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National Environmental Policy Act litigation has increased significantly in recent years, according to a recent study, highlighting the need for permitting reform for energy and other infrastructure projects.

What’s going on: In “Understanding NEPA Litigation,” released last week, environmental research center the Breakthrough Institute found that “NEPA creates significant and complex requirements for all major infrastructure projects and federal activities affecting the environment.”

Key findings: The federal regulatory onslaught of recent years has been mirrored by an increase in NEPA appeals cases, with federal agencies winning the vast majority of the suits. The analysis found the following:

• Between 2013 and 2022, circuit courts heard approximately 39 NEPA appeals cases annually, a 56% increase from the 2001-to-2015 rate. 
• Agencies won approximately 80% of these cases from 2013 to 2022, 11% more than from 2001 to 2004.
• Nongovernmental organizations instigated 72% of all NEPA-related challenges.
• Energy projects were the second most common litigation subject (29%) after public land management projects (37%).
• The average length of time between the publication of an environmental impact statement or environmental assessment and the end of the appellate-level legal challenge is 4.2 years.

NAM in action: At the end of April, the Biden administration finalized a rule intended to ease the lengthy, complex environmental review processes that federal agencies undertake under NEPA—but it fell far short of “providing the streamlined permitting process manufacturers need to advance U.S. competitiveness,” the NAM said at the time.

• The NAM—which supported the modest NEPA reforms contained in last summer’s debt-ceiling deal—has been at the forefront of the effort to secure reforms that will bolster energy and infrastructure investment.
• NAM President and CEO Jay Timmons told Congress in testimony last year that permitting “[r]eform is about … ensuring that this country—a democracy rooted in free enterprise—isn’t outpaced or outflanked or overtaken by nations that don’t share our values, don’t respect the environment or don’t recognize the dignity of human rights.”