It has been almost a year since Senator Manchin thrust the phrase “permit reform” onto center stage, arguing that the permitting process for energy projects takes too long. Since then, the assumption that permitting causes unreasonable delays has become a cornerstone of the conversation around permit reform. Permitting has become the scapegoat for slow movement toward a clean energy transition. While everyone seems to agree that permitting takes too long, the discussion has not meaningfully evolved to ask the next questions. “How long is too long?” and “How can we speed up the system?” It turns out, the Canadian criminal justice system has grappled with just this question, and their approach offers some interesting insights.
It is easy (and popular) to blame permitting for delays. In the words of one opinion writer, “The only thing standing between us and our affordable clean energy future is a completely broken permitting process.” Journalist Robinson Meyer recently blamed permitting for delaying everything from transmission lines, to factories, to home building (ignoring that each of these permitting procedures are governed by different laws). White House advisor John Podesta characterized permitting as a bottleneck for implementing the Inflation Reduction Act, saying “We have to solve this conundrum of the length of time it takes for permitting.”
According to Ezra Klein, “the rhetoric on permitting has moved at light speed,” and yet, our understanding about delays in the permitting process has not meaningfully evolved. Each of the commentators quoted in the above paragraph referred to different permitting processes, with different sources of delays, governed by different authorities. The interconnection queue hobbles the build out of renewable projects—a problem unrelated to the National Environmental Policy Act (NEPA). And yet, the conversation about speeding up renewables often focuses on NEPA. Building permits, which have long been blamed for housing shortages, are typically issued by states or municipalities, independent of NEPA or any other federal process.
Despite these complexities, solutions that have been offered to reduce permitting delays rely on blunt, untailored remedies, like the arbitrary deadlines and page limits included in the recent NEPA reforms in the debt ceiling deal. Generic solutions like these are unlikely to yield productive solutions for two reasons. First, non-specific gripes about delay fail to distinguish between types of delays. In the past, we have written about the importance of distinguishing between productive and unproductive delays. Other types of delay also exist. Examples are staffing shortages, insufficient expertise, budget restrictions, changed project parameters, incomplete or inaccurate permit applications, and political interference. These causes are rarely identified or discussed, but understanding them would yield more productive permit reform solutions. Second, general solutions focused solely on NEPA conflate the common term “permitting” with the NEPA process. Although NEPA often acts as an umbrella statute, it does not apply to every project, and it does not cause every delay. Nevertheless, it is an easy place to start due to its ubiquity. For this reason, the rest of this post falls into the same trap by focusing primarily on delays associated with NEPA, saving for another day the distinction between types of permits, and differentiating between permitting authorities, particularly federal, state, and local.
The permit reform discussion should move beyond generic solutions and grapple with hard questions. When it comes to permitting, “how long is too long?” Where is the line between reasonable and unreasonable delays, especially when the entire institution seems to be moving too slowly? And how can we speed up the system? These questions are ones that the Canadian criminal justice system has tackled, offering an elegant strategy that could improve the permitting process.
How the Canadian criminal justice system developed deliberative standards for identifying unreasonable delays.
The Canadian Charter of Rights and Freedoms, which is roughly equivalent to the U.S. Bill of Rights, guarantees under Section 11(b) that all people accused of a criminal offense have a right “to be tried within a reasonable time.” Despite this, delays in the criminal justice system had become standard. Even simple cases dragged along at a sloth’s pace. In 2016, the Canadian Supreme Court reinvigorated the right to trial in a reasonable time with an elegant analytical approach that could be adapted to the permit reform context.
At the outset, the court distinguished between exceptional delays and institutional delays.
“Exceptional delays” are ones that are out of the ordinary. For example, a decision that should have taken less than a week was adjourned nineteen times and took eleven months. Another case that should have been straightforward was not even scheduled to begin until 2.5 years after charges were delayed. These delays, which clearly diverged from the norm, were characterized as exceptional. It was not hard to recognize that they violated the reasonableness standard.
In the context of permit reform, there are some cases like these, and they receive a high degree of anecdotal attention. Stories like Cape Wind, reinforce claims that the permitting process takes 14 years or longer. And yet, a close look at the data indicates that these cases are outliers. According to the Council on Environmental Quality, across all federal agencies only the slowest 25 percent of EISs took longer than 6 years, while the median was only 3.5 years. The fastest 25 percent took less than 2.2 years. Our research revealed a similar trend where some projects took exceptionally long at all levels of review, but the vast majority of projects were analyzed much more quickly than the prevailing discussions recognize. Identifying exceptional delays is not difficult. Case-specific inquiries can reveal trends on the causes of these delays, and that information can be used to craft reforms.
“Institutional delays” present a different, more insidious problem. The Canadian Supreme Court recognized that delays had become inherent to the system. Cases that suffered from institutional delay did not diverge from the norm—they were the norm, and the norm was too long. The problem with determining the boundary between reasonable and unreasonable in the case of institutional delays was difficult because no external standard defined reasonable. Without an objective standard, how could the courts determine whether a delay had become unreasonable? This is a question that permit reform has not yet wrestled with.
To address this challenge, in 2016, the Canadian Supreme Court crafted a clever test that, according to the prominent scholar Steve Coughlan, “has energize[d] all actors in the [criminal] justice system to try to eliminate delay.”
