Two documents came across my desktop recently. Together they provide the theme of this piece. The first was an oblique call from the Society for American Archaeology Leadership to meet with our US Senator, John Fetterman, over the recently passed House Bill, HR 1.
The second was a NYTimes Editorial Board editorial of May 7th: “We desperately need a new electrical gird. Here’s how to make it happen.” What caught my attention was the centrality of the National Environmental Policy Act in both pieces, to a greater or lesser extent the villain in why energy projects are being held up.
My Spidey sense immediately raised an alarm. When the right wing in the US House of Representatives and the generally liberal editorial board of the Grey Lady are singing from the same hymnal, something is going on. Further coloring my view is a career in environment in transportation, where every decade or so there is clamor for changes to NEPA as the fix for slow project delivery. The call always comes from industry and Congress, both generally clueless on the workings of NEPA. Those of us in the trenches have long known that NEPA is always the scapegoat (sometimes it is Section 106 just to mix it up a bit), but never the core issue. So this most recent alarm rings hollow, although their convergence rings a greater one.
There’s simply too much here to unpack. HR1, The Lower Energy Costs Act, is not just “drill, baby, drill,” but also an assault on renewable energy in general and the Inflation Reduction Act in particular. It is also another try at neutering NEPA. The Times, on the other hand, is rightfully concerned over how to expedite the crush of power lines and grid infrastructure needed to transition from a fossil-fuel based economy to an electric one. Despite offering some reasonable approaches, in their pearl-clutching panic they may have also signed on to the NEPA boogeyman.
Is NEPA a Real Problem?
Is NEPA the real problem, either in speeding up oil and gas drilling, or conversely expediting renewable energy projects? As stated above, my own experience at the state DOT suggests that NEPA was never the core reason for project delays. Not surprisingly, the number one cause was simple lack of funding. Projects went through involved NEPA steps, including numerous EIS-level projects, when not only was there no identified funding for the projects, but no prospects for funding. Why the projects were carried on the books is anyone’s guess, but certainly some of it was placating local politicians. NEPA analysis took much less funding than actual construction and as long as NEPA progress could be shown, then the “project” was moving forward.
The national focus has been on EIS-level projects (I presume as you are reading this at this point, you know the differences between an EIS, and EA, or CE). Over 95% of our DOT’s projects in quantity and in dollars were CE-level projects, not EIS’s. Over the years, we had gotten expert at moving CE-level projects through environmental review, so that no one within the agency every worried about those schedules. We had developed tools to expedite the CE process, including a form-based approach, ultimately hosted on a web-based environment. If the project is simple and straightforward, nothing beats a form and forms relieve the need for page limits. Even if there are attachments, a form focuses the preparer on what’s important and what information is needed. In addition to forms, our agency worked closely with the FHWA, or federal partner and funder to develop programmatic agreements that included common and predictable projects, making some CE’s by definition, others CE’s by specific tests. Finally, our programmatic agreements were lined up with other programmatic agreements with other agencies, Federal and State, that had authority over review, approval, or other permits, notably the USACE. These programmatic agreements set ground rules on who did what, and more importantly ended duplicative reviews. I’ll come back to these later.
Is there data on this? Is the NEPA brick wall fact or a folk tale? Actually, there is some data. First, most NEPA decisions do not involve an EIS. In 2014, GAO stated that less than 1 percent of all NEPA decisions were for an EIS. While most visible and reported environmental studies are EIS’s, in truth (like my DOT) the bulk of the sausage being made is CE-level. It’s not visible because it’s so common, and it’s not newsworthy because it’s a rare CE that raises a ruckus with the public. Remember, categorical exclusions are by definition projects that do not have a significant environmental impact.
A 2022 review of NEPA timelines by John C. Ruple, Jamie Pleune & Erik Heiny of the University of Utah and Utah Valley University, showed that within the US Forest Service, an agency that produced 41,000 NEPA decisions between 2004 and 2020, 870 were EIS-level (2 % of the total). It is true that some EIS-level projects took an inordinate level of time to complete, but these were the outliers. Looking at the median times, instead of the mean times is a more telling measure. Whereas the mean time to complete the USFS EIS was 3.4 years, the median time was 2.8 years. For CE’s, mean times were 7 months; median times were 4 months. The outliers get the press coverage and obscure the overall trends. Whether a project required an EIS-, EA-, or CE-level review poorly predicted the length of time for that review, accounting for only 25% of the variability. Some CE’s took longer than some EIS’s. Other factors that affected review times included low staffing, inadequate project funding, prioritization of the project within the review agency, operator and market priorities in oil and natural gas projects, delays in the applicant providing information, lack of agency planning, and regional differences.
HR 1 attempts to cut NEPA into bits, first by reinstating Trumps 2020 CEQ regulations, then by legislation exempting oil and gas development from anything left. If these studies are to be believed, we as a nation will have sacrificed environmental protections from oil and gas development, but might gain virtually nothing in return. Although the focus of HR 1 is almost entirely in oil and gas promotion, there is one provision delicious in irony dealing with offshore wind development (Section 20018). With the sincerity of Charles Montgomery Burns, it calls for a thorough environmental study of offshore wind, to include:
(1) The impacts of offshore wind projects on
(A) whales, finfish, and other marine 9 mammals;
(B) benthic resources;
(C) commercial and recreational fishing;
(D) air quality;
(E) cultural, historical, and archaeological 14 resources;
(G) essential fish habitat;
(H) military use and navigation and vessel 18 traffic;
(I) recreation and tourism;
(J) the sustainability of shoreline beaches and inlets.
