College of Law

Agency Action & Permitting Publications

This Permit Reform Already Works. Why Aren’t More Mining Projects Using It? (2023)

Describing permit reform measures implemented through the FAST-41 program, a pilot project designed to expedite federal permitting for complex infrastructure projects without compromising environmental standards or restricting public participation. The article explores the common causes of delay in the permitting process, with a focus on agency capacity problems at the Bureau of Land Management. It then analyzes the effectiveness of the FAST-41 program, concluding that there is qualitative and quantitative evidence that the interagency coordination provisions, shared data protocols, and strategic permitting practices facilitated by the law improve the transparency, predictability, and timeliness of the permitting process.

Written Testimony for House Committee on Natural Resources, Subcommittee on Oversight and Investigations, Hearing on May 11, 2023 Regarding Permit Reform and NEPA Implementation.

Identifying productive areas of reform that would improve permitting predictability, transparency, and timeliness. Identifying problems facing renewable energy projects that are unrelated to environmental permitting, but cause delay in project implementation.

Choosing Between Environmental Standards and a Rapid Transition to Renewable Energy Is a False Dilemma, Issue Brief published by the Roosevelt Institute (2023)

Debunking the claim that there must be a choice between progressive climate policy reform and environmental protections. Progressive climate policy reforms can be enacted without compromising environmental protections or communities’ right to engage with infrastructure projects that impact their physical and economic well-being.

Playing the Long Game: Expediting Permitting Without Compromising Protections (2022)

Responding to the argument that environmental standards must be loosened in order to mineral production sufficient to fuel the transition to a green economy, and arguing that the premise offers short term gain in exchange for long-term pain. It also poses a false dilemma by failing to distinguish between productive and unproductive causes of delay in the permitting process. The permit process creates opportunities to eliminate, reduce, or mitigate risks. These opportunities may cause short-term delays in exchange for the long-term benefit of designing a better project or avoiding environmental catastrophes. On the other hand, there are ways to improve permitting efficiency by identifying unproductive causes of delay.

Comments Submitted in Response to Request for Information to Inform Interagency Working Group on Mining Regulations, Laws & Permitting (2022)

Suggesting ways to expand mineral production and improve the timeliness and efficiency of permitting, without compromising environmental protections or exacerbating the climate and biodiversity crises.

Evidence-Based Recommendations for National Environmental Policy Act Implementation, (2021)

Reviewed approximately 40,000 environmental analyses completed by the US Forest Service pursuant to the National Environmental Policy Act. Their analysis identified factors associated with delayed decisions and informs efforts to update NEPA’s implementing regulations. Their work is detailed in Evidence-Based Recommendations for National Environmental Policy Act Implementation, which appeared in the Spring 2022 issue of the Columbia Journal of Environmental Law.

Published version:

Does NEPA Help or Harm ESA Critical Habitat Designations? An Assessment of Over 600 Critical Habitat Rules (2020)

Critical habitat designations that involved a NEPA analysis took much less time to complete than those conducted without NEPA (a mean of 597.2 days compared to 703.2 days). If this holds, it would be an important finding because it would disprove the often-repeated claim that NEPA unreasonably delays federal decision-making.

Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases (2020)

Reviewing thirteen years of federal court litigation data to quantify the number of cases filed, estimate the percentage of NEPA decisions challenged in federal court, and compare the outcome of those cases to other environmental cases in which the federal government is a defendant.

NEPA litigation represents just 0.043 percent of all civil suits filed against the federal government and just 0.5 percent of all NEPA decisions result in litigation. Environmental organizations win at higher rates than other plaintiffs. Together, these results indicate that environmental organizations are not filing frivolous NEPA claims to delay development. This is a very important finding because anecdotal evidence of the NEPA litigation burden is frequently cited to justify amending NEPA’s implementing regulations.

Debunking the Myths Behind the NEPA Review Process, refuting anecdotal arguments for changing NEPA’s implementing regulations. (2020)

NEPA at 50—An Analysis of the Data in the Courts (2020)

Summarizes the Stegner Center’s body of work on NEPA practice and litigation comments critiquing changes to NEPA regulations on behalf of 95 law professor

NEPA and the Energy Policy Act of 2005 Statutory Categorical Exclusions: What are the Environmental Costs of Expedited Oil and Gas Development? (2017)

Compares impact reductions under three levels of NEPA review, concluding that EISs are more effective at minimizing impacts than less rigorous environmental assessments or categorical exclusions.

NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning and NEPA in the Mountain West, (2016)

Reviewing Environmental Impact Statements completed in conjunction with Resource Management Plan Revisions conducted by the BLM between 2004 and 2014, and finding that RMP revisions increased application of more protective use stipulations by statistically significant amounts without causing a statistically significant change in either the number of jobs created or the pace of oil and gas development.

NEPA--Substantive Effectiveness Under a Procedural Mandate: Assessment of Oil and Gas EISs in the Mountain West (2016)

Empirically evaluating whether EISs for oil and natural gas field development projects lead to a significant reduction in environmental impacts. Based on a statistical analysis of projects within a four-state region, EIS preparation appears to produce final decisions that are substantially less impactive on the environment when compared to initially proposed projects.