Combatting climate change will entail a monumental effort by any measure. Within the electric utility sector, the necessary scale and speed for deploying new renewable generation will be unprecedented. Over the past few years, increasing attention has gravitated toward obstacles associated with environmental reviews under the National Environmental Policy Act (NEPA), and permitting under a variety of natural resource statutes, most notably the Endangered Species Act (ESA) and the Clean Water Act (CWA). Environmental laws are viewed not as vehicles for change but instead as major obstacles to it. A central concern among proponents of permitting reform is that environmentalists and other project opponents will use litigation tactics against essential green infrastructure.
This Article critically examines the case for permitting reform, focusing on the two distinct sources of concern motivating it: (1) the negative impacts of federal permitting and environmental reviews on project development; and (2) the potential for lawsuits under federal environmental laws to derail the deployment of green infrastructure. This Article’s central objective is to move beyond the prevailing anecdotal evidence by providing representative data that illuminate how federal permitting and environmental reviews are conducted. The national data reveal that most projects were subject to streamlined procedures or avoided federal regulation altogether. The Article concludes that neither placing broad limits on citizen suits nor weakening the procedures and protections of federal environmental laws is necessary to meet the needs of the climate crisis. Instead, reforms should be targeted and center on the specific problems highlighted in this study.
