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I never envisioned being immersed in the permitting and government regulations weeds. But here we are, talking about a government entity less known than FERC.
Sounds like a snoozer?
I promise a positive payoff at the end.
 I’m referring to NEPA, the National Environmental Policy Act. NEPA became law in 1970 and was intended to be a quick second review of federal decisions. But like many government programs, its purview spread like the plague.
In a 1971 ruling related to a nuclear power project in Maryland, the D.C. Circuit Court of Appeals decided that NEPA didn’t go far enough. It concluded that agencies should interpret and carry out NEPA’s requirements “to the fullest extent possible.”
Oh brother!
That’s the last thing you want to tell a government entity. Instead of being a final check, NEPA became a massive hinderance.
Until last week, when the Supreme Court weighed in.
I know climate advocates are thinking this can’t be good, particularly given Judge Kavanaugh authored the conservative majority’s summary opinion.
Stick with me.
The Supreme Court ruled 8-0 that federal agencies should focus on the environmental impact of a project itself, and forget about second-order impacts.
Judge Kavanaugh basically bitch-slapped the lower courts and suggested that they should defer to federal agencies to review NEPA studies.
He wrote, “The goal of the law is to inform agency decision-making, not paralyze it.”
Since its inception NEPA has played a central role in whether infrastructure projects get built. The broad interpretation subjected every ruling to potential litigation causing projects ranging from transmission lines to solar farms to incur long delays.
The excellent Heatmap article that summarized the ruling included a quote from University of Michigan law professor Nicholas Bagley, that says it all:
Interpreting Kavanaugh’s message to the lower courts Begley said, “We keep telling you to knock it off. You keep not listening. So knock it the f#@k off.”
Well said.
Here’s the good part.
This ruling doesn’t really help the fossil fuel industry as much as it might help clean energy. That’s because a 2005 law exempted most oil and gas drilling from the NEPA process.
Surprise, surprise.
An analysis by the R Street Institute - a center-right think tank - concluded that 42% of the projects that were delayed by NEPA were related to green infrastructure or conservation.
Leary of a center-right think tank?
The Center for Growth and Opportunity at Utah State University found that the average time to complete the NEPA process across all energy types was three years.
I told you there would be a payoff in the end, and it’s the end of NEPA as a major roadblock.
As Heatmap aptly put it: The Supreme Court just started a permitting revolution.
#NEPA #permitting #scotus #cleanenergy