Renewable energy infrastructure and other projects could be more easily permitted under existing federal laws and regulations if federal agencies would more boldly use the authority they already have, natural resources lawyers say as Congress grapples with permitting changes.
Federal agencies, especially the Interior Department, control 27% of all land nationwide and roughly half of the land in the West and Alaska, giving them the discretion to push through major infrastructure projects if they choose to use it, said Kyle Parker, a partner at Holland & Hart LLP in Anchorage representing oil, gas and mining industry clients.
“It could be done under existing laws,” he said. “We don’t need to go through a statutory change.”
Sen. Joe Manchin (D-W.Va.) has said he wants to include a federal permitting overhaul in the annual National Defense Authorization Act or possibly the government funding bill that is needed to avoid a government shutdown after Dec. 16. Some House Democrats oppose the permitting overhaul because they say it would ease approval for fossil fuel projects.
Renewable energy, electric transmission, and critical minerals projects are a priority of the Biden administration and the Interior Department, but it often takes years to approve them as officials study environmental impacts under the National Environmental Policy Act and attempt to avoid litigation.
But the pace with which agencies navigate NEPA is under the control of agency leadership—something congressional action may not be able to affect, lawyers say.
“There is no law that can be written that will adequately overcome the hurdles created by weak or contradictory agency leadership and risk-averse bureaucracy,” said Thomas Jensen, a partner at Perkins Coie LLP in Washington.
Need for Clear Policy Direction
Parker pointed to Alaska’s proposed Ambler Industrial Access Project, a 211-mile road that would grant companies’ access to copper and critical minerals in a remote mining district, as an example of the Interior Department being unclear about its policy goals.
Interior plans to decide by the end of 2023 about whether to permit the project, which was proposed in the Obama administration, approved under Trump, and later halted by the Biden administration in order to take a closer look at the environmental threat it poses. At the same time, the administration is promoting domestic critical minerals production on federal lands.
Agencies—especially Interior—aren’t affirmatively implementing their agendas and pushing projects through the permitting process, Parker said.
“If the agencies and policymakers at the agencies actually articulated a policy direction, it could be done under the existing laws,” he said. “Until the political leadership is issuing some clear direction, and driving those policy decisions, we’re going to be caught up in the protracted proceedings.”
The Interior Department declined to comment.
Environmentalists reject the idea that infrastructure permitting, especially on federal land, needs to be reformed by Congress to push through projects.
The clean energy transition should be done without weakening environmental laws, cutting regulations and limiting public involvement, said Raul Garcia, a legislative director for the environmental law firm Earthjustice. Manchin’s proposal would expedite fossil fuels permitting at the expense of community involvement, he said.
Permitting reform is “driven by highly politicized development interests, not the broader array of public interests,” including building clean energy infrastructure and respecting environmental justice and the natural and cultural heritage of the places affected, said Erik Schlenker-Goodrich, an attorney and executive director of the Western Environmental Law Center in New Mexico.
Federal agencies have the power to employ NEPA as a tool to more effectively and predictably communicate their policy direction and how that policy conforms to the law, he said.
Schlenker-Goodrich said he’s “deeply skeptical” of Congress’ ability to modernize environmental laws.
The Biden administration can improve the permitting process by learning from each of its environmental reviews to test how accurate they were and use that information to speed up future reviews. It also can focus on broader, program-level environmental reviews to make the permitting process more predictable for everyone, he said.
Federal agencies also have the ability to expedite permitting by strictly adhering to a permitting schedule as they navigate compliance with NEPA and other federal permitting laws.
“The thing that permitting reform attempts to address and could be addressed without changes in the law is providing greater certainty on timeframes,” said Svend Brandt-Erichsen, a partner at Nossaman LLP in Seattle.
Agencies often get side-tracked on analyzing issues that aren’t truly significant to a project, amassing needless detail, said Ann Navaro, a partner at Bracewell LLP in Washington.
Officials have the power to be more clear in their policy direction so agencies can be more disciplined in focusing on meaningful issues, she said.
“The process can be made more efficient by more intensive process management by professionals with project management skills, a reduction of internal layers of review required for categories of actions,” and more resources to process permit applications, Navaro said.
Agencies often frustrate developers when they fail to adhere to permitting timelines—a product of decades of judicial review of NEPA documents whereby courts will pick out details of an environmental review, conclude they’re inadequate, and trigger years of additional process, Brandt-Erichsen said.
Pressure to complete a NEPA review within a year has pushed agencies to require developers to do more analysis before the NEPA process begins, but new issues crop up during review and bog down the process anyway, Brandt-Erichsen said.
The “Fast 41” program was created by Congress in 2015 to expedite certain infrastructure projects and encourage adherence to deadlines, but the Biden administration has yet to use it effectively, Jensen said.
“Agencies freeze in place when litigation gets filed,” he said. “All pens go down, often for years. Why?”
Litigation is routine in permitting, and federal agencies can use their existing authority under Fast 41 and other laws to keep projects moving, Jensen said.
Agencies can help developers avoid, minimize and compensate for adverse impacts to assure projects move ahead, he said.