America’s electrical grid is in dire need of attention. Energy demand is surging. America needs more baseload power generation to lead the world in AI and other emerging technologies. A report produced by the Lawrence Berkeley National Laboratory estimates that data center load growth has tripled over the past decade and is projected double or triple by 2028.
Recognizing this landscape, energy policy experts on both sides of the political spectrum agree on at least one thing - the need for permitting reform. The American people cannot continue to wait years for agency approvals so that much needed pipelines, electric transmission lines, and energy infrastructure can be built. Congress can and must act now to clean up the permitting morass that has hindered the energy sector for decades.
Here's why.
Time is money. And the longer the time period needed for permit approval, the greater the likelihood that a project will be saddled with increased costs. According to a recent White House Council on Environmental Quality report, from the time period January 2019 to December 2024, across all federal agencies, the median time to complete an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) was 2.8 years. The report further noted this was an improvement from the 2010 to 2018 time frame when the median time was 3.2 years.
One noteworthy example of hindrances to critical infrastructure expansion is the Mountain Valley Pipeline. That project received approval from the Federal Energy Regulatory Commission (FERC) to commence service on June 11, 2024, nearly nine years after the initial application was filed on October 23, 2015. It took legislative language specifically approving all permits before the project could begin operation.
So, what can Congress do to reform the permitting process?
First, Congress must recognize the endeavor needs to focus on getting the permitting logistics corrected instead of passing an all-encompassing energy bill that looks more like an “omnibus energy Christmas tree” than a procedural reform bill. Congress should set reasonable timelines for agencies to complete their permit review processes so that clarity and consistency is the approach across the federal government.
There are any number of actions that could improve the agency review process. With respect to any review under NEPA, Congress could direct that agencies set certain limits on the scope and ability to appeal an agency Record of Decision (ROD). Congress could direct all federal agencies to include in any draft EIS notice an additional notice that if comments and objections are not filed within the comment period, those objections would be considered forfeited, not grounds for judicial review, and that only those persons or entities filing comments would be eligible to appeal the agency’s ROD under NEPA.
Congress could amend the Administrative Procedure Act (APA) to the extent that changes to that law can further the goals of permitting reform. Perhaps no other statute has as much relevance for how agencies operate than the APA. This is because the law directs the manner in which all federal agencies must promulgate their regulations. It stands to reason that if the goal is to “reform” the manner in which agencies process their permits – regulatory documents outlining how an entity is to lawfully operate - the procedure to “reform” those permitting processes may very well be through the APA. Enacted in 1946 when telephones were state of the art, the last time the statute was amended was in 1996. Perhaps a close look at that law is merited during permitting reform discussions.
Regardless of the action it takes, Congress needs to stay laser focused on the task of untangling the permitting mess so that our nation can be on track to unleash energy abundance to meet our growing energy needs.
Faith Burns is a Fellow for Energy Policy at Americans for Prosperity.
