Last month, Senator Joe Manchin proposed speeding up the permitting process for energy infrastructure by limiting the number of legal challenges projects can face and setting time limits on how long a project can languish in limbo, waiting for approval. As my colleague Rob Meyer wrote, these reforms would “likely make it easier, faster, and cheaper to build the kind of major new transmission lines that climate change requires.” But they would also “come at a cost for environmentalists: The bill may authorize some fossil-fuel projects”—in fact, Manchin included a provision requiring approval of a natural-gas pipeline in West Virginia—and “make it harder for green groups to block new infrastructure projects in court.”
Environmentalists weren’t willing to stomach that cost: Manchin declared defeat after an uprising from progressive Democrats and reticence from Republican senators. Manchin’s loss was hardly a win for the climate, however. The demise of permitting reform reveals that many people within the environmentalist movement are undermining the nation’s emissions goals in the name of localism and community input.
“Our country has a history of understanding that there’s going to be some sluggishness in a democracy. If we give people the ability to access the courts, if you give people the ability to stand up and speak their piece, that quite naturally leads to some delay—and I’m not going to compromise that for anything, quite frankly,” Representative Don McEachin, a Democratic opponent of the Manchin proposal and one of the environmental-justice-advocacy network’s top congressional allies, told me.
Of course, Democrats should not trade away anyone’s civil rights in the name of efficiency, but that’s a false dichotomy. Community-input processes are undemocratic by nature. And the cost of delay is immense. According to Jesse Jenkins, an engineering professor at Princeton, the U.S. will miss out on more than 80 percent of the recent climate bill’s potential emissions reductions if we can’t build out transmission lines quickly.
The aforementioned “green groups” empowered at the expense of permitting reform aren’t just national organizations; they’re grouchy people with time on their hands in communities large and small. And they’re not just blocking fossil-fuel infrastructure; they’re blocking everything.
Their weapon of choice is often the National Environmental Policy Act and its state equivalents, which require developers to issue environmental-impact statements prior to any large-scale project. These reports have become behemoths, averaging 1,600 pages and taking years to complete. (Developers for small projects don’t have to complete the onerous EIS, but even the less taxing analyses can take hundreds of days if not more than a year to complete.) NEPA also provides legal grounds for private actors to sue to block projects they consider harmful.
Delays run up the cost of vital infrastructure and exert something like a chilling effect on new projects, as developers may not want to contend with the expensive legal battles that lie ahead. These laws have been used to stymie wind farms in Nantucket (residents dubiously claim that offshore wind kills whales), Martha’s Vineyard (the owner of the solar company that opposes the project lives near the proposed site part-time), and dozens of other purportedly progressive communities across the country.
Key to understanding the undemocratic nature of “community participation” is defining who is actually meant by “community.” First, the types of people who have the time and money to sue developers under federal environmental statutes are not representative of the broader community. Second, the costs of construction (noise, a disrupted view) are localized, whereas the benefits of renewable energy are large and diffuse. That means if the process for green-lighting a project prioritizes local voices, it will miss a much larger piece of the picture: all of the millions of people who will benefit from a greener future. The environmental-justice movement’s response to this problem has been to propose expanding opportunities for litigation for marginalized communities. But research has shown that even when community leaders reduce the barriers to entry, input meetings remain just as unrepresentative as before.
Anyone who spends time talking with renewable-energy developers knows that NIMBY-ism—people opposing new projects not in principle, but in their backyard—is a major barrier to building a clean-energy economy. And the permitting process creates ample opportunity for localized unhappiness to turn into legal or procedural barriers.
Environmental-justice groups and two of their strongest allies in Congress—Representatives Raúl Grijalva, the chair of the House Natural Resources Committee, and McEachin—reject the notion that permitting reform is necessary to combat climate change. In my conversations with them, a familiar contradiction arose: awareness of the need to speed up the permitting process married to staunch opposition to infringing on community-input processes.
Grijalva argued that criticisms of NEPA were “talking point[s] by industry and those speaking on behalf of industry, whether they’re elected officials or not.” McEachin said, “I want to push back against this notion that NEPA leads to lawsuits and, second of all, that lawsuits are per se bad … I have every confidence that our court system will do the right thing at the end of the day.”
I struggle to reconcile these positions with the reality that NEPA and similar state-level laws have delayed congestion pricing in New York City and solar power in the Nevada desert, forced Seattle to draft an 8,000-page environmental-impact statement for a light-rail project, stopped a rezoning effort in Minneapolis aimed in part at reversing segregation … I could go on for days.
Grijalva pushed back against this reasoning, claiming that only “1 percent ends up in litigation; 1 percent ends up in controversy.” His staff told me he was referring to a 2019 study that reviewed 13 years of NEPA-litigation data and found that just “one in 450 NEPA decisions were litigated,” and that increased time spent on an environmental-impact statement correlated with a reduced likelihood of a court challenge.
But this argument doesn’t consider the way NEPA preemptively chills development or the fact that the delays themselves are costly. The economist Eli Dourado has studied NEPA’s failures for years, and he is skeptical that thoroughness and time spent should be read as a policy success: “If every review were done so thoroughly that it took 100 years to complete and the resulting lawsuit rate were zero, that would be a failure, not a success.” The problem is “the threat of litigation continuously increases the burden of NEPA review, rendering our agencies unable to make speedy decisions even in cases where it is obvious there is no significant environmental impact,” Dourado told me.
Dourado also pointed to the aforementioned case of a solar company suing to block a wind project. Even if the case is decided in the defendant’s favor, it has raised the cost of producing renewable energy—to everyone’s detriment. Evidence also exists that public officials try to avoid conflict with neighborhood groups by selecting suboptimal places to site mass-transit and renewable-energy infrastructure.
Some may assume that community input will primarily hamper the construction of new oil pipelines or some such. That’s not the case, though. According to the R Street Institute, 20 of the 31 energy proposals on the federal government’s permitting dashboard are for renewable projects, another five are for electricity transmission, and just six involve fossil fuels (two were for liquefied natural-gas facilities, two for interstate natural-gas pipelines, one for offshore oil and gas, and one for replacing an existing pipeline). In 2022, making it harder to build disproportionately harms renewable-energy infrastructure.
During the Great Recession, President Barack Obama promised that the American Recovery and Reinvestment Act would kick off a series of “shovel-ready projects.” Later, he admitted that there was “no such thing.” The president’s signature infrastructure and economic-recovery act would end up being bogged down in more than 192,705 NEPA reviews. Now President Joe Biden’s signature legislation may suffer the same fate.
Although many Americans associate small-government activism with Republicans, the American left embraced participatory democracy in the 1960s. The leftist group Students for a Democratic Society outlined this commitment in the Port Huron Statement: “As a social system we seek the establishment of a democracy of individual participation.”
As this ideology spread, its champions focused on democratic participation not as a means to an end (such as to get specific policies passed), but as “an essential constituent of self-realization, whatever decisions are collectively arrived at,” Louis Menand argued last year in The New Yorker. I heard this emphasis on process in a conversation with Anthony Rogers-Wright, the director of environmental justice at New York Lawyers for the Public Interest. Permitting reform “is not speeding up projects as much as taking away the ability for all communities, but especially environmental-justice communities, from self-determination and using the courts as a way to get relief if a project is found to be harmful,” he told me. In our conversation, Rogers-Wright pushed against an outcome-focused approach, saying, “We simply cannot replace Big Oil with Big Renewable.” He repeatedly stressed that community-input processes would empower groups often left out of politics.
“A local community is going to know what is best for them and what is not best for them better than any lawmaker in Albany—for that matter, certainly any lawmaker who’s in the District of Columbia,” Rogers-Wright said. When I referred to this comment later, he laughed: “I know, I sound like a Republican, don’t I?”
Actually, this is what a Democrat sounds like. And that’s the problem.