Time to tame the NEPA litigation ‘chaos’ that stalls projects: report

Experts have long agreed that excessive litigation targeting the federal permitting process is a choke point for major infrastructure projects, and a new report from the Breakthrough Institute dives deep into the data to highlight the costly, time-consuming and often unsuccessful impact of National Environmental Policy Act litigation.

“The Procedural Hangover: How NEPA Litigation Obstructs Critical Projects” finds that the median project in its dataset spent one year and 7 months in litigation, with 7% spending more than six years. The data show that only 26% of the lawsuits resulted in a finding that a federal agency had violated the law. NEPA litigation is also primarily used by nonprofit environmental groups, who acted as plaintiffs in 75% of all court-issued judgments, the group found. Just 10 organizations were responsible for 35% of all cases.

“Even when agencies ultimately win in court, the process itself can impose crippling delays, inflate costs, deter investment, and, in some cases, prevent vital infrastructure projects from ever coming to fruition,” the report said.

The Berkeley, California-based environmental research think tank in 2024 published an analysis of 387 NEPA cases brought to U.S. appellate courts between 2013 and 2022. Its latest report, released in July, expands the analysis to 1,400 NEPA cases subjected to litigation in district courts between 2013 and 2022. 

“There are three times more [legal actions] at the district level, and our thought was that if we widened from the appellate level to the district level, the likelihood is that the pattern would continue,” said Elizabeth McCarthy, a climate and energy analyst at the Breakthrough Institute and one of the report’s authors. “And this is still just a subset of all the litigation under NEPA,” McCarthy said.

The report comes as the issue of streamlining the 56-year-old federal permitting law has gained support from lawmakers on both sides of the aisle who agree that the process takes too long. McKenzie and Company has estimated that $1.1 trillion to $1.5 trillion of infrastructure capital expenditure are currently in federal permitting, “costing stakeholders billions of dollars in lost revenue and withholding project benefits, including increased GDP, increased power generation capacity, lower carbon emissions, and opportunities for public transit.”

Efforts to streamline NEPA have gained momentum in recent months. The Trump administration in January removed the Council on Environmental Quality’s power to issue regulations and required agency-specific NEPA regulations and procedures to prioritize efficiency and certainty. 

California Democrat Sen. Scott Peters has introduced a bill that would digitize the permitting process and create a central repository for NEPA litigation results, which would address one of the reasons it’s difficult to illustrate the impact of NEPA litigation, according to McCarthy.

In the House, Rep. Jerald Golden, D-Maine, and Rep. Bruce Westerman, R-Ark., have introduced the Standardizing Permitting and Expediting Economic Development, or SPEED Act, to “return the law to its intended purpose as a procedural statute for assessing the environmental impact of federal actions.”

“It’s one of the most clearly bipartisan issues that you see right now with most of the problems coming from the far left and the far right,” McCarthy said. The administration’s efforts to revamp NEPA will likely spark lawsuits from large environmental groups who want to preserve the status quo, she added.

The future of NEPA is also in flux as a result of the closely followed so-called Seven Counties opinion in May from the U.S. Supreme Court that ruled in favor of that ruled in favor of a bond-financed Utah railway that had been sued by environmental groups. The case is widely expected to set limits on what federal agencies need to consider when approving a project, although McCarthy said it’s too soon to see how the lower courts will interpret the decision.

The Breakthrough Institute proposes a number of recommendations to address the excessive litigation, including making unsuccessful lawsuits more costly for plaintiffs, creating a court solely for NEPA actions, and shortening the window for judicial review.

The institute now is focused on crafting its ideal version of NEPA that doesn’t just eliminate the law, McCarthy said.

“A lot of the reform, especially from the right, just destroys the statute,” she said. “We think it’s still important for there to be a check for federal agencies, but it could be significantly streamlined, which would actually help facilitate development instead of obstruct it.”