In the clash between the competing pro-petroleum and pro-climate visions of the economy, few policy issues are as misunderstood and complicated as our nation’s environmental permitting systems.
The number of permitting actions is enormous.
During a single presidential term, approximately 1.5 million permitting, informal review, and consultation processes are overseen under just five environmental and historic preservation laws. Many of these cover minor actions that would never have required permits in the 1970s and 1980s.
Consider the National Environmental Policy Act. Roughly 400,000 “categorical exclusions” are processed under this law each presidential term, compared to about 1,000 major reviews called “environmental impact statements.” An exclusion isn’t an absence of review; instead, it is akin to a simpler kind of permit. There are categorical exclusions to cover summer picnics by federal agencies, a 90- to 120-day exclusion process for a loan to replace powerlines across North Dakota wheat fields, or exclusions for every Agriculture Department grant to a farmer. Most exclusions involve minimal staff hours and are completed in weeks to months, making it hard to object to any one review. But collectively, their issuance requires hundreds of staff and millions of days of project delays.
Over four years, about a million similar, small permit processes will run their course under the Endangered Species Act, Clean Water Act, Clean Air Act and especially the National Historic Preservation Act.
Yet almost all the attention on reform has focused on the small number of “big” permits.
For example, President Biden’s permitting team reported cutting 25 percent off the average processing time for those 1,000 major environmental impact statements, compared to the first Trump administration, whose permits were also faster than the administration of Obama.
On big permits, Democratic administrations have favored adding staff to write and review documents. That strategy works, but it can be hard to maintain, particularly if agency budgets get cut. And most of the laborious steps to finish an impact statement remained unchanged, with some becoming more expansive.
Republicans tend to favor the wholesale elimination of major permits — at least for fossil fuel infrastructure — and cutting staff. That pattern showed up across President Trump’s executive orders. If maintained by courts and Congress, those orders would eliminate some National Environmental Policy Act regulations and skip most requirements to protect clean water and endangered wildlife by calling permit issuance an emergency. Democrats are increasingly flirting with exemptions for different categories of projects — wind and solar instead of oil and gas, for example.
A problem with taking away major permits is that they often have very significant impacts on things that communities in both red and blue states value. Permit reviews can produce much less harmful outcomes.
Addressing the millions of smaller permits is a missed opportunity with fewer downsides.
First, we should entirely eliminate thousands of small permits by defining the actions they cover as not “major federal actions” — the original, intended scope of the National Environmental Policy Act. For instance, a provision in proposed permitting legislation redefines all grants and loans this way. This change would benefit thousands of towns, cities, nonprofits and businesses that receive federal funding and wouldn’t affect public input because few categorical exclusions ever involve the public in the first place.
Second, we can improve remaining small permit processes by expanding reforms that have proven successful in dramatically accelerating timelines and reducing workload while still avoiding or compensating for harms caused by projects.
For example, government agencies are increasingly using technology-based ‘dashboards’ that allow anyone to track the status of an application and exactly which staff are reviewing it. Virginia has achieved the greatest success with this technology, alongside procedural reforms, delivering an expected 70 percent reduction in application review times for 200,000 state decisions over four years. The Department of Energy is piloting AI technologies that could allow more than 80 percent of small permit documents to be machine written.
Self-permitting under general permits is another promising reform. Projects that agree to use what are effectively common-sense best practices to avoid harm are automatically approved if they submit the paperwork that proves those practices will be followed. General permits exist under clean water and wildlife laws, although the paperwork required to get these automatic approvals could still be significantly reduced.
Offsets — which are opportunities to compensate for unavoidable environmental impacts — also help. Having a supply of pre-approved beneficial offsets has sped up some Clean Water Act permitting by 50 percent. We can’t build everything Americans want without having any environmental effect, and having offsets available allows unavoidable harm to be balanced with benefits to similar environmental features nearby.
The most important change needed to improve or eliminate millions of small procedures is a culture shift among both permitting agencies and permit applicants. Many government staff are dedicated public servants, but some view institutional caution as a mission and environmental permitting as a battleground instead of an opportunity to problem-solve with constituents.
On the other side, many applicants blame agencies when they themselves have submitted flawed or incomplete applications, proposed unreasonable projects, or rejected the idea of regulatory oversight, failing to respect the reality that most Americans want to unlock growth while also stewarding the environment.
Making a million small processes more agile, responsive and effective is a key step toward a government that strikes these balances, and that serves the needs of all Americans.
Timothy Male is the executive director of the nonprofit Environmental Policy Innovation Center. Dave Owen is an environmental law expert at UC Law San Francisco, specializing in water, land use and administrative law.
