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U law professor Jamie Pleune testifies on permitting process

A congressional subcommittee turned to Jamie Pleune, an associate professor in the S.J. Quinney College of Law, for expert insights as members considered reforms to the permitting process for projects with potential environmental impacts.

Pleune, also a member of the Wallace Stegner Center Law and Policy Program, testified in May before the House Natural Resources Subcommittee on Oversight and Investigations about research she and colleagues conducted on National Environmental Policy Act (NEPA) decisions. The hearing’s focus was related to NEPA reforms included in debt ceiling legislation.

“It felt like an honor to be able to have our research facilitate informed decision making,” Pleune said. “Often, we as researchers do all this work and in your heart you know that it’s important, but sometimes it feels really hard to get it noticed or that it’s contributing to the larger good, which is really our goal. And, in this case, it felt like I was there representing a body of work that the Stegner Center developed over the past six years and in a moment when Congress was going to be making a really important decision about how to structure permit reform.”

Pleune testified as Congress was considering the Fiscal Responsibility Act of 2023, which raised the debt ceiling and included amendments to NEPA, among other things. The act was signed into law on June 3, 2023.

“The final version of the act’s sections related to NEPA did not include some of the more draconian measures that would have really reduced the rigor of analysis and the scope of environmental review,” Pleune said. “I can’t say it’s a one-to-one cause and effect, but we heard second- and third-hand that the conversation during the hearing changed the ‘scope of the conversation,’ so it did feel like sharing our research made an impact.”

What is NEPA?

Although NEPA affects many federal actions, it often gets attention on complex projects like roadways, transmission lines, mine permits and renewable energy projects. These projects typically implicate a variety of legal standards and permitting authorities, each focused on protecting different resources such as clean air, clean water, endangered species and cultural resources. The NEPA process often acts as an umbrella statute coordinating these disparate legal requirements.

Actions with significant environmental impacts require comprehensive disclosures and rigorous analysis, referred to as Environmental Impact Statements (EISs). Projects with well-understood or insignificant impacts undergo expedited review, referred to as Categorical Exclusions (CEs). Projects with uncertain impacts have a medium level of disclosure, referred to as Environmental Assessments (EAs).

The NEPA process is not one-size-fits-all. Simple projects have simple procedures and complex projects with significant consequences undergo rigorous analysis. Despite the tailored nature of NEPA’s requirements, almost all discussion and research about the NEPA process focus on the time to complete an EIS, a comparatively rare, rigorous analysis that accounts for an estimated 1% of all federal projects.

Research findings on NEPA decisions

In her testimony, Pleune shared findings of an analysis of 41,000 NEPA decisions the U.S. Forest Service made over a 16-year period, one of the most comprehensive investigations into the NEPA process ever undertaken—and one of the first to focus on the more common lower-level reviews.

Jamie Pleune testified during a hearing on the NEPA permitting process.

Pleune and colleagues John Ruple, a U law professor, and Erik Heiny, a mathematics professor at Utah Valley University, found the median time to complete an EIS was 2.8 years. The median time for an EA was was 1.2 years and only four months for a CE, the truncated analysis.

“The evidence-based timeframes are dramatically shorter than the anecdotal timeframes that are often cited,” Pleune told the committee.

Within the Forest Service, which conducts more EIS reviews than any other federal agency, this form of review comprised just 2% of all decisions. The team found delays were not necessarily tied to a project’s level of analysis; some EISs were completed quickly, which some CEs encountered significant delays. If analytical rigor were the cause of delay, this variation would be unlikely, Pleune said.

The NEPA process is often inaccurately blamed for a slow and delayed permitting process, Pleune said, when the center’s research indicates that other factors are responsible for delaying most projects. Among them: a lack of agency capacity due to staff shortages or applicable expertise; delays in receiving information from the permit requester; and the need to comply with other laws and coordinate with other agencies.

These factors surfaced in the Forest Service analysis as well as several government studies investigating the mine permitting process, the earliest of which was  conducted in 1999.

“The consistency of these findings across time, agencies and practice constitute reliable evidence as to the real causes of delay in permit processing,” Pleune said. “We can improve permit processing times by bolstering agency capacity, fostering early communication with permit applicants and improving permit coordination.”

Big impact solutions to improve permitting process

Pleune said addressing staffing shortages would have the greatest impact in avoiding permitting delays. A 2014 investigation by the Office of Inspector General found, for example, wide variation across BLM offices in processing oil and gas well permits. It attributed the variation and significant delay in some field offices largely to staffing shortages.

The staffing shortage at the BLM was exacerbated in 2020 when its headquarters was moved from Washington, D.C., to Grand Junction, Colo., Pleune said. At the time, there were 132 vacant headquarter positions out of 311 positions. An additional 81 staff left the agency when it relocated—impacting not only capacity but expertise.

“The BLM is not alone,” Pleune said in written testimony. “Multiple agencies with permitting or infrastructure responsibilities are short staffed and underfunded.”

With adequate staff, agencies would be able to engage in pre-application meetings with entities seeking permit approvals, ensuring better and more complete submissions at the start of the process. Stakeholders, including other agencies and affected communities, also could be brought into the process sooner, reducing delays as the project progresses by addressing potential problems, concerns and sensitivities at the design phase.

“Early stakeholder engagement creates an opportunity to identify, avoid and mitigate harms at the most cost-effective phase of a project’s lifecycle,” Pleune said in her written remarks.

Pleune said encouraging coordination between permitting authorities would streamline the permitting process — allowing data sharing, collaboration and approval sequencing—and make it more predictable.

“These reforms are not easily encapsulated in a pithy soundbite, but they do address the true causes of delay in permitting without compromising environmental or safety standards,” Pleune said.