NAM: Litigation Surge Highlights Need for NEPA Permitting Reform
Breakthrough Institute report details the increasing number of National Environmental Policy Act (NEPA) legal cases
A recent study by the Breakthrough Institute has shed light on a troubling trend: National Environmental Policy Act (NEPA) litigation is on the rise, threatening to derail critical energy and infrastructure projects across the country. The research underscores the urgent need for permitting reform to streamline the environmental review process and ensure America can compete on the global stage, a point repeatedly emphasized by the National Association of Manufacturers (NAM).
The Breakthrough Institute's report, "Understanding NEPA Litigation," reveals that NEPA's complex requirements for major infrastructure projects and federal activities have spawned a surge in lawsuits in recent years. Between 2013 and 2022, circuit courts heard an average of 39 NEPA appeals cases annually, marking a 56% increase from the 2001-2015 period. Despite this onslaught, federal agencies emerged victorious in approximately 80% of these cases, a success rate 11% higher than in the early 2000s.
Non-governmental organizations were the driving force behind the majority of NEPA-related challenges, initiating 72% of all lawsuits. Energy projects were the second most common target of litigation, accounting for 29% of cases, trailing only public land management projects at 37%. The NAM has repeatedly sounded the alarm about the threat this trend poses to the nation's ability to invest in critical energy infrastructure.
The impact of this litigation goes beyond mere numbers. The average time between the publication of an environmental impact statement or assessment and the resolution of appellate-level legal challenges stretched to 4.2 years, highlighting the significant delays and uncertainty NEPA lawsuits inject into the permitting process. This protracted timeline undermines the certainty manufacturers need to invest in projects that will power America's future.
The National Association of Manufacturers has been a vocal advocate for NEPA reform, recognizing the threat that protracted environmental reviews pose to U.S. competitiveness. While the NAM supported the modest reforms included in last summer's debt-ceiling deal, the organization believes more must be done to provide the streamlined permitting process manufacturers need to invest in energy and infrastructure.
In April, the Biden administration finalized a rule aimed at easing NEPA's lengthy and complex environmental review processes. However, the NAM argued the changes fell short of what is needed to bolster U.S. competitiveness. The organization has repeatedly called for comprehensive reforms to NEPA to prevent the kind of legal gridlock highlighted in the Breakthrough Institute's study.
NAM President and CEO Jay Timmons has testified before Congress on the urgent need for permitting reform, emphasizing that it is about ensuring America, a democracy rooted in free enterprise, is not outpaced by nations that do not share its values.
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