider, and probably adopt standards that regulate or prohibit issuance of permits for honeybees.  (I’m guessing wild honeybees are found on most national forests.)

The proposed revision of the Manti-La Sal National Forest Management Plan  allows apiaries, subject to a standard stating that permits “shall not be issued for placement of hives within 5 miles of known insect-pollinated, at-risk plant species locations or at-risk insect populations.” It also states that a maximum of 20 hives can be issued for each apiary special use permit (which is arguably “not commercially viable”).  O’Brien said this is an impossible precaution to enforce. “As if they know where [native bees] are,” she said. “…The western bumblebee would be considered at risk, and they don’t know where it flies.”

The western bumblebee was NOT designated as an SCC in the Manti-La Sal’s draft of its revised forest plan.

Presidential election has consequences for BLM plan?

The Rock Springs (WY) office of the BLM has recently released a draft of its resource management plan.  The DEIS includes the traditional four alternatives:  no-change, protection, development, and “balanced.”  As Governor Gordon’s natural resources policy advisor put it, “In this case they kind of broke precedent and chose (alternative) B, the most resource-restrictive development.”  A retired BLM employee has alleged that presidential politics played a role.

The most balanced plan for managing millions of acres of federal land in central Wyoming — and the alternative that Bureau of Land Management employees and others put the most time, effort and money into — was rejected by the past two presidential administrations, a retired BLM employee said.

The Trump administration likely would have pushed Alternative C because it favors more drilling for oil, he said.

But the Biden administration has gone to the opposite extreme, so the BLM now is pushing forward with Alternative B, which designates 1.8 million acres as “areas of critical environmental concern” (ACES).

Evans said it’s disheartening that two presidential administrations boosted the plans with the least amount of effort put into them.

“The science and the work to do that was all done on D,” Evans said. “And it’s kind of a shame that what the people in the field office and the cooperators spent all that time doing was rejected.”

Now many of those same BLM insiders who worked for years and spent millions of dollars fleshing out a balanced alternative instead have to push the administration’s preference and sell it to Wyoming residents and officials.

The State of Wyoming is considering suing over the plan (even though is not final yet).  Road management and minerals are key issues.

Based on my experience, I would agree that there may not be a precedent for selecting the most resource-restrictive land management plan alternative .  I also have not seen this level of direct political involvement in picking an alternative in Forest Service planning.  Typically in the Forest Service, any political “wants” would be built into the “balanced” alternative that would end up being selected.  Please let us know if anyone has had a different experience.  (Maybe this is a result of the different structures and cultures of the Forest Service and BLM.)
I have mixed feelings about this approach, where all but one are essentially straw alternatives.  Legally, all action alternative must be given equal treatment in the effects analysis, but that doesn’t preclude more serious thought being put into to the design of one alternative.   If one of the others is actually selected it would create the problem the employee described here – it has to be prettied-up at the end of the process.  I think it is important to meaningfully evaluate all reasonable alternatives, but there is a difference between “reasonable” meaning “what would meet the purpose and need” and “reasonable” meaning, “what the agency could realistically select.”  I think what is missing from public disclosure is the actual iterative alternatives that are considered in building the preferred alternative.
On October 9, the BLM extended the public comment period to January 17.  I guess that would buy them more time to refigure out the details of this alternative, or as they point out “In any resource management planning process, the final plan may mix and match portions from all the alternatives.”   “Rebalancing” them I suppose.

Proposed CEQ NEPA Regs: Interpretation Help Requested

I could use some help.. I’m working on comments for the Proposed CEQ NEPA regulations. Here’s a link to the redline.

Here’s what the White House said about it:

CEQ’s Bipartisan Permitting Reform Implementation Rule would modernize and accelerate environmental reviews under the National Environmental Policy Act (NEPA), encourage early community engagement, accelerate America’s clean energy future, strengthen energy security, and advance environmental justice

Sure.. doing more analysis and “accelerating environmental reviews” are the same thing (reminds me of the 2012 Planning Rule claims). Because if agencies involve the public sooner and do more analysis..everyone will agree and there won’t be litigation. And if there is successful litigation, it’s proof that those agency NEPA practitioners are doing things wrong – again. Ah.. the Circle of NEPA Life!

Anyway, the legal minds out there could really help me out by helping me understand if I am missing something. The Proposed Reg uses the term “vulnerable communities” which it doesn’t define. It also talks about “communities with environmental justice concerns.” Now conceivably, any community could have “environmental justice concerns”.. so that’s confusing to me.

The Proposed Reg does define environmental justice..

“(§1508.1 k) Environmental justice means the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision making and other Federal activities that affect human health and the environment so that people: (1) Are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and (2) Have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.”

If I read this correctly, it means “all people” so that community members are “fully protected from disproportionate and adverse health and environmental effects.” So I thought about say, new transmission lines and wind facilities, even offshore wind. It seems to me that every new facility would have at least some (certainly) disproportionate and (litigatably) adverse health and environment impacts. I don’t quite understand being “fully protected from ..health and environmental effects.. including those related to the legacy of racism or other structural or systemic barriers.”

Now as far as I can tell, the regs don’t say that agencies can’t do disproportionate things, but must analyze them in § 1502.16.

The potential for disproportionate and adverse human health and environmental effects on communities with environmental justice concerns.

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Never fear, though, the Council may actually streamline some particular NEPA compliance:

§ 1506.12 Innovative approaches to NEPA reviews.

(a) The Council may authorize an innovative approach to NEPA compliance that allows an agency to comply with the Act following procedures modified from the requirements of the regulations in this subchapter, to facilitate sound and efficient environmental review for actions to address extreme environmental challenges consistent with section 101 of NEPA. Examples of extreme environmental challenges may relate to sea level rise, increased wildfire risk, or bolstering the resilience of infrastructure to increased disaster risk due to climate change; water scarcity; degraded water or air quality; disproportionate and adverse effects on communities with environmental justice concerns; imminent or reasonably foreseeable loss of historic, cultural, or Tribal resources; species loss; and impaired ecosystem health.

Note that “increased wildfire risk” is on the list.. as is the more generalized “impaired ecosystem health”. I could rationalize quite a few FS projects that way.. In fact, the FS has used existing CEQ emergency authorities on some projects.
And…”disproportionate and adverse effects on communities with environmental justice concerns” which, if I interpret correct, could be.. any community. It’s a pretty broad window. But if projects are to pass through it, they must go through two layers at least of environmental law folks, first to get the “innovative approach” and then through the courts if someone has the bucks to litigate. Also note that there is no public comment on the innovative approach, and only consultation with potential cooperating agencies.

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If these regs go through, I’m hoping the FS will use “wildfire risk” to justify perhaps a regional PODs network in each Region?

There are many interesting things about this proposed reg.. but my question is “do you read it the same way?”- that any disproportionate impact (project) could lead to any community having an “environmental justice concern?”.