(2) The impacts of hurricanes and other severe weather on offshore wind projects.
(3) How the agencies described in subsection (a) determine which stakeholders are consulted and if a timely, comprehensive comment period is provided for local representatives and other interested parties.
(4) The estimated cost and who pays for offshore wind projects.
Furthermore, in Section 20119, the GAO is required to publish a report on all potential adverse effects in the North Atlantic offshore wind project Planning Area, to include:
(1) maritime safety, including the operation of 15 radar systems;
(2) economic impacts related to commercial 17 fishing activities;
(3) marine environment and ecology, including 19 species listed as endangered or threatened under the Endangered Species Act.
What’s good for the goose is apparently not good for the gander.
If NEPA is not the Problem, How Do We Expedite Grid Infrastructure?
NEPA is not the main cause for the delay of projects requiring an EIS. Ruple et al showed this for the USFS. My own experience at our DOT supports this conclusion. I suspect any other environmental professional in transportation would support these conclusions. Jiggering NEPA to advance oil and gas projects is unlikely to do anything other than damage the environment. Applying the same tactics to virtuous renewable energy projects and remaking the electric grid is unlikely to give a different result, particularly if these projects are largely privately funded. How then to actually speed needed electrical grid projects?
To be fair the NYT Editorial, NEPA reform was only one of a suite of recommendations. In addition, they were:
Making a single federal agency in charge of major transmission projects.
Endow FERC with the power to approve the routes of major electric transmission lines that pass through more than one state (but only to major projects of national importance)
Identify where power lines should go and begin the approval process before companies apply.
Mandating a minimum transfer capacity for each regional grid.
Putting a single federal agency (FERC) in charge of major transmission projects/give FERC power to approve routes would provide parity with oil and gas pipelines. However, as the Times noted, “state and local governments would retain oversight of the smaller projects that make up 90 percent of all transmission projects.” *(my emphasis) This sounds eerily like the issue of EIS-level projects versus CE-level. This relief may help the largest projects that move high amounts of electricity from South Dakota to the Pacific Coast, but little else. However, it is reasonable to place FERC at the center of all Federally-funded grid projects, whether national or local. As 30 years with the DOT showed, even if the funding is Federal and oversight is by FHWA, close programmatic cooperation with the state DOT and other involved agencies, plus healthy public involvement, made the process work well. At the end, a citizen could care less who signs off on the NEPA document, as long as it gets built and the environment is protected.
Identifying where power lines should go in advance is the essence of planning, but unless that planning includes adequate public involvement, you will get blow back, sometimes extreme and often justified. Taking a page from FHWA, a process that linked planning and NEPA, PEL, could provide a useful model for planning grid powerlines and facilities. To the degree that the government can find and rank good solar and wind sites and can anticipate their need several years in advance, a concerted up front planning effort with adequate public involvement could smooth the way for permitting and construction.
Going back to what expedited environmental review at the state DOT, some of those ideas are readily applicable to the electric grid buildout.
Push programmatic approaches, both in what qualified as a Categorical Exclusion, and in removing duplicated reviews by other federal agencies or state and local agencies. Implicit in the programmatic approach is the acceptance of a form-based process for CE review. (This is instead of eliminating all CE documentation and review as proposed in HR 1.) Have FERC meet with all of the stakeholders and especially those with regulatory authority. Push hard for agreements to eliminate the need for redundant reviews.
FERC needs to embrace the notion of a vigorous public involvement, early and often. It may seem counterintuitive that deeper and more sincere public involvement speeds projects but it does. We certainly know the converse to be true. The faster and harder you push on a project schedule, the longer it will take to complete. Unless you are willing to repeal NEPA (HR 1 aside), environmental consideration and public involvement will always be central to the process. Doing each of these better is the path to faster approvals.
Alluded to in the Ruple et al article is the notion that adequate staffing of environmental offices (most likely within FERC) will speed the process. Putting knowledgeable experts at the center of the process worked well at our DOT, and I suspect it is the winning formula for other circumstances.
The balkanization of electric grids is a hard nut to crack, especially as many are heavily influenced by their privately-owned utility partners, who see it all as a zero-sum game. This is an area where a carrot and stick approach could work best. Incentives to promote cooperation and sanctions for going it alone. Sanctions could include harsher penalties for grid failures during storm or fire events. Incentives could include subsidies or tax breaks for electricity moving from one grid to another.
Building a road or a transmission line is a complex operation, in design, in environmental review, and in construction. Single silver bullet solutions rarely are effective, and sometimes can be counterproductive. Even though streamlining environmental review may take more than one approach, there is ample evidence that it is possible and worth doing. The most effective streamlining does not requiring tinkering with either NEPA or its main regulations. Things like environmental review page limits are not only ineffective, but just plain dumb. And we’re going to need better than dumb if we have any hope of adding “47,300 gigawatt-miles of new power lines by 2035.”