- The “Building United States Infrastructure through Limited Delays and Efficient Reviews (BUILDER) Act of 2023” would reform and streamline permitting, reduce litigation, and focus environmental reviews – helping reduce costs for Americans by speeding the development of more energy resources and innovation here at home while helping to lower global emissions.
- The House Committee on Natural Resources found that delays caused by the National Environmental Policy Act (NEPA) analysis adds an average of $4.2 million to project costs.
- Changes to the current permitting process are expected to increase jobs, clean energy, and reduce emissions. For example, the Cardinal-Hickory Creek Transmission Line Project is one of 22 projects currently on hold, that would create 1.2 million jobs and increase wind and solar generation by 50%. It has been going through review since 2014 but remains on hold due to litigation.
On Tuesday, February 28, 2023, The House Committee on Natural Resources held a hearing to discuss the “Building United States Infrastructure through Limited Delays and Efficient Reviews (BUILDER) Act of 2023”. The BUILDER Act aims to increase efficiency through permitting reform by reducing repetitive and lengthy processes while focusing on environmental protection and community participation.
The BUILDER Act will primarily reform The National Environmental Policy Act (NEPA) which is a common cause of delays. NEPA was enacted in 1969 and created the White House Council on Environmental Quality (CEQ). The BUILDER Act would clarify ambiguous provisions, reflect modern technologies, optimize interagency coordination, and facilitate a more efficient and timely environmental review process. NEPA directs federal agencies to produce detailed statements on major federal actions that significantly affect the quality of the environment. While originally intended to ensure a balance between protecting the environment and developing natural resources, its ambiguous language has allowed NEPA to evolve into an extremely lengthy process with reviews reaching far beyond the time needed to construct projects.
NEPA analysis adds an average of $4.2 million to project costs. Many key terms were not defined by NEPA, such as determining whether proposed actions are considered “major,” “federal,” or whether they will have a significant effect or “foreseeable impacts” on the environment. This ambiguous language leads to CEQ regulations or litigation to make that determination. CEQ originally finalized all its regulations by 1978 but has consequently issued more than 30 guidance documents to federal agencies regarding NEPA compliance. This complex web is contributing to the fact that NEPA is the most frequently litigated federal environmental statute, adding significant time and cost burdens.
NEPA HOLDING BACK FEDERAL PROJECTS
Congressman Garret Graves of Louisiana introduced the BUILDER Act after meeting with Brian Deese, former Director of the National Economic Council under President Biden, and John Karey, U.S. Special Presidential Envoy for Climate. The American Rescue Plan, the Infrastructure Bill, and the Inflation Reduction Act set aside a cumulative $610 billion for energy transitions. They concluded that the federal government is incapable of delivering those funds without permitting reform. NEPA is holding back the green transition.
Most projects in the United States (U.S.) do not undergo NEPA review. NEPA is only enacted when certain criteria are involved. NEPA reviews are only triggered when federal funds, resources, or lands are involved. NEPA is meant to protect the environment but is now hindering the implementation of many federal green projects resulting in delays and increased costs for numerous projects ranging from transportation and infrastructure to forestry and energy development. Projects in place aimed to create green energy and jobs, and reduce emissions, will be thwarted by NEPA. Projects do not achieve intended benefits until they are actually implemented.
CONSEQUENCES OF NEPA
For example, oil and gas development must go through three rounds of review. The Mineral Leasing Act requires the Bureau of Land Management (BLM) to issue permits within 30 days but has a backlog of over 5,000 permits due to prolonged NEPA analysis.
Similarly, NEPA is a significant challenge for renewable energy development. Out of all the Department of Energy’s (DOE) NEPA projects, 42 percent are related to either clean energy, transmission, or environmental conservation, while only 15 percent are related to fossil fuels. Likewise, of the BLM active NEPA documents, 24 percent are renewable energy projects while only 13 percent are related to fossil fuels. Inefficient permitting reduces the value of invested dollars, hurts the United States’ competitiveness and security, and significantly reduces cumulative emissions reductions.
Overall, NEPA contributes to enormous amounts of burden hours on resources. NEPA Environmental Impact Statements (EIS) take an average of 7 years to complete and result in reports 600 pages long. This is double the length the Obama-Biden administration suggested for EISs in 2012 when they released guidance that EISs should normally be less than 150 pages and for proposals of unusual scope or complexity should normally be less than 300 pages.
ALTERNATIVE CAUSES OF DELAYS
Ranking Member of the House Committee on Natural Resources, Congressman Raul Grijalva, addressed concerns about rolling back NEPA regulations, arguing that NEPA is not the main culprit of delays. Citing research from the University of Utah College of Law, they argue there are three other main causes of energy project delays.
- Underfunded agencies with a lack of staff, budget, and expertise;
- Delays attributed to operators and market conditions;
- Compliance with other laws aside from NEPA such as state and local laws.
According to BLM, in 9 out of the last 10 years, it has spent more time waiting for gas and oil operators to submit information than it has spent reviewing applications. Market conditions have caused operators not to prioritize certain applications and other issues with the project’s operators are attributed to delays. In order to address one of the main causes of delays, the Inflation Reduction Act has allocated $1 billion to federal agencies in efforts to staff and train federal agencies to carry out efficient and effective environmental reviews. However, this argument tells you much more about the inefficiencies within federal agencies that it requires an additional $1 billion in government funding.
The BUILDER Act redefines complicated terms, eliminates repetitive processes, and establishes reasonable timelines to avoid reviews from dragging on. The repetitive, lengthy processing time is hurting efficiency. Inefficient permitting reduces the value of the dollar invested, hurts U.S. competitiveness and security, and significantly cuts cumulative emissions reductions. There is bipartisan support for the BUILDER Act as lawmakers do not wish to get rid of NEPA but amend it. The goal is to have robust environmental protection without weighing down projects with red tape and litigation. The US would not be able to achieve its green energy goal without reform let alone energy security.