The Court set a presumptive ceiling of reasonable—18 months for cases tried in provincial court and thirty months for cases tried in superior court. This step is not unlike the generic deadlines included in the NEPA amendment, which allow one year for EAs and two years for EISs. However, the Court also crafted a test to distinguish between reasonable and unreasonable delays.
When faced with a claim of unreasonable delay, the court calculates the total time elapsed from the laying of the charge to the anticipated end of the trial. Then the court accounts for factors that affect the unreasonableness of the delay.
First, the court considers “defense delay.” These are periods of delay either waived by the defense or caused solely by the conduct of the defense. If the net time is above the ceiling, the delay is presumed to be unreasonable, unless the government can prove exceptional circumstances. Recognizing defense delays is a nuance that permit reform should consider. Since 2012, the BLM has tracked the time to process an Application for Permit to Drill (for oil and gas). It has also distinguished between the time spent working on the permit versus the time spent waiting for information from an operator. As the graph below shows, in every year except two, the BLM spent more time waiting than working.
When the non-partisan Government Accountability Office investigated delays in the mine permitting process, they found a similar trend. One of the most common sources of delay was submission of an application that was “incomplete or vague, which required a request for additional information before the review process could continue.” Another common source of delay was when “operator’s changed key portions of the mine plans after their initial submission.” And finally, operators occasionally “requested delays in the mine plan review process after their initial submission.” These delays, attributable to the permit applicants, are analogous to the “defense delays.” Understanding the degree to which permit applicants contribute to long decision-making timeframes is important in understanding whether permit processing times are unreasonable.
The second step is to consider whether “exceptional circumstances” exist. The government may rely on exceptional circumstances to rebut a claim of unreasonable delay. There are two types of exceptional circumstances, and the court deals with them separately. First, delays may be caused by circumstances that lie outside the government’s control because they are reasonably unforeseen or reasonably unavoidable and the Crown had no way to remedy the problem once it arose. Importantly, both elements must be met. An unforeseeable event does not justify dilatory behavior. The government must promptly seek to remedy the situation. In these circumstances, the court will deduct the time attributable to the unforeseen event from the total time elapsed. Only if that brings the total below the ceiling will the excuse be successful. The second type of exceptional circumstances may arise in “particularly complex cases.” In these cases, the judge has discretion to determine whether the complexities justified the delay.
Within the context of permit reform, recognizing exceptional circumstances would provide two benefits. First, it may shed light on causes of delay that are outside the control of the agency, such as budget cuts, a lack of staff, or waiting for information from a cooperating agency or local authority. Understanding these systemic delays is critical to designing effective reforms. Second, this transparent analysis could help develop a meaningful standard for promptly remedying a delay, even though the events causing the delay were—by definition—exceptional. In Canada, a body of caselaw has emerged defining reasonable responses to unforeseen circumstances. This transparency would reduce the ability of agencies to rely on outside factors to slow-walk unpopular projects.
The second type of exceptional delays recognizes that some projects themselves are uniquely complex and justify more deliberate attention. This is particularly true for infrastructure projects that involve multiple jurisdictions and require the collaboration of multiple authorities. It may also be true in situations where meaningful government to government consultation with tribal authorities cannot be completed within a generic timeframe. Recognizing that exceptional circumstances may affect permitting timeframes is critical to understanding whether a delay is unreasonable, and devising nuanced solutions to avoid these types of delay.
Finally, the Canadian system also recognized that some cases may encounter unreasonable delay, even if the presumptive deadline has not been surpassed. This is important in the criminal system because the median case is finished much more quickly than the presumptive deadlines. Similarly, when looking at NEPA decision-making times, our research also found that many decisions are completed much more quickly than the median. Identifying unreasonable delays that do not exceed presumptive ceilings is an important piece to eliminating institutional delays. To establish this type of unreasonable delay, the accused must show “meaningful steps that demonstrate a sustained effort to expedite the proceedings” and that the case took “markedly longer than it reasonably should have.” Rather than using presumptive timelines, the analysis relies on a more abstract concept of reasonable time. Adopting a similar standard in the context of permit reform would be valuable in ensuring that the presumptive deadlines do not inadvertently contribute to delays for simple cases.
The most obvious challenge of applying lessons from the Canadian criminal justice system to permit reform is enforcement. The Canadian example deals with the criminal justice system, and the courts provide an obvious institutional enforcement system. Creating a cause of action and allowing permit applicants to litigate unreasonable delays in the federal court system does not seem like a natural fit. And yet that is a solution that Congress has offered. Section 107(g)(3) of the NEPA amendments include a “right to petition.” This section authorizes a project sponsor to obtain a review of an alleged failure of an agency to meet a deadline by filing a written petition with a court of competent jurisdiction. If the court finds that the agency has failed to meet the deadline, the court shall issue a new schedule for the agency to act as soon as practicable, but no later than 90 days. As the courts struggle to apply this new cause of action, the analytical structure described above may offer useful standards that could be incorporated to avoid a one-size-fits-all analysis.
Jamie Pleune is an Associate Professor of Law (Research) and a member of the Law and Policy Group in the Wallace Stegner Center.
 2016 SCC 27.
 R v. Rahey,  1 SCR 588.
 R v. Godwin, 2009 SCC 26.
 This graph is found on the BLM’s website in the FY22_Oil and Gas Statistics folder as “Table 12_Time to Complete_Avg_processing_days FY2012-2